The Back of the Envelope (a blog)

Not Legal Advice, 4/28/20 – With Kik and Telegram Cases, the SEC Tries to Kill the SAFT

Check it out over on CoinDesk.

I should add:

A warning to those who would abolish the bar exam, from a dual-admitted U.K./U.S. lawyer

Utah has done the unthinkable: it has cancelled its bar exam and decided to admit future lawyers, for one year only, on the basis of diploma privilege.

I joke, but only a little. Covid-19 is the sort of force majeure scenario which justifies such a drastic course of action, although I’m sure that prospective lawyers in Utah from the law schools that benefit from the so called “diploma privilege” exemption aren’t crying themselves to sleep every night over the fact that they didn’t have to take what is, by any account, the worst thing most lawyers will ever have to do.

Which is not to say that I regret taking the exam myself. Far from it. I am glad I took the test. I felt incomplete being an American citizen and English lawyer who hadn’t passed the test. I will remember the day I passed it (first attempt, fyi), and the day I was sworn in about 35 days later, for the rest of my life. I am particularly glad that, unlike these poor souls in Utah, I will never have to endure the asterisk: “Well let me tell you, when I was your age I remember passing the bar exam… you didn’t have to take the bar exam?… well LET ME TELL YOU…” …that every law partner in Utah will tell to the Class of 2020 for the next twenty years.

Of course, legal academics and legal education observers, who love to talk and thinkpiece their way through life, have now begun to contemplate the implications of not holding the exam – not just this year, but permanently. I’ve seen this argument made a hundred different ways over the past ten years. Recently Law360 ran this article – Don’t Just Delay the Bar Exam, Cancel it Forever – in which an attorney wrote that

Law students go through three years of legal education (or not) and have to take exams in all the required courses (and some electives). More and more law schools are providing clinical education and courses about law practice management. And while the profession questions whether today’s law students are prepared to be lawyers, we still make them sit in a large ballroom or convention center for two or three days and answer questions about legal concepts.

Another articleIs the Bar Exam Necessary? written by Stephen Foster of Oklahoma City University, tweeted below by a law professor from Ohio State, had this to say:

From the article:

Aside from the obvious financial bias, the white paper conflates bar exams protecting the public with their version of the bar exam protecting the public. They espouse the MBE’s greatness through reliability and validity. Their argument is an objective MBE is fair, and thus the best assessment. The argument is persuasive if fairness also related to the practice of law, but unfortunately, I believe the MBE only tangentially relates to competence to practice law...

I contacted over a thousand former students and attorneys in OKC to take a simulated MBE provided by a bar review company.  Approximately 20 agreed to take the exam.  The practice experience ranged from 1 year to over 15 years.  Unsurprisingly, 0 (zero) people passed the simulated MBE according to the Oklahoma MBE cut score at the time (135).  A litigator passed the Evidence section, but no one else passed the subject they practiced the most.  ADAs and PDs failed the Crim Law section.  Transaction attorneys failed Contracts.  As attorneys’ experience increased, MBE scores decreased.  I had Superlawyers, local award winners, and Superlawyer Rising Stars take the test.  The results were the same for everyone.

This is a garbage argument, because (a) the bar exam does not test competence and (b) a bar test-taker’s competence to practice law the day after the exam is non-existent or very close to it.

Virtually no law student is competent to practice on the day they leave school, or even on the day they pass the bar exam. They have never practiced law a day in their lives; they have no idea what awaits them. Competence at law practice can only be acquired and added to through experience, “on the streets,” with actual clients and actual legal work. Law school is about teaching students the language and logic used in law practice, not practice itself.

“The criteria for admission should be competence” is therefore little more than a pretty lie we tell ourselves. We cannot make policy based on a lie, however convenient it may be.

What we really mean, and what we should say, is that the bar exam is a test of intelligence and mettle. Brilliant candidates can and do fail if they do not put in the work; the most determined candidate can and does fail if they’re just not cut out for it (one of the test takers in Connecticut in 2018 had taken, and failed, the exam something like 13 times). Nobody admits this because doing so would offend test takers, particularly those who do not pass, and law school professors, particularly those at schools with low pass rates.

“Protecting the public,” “ensuring lawyers are competent,” blah blah is all doublespeak designed to avoid stating the obvious, and uncomfortable, fact that, while all lawyers make mistakes, dumb and undisciplined lawyers have the potential to make many more mistakes than average. The exam serves as an intellectual hazing ritual which weeds out less able candidates by testing a huge battery of basic knowledge the bar has decided students must have, even if they will never use it, much like medical boards which young doctors must take.

Seeing and understanding that material easy-does-it, steady-as-she-goes, at a slow pace, as students do in law school, with the assistance of group outlines, in many cases tested by open-book or even open note(!) exams, is easy. (Most 3Ls don’t flunk out.) Having enough familiarity with the material to comprehend problem questions and compose answers on the bar exam proves the student has at least seen the material once, has mastered it, and is smart enough to recall it and form coherent thoughts about it in an immensely high-pressure situation.

(The Common Professional Examination battery of academic law exams in England, by contrast, is not open-book, is 100% essays, expects detailed knowledge of case law and takes 21 hours over 10 days rather than 12 over 2 days. It was considerably harder than U.S. law school finals and in my opinion it was somewhat harder than the Uniform Bar Exam.)

Passing the bar exam requires a lot of hard work to commit information to memory, and sufficient intelligence to be able to apply it to problem questions. I would agree with the authors above that possessing a certain number of IQ points and a willingness to work one’s ass off is not, in itself, enough to say a test-taker is competent to practice law — how could it be? — but it is a good indication of some of the basic qualities a lawyer needs to possess in order to serve a client effectively, chiefly, intelligence, the ability to process information while operating with a degree of expeditiousness, the ability to express him or herself coherently and the willingness to focus one’s efforts and work very hard to achieve a singular, arbitrary objective that a third party has set.

Lawyers, like doctors, must fuse practical competence with intellectual competence. A heart surgeon may have outstanding manual dexterity, but failure to match skill with the hands with wider medical knowledge necessary to treat the whole person – failing to demonstrate an ability to master of the basic corpus of medical knowledge required to pass the boards – should be disqualifying. So it is and should be with law.

I therefore think the bar exam is actually not so bad as its detractors portray it. This state of affairs is unfair, of course, as life is unfair. By the same token, so is the requirement that most students must complete three years of postgraduate study before being allowed to sit the bar exam; that is particularly unfair, especially for bright students from low- and middle-income backgrounds who might be in a position to just avoid all the fuss, take a bar review course and sit the exam. (We do not often hear it said by legal academics, “abolish the law schools and allow college graduates to proceed directly to the bar, because three years of life and $200,000 in federally-guaranteed student loan debt which is applied towards our salaries is unfair!”)

The question then is not “should we abolish the bar exam because it is unfair?” The question should be whether the bar exam is the least unfair or least bad option to ensure that individuals possessing the requisite intelligence and drive to be lawyers, become lawyers, so that there may be adequate competition for legal services at the same time as the public is protected and the administration of justice remains efficient.

Due to economics, “Diploma Privilege Plus” is probably less fair than the bar exam

The alternatives seem to be one of two things. “Diploma privilege,” where obtaining a law degree is on its own sufficient to practice, and “diploma privilege plus,” meaning the bar exam is waived, but students have to practice under supervision of a senior attorney for a time.

Except for a few odd jurisdictions like Wisconsin, pure diploma privilege is not practiced; in my view, nor should it be, as this takes responsibility for testing newly graduated students and puts it in the hands of the universities, which are not to be trusted seeing as their incentives are to ensure all their paying students pass. Per ATL,

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“Who does all the supervising?” ATL asks. The answer is “probably no-one,” at least in an economic depression. “Diploma Privilege Plus” will have three consequences.

1) There are those who argue the bar exam is an undue financial burden (about $1,000). Under Diplo Privilege Plus (“DPP”) The price of admission to the legal profession is the cost of three years of law school, which is much more expensive than the administration of the bar exam (for those folks who argue that the bar exam is an undue financial burden).

2) DPP requires all prospective candidates for admission to first find a lawyer willing to oversee them for a period of apprenticeship. Employment is a qualitative exercise rather than a quantitative one. The well-connected and well-educated will be first in line for those jobs, much as they are today. Except, where today being poorly-connected might result in a lower salary, under DPP being poorly-connected might mean not getting admitted at all.

3) In the worst economic crisis in living memory, DPP might make it appear superficially easier for students to pass through the gates. We cannot know what will happen in advance, but if I had to guess, I’d think that if DPP were rolled out in a depression, the number of law jobs available for prospective attorneys would fall dramatically, acting as an absolute cap of the number of attorneys that will be admitted in that year, regardless of ability.

There’s a system that works like this already. It’s called England and Wales.

As it happens, I’m one of very few Americans I know of – I know of two others – who were first admitted in England. Of the three of us I’m the only one who decided to come home and get admitted again. (It’s a lot of school.)

In England, after law school one is required to undertake a one- or two-year apprenticeship (depending on whether you’re a barrister or solicitor) before you’re admitted. If you get an apprenticeship a few years ahead of time, the firm (often) will pay for law school and give you a stipend to live on.

Not bad, right? Well, it’s a contract, and as such, it cuts both ways. During your apprenticeship, you are bound to that employer; your pay is considerably lower than that of a junior associate at a comparable firm in the United States; leave your job, and your entry into the profession will be more or less permanently denied (no-one will re-hire a trainee who quit).

For law students now thinking that “diploma privilege plus” might seem like a *great* idea, a word of caution. “Lawyers pay our law school fees! No exam, we can get straight down to work!” Sure, fine. The problem is that, unlike in the U.S., before you can get admitted you have to get a job – and get a law firm to commit to keeping you on its payroll for a fixed two year term up front – before you can practice.

Amid a worsening economic crisis it’s not hard to see why “diploma privilege plus” might be a bad idea. If you thought the bar exam was a barrier to entry, apprenticeship programs – properly, “training contracts” – are *way* worse. If the number of law students exceeds the number of places, it is a guarantee – an absolute certainty – that everyone who wants to become a lawyer won’t, even if they’re good enough, because a prerequisite to qualification is legal employment for a fixed term.

After a certain number of attempts, many people give up – law firms won’t hire someone whose degree has gone “stale.” This also means that admission tightens the supply of lawyers in response to recessions and increases the supply of lawyers in response to economic booms, in each case on a two- to three-year time delay.

The law grad/job availability ratio in the UK is something like 6:1 in any given year, 10:1 (or worse!) for barristers. I dread to think what it will look like in September 2021.

So diploma privilege may look great now. But in countries that have it plus apprenticeship, access to the profession isn’t easier. In terms of conversion of successful law graduates into actual, practising (British spelling) solicitors and barristers, it’s considerably more difficult. Which means there are significantly fewer lawyers: in the UK there are 140,000 solicitors and 13,000 (thirteen thousand) barristers on a population base of 66 million. In the U.S. there are approximately 1,338,000 lawyers – roughly 9 times as many lawyers – on a population base five times as large, all of whom have higher rights of audience (a right which, in England, is the exclusive preserve of the barristers and the occasional solicitor-advocate).

There are cultural reasons for this. But there are also economic ones, and the apprenticeship requirement is one of them. I have a number of close personal friends who tripped up on that final leg of the race to admission.

Nobody disagrees there should be a barrier to entry to the legal profession. The question is what that barrier should be. Personally, I would have preferred then, and still prefer now, having an objective, anonymously-graded test, lasting two days and costing $800, as that barrier. The “Diploma Privilege Plus” crowd would abandon that test and instead force new law grads to deal with hiring managers, work visas and the labor market in a quest to secure a two-year, underpaid, apprenticeship which they may never obtain.

No thanks.

I’m a libertarian, and I’m going to download Apple and Google’s Anti-Covid contact tracing app.

This is a short note on the mass surveillance for health purposes that’s apparently about to get rolled out in the United States courtesy of Apple and Google.

I don’t like Apple. I don’t like Google. In my view these companies have unfair and anti-competitive strangleholds over mobile app distribution. I don’t like surveillance capitalism.  I don’t like how these companies do business.

Most of my professional acquaintances don’t like any of it either.

Neither should you.

But we should all use this app anyway.

I’m cognizant that this app gives everyone the Communism willies because China has similar, non-optional, software which is fully wired into the existing state law enforcement and surveillance system. There are a couple of key, but subtle, differences between the Chinese system and proposed systems in the West that merit consideration.

First, it should be possible to design such a system to ensure that location data is not provided to anyone, including Apple, Google, and the government, as Singapore’s app does.

Second, in the United States, ever since Carpenter v. United States was decided, the government needs a search warrant before it can access cell phone location data from companies like Google and Apple. Nothing short of a ruling from SCOTUS overturning its own decision is going to change that.

Third, most libertarians I know have Facebook and Twitter accounts, meaning they’re already tracked even more than they would be with the Covid contact-tracing app (based on current proposals). If you use Twitter and you’re trying to be anonymous, chances are good that you’ve already failed. If you have the mobile apps you’ve definitely failed. You’re not a super sekrit leet crypto-anarchist h4x0r moving from one underground safehouse to another, trying to stay one step ahead of the NSA, The Matrix-style. You told the world that you exist and where it can find your IP address. You’re probably a few subpoenas away, at most, from being identified.

If you use a mobile phone, it’s particularly easy to figure out who and where you are using IP addresses and cell phone tower locations. Your phones also have unique ad tracking identifiers known as IDFAs which follow you around wherever you go. Furthermore, most people will have location services enabled anyway for apps like Google Maps or Facebook and don’t practice what we preach if it means we don’t have to miss an exit on a long road trip. Or if it means we can check in on social media at a sweet tropical location, together with a posted photograph, loaded with EXIF metadata, to make all our friends back up north jealous. Et cetera.

For 99% of us, the data we are proposing to provide to Google and Apple with this app already exists somewhere and can be obtained with a search warrant (or, for metadata, with a subpoena or 2703(d) order, which includes IP addresses and can be used to approximate one’s physical location).

Fourth, and most importantly, the American initiative is voluntary. And so long as it is voluntary I’m going to chip in.

Libertarianism isn’t about being unhelpful to other people. It isn’t even about being unhelpful to the government. It’s about ensuring people have the widest degree of choice in their actions, and minimizing coercion. It makes room for non-coercive, voluntary, collective actions in all aspects of our lives.

Right now, with virtually all businesses ordered closed and, in some cases, all persons ordered to remain indoors (the latter of which I find constitutionally questionable), we are not living in a very libertarian or voluntary state of affairs.

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I hope this fellow challenges his arrest on constitutional grounds.

I want the United States to prove to the world that we can beat this thing not because we were ordered to, but because we chose to. This requires every one of us to put in a little effort now and temporarily, voluntarily, agree to inconveniences – wearing masks, sharing information – so that we can eradicate this disease from our lands.

We need all the help we can get.

So, once this app is released, with considerable reservations, I’m still going to download it. I will do so in the hope that doing so will help my fellow citizens return to work and school, reopen churches and civic groups, and generally get back to the business of living life in the United States.

I don’t like anything about this. Once Covid-19 is beaten, I fully intend to delete the app from my phone. If I find out that Google or Apple is trying to monetize the data, I will delete the app. If the data is unlawfully shared with the government, or if the state tries to make this mandatory, I intend to enforce my rights and I am sure others will do the same.

But now, today, volunteerism is the order of the day,  just like it was when many of us placed ourselves into quarantine before being ordered to do so. It’s important that enough of us volunteer so that the app can be effective enough so that another lockdown or other government measures will be unnecessary between now and when a vaccine for this thing is found.

As a closing note, I did Pomp’s podcast this week on constitutional issues arising from Coronavirus. YT link below.

Welcome to prepping, Bitcoiners

I’m a Bitcoiner, libertarian, and somewhat of a prepper. There’s a lot of overlap between the three communities. I’m not quite sure why.

Part of it might be down to the fact that these groups tend to look upon large-scale structural features of our societies, such as central banks or sovereign debt piles, with a considerable degree of suspicion, correctly identifying that debt is itself a form of political risk reallocation and, as with all risk, increasing the amount of risk in a system makes it vulnerable to stress.

With that in mind, I think it’s OK to now say that mild prepping is no longer some loony fringe hobby. As we see that the basic, “boomer” assumption that modern, technocratic government will always have the capability to handle a crisis is wrong, we also see that individual people and companies who were prepared for this crisis were in the best position to assist with ending it. See, e.g., MyPillow, GE, and GM at the corporate level, or people who got off of the streets and went into quarantine in the first week of March on a personal level.

Companies that carried large debt loads or frittered away their cash on stock buybacks appear fragile and brittle in the face of a 12-standard-deviation demand shock. This will likely set a new baseline across our society – both in business and personally – where savings, thrift, and resiliency, even if inefficient, become higher priorities among individuals, businesses, and governments.

Comprehensive risk management is, when applied to individual life, referred to as “prepping.” The benefits of “prepping” are that when a global disaster like Covid-19 strikes, the only errands you need to run are (1) to a low-tax liquor store on the Delaware state line and (2) to one’s local Staples to pick up printer ink, rather than joining the hordes of Americans fighting over the last boxes of rigatoni and minute rice.

On a personal level, I am sure – Twitter reveals all – that many of you in the Bitcoin world are now venturing into the preparedness universe for the first time.

Neeraj is the crypto meme master. He is not a farmer. And he’s totally into this.

Then there’s his colleague, Peter:

Originally I thought Peter was a neophyte to this but I’m now advised he’s been into permaculture for awhile.

This is awesome. People are getting into self-sufficiency and people who are into self-sufficiency are starting to talk about it more.

New people should be warned, however, that there is an entire industry dedicated to prepping and, more particularly, selling you a bunch of preparedness crap that you probably don’t need. In keeping with the financial preparedness piece of the equation, you shouldn’t spend a penny more than you need.

To paraphrase the Adam Smith Institute’s Madsen Pirie, before Covid-19, prepping was considered lunacy. In the future, it is likely to be policy, at all levels of society.

It’s something I’ve tried to apply in my personal life. Here’s how I went about it.

1) Eliminate debt loads.

 The best thing you can do from a preparedness perspective is to eliminate all debt, particularly if it carries a high rate of interest. This will allow you to save and invest.

2) Preparedness is a way of life, not a line-item.

 Until recently I ran a small law firm on my own. During that time I kept my burn rate very low by, e.g., setting up shop in Connecticut rather than New York. My aim was to always have several months’ worth of opex in bank so I could survive if the phone stopped ringing for a few months.

Fortunately, that never happened. At the outset of the Covid-19 crisis, I was a little shocked to learn how narrow other businesses’ margins were. (Although admittedly when I first started working for myself I wasn’t planning for demand shocks, either.) I learned the hard way that runway is life during (a) my days as a startup founder, where survival and successfully closing venture investments was highly correlated and (b) my days after running a startup when I had to stretch out my savings while requalifying as a lawyer in the United States and unable to work.

After realizing that whatever safety net you thought you had by virtue of living in a modern, Western country was a figment of your imagination, you’re never quite the same. You cannot fix this problem with a single transaction. You have to change the way you do business. All of American society is now experiencing austerità for arguably the first time in nearly 100 years, and realizing that it, too, under certain circumstances, has no safety net.

“Money printer go brrr” may be working this time, but it can’t work forever. It is not a sound basis for society-wide risk management. I predict that, once this crisis is over and people begin getting back to work, saving rates will soar. With good reason.

3) Start small by building an EDC loadout.

De-risking is the accumulation of many small decisions rather than a few big decisions. Like stacking sats, except you’re stacking stuff.

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This is a lot of work. Don’t try to do this overnight.

You have to be cheap enough, but not too cheap. There are limits to cheapness. When I was in London during the Great Recession of 2008-09, for example, one law firm was rumored to have decided to slash costs by sending all mail via Second Class post, which was not a good idea (this decision was, apparently, swiftly reversed when the firm realized that the postal/mailbox rule in England only applies to First Class post).

Fortunately,  you don’t need a ton of gadgets and junk to be ready for most situations. You should have some tools.

I recommend that folks who are totally new to this start with only a handful of things by building what I call an everyday carry, or EDC, loadout. This includes basic stuff like hex keys, a multitool, a flashlight and spare batteries, a utility knife if laws in your jurisdiction permit (in England or NYC, for example, this would not be a smart idea), a lighter or two, maybe something for water filtration, and a small case in which to keep these things.

If you’re not accustomed to having any of these things around, after doing this, what you’ll find is that situations start coming up where before you didn’t have the right tool but, suddenly, now you do.

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My typical EDC loadout. A flashlight identical to this one is on my person at all times. The rest of this stuff is usually nearby, either in a bag or the center console of my truck.

Keeping a toolbox in your car or office is also probably a good idea. Car kits can be built out with useful, but bulkier, things that you might not want to drop into a briefcase or backpack but would want nearby, like jumper cables, 12 volt DC-AC converters, spare battery packs, and small electric air compressors. You will wind up using them at some point.

To be perfectly frank, a multitool, a good set of allen wrenches, a flashlight, and a set of jumper cables was enough to handle virtually any real-world problem I had until Covid-19. My guess is that the same will be true for you.

4) US government guidance is woefully inadequate, and purveyors of survival kits, citing that guidance, will try to rip you off.

FEMA’s official guidance states that every person in the United States should keep at least 72 hours’ worth of non-perishable food and other necessities (batteries, etc.) for themselves and their families immediately available.

By implication FEMA also says that businesses should also be prepared for 72 hours’ worth of disruption. As the current crisis shows, however, 72 hours is simply not enough to deal with crises of the scale modern Americans may expect to face. From a business perspective, if you can’t cover your expenses for more than 72 hours, you need to cut expenditures somewhere or open up a revolving liquidity facility.

From an individual perspective, your first task on your prepping journey will be to assemble these supplies. One thing you may encounter as you embark on your preparedness journey is a concept known as a “bug-out bag” which holds 72 hours’ worth of stuff and a first-aid kit. You should have one.

In online prepper circles, bug-out bags are a serious topic of conversation, because these bags are regarded as the ultimate grab-and-go survival tool you’re able to have with you at all times. I keep mine in the back of my truck. Much digital ink has been spilled over what the exact contents of these bags should be, how much they should weigh, or even what they should look like, with some adherents preferring tacticool MOLLE bags and others preferring more subtle I’m-weekending-in-the-Hamptons-nothing-to-see-here duffels.

Some companies sell luxury 72-hour bug out bags full of generic crap for $500 or more.

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Overpriced

You do not need these expensive kits. You can build them on your own, with better equipment, for a fraction of the cost and with negligible effort using sites like Amazon.com (although I always recommend going to local shops first if you possibly can). Check out sites like The Prepared or graywolfsurvival to see how the prepper OGs developed their “bare minimum” supply lists. What works for them may not work for you. Decide what works for you.

FEMA’s 72-hour guidance is, very clearly, obsolete. That doesn’t mean you shouldn’t follow that advice as an absolute bare minimum level of personal risk management.

In my opinion you should probably keep enough on hand to survive for two weeks rather than 72 hours, and you should store it in a trunk rather than a bag.

Part of “bug-out bag” theory is that it’s supposed to be something you literally grab as you’re on the way out the door, fleeing a disaster. Unless your house is literally on fire, in the United States it is unlikely that a major crisis like Covid-19 will emerge so quickly that (a) you are unable to get to a vehicle and escape and (b) you’ll have no time to retrieve some belongings. Considering that grocery store supply chains are continuing to work even in the Covid-19 crisis, if you keep a bag in your car, and a trunk in your house or apartment, chances are pretty good you’ll be ready for most disasters life throws at you short of an asteroid strike or nuclear war.

More preparedness is better than less. My personal preference is to keep a bag in the car and few weeks’ worth of stuff in the house that I’ll actually eat, so nothing is wasted and it’s possible to rotate things out well before they expire.

5) Don’t over-prepare.

FEMA’s official guidance for the Pacific Northwest is beefier than its guidance for the rest of the country, recommending that all citizens there maintain a 2-week supply of life’s necessities. This is good advice and, in my view, a good objective for most Americans to have.

This determination was informed by a  2017 disaster preparedness exercise code-named “Cascadia Rising.” Cascadia Rising simulated the outcome of an extremely large, so-called “Megathrust” earthquake off the coast of Washington and Oregon. That earthquake – the occurrence of which, like a global pandemic, is an absolute certainty on a long enough timescale – is predicted to register an almost incomprehensibly large 9.0 on the Richter scale and is expected to completely destroy most of the PNW west of I-5.

In theory, it seems sensible to just order a ton of Mountain House freeze dried food, leave it in your closet and forget about it until disaster strikes. But this is expensive, and on Day 17 of lockdown, I have to say that the ability to eat real food – meat, vegetables, fruit – is really rather nice.

With this in mind, I don’t keep a ton of stuff stored 24/7/365. That would be a waste of effort and money. Instead, in the run-up to the U.S. outbreak I implemented what I referred to as a “ramp strategy” which, rather like the collateral management in finance, ramped up the level of security I had on hand as the risk of economic collapse increased.

To do this successfully you need to make information and time your allies. As long as you are a high-information citizen, you can spot threats ahead of time, and plan accordingly. As the risk of a catastrophe in the United States increased, my preparedness levels – which, admittedly, were somewhat higher than average – rose commensurate to the danger. When Wuhan was locked down, I prepared. When Venice was locked down, I prepared some more. When the U.S. crossed 100 cases, I prepared some more. As D.C. shut down, I added the finishing touches.

The following week, as America realized the jam it was in, I was fairly annoyed with the situation but was able to follow CDC guidance, stay home, and focus on work without needing to worry if I’d be short on crackers and tea.

The lesson from the Covid-19 crisis is not to run out and buy all the canned food in the world and allow it to languish in a pantry until the next disaster strikes. The lesson is to be flexible, which means clearing your debt load, living somewhat more frugally and to focus on tooling and capabilities (being able to filter and boil water, make a fire, charge a battery, change a tire) rather than stuff. Unless you’re trying to be 24/7/365 prepared for a surprise nuclear first strike which you expect to occur in the immediate future, keeping a permanent stock of food you’ll never eat isn’t a particularly smart idea.

If you’re smart, you’ll know ahead of time what you need to survive for [n] weeks and will be able to submit some very tailored orders via online shopping to address those needs before less-informed citizens begin to swarm grocery shelves. This should minimize the investment of time and the risks of unnecessary or wasted expenditures.

6) As bad as it is, Covid-19 is probably not “the big one.” It’s also probably the worst economic crisis you’ll ever experience.

As bad as this is, it could actually be worse. Covid-19 kills anywhere between 0.2% and 1% of those it infects. Contrast this with the plague, which kills 17% of those who contract it, or H5N1 influenza, which kills 56% of those infected. Ebola and Marburg viruses kill, in some settings, north of 80% of their victims.

That said, while being on Covid-19 lockdown is likely the worst thing anyone reading this blog post will ever have to experience, it almost certainly isn’t the last crisis we will ever experience – meaning we should take the opportunity to learn from it and build up resiliency in its wake.

A resilient society requires everyone to do their part to be personally prepared, so (a) you aren’t part of the problem when a crisis breaks out and (b) you have the means to remove others from the zone of danger when a crisis breaks out, both of which limit the burden on government and your reliance on government to continue carrying on your day to day life until normality is restored.

Brittle America vs. Resilient America: on Covid-19 emergency rule and the decentralization of emergency powers

I have had time to reflect, and have reflected, on a great many things while in quarantine.

Being a lawyer is useful for a wide array of life’s little obstacles, whether those obstacles be a recalcitrant landlord or an unreasonable commercial demand.

1) Brief thoughts on life under emergency rule

So too, being a lawyer is useful while under emergency rule. I was in the Deterrence Dispensed Keybase channel the other day when a number of the participants, in response to the mandatory business closure orders being handed down by state governors in New York, New Jersey and Connecticut, began clucking that this – combined with the imminent deployment of the National Guard – meant that the country would soon be under “martial law.”

I chimed in:

“The New York Army National Guard isn’t being brought in to enforce the law and it’s still under civilian authority, chiefly, the governor. This isn’t martial law.”

“Are there troops?” A user replied.

“Yes,” I said. “But unless a general is given primary responsibility for enforcing the law and civilian law hasn’t been suspended, that’s not martial law.”

“That’s martial law,” the user repeated. This went back and forth for a bit until finally I checked out, advised anyone getting too worked up over this to sit back, try to enjoy the extra time they were about to have, and relax, because we aren’t yet living under martial law and the Constitution has not been suspended.

If you need evidence of this, look no further than the Firearms Policy Coalition’s outstanding work over the weekend challenging state bans on gun store closures as impermissible under the Second Amendment, often causing local officials to reverse course:

States that did not reverse course got sued. This is the surest sign that civilian, and not military, rule is still alive and well.

Now, over the next couple of weeks, if mathematical models are any indication, the Covid-19 epidemic in the United States is going to get bad. And by bad I mean very, very bad, ICUs without beds bad, morgues overflowing bad. This will be substantially worse than what we have seen to date, with many thousands of American lives being lost.

Politicians have been advised of this, and we have seen a number of draconian and arguably unconstitutional measures undertaken contrary to, for example, the Privileges and Immunities Clause or the Dormant Commerce Clause and the Due Process Clause of the Fifth Amendment.

The People’s Republic of Rhode Island and Providence Plantations, for example (commonly known as “Rhode Island”) is arbitrarily stopping anyone with New York plates, forcing them to provide personal information, and enforcing a quarantine:

Or see, e.g., Texas Governor Greg Abbott sealing his border with Louisiana, or Florida Governor Ron DeSantis forcing air travelers from New York or Connecticut into mandatory quarantine upon arrival in Florida.

Perhaps realizing that discrimination against New Yorkers definitely offends the Constitution, Rhode Island decided to change it up a bit and apply the rule to anyone entering Rhode Island from out of state, presumably whether they are Rhode Island citizens or not. This is less likely to offend the Constitution:

As the crisis gets worse, however, we may expect the states to behave more and more poorly – the view presumably being that an unconstitutional threat or enforcement action will save lives now, even if the state winds up having to pay damages later.

See, for example, church/synagogue/mosque closures. Closing a house of worship during a quarantine is arguably constitutional provided that the closure satisfies the strict scrutiny standard for judicial review, i.e., the closure relates to a compelling government interest (in English = absolute prerequisite to secure the very existence of a free state) and it must be narrowly tailored, i.e. no wider than necessary, to achieve that interest.

Where First Amendment concerns are implicated, the courts take a very dim view of governments which target particular viewpoints or religions with ostensibly objective but in fact are designed to target religion generally or a religion specifically (see: Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993), where a city ordinance outlawing the ritual sacrifice of animals was found to be an impermissible targeting of the Santeria religion, and struck down).

Ordering all buildings in New York closed and banning all gatherings greater than [n] people, as New York has done, is a general ordinance of general application that does not target houses of worship. For the duration of the crisis such mandates are likely constitutional.

There is a limit to state power to legislate in this area. New York, cracking under the pressure of the worst Covid-19 outbreak in the United States, is beginning to exceed it. See, e.g., this from NYC Mayor Bill de Blasio:

Constitutionally this isn’t even close. De Blasio is absolutely, 100% in the wrong. A policy that says houses of worship which violate an ordinance will be closed permanently after the crisis has passed (a) is unconstitutional targeting of religion and (b) is not narrowly tailored.

I think we may expect to see similar behavior where desperate politicians threaten unconstitutional enforcement to frighten people into compliance with quarantine orders. Don’t get me wrong, we should all be sheltering in place, staying out of the way of the public health services and letting them do their jobs. This involves not going to church. If the Pope is cool with it, the rest of us should be also.

We should not tolerate unconstitutional edicts, not even for one second, during this emergency. Nor do we have to. Organizations like the Firearms Policy Coalition are the tip of the spear. They are helping citizens enforce their constitutional rights against the government, even now during this emergency. Lawyers and law firms should be prepared to step up and do the same if we are called to do so.

2) Brief thoughts on life after emergency rule

China, the country where this disaster started, is making a very big deal out of the fact that it appears to have its own Covid-19 outbreak under control.

It is also using its apparent success to advertise its particular system of “socialism with Chinese characteristics” (yes, that is what it is called) and extend its own influence in its great power competition with America.

America can and will beat this disease, as China has. Afterwards there will need to be a reckoning with the way in which the United States dealt with the crisis and in particular, how federal agencies – the FDA and the CDC in particular – struggled to adjust themselves to the speed of the crisis and provide even the most basic approvals or equipment to the States, like approving private sector tests, permitting the repurposing of non-medical-grade, but nonetheless effective, N95 masks for medical use, or permitting private companies to decontaminate large numbers of  very badly needed masks.

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In the absence of federal guidance, individual states like Connecticut, Massachusetts and New York didn’t wait for the slow federal apparatus to save them: undertook quarantine and business closure plans on their own.

Of course, this crisis is not over. It may not be over until a widely available vaccine comes into use in ~18 months. Once it is over, there will be calls to be more like China and centralize power in new or restructured federal agencies.

This would be a mistake. As I was running earlier today (backwoods roads, very social distancing compliant) I recalled a complaint I read in the Washington Post about President Trump’s proposal to draw a cordon sanitaire around the Tri-State area of NY, NJ, and Fairfield County:

Aides spent the day warning the president against it, explaining that it would be impossible to enforce and could create more complications, the officials said, who spoke on the condition of anonymity. (Emphasis added)

Well, of course it would be impossible. As far as I know, there isn’t a single person on the pandemic response team who is from Connecticut. These people don’t know where the roads are, which ones people usually take, or frankly anything else about our state. They’re federal bureaucrats.

As I ran, I wondered whether it would be possible to establish a cordon sanitaire around my town. After considering all possible points of entry and egress and natural and man-made obstacles (rivers, ridges, freeways) I quickly realized that of course it isn’t impossible. It’s actually fairly easy to do, and could be done with perhaps two dozen volunteers, vested with the appropriate legal authority.

Of course, this legal authority is not given to towns or counties, but to the States, and the States look to the federal government for support in times of crisis. As a result, no town could decide to do this on its own, nor would it make sense to develop that local capability.

I don’t say this to suggest that a cordon sanitaire is an effective or prudent strategy for combating disease; I’m an attorney, not an epidemiologist. I say this because the federal government is visibly struggling to get this crisis under control, while town officials are on lockdown and doing virtually nothing.

When this is over and done with, corporate media and politicians in Washington will have endless debates about how to restructure FEMA, Homeland Security and the FDA to deal with the next big crisis.

This would be a mistake. What is needed is a deeply engrained resiliency at all levels of government, starting with individuals, moving up to towns and counties, moving its way up to the States, and then a small, nimble, and flexible federal apparatus that focuses on data collection and procurement assistance rather than as the sole emergency quarterback for the entire country.

The sense I get – and this is a feeling, rather than direct knowledge – is that throughout this crisis, nobody has really had any idea who, exactly, is supposed in charge. The creation of the sprawling federal bureaucracies has led the States and localities to expect that, in the event of a crisis, the sprawling bureaucracy – the cavalry – will always come riding to their rescue.

Where the crisis is everywhere, however, the cavalry is spread too thin. It never comes. Out here in rural towns with small hospitals, we do not expect the cavalry to ever arrive. We’re on our own, and we know it. We hope that our remoteness and low population density, combined with social distancing, will keep us alive.

“The Cavalry Will Never Arrive” should be the basic operating assumption of all disaster planning everywhere from now on. The result would be a more resilient America.

In a more resilient America, the City of New York would have been able to convert the Javits Center and several downtown hotels without the assistance of the State of New York, let alone requiring input from the Feds and the Army Corps of Engineers.

In a more resilient America, each town would have a dedicated volunteer team of disaster operations managers with a well-rehearsed playbook on how to secure their local area and roll out testing to their friends and neighbors.

In a more resilient America, a governor could draw a line on a map and local emergency management teams, properly equipped and empowered and possessing local knowledge, would be able to carry out those orders. The “impossible” would become possible, because we pushed down responsibility from Washington-based bureaucracies – which, for many parts of America including my own, are farther away than the nearest international boundary – to the localities that know their own terrain backwards and forwards.

In a more resilient America, without the federal bottlenecks around testing and supply shortages created by overstretched offshore supply chains for critical gear, this disaster might have played out very differently.

I should greatly prefer to live in a resilient America.