Saturday, September 24, 2011

National Fine Print Repository

The September 23, 2011 column by David Lazarus in the LA Times caught my attention because I believe it spoke to the question of whether there should be a government agency or private enterprise solution to the problem of confusing legalese in financial documentation as highlighted by the debate surrounding Elizabeth Warren and the Consumer Finance Protection Bureau proposed under Dodd-Frank.

The first solution described by Lazarus is a product from David Hirsh, made available through his new company, Transparency Labs. Hirsch is a Malibu, CA entrepreneur who came up with the business idea of the National Fine Print Repository (NFPR) which Lazarus calls “a sort of CliffsNotes for contracts.”  Hirsch’s employees read and summarize contracts and write explanations so clearly that they can be understood by the average person with a ninth-grade reading level education. NFPR currently has approximately 2 ,000 contracts from banks, credit card issuers, cellphone companies and retirement accounts and will soon expand to include contracts with mortgage lenders, insurance providers, travel companies and software makers. The company is expected to go live in early 2012.

Another solution is the joint effort of the AFL-CIO and the National Labor College, called NLC Invested, providing "working families … the financial basics for key moments in their lives, such as the arrival of a new baby or dealing with a foreclosed home."

Both companies are focused on providing plain English, simple and straight-forward explanations for the confusing, small print, legalese gibberish that passes today as legal disclaimers which nobody either reads or understands.

The interesting question is, “Are these tool more valuable to consumers or to corporations who are paying expensive lawyers today to conjure up this gibberish?”  Clearly, the NFPR is a valuable resource to the Consumer Financial Protection Bureau. What if the NFPR became a resource for lawyers, finally teaching them how to write plain, simple and straight-forward English explanations of legal concepts?  Talk about value!

Hearing Her Story

I had the distinct honor of attending the “welcome/inauguration” of Dean Deanell Reese Tacha as of June 1st, 2011, the new Duane and Kelly Roberts Dean and Professor of the Law at Pepperdine University School of Law (Malibu, CA).

Dean Tacha chose not to have the usual inaugural, but instead brought three of her fellow judges from the circuit court system to speak.  “Hearing Her Story: Reflections of Women Judges” was held September 23 at the Henry J. and Gloria Caruso Auditorium before over 100 faculty, students, alumni/ae and guests. Dean Tacha is a former Senior Judge of the U.S. Court of Appeals for the 10th Circuit.  Her distinguished panel Friday included The Honorable Carolyn Dineen King, Circuit Judge for the 5th Circuit; The Honorable Dorothy W. Nelson, Circuit Judge for the 9th Circuit; and The Honorable Rosemary Barkett, Circuit Judge for the 11th Circuit.

These amazing justices graduated from their law schools in 1962, 1956 and 1970, respectfully. Dean Tacha graduated in 1971.  As Justice King said, all of them are “beneficiaries of the highest aspirations of the American people” which included the Civil Rights legislation, the merit screening panels, and the recommendations of open and independently-minded leaders in law and politics. 

Their reflections included humorous tales of what it was like to be a sole woman law student in a classroom of men. One reminisced about how all the men in class “shuffled their feet noisily on the floor” in an attempt to intimidate the woman when she presented in class.  When the speaker saw one male in the audience blush in recognition, she enjoyed teasing him about his participation in the game. In an earlier interview, Dean Tacha mentioned how the women in law school were always given the rape cases to present in class. All of the women also mentioned how difficult it was to find that first law profession job after graduation.  Yet, all four dismissed the “nuances of being treated differently” and “past overt behaviors, subtle attitudes or exclusions.”  Judge King put it succinctly by saying, “I refuse to see differences.”

The fact that these women pursued careers in the law changed the profession itself.  More than one of them introduced novel legal concepts such as mediation, peaceful dispute resolution of conflict, and the development of centers for poverty and the law.  None of these concepts would have moved into the mainstream of the legal profession but for the insistence and efforts of these and like-minded women.

The women benefited from appointments by Presidents not necessarily of their own political party. President Jimmy Carter nominated two of them, President Clinton named a third, while Dean Tacha was nominated by President Ronald Reagan.  They all benefited from the mid-1970s creation of “merit screening panels” -- special nonpartisan judicial nominating commissions, consisting of lawyers and lay people, to screen applicants, based on competency criteria, for vacancies on the different courts.  When a vacancy occurs, these nominating commissions develop a list of two or three candidates judged by the panel to be the most highly qualified. They submit that list to the state or federal leader who then select from the named candidates a nominee to fill a particular vacancy. In the years these justices were nominated, the commissions were looking particularly for competent women and minority candidates.

Dean Tacha concluded the retrospective with the question of what advice the justices would give to current law students facing today’s difficult job prospects.  Their answers were not the typical “powder puff” responses we usually hear at graduations.

“No matter what you do, do it as well as you possibly can.  That is what will lead you to get recommendations and referrals.”

“Ask yourself, ‘Where can I make a difference.’”

“Learn how to run a large organization -- even if it is a nonprofit.”

“Invest in you community.”

“When I look for clerk candidates, I look to what they’ve written. Show me you know how to write. Law review. Journal articles. Research. A judge doesn’t have time to teach you how to write well.”

These women faced domineering odds in the 1970s and 1980s, yet they endured and prevailed by meeting the toughest challenges from those days. “Show me your stuff,” they were told. “Prove to me you can do this.” Again and again, they stepped over those obstacles and excelled.  For that, we are deeply indebted to them for making the law a somewhat more humanized profession.

The President of Pepperdine University, Andrew K. Benton, closed the event by thanking Dean Tacha for bringing these justices to speak to the community.  He ended by saying how proud he was of his own daughter, now a graduate of the School of Law at Pepperdine University, and how grateful he was for the pathways cut by these outstanding women justices.