bl1y

White Barbie: $5.93

Black Barbie: $3.00

A Walmart in Louisiana is coming under fire for selling the black Theresa Barbie for about half the price as her white counter part.  The offended-by-default crowd has accused Walmart of perpetuating “ugly inequities,” but perhaps there is a non-discriminatory explanation.

A spokeswoman for Walmart said that the dolls were originally priced the same, but the black doll was placed on clearance because it wasn’t selling well, just as any other product would have been.

What’s that?  Walmart judged Theresa based not on the color of her plastic, but on the content of her market penetration?  Good for Walmart.

The legal industry has seen some similar trends.  Recession layoffs have caused law firm diversity scores to plummet.  But, just with Theresa’s discount pricing, there may be a non-discriminatory reason for minorities getting the bigger end of the recession ax.

Diversity initiatives in law school result in a number of minority students being admitted who would not have been admitted on their academic credentials alone.  If you come in to a school on the bottom of the LSAT/GPA curve, odds are you’re not as smart as the other students.  But, law firms presume that even the bottom quarter of schools like Harvard and Stanford and still exceptionally intelligent.  They recruit largely based on law school prestige, and end up with some people who don’t live up to their expectations.  When the ax drops, it’s more likely to hit someone who got into a top ranked school affirmative action than someone who got in based purely on their merits.

But wait, there’s more.  It’s called math and history.

Integration and equity are not created over night.  Giving access to legal education and big firm jobs to minorities doesn’t instantly create minority partners.  They still have to spend 3 years in school, and another 8-10 years climbing the associate ladder.  The civil rights movement didn’t go back in time 30 years and drop black students into law school. Affirmative action doesn’t find a middle aged black man who would have been a lawyer in an equal society, take him from his job as a social worker and drop him in a law firm as an equity partner.  BALSA does not have a hot tub time machine.

It takes decades to reach racial parity, even when a society is completely just, and so it stands to reason that minority lawyers are generally still in the lower seniority levels.  And, that’s where the layoff ax falls.  The vast majority of laid off attorneys are, quite naturally, associates.  Partner firings are extremely rare.

So, imagine you have a firm with 10 partners (all white) and 20 associates (10 black and 10 white).  The firm is 33% black.  Now, the recession hits and half the associates are laid off at random, leaving us with 5 black and 5 white associates.  The firm is now 25% black.  There is nothing at all discriminatory about what the firm did, but it’s diversity score card just took a major hit, and anyone who constantly wears their discrimination-tinted glasses will immediately cry foul.

First thing’s first, zoom on over to Huffington Post and check out the video of Stephen Colbert turning Sean Hannity into his bitch.

The clip is pretty standard fare for Colbert.  With some green screen technology and old clips from Hannity’s show on Fox, Colbert creates a fake interview in which he pimps out an all-to-eager Hannity.  And, as if Colbert wasn’t funny enough, here’s Ann Bartow’s take on the whole thing:

More evidence that Supposedly Liberal Dudes view women as second class citizens. The way that Colbert frames prostitution as the most degrading thing possible is creepy and sad. And anyone who thinks legalization would make any difference in the level of contempt thrown at people who sell sex should investigate similar cultural references to women in pornography.

Whaaaat?

First of all, Colbert isn’t necessarily liberal, he just has a liberal fan base.  There is little evidence of what Colbert’s political views are.  Sure, his show ridicules the right, but he always goes after the extremists and fanatics.  Plenty of people on both sides are fed up with the crazy fringe elements.  The only thing we really know is that Colbert is a devout Catholic.

Moving on, the clip does nothing to suggest women are second class citizens.  In fact, it doesn’t even mention women.  It mentions prostitutes, but in the context of gay prostitution.  Apparently to Ann Bartow prostitution is an issue which only concerns women and gay prostitutes (who face far more dangerous working conditions than women) simply don’t matter.  I guess they’re third-class citizens.

Colbert also never suggests that prostitution is the most degrading thing ever.  In fact, the idea of pimping out Sean Hannity seems to suggest that the sex industry may be a respectable way to earn your keep.

Once again, some brilliant analysis from the fine minds educating American law students.  (Ann Bartow is a professor at the University of South Carolina School of Law, where she teaches intellectual property, and is an administrator for the Feminist Law Professors Blog.)

Bridget Crawford recently posted some information on the Feminist Law Professors blog about the “intersections between feminist theory and animal law.”

What. The. Frack.

Intersectionality in feminism usually refers to the interplay of feminist theory and some other theory, such as race theory or queer theory.  Usually these make some sense.  Black women have, in general, faced different challenges than white women.  Lesbian women are treated differently than straight women.

But feminism and animals?

Sorry.  No.  “Feminism” is not a catchall phrase for every pet project the radical left has adopted.

Here it is, folks, the winner of the Send Me a Funny Story and I’ll Send You Some Spicy-Salty Snacks Contest, an entry from “Unlearned Hand.”

I’m a 3L in a fairly well known law school in the South.  On the first day of the second semester of my 1L year I had a rather bizarre run-in with a professor.

Every day on my drive to class, I had to go through a four-way stop.  On that particular day when I got to the stop another car pulled up at the same time, stopping to my right.  If I was at 6 o’clock, the other car was at 3 o’clock.  I was going to turn left, and it looked like he was going straight.  It’s been a while since I took driver’s ed, but as I recall, in this situation the person on the right has the right of way, and then the right of way progresses clockwise.

So, I look at the other car, waiting for it to go.  The driver looks back at me, and I made one of those universal hand gestures for “after you.”  He sends the same gesture back.

I absolutely hate when people do this.  When someone says “after you,” you go.  So, I make the same gesture back.  Just go, old man!

Nope, he gestures back for me to go.  What the hell?

Well, I look at the my clock and see that I’m running about 10 minutes early, I check my rear view mirror and see there’s no one behind me, and so I decide to have some fun.  I make another “after you” gesture, but then just keep going with random hand signals, like I’m telling him there’s a half-track, 15 infantry and a Tiger tank coming down the road and that he should get the check and steal second.

He gets the hint and starts to go.  Still feeling like having some fun, as soon as his car moves, I let off the brake a little.  He immediately comes to a stop and so do I.  He looks right at me, and I give him one more “after you,” and this time he doesn’t gesture back.  He pulls across the intersection, and I take a left turn behind him.

And then, after a few minutes of driving I start to calculate the odds we’re going to the same place until I see him pull into the parking lot I’m headed for, except he continues on to the reserved faculty parking lot.  Oops.

Fast forward about twenty minutes, I’m in class, sitting in my assigned seat.  The class had one of the professors who assigned seats before the first day, and his secretary had laid out a seating chart for us.  No surprise, guess who’s teaching the class.

My mind starts racing, and I try to track back through all my random hand gestures, wondering if I accidentally gave him the bird or through something else offensive in there.  I didn’t think I had, but who knows.

The professor locks eyes with me.  Oh shit.  He looks down at the seating chart for a moment and then looks back up.  Oh shit, oh shit.  I’m not even that well prepared for class.

“Mr. Seymour,” the professor says, as he starts to imitate our stop-sign encounter.  He does some chicken wing thing, then peace-sign bunny ears, and ends with making and O with his mouth and hitting his hand against it four or five times.

“Mr. Seymour, would you please turn to the first assigned case and state the facts for the class.”

Only one problem.  That wasn’t my name.

The person sitting directly in front of me starts frantically flipping through the pages of his book.  As if the Socratic method wasn’t unnerving enough, seeing the professor do whatever he just did is going to screw with any student.

“Mr. Seymour, the facts of the case, if you will,” the professor said.

“The case is on remand from the Illinois Supreme Court,” the kid in front of me started, and the professor’s face dropped, then turned beet red.

The professor never called on me that class, as his typical style was to simply work his way down whatever row he started on.  And thank God, because I was fighting to suppress my laughter any time he looked over at me.  I don’t think I could have handled being called on.

After class was over, I caught up with the kid in front of me.

“That was kinda weird, the hand gestures at the start of class,” I said.

“What was up with that?” he replied.

“Yeah…I think I may have had something to do with it,” I answered.

“You told him I’m a quarter Choctaw?  Why?  And why would he make fun of me for it?”

Congratulations, Unlearned.  Your prize is already in the mail.

For the rest of you, if you have good law school or law firm stories, feel free to submit them to nycbl1y@gmail.com, and if I like them, I’ll publish them here and send you some home made treats as thanks.  Special prizes for anything that reveals your legal education to have been a complete waste.

My 13 Sex Tips to Drive Him Away are now up on CollegeHumor.com.  But, it’s a long road to getting a featured article, so please go visit the link and click that you like it (even if you don’t).

And, as a special “plz hlp!” bribe, here’s a picture of Bar Refaeli.

You’re welcome.

It’s ICWA time again at NYU School of Law.  ICWA is the Indian Child Welfare Act, which is the main statute involved in the NYU lawyering program’s largest project of the year, a brief on a pre-trial motion along with an oral argument before a judge or attorney playing a judge.

I was reminded that it’s that time of year again when I looked at the search engine queries that have brought people to this site.  A search for “icwa nyu” is almost certainly from someone trying to find a lawyering program alumnus who has posted their old memo or other useful information.

If that’s you and you’d like some help, simply e-mail me at nycbl1y@gmail.com and I’ll be more than happy to give some advice.  I promise not to turn you in, and you can create a gmail account with a fake name if you’re worried.  It’s been a while since I did the ICWA project, but there are some things I remember learning from my judge that were incredibly important, and which my lawyering professor never mentioned or even appeared aware of.

Think this is cheating?  Meh.  Lawyering is ungraded, so your doing better does not hurt anyone else.  I’m not going to write your memo for you, I’m just going to give you tips that will help you write a better memo.  Basically, all you’re doing is learning how to be a more effective advocate, which is exactly what lawyering is supposed to teach you.

[Earlier: Check out this hilarious e-mail exchange between a lawyering teaching assistant and two students about how the class wasn't giving ICWA or lawyering the kind of respect they deserve.]

Burger King has been made the subject of a class action law suit over spam.  Not the state meat-product of Hawaii, but annoying text messages.

Elizabeth Espinal is suing Burger King after receiving text messages urging her to try BK’s Loaded Steakhouse Burger and the Mocha BK Joe Iced Coffee.  Espinal is claiming she received actual harm from the harassment.  So how many times did Burger King text her?

Three.

BK sent Espinal three texts over a 16 month period from April 2008 to August 2009, charging literally pennies to her cell phone bill.  Espinal went through the arduous task of texting “Stop” back as a reply to the first message and then made no other attempts to get BK to end it’s once-every-five-month messaging.

And now she is suing BK for a whopping $5 million.  That’s 1.6 million dollars per text message.

Espinal’s suit contends that the King violated violated Section 47 of the Telephone Consumer Protection Act, which prohibits unsolicited voice and text calls to cellular phones.  But, odds are she gave them not just her phone number but permission to send her messages, probably some online click-through agreement.  The real meat of the case will come down to whether her single request of “Stop.” is enough to invalidate any previous agreement to receive text messages.

[Earlier: Man sues over exploding McDonald's chicken sandwich, and Blimpie is sued over not having enough meat (because lawyers really just suck at math)]

The Federal Communications Commission has outlined a plan it will be submitting to Congress aimed at “using Web-based technology to drive civic engagement with the government.”

Among the FCC’s plan is the recommendation that federal court documents be made available free of charge.  These documents are currently available on the archaic PACER system, which charges users 8 cents per page viewed.  PACER has been criticized in the past for charging fees to view documents which are in the public domain.

While making access to PACER free won’t likely result in significant cost savings, it could be a sign of a trend that will reduce legal expenses.  The addition of Bloomberg Law, which competes with Lexis and West, will likely drive down research costs as firms begin hiring associates that became familiar with the new system through free trials given to law students.  And, more generally, young associates are more tech savvy than the older generation, and more likely to use free resources, such as websites maintained by administrative agencies and state courts, which are becoming increasingly easy to locate thanks to Google and Wikipedia’s references and external link sections.

Associates and partners alike need to embrace free resources and push for reduced research costs.  Sure, they pass the expense on to the client, but at the end of the day the client only has so much money to spend.  Less money being spent on research means more money can be spend on billable hours.