Terra Extraneus

The State Bar of Texas, I guess, will publish absolutely anything. In this instance, the State Bar of Texas published a pamphlet, called it a book, and stuck in a CD to try and justify the nice cover.

Arbitration Road Map, A Guide to Clauses Procedures, and Hearings, Austin 2007, is divided into two parts. Part 1, all 38 pages of it, supposedly deals with general arbitration considerations and Part 2, all 37 pages of it, deals primarily with international arbitration. The third part of the book, pages 78 – 110, contains the appendices, which include sample arbitration clauses. The CD contains the text of the book and is searchable, but the paucity of the book is not improved on the CD.

The book contains a few good points about arbitration law and procedure, but nothing a first year associate could not gather in a day from a standing start. There is little commentary from the practitioners that are named as the authors that would be considered substantive advice from experienced arbitration counsel. I would have expected experienced Texas arbitration counsel commentators to at least be able to tell some good anecdotes, even if they were unable or unwilling to give advice about how to handle the various steps in arbitration proceedings.

While a novice or student faced with an arbitration might find a useful item or two about the arbitration process, experienced arbitration counsel would find this volume a waste of time. Further, there are simply better “road maps” and “guides” and even casebooks already available that do not insult the intelligence of the reader. It is almost as if this book was really the outline for a future book, and was shipped to the printer by mistake.

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Unlike other professions, lawyers are often known more by their passions and hobbies than by their law practice. For example, most lawyers that claim to be undefeated in litigation maintain that claim by dumping losers on associates and partners or trying very few cases. As a result, the public and the media often do not know a strong lawyer from a weak lawyer, because they do not know how to evaluate a “win” or a “loss.” This is more pronounced for lawyers that paper transactions and provide consulting services. For that reason, often lawyers are known for things other than their practice.

One of my hobbies started when I learned to read in the 1960s, comic books. Comic books appeal to many different aspects of personality. In my case, the comic books I read appealed to my idealism that there were heroes (my father was a policeman, the archetype of the ultimate hero, as every television season attests), that right and wrong could be determined, and that right would win if it was very, very careful. Marvel Comics introduced the idea that imperfect people controlling imaginable but non-existent power could overcome their imperfections and still be heroic. DC introduced this idea to a much more limited degree and in ways that were only imaginary (kryptonite, for example), which made Marvel’s approach unique and unforgettable.

The Invincible Iron Man was such a character, largely because the armor was invincible but the man inside was very vulnerable. Unlike the Kryptonian, he was that way because he was imperfect, and not because the writers struggled to make him that way. Contemporaneous with the movie, Marvel released a hardback book entitled The Invincible Iron Man. This is a collection of the earliest Iron Man comic books from the 1960s. This wonderful book is over 700 pages long, full color, and priced at full retail at $100. But, the Barnes and Noble website and the Amazon.com website offer it for just over $50 and qualifies for free shipping. It contains about three years of comic magazine issues that came out monthly and annually. If you enjoyed the movie, especially if you missed the Iron Man comics as a kid, and especially if you read a few and missed the rest or have not seen them in thirty or forty years, the volume will carry you back to your youth. (Yes, it duplicates other books issued by Marvel, but this book deserves to be allowed to supplant its weaker and smaller forerunners.)

By the way, stay through the credits at the end of the movie. The film makers threw in a teaser staring Samuel Jackson as Nick Fury (Yes, people ask, “who is Nick Fury?” The same people are likely to ask, “who is Jethro Tull?”) and there is a mention of the Avengers (Yes, people also ask “who are the “Avengers?”).

As the new movies of our era demonstrate, the comic book creators were little known and not fully understood people of genius. My only concern about the movies is that they tend to collapse literally years of plot development and character development into a few seconds. That is the reason some of the movies simply do not work. Contrast the X-Men, Iron Man and Spiderman to the first Hulk movie and the latest Superman movie, for example. Even in an action movie, plot, character development and dialogue still matter, which is why Bill Bixby as David Banner worked week after week for several television seasons, even in the absence of modern special effects.

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Stephen Bloom’s new book, The Believers Guide to Legal Issues (2008, Living Ink Books), is mis-titled. While the book is very generally about legal issues, it is more of a consumer protection guide for Christians. Possibly it should have been entitled, The Legal Services Christian Consumer Guide.

The book is written in the current form of the Christian book: it is infantile and tawdry. It uses novelized short stories at the outset of every chapter to make a point, most of which are dripping with emotional resonance but distant from reality. Mr. Bloom assumed or was told that no Christian would sit and read a real book. Compare the book to Sekulow’s real book, Witnessing Their Faith. Nevertheless, Bloom’s book gives some excellent consumer protection tips to the Christian trying to navigate the legal system or deal with problems that seem legal.

Thus, and the book is RECOMMENDED for this purpose, if someone wanted to teach a Sunday School class to a group of adults of mixed ages and educational levels about legal problems Christians might face and how to deal with them, this book could be helpful to the class (although it would not do much for a teacher not already an expert in such things). The only thing missing from the book are the sentences with the blanks to fill in that seem to be the standard in most Sunday School teaching materials.

Thus, for the Christian with limited interest in reading, the Christian without formal education beyond high school, and the Christian with little experience in the business world, Bloom’s book could be very helpful.

But, Bloom’s book is NOT a Believer’s Guide to Legal Issues, except in the sense of consumer protection. Mostly, he tries to warn Christians to avoid being mesmerized by the secular legal system’s approach to problems and remember that there are alternatives, some of which are biblically recommended. While he quotes Scripture at length and does try to make certain applications, the book is simply too short and too much of an over simplification to be meaningful as any sort of actual guide. Bloom seems to assume, too, that Christians end up in legal problems because they did not pray hard enough or did not talk it all out. Bloom does not seem to recognize that in a Jeffersonian Democracy, some disputes cannot be resolved except by the legal machinery, especially those disputes with large commercial entities and institutions.

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In his book, Witnessing Their Faith, Religious Influence on Supreme Court Justices and Their Opinions, author Jay Alan Sekulow, Esq., attempted to test the hypothesis that Supreme Court justices wrote their opinions under the influence of their long held religious beliefs. The book’s actual value, instead, seems to be the explanation of how opinions and decisions of the high court of the United States reflected the influence of the times, and the beliefs held during those times, in which the Justices lived.

This is not a book that tries to explain how either the Court works or how the System of Freedom of Expression works. Those topics have been left to others. It is also not a treatise on 1st Amendment law, although its help in understanding the development of the law in that area is invaluable. While it is certainly true that our Supreme Court bases its rulings on prior decisions, the common law, and the foundational documents of our government, such as The Constitution, The Bill of Rights, and the Declaration of Independence, the Supreme Court Justices very much embedded in the events which for us are history but for them were events experienced and yet to be pondered.

Thus, while this book might not take its place next to The System of Freedom of Expression by Thomas I. Emerson (1970) or Freedom of Speech by Zechariah Chafee, Jr. (1920), it will no doubt have a place for lawyers, Christians and students of the Court that are working toward an understanding of 1st Amendment law.

The most striking thing about the book is its historical recitations that inescapably lead to the conclusion that most of the Court decisions reviled by today’s citizen Christians were handed down because of disputes between citizen Christians. This was clearly a case in which the “church” in its universal sense, rather than meeting as was done at the first Jerusalem Conference described in Acts 15, bickered and left to secular authorities the task of sorting out the dispute. Indeed, the book also demonstrates why Christians today are not as unified as would be necessary to achieve the political desires of most evangelicals. The book should be read by lawyers that do not practice in the area but are often presented questions by Christians regarding their rights under the 1st Amendment.

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During the inter-war generation in the Western democracies, the wealthy elites that arose created a generation of wastrels. That was the basis of the first hit television series starring Hugh Laurie (House), Wooster & Jeeves (BBC). Bertie Wooster (Laurie) was a young man who lived well on an allowance from his family money administered by his stern aunt. Jeeves, the practically omniscient “gentleman’s gentleman,” protected Wooster and his friends from themselves.

Apparently, we have created a similar group in the United States, and its spokesman is Timothy Sykes. In his self-published autobiography, An American Hedge Fund, Mr. Sykes tells his story of how during his high school years he became a day trader using his Bar Mitzvah money. By riding market volatility like a barroom mechanical bull, he turned $12,500 into a million or so. He managed to graduate from high school, even though, as he tells the story, he spent more time using the school’s Internet pipeline to trade than he did in class. He attended college at expensive private universities. He does not exactly admit that his parents were paying his living expenses while he was dodging class and day trading, but that seems to be the gist of it. He migrated to Tulane from the Northeast, and rather than majoring in either economics or business, he majored in philosophy. Throughout, his autobiography makes him sound like wastrel.

After college, and especially after day trading became too difficult for him to continue to derive profits, he engaged in short selling, and especially in the world of what he calls “micro-cap” stocks. He tried to get others to allow him to invest their money in what he labeled a “hedge fund,” but he ultimately failed to attract significant investors.

Sykes claims in his book that he failed to attract investors due to marketing restrictions on hedge funds. That has not stopped growth in that industry that has deserved so much comment, but it apparently did stop him. So, the title of his book is apparently a marketing ploy.

Like all authors, Sykes revealed his true reasons for failure: he had no true business education. He read hundreds of business books and, it seems, is claiming to have learned finance by reading in a log cabin with a candle. But he had no discipline or interest in actually taking classes in finance.

Another reason Sykes failed to create a hedge fund, and the reason he was nothing more than a day trader with an Internet account, is because while he was in high school and college, he did not understand what investing really meant. He thought it was a game, like a video game, or more like video poker. He saw the impact of the people cheating at the game: pump and dumpers, stock spammers, and chat room lounge lizards. Many of the stocks he worked with were nothing more than an idea looking for capital, or worse, just a scam. Sykes never saw the entrepreneur. Sykes never saw the small business. Over sixty thousand businesses in central Oklahoma alone employ five or fewer people.

Sykes says that he “immediately” (his own word) saw a trading opportunity in the destruction and death that rained on New York when airliners were turned into cruise missiles on September 11. Likewise, he saw the tsunami that destroyed Asia in December 2004 and “quickly began to ponder” its impact on the markets. Like the typical wastrel, Sykes has no feel for the businesses destroyed by short selling, no feel for investors cheated by pump and dump schemes, and no appreciation for investing as a means of saving the product of work for expenditure at a later time. The only thing that saved Sykes from consuming everything he made was his obsessive focus on his own net worth.

Sykes described his book as entertainment. That was not, as I first thought, because Sykes wanted to avoid liability for any trading lesson he might have inadvertently taught in the book becoming a trap for the unwary. Rather, as the closing pages of the book reveal, he now thinks of himself as a mini-celebrity and as a sort of financial entertainer. He has tried to cloak himself with a cause: freedom of speech for hedge fund managers (even though with the growth in the industry, it is clear they are not finding advertising restrictions too limiting).

Sykes is a wastrel. For that reason, his book and life is entertaining. But, it is not terribly educational, nor is it any sort of real lesson. I will put his book on the shelf next to The Radioactive Boy Scout, The True Story of a Boy and His Backyard Nuclear Reactor, by Ken Silverstein. They have much in common.

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During the National Public Radio program Morning Edition, Liz Ryan, a columnist for Business Week, was interviewed by Steve Inskeep, and you can find the interview here. According to the NPR story, a company called Clarian Health first said it would dock the wages of employees who are overweight or who smoke. Then it backed away from that plan. When asked if such a wage withholding plan was lawful, Liz Ryan said it was.

She is wrong.

In most states, it would be illegal by statute to withhold wages without written consent. Thus, when or if someone objected to Clarian Health’s announced plan, Clarian Health no doubt got a refresher course on these little used statutes.

For in-house corporate lawyers who often must be “jacks of all trades,” Gordon E. Jackson’s book, Labor and Employment Law Handbook, Aspen Publishers, is a good desk reference to keep around to avoid such errors. Liz Ryan is a well-regarded human resourcees expert who writes a blog on workplace matters — and is a professional opera singer, as well! However, she is not an attorney. If Ms. Ryan is going to grant news interviews on employment law, she might want to grab a copy of Jackson’s handbook, too.

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