The [Surprise] Driver of U.S. Legal Policy

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By James Bowden

The United States' political system is controlled by two major political parties, one generally politically liberal and one generally politically conservative. That is the way we think of the political policy-making process: the left and the right fight for enactment of their policies and, ever so rarely, compromise. Query: what if the actual conflict implicit in the U.S. political and policy-making process wasn't the conflict between right or left, or rural versus urban, or racial, or any of the main dichotomies that we use to try to make sense of policy making. Here's the surprise: the main conflict is really generational. Presented in customary bullet-point format for your perusal:

  • The Wealth Gap. Forget the 1% versus the 99%. Even the fact that the top 1% of wage earners own more of the nation's financial wealth than the bottom 50%, or that in 2007 the top 1% of all income earners in the U.S. made 23.5% of all income, more than the entire bottom 50%. The starkest statistic is the difference between the change in wealth of the old and the new generations over the past several decades. Since 1984, older people have seen a 42% increase in their net wealth while their younger counterparts have experienced a 68% decrease. I sure hope they aren't planning to take it all with them. 
  • Debt and Taxes. For the past decade, tax increases have been the most-hated villain in Washington. Really, it goes back further than that. Since 1986, maximum marginal tax rates have been historically low, particularly compared to what the Greatest Generation paid. Over the same period, the U.S. debt has increased seven fold. The average baby boomer was between 22 and 40 in 1986; their prime income earning years have overlapped with an uninterrupted period of historically low taxation, over which period public debt exploded. Now the baby boomers are cashing out--the first of the baby boomers became eligible for Medicare and Social Security in 2011. They are retiring, and won't be paying in anymore. Guess who picks up the tab by default? 
  • The Fiscal Battle. We saw a battle over raising the debt ceiling this summer, and are facing sequestration if the “supercommittee” that resulted from the compromise fails to agree on cuts to federal spending in excess of $1 trillion. What is on the chopping block? The big losers are defense (which is a large employer of younger workers), education (which is supposed to provide the younger generation with opportunities), and spending on programs designed to reduce unemployment (which, as discussed below, effects the younger generation inordinately). What are the sacred cows? The spending items that are bringing the committee to loggerheads are entitlement programs like Social Security and Medicare (which benefit the older generation effectively exclusively) and the possibility of raising taxes (which, as discussed above, has the effect of benefiting the older generation). 
  • The Cost of Success. The saying goes that there are two kinds of good debt--debt the incurrence of which produces a positive net change in wealth. One is a mortgage and the other is student debt. The saying is getting pretty difficult to stand behind these days. Grad PLUS loans are not dischargeable in bankruptcy and guaranteed by the most credit-worthy institution in the world--the full faith and credit of the United States of America. They carry an interest rate of 8.5%. The interest rate on the last car I bought was 7.1%. That means that in 2007 a non-dischargeable, absolutely guaranteed debt carried an interest rate 140 basis points higher that a dischargeable loan secured by a depreciating asset which was likely underwater the moment it rolled off the car lot. Since then, it has gotten worse--most interest rates have dipped over the past few years, but student loan rates are fixed. A person's cost of capital for a fancy new car is lower than for an education, and the average indebtedness of a law school grad is $100,000, which buys a pretty fancy car. Or two. Or three. That is insanity. 
  • The Tyranny of High Expectations. Just like every generation [allegedly] works to pass a better world on to their children, each generation is expected to make good use of the benefits they receive from the generation that went before them. I never thought I would do this, but I am going to paraphrase Cracked.com: members of the young generation were told they needed to go to school and work hard so they didn't have to flip burgers. Now that the younger generation has gone to school and worked hard, the economy is feeble, the impact of unemployment inordinately falls on them (young adults age 20-24 have an unemployment rate of 14% compared to 9% for the population overall and 7% for people over 55), and they are being criticized as entitled for ... you guessed it: not wanting to flip burgers.
Why does the conflict of generations matter? Think of the impact on public policy, including tax policy, entitlements policy, public finance, education and fiscal policy, just to name a few, if the debate is cast in the contrast of decisions' impacts on different generations. The next decades are going to see important legal developments involving the enforcement of promises made to the public through entitlement programs, the protection of wealth, and innovations in mechanisms for the passive investment in wealth-generating assets. If attorneys can advise their clients and legislators from a perspective of the benefits and detriments to them and their constituents based on the disparate impacts on generations, long-term results are likely going to be better for clients and everyone in general. If not, someone is definitely getting hosed.

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Veterans at the Nashville Bar

Posted by wlansden | Filed under
By James Bowden

Last year for Veterans Day we here at the Young Lawyers Blog gave recognition to some of Nashville's lawyers that have served under the stars and stripes. It feels like a good tradition to continue.

James O. Bass, Sr. graduated from Harvard Law School in 1934, and has for the most part practiced law at Bass, Berry & Sims ever since. It is no coincidence his name is on the letterhead--Mr. Bass founded one of Nashville's and the U.S.'s great law firms. In October of 1942, Mr. Bass, having established a successful law firm and served as a member of the Tennessee House of Representatives and a State Senator, took a commission to the Judge Advocate General's Department of the U.S. Army and went to Germany to fight Hitler. He must have done a great job, because he left Germany as a Lieutenant Colonel in 1945 with a Bronze Star. Having fought injustice abroad, Mr. Bass returned to Nashville to fight injustice at home, playing a pivotal role in advancing civil rights as the chair of Nashville's Committee on Human Relations. The word "hero" isn't enough for Mr. Bass, who turned 101 this summer. You can still call him in his office--he shows up at work every morning to this day.

Bob Tuke served as an officer in the U.S. Marine Corps, and went to Vietnam as part of the Marine Combined Action Forces, earning the Vietnamese Cross of Gallantry. Bob earned a trunk full of awards in his time, but the Cross of Gallantry was awarded for a specific action he took, and it's the only one he's willing to let me brag about. He came back to Nashville and went to Vanderbilt for law school, and went on to serve as the Chairman of the Tennessee Democratic Party and run for U.S. Senate, all the while continuing to teach as an adjunct professor at Vanderbilt University Law School. He spends his days practicing law at his firm, Trauger & Tuke, and continues to be active in politics. From time to time he even puts up with me.

Waller Lansden's own Joseph A. "Woody" Woodruff somehow managed to have a successful legal practice and serve in the U.S. military for 30 years. After graduating from the University of Alabama School of Law, Woody returned to active military service as a Judge Advocate in the U.S. Army. Nowadays, when he's not practicing law he's practicing as a sports writer. Woody's an avid Alabama fan, so don't be surprised if he always picks the Crimson Tide for the win. Woody even finds time to be active in politics, and is often the Yin to Bob Tuke's Yang in that respect. If you want to see an example of his leadership, read his firm profile--in his version of things it is always his team that succeeds, not him personally. Some might say that he learned that in the military, but I'm betting that the military learned leadership from him. We're lucky to have him.

Sean Bennett graduated from Vanderbilt University Law School with me in 2009. With a background in financial services, you'd think he would have gone for the power and glory of legal practice on Wall Street, but no; he joined the U.S. Army instead. If being universally loved by his classmates was the measure, Sean would have won the Founders Medal. His whole class is proud of him and hopes he stays safe.

This year saw a couple of very notable old soldiers fade away to serve in heaven's armies. Frank Buckles had been the last living confirmed veteran of the First World War, serving as an ambulance driver on the Western Front. Having served in the War to End All Wars, He was held prisoner by the Japanese in World War II as a civilian. Buckles died in West Virginia on February 27 of this year. Flags flew at half staff to honor the final death of a generation who gave so much they were almost completely lost.

Richard Winters, made famous late in his life by the HBO series "Band of Brothers," found himself the leader of the 101st Airborne Division's Easy Company on D-Day when his commanding officer was killed over Normandy during the invasion. He lead the division through D-Day, a failed expedition in Belgium, the worst of the Battle of the Bulge, and the capture of Hitler's sanctuary, Berchtesgaden. The last of Easy Company's living commanders, Major Dick Winters died in peace on January 2nd of this year.

On this Veteran's Day, remember all veterans, including the ones that still walk among us.

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