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

Posted by wlansden | Filed under , , ,

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.

Currently rated 3.4 by 14 people

  • Currently 3.428571/5 Stars.
  • 1
  • 2
  • 3
  • 4
  • 5

The Eurozone Debt Crisis: An Opportunity to Compare Legal and Fiscal Systems in Times of Financial Uncertainty (Cage-Match Style) - Round 2: The Political Thrilla in Manilla

Posted by wlansden | Filed under , , ,

By James Bowden

Welcome back, monetary policy sports fans. In round one, the U.S. clobbered the E.U. with its enlightened monetary and fiscal policies. But what about the political institutions that underlie the decisions that our combatants made when confronted by crises? Let’s take the gloves off and find out:

  • Fiscal integration doesn’t work without political integration. The European Union is effectively a treaty system connecting the participating countries in an agreement to share a currency and not take on more than a certain percentage of GDP in debt, with one central bank. The United States is a politically and fiscally integrated federation of states, with one central bank. The difference is stark. Because the nations that make up the Eurozone have differing fiscal, political and social policies and positions, the only unifying factor is their currency – so if Greece’s economy falls apart, each individual nation has to perform its own risk assessment as to whether assistance is warranted. Conversely, if, say, Idaho’s failing economy was rending the social fabric of its communities, the United States would not seriously consider the possibility of doing nothing. That puts the U.S. on the board with one. 
  • The Eurozone has no effective built-in checks and balances.  You know those wonderful, self-equalizing checks and balances that you learned about in grade school? The ones that balance competing interests of majority rule with individual liberty, the power of coequal branches of government, and the relationship between the states and the federal government? Yeah, the Eurozone doesn’t really have those. Since the only unifying factor is currency, the financial well-being of the constituents are directly tied to the whims of the economic center of gravity, which is Germany – an economy featuring a robust manufacturing industry, a trade surplus, and a borderline-psychotic fear of inflation. Beware, smaller European economies with real estate and tourism based economies, because the folks holding the purse strings don’t have the same interests that you do. Look at it in a constitutional sense: the U.S. apportions legislative power in a bicameral system, allocating representation by population in the House of Representatives and by equal representation per state in the Senate, with majority rule in each chamber (sort of). The Eurozone system effectively operates on a system that would be similar to California and New York making all monetary decisions for the country, and each state trying to maintain a functioning economy and government in the middle – unless the issue required unanimity, in which case Rhode Island could hold up the policy making process completely at its whim. Doesn’t sound very democratic, does it? Hurray for democracy, and hurray for the U.S.A. We win this one. 
  • It isn’t your tax rate; it’s your tax collection rate. I know that Americans hate taxes, and the only good taxes are no taxes (or, alternatively, the taxes someone else pays that you get the benefit of). But the U.S. actually has an excellent collection rate; despite the relative rarity of audits and enforcement action, almost all taxes due are collected. Fraud is exceedingly rare. In Greece, tax evasion is a national pastime. No kidding – leading up to their collapse, the Greeks collected somewhere around 66% of the total taxes legally due. That’s a 33% evasion rate, and a 100% inability on the part of the government to realistically project the level of debt that the country’s economy can realistically service. Maybe it isn’t a question of law – maybe it is an issue with implementation, but either way Greece was doing it wrong. So that’s a big thumbs up to the U.S. tax system. Rare praise, I know.
And the U.S. political, monetary and fiscal system wins in a 2-0 knock-out. Which is kind of a hollow victory, really, considering it was mostly our financial institutions that kind of started the whole thing.

Special thanks to Chris Brummer, my former law professor and the inspiration for my interest in international fiscal and monetary policy and law, for giving me some of his invaluable time to assist with this post.
 

Currently rated 3.6 by 8 people

  • Currently 3.625/5 Stars.
  • 1
  • 2
  • 3
  • 4
  • 5

The Eurozone Debt Crisis: An Opportunity to Compare Legal and Fiscal Systems in Times of Financial Uncertainty (Cage-Match Style) - Round 1: Rumble in the Fiscal Jungle

Posted by wlansden | Filed under , , ,

By James Bowden

It appears that the Eurozone may have, at least temporarily, staved off the possibility of rapidly collapsing into a debt-lined, lava-filled hole in the earth with a new, comprehensive strategy to deal with the mounting E.U. debt crisis. I thought this would be a perfect opportunity to look at some of the differences between the U.S.’s and the European Union’s fiscal, political and legal systems to illustrate why the same financial crisis has led to such different results, in convenient bullet-point format: 

  • Paging Joseph Stiglitz. Joseph Stiglitz to the white courtesy phone. For years, Joseph Stiglitz has criticized the IMF and what he has dubbed the “Washington Consensus” for their practice of enforcing draconian austerity measures on developing countries following a currency crisis and bailout. The criticism makes sense – while developed countries take a page from John Maynard Keynes and pour money into their economies to make up for drop-offs in demand, the same countries insist that the road to salvation for developing countries with currency issues is to impose “austerity” measures that are universally contractionary: tax hikes, cuts in government services and spending, government employee layoffs and the like. Now, with Greece we have an example of a developed country having austerity measures forced down its throat, and it ain’t pretty. Riots in the streets are common, and every round of new cuts further depresses the economy – effectively guaranteeing that tax revenue will be insufficient to pay back the emergency loans. If you need another example, look at Great Britain: austerity for all has taken an economy with high debt and a faltering (but admirably powerful) economy into a full-on depression. Joe says “I told you so,” and the point goes to the U.S. 
  • Bailouts are great when you can get the benefit without making the investment, but it will catch up with you. When the U.S. implemented the Troubled Asset Relief Program (“TARP”), the Eurozone criticized the U.S. as chicken little. When the U.S. passed a stimulus bill, the Eurozone criticized it as profligate. U.S. spending on those programs helped prop up the Eurozone, both indirectly by stabilizing a world economy on the edge of free-fall and directly by shoring up financial institutions that the Eurozone depends on, and the U.S. isn’t in crisis now. But look at the issues Europe has created by not bailing out their financial institutions at the first sign of trouble (and when they could have capitalized on the benefit they received from riding the U.S.’s monetary and fiscal coat tails). The size of the proposal to save the Eurozone is phenomenal: increasing the European bailout fund to $1.4 trillion (that isn’t a typo – “trillion” with a “t”). That is almost twice what the U.S. stimulus package cost. And that is on top of money already thrown down the hole in Greece – with the real possibility that more will be necessary to prop up faltering European banks after they take a haircut on the sovereign debt that they hold (there is a lot of Greek debt floating around that, if the proposed fix is accepted, will lose half its value instantly). This one goes to the stars and stripes, and the E.U. gets a personal foul for bad sportsmanship. We’ll enforce it on the kickoff. 
  • Know when to hold them and know when to fold them. Today, U.S. banks may not be completely healthy, but TARP and associated stress tests administered on U.S. financial institutions by the Treasury Department have ensured that they are no longer on the verge of collapse. The Eurozone is frightened by more than just the possibility of a Greek default leading to financial contagion – if the European banks that hold Greek debt are forced to recognize their losses, they will likely be insolvent. The U.S. recognized that its financial institutions were in trouble and dealt with them. The Europeans pretended all was well, much the way the Japanese banking system refused to recognize accrued losses in a financial screw-up that ushered in what economists call “the lost decade.” Now, the Eurozone’s losses are bigger than they would have been, and the possibility of a calamity that could shut down financial commerce throughout Europe is real. European financial institutions are being given the option to take a 50% haircut on all of the Greek debt they hold – not really an option, though, since the other likely alternative is [complete] default. The stress tests that the E.U. belatedly performed have now been discredited, as well. Imagine if you woke up tomorrow and you couldn’t use a credit card or a debit card, go to an ATM, go to a bank branch, write a check, bank online – the only money you had were the bills in your wallet and the change in your couch – and everyone else had the same problem. That’s what a modern-day financial collapse would look like. The U.S. isn’t losing sleep over the possibility anymore, but the E.U. would have to be intentionally ignorant not to. Point U.S.A. 
  • I like my schizophrenic central bank, thank you very much. There is a wealth of academic and political debate over whether it is a problem that the U.S. Federal Reserve has two mandates that conflict with each other, specifically (1) maintain price stability, and (2) maximize employment. The E.U.’s central bank has no such conflict – it’s only mission is price stability. It is additionally effectively dominated by German thought, which continues to be scarred by the hyperinflation that occurred in the 1920s. I’m not trying to minimize the horror of hyperinflation; the possibility that the proceeds of a life insurance policy could barely buy a loaf of bread is truly terrifying, and that scenario actually happened during the German hyperinflation. But jacking up interest rates for fear of inflation that has no signs of materializing while unemployment stays unsustainable high? I’ll take my conflicting mandates happily, thx. 

It looks like the U.S. soundly drubs the E.U. in round one, with a score of four to nothing. Tune in for Round 2, monetary policy sports fans, and see if the epicenter of western civilization can get a leg-up on its upstart North American cousin.

Currently rated 3.8 by 8 people

  • Currently 3.75/5 Stars.
  • 1
  • 2
  • 3
  • 4
  • 5

Glimmers of Hope: Latham May Unfreeze Salaries

Posted by wlansden | Filed under , , , ,
By Brian Malcom

In the event that you missed the post on Above the Law, Latham & Watkins is contemplating a "double bump" increase of associate salaries.  This author is not sure what that means.  Does this mean the associates will get a true raise?  Will associates be where they would have been without the freeze?  Time will tell.

According to ATL, Latham is prepared to make salary raises on January 1, 2010.  Happy New Year indeed.

Let's hope the dominoes start falling.

Currently rated 4.7 by 3 people

  • Currently 4.666667/5 Stars.
  • 1
  • 2
  • 3
  • 4
  • 5

Not Yet Hired Fired

Posted by wlansden | Filed under , ,

By Brian Malcom 

Abovethelaw.com reports that Sughrue Mion of Washington, D.C. fired 1/3 of its incoming first-year class and cancelled its 2009 summer associate program.  ATL also reports that Morris, Manning & Martin of Atlanta, GA fired all of its incoming associates and cancelled its 2009 summer associate program.

What can you do if you are a 3L with a job offer?  Don't panic.  Panic is not productive. 

Make sure you are focusing on your grades and networking.  GPA and contacts are more important now than they've ever been.  Who you know is also important in these hard times.  A foot-in-the-door will likely help a great deal these days, when law firms are being flooded with applicants and hiring has slowed.  Use your GPA and contacts to set yourself apart from the masses.

Stay happy.  Find something that makes you happy and focus on that.  Dwelling on the "doom and gloom" of today's economy only serves to stifle motivation.  The unmotivated are unattractive to employers.  Find a way to stay happy.  Spend time with your family, help those in need, travel, exercise, hang out with friends, enjoy your hobbies, etc.  Just stay motivated.

You never know when an opportunity will arise.  Stay ready.

Currently rated 3.8 by 4 people

  • Currently 3.75/5 Stars.
  • 1
  • 2
  • 3
  • 4
  • 5