Pink - Family Portrait

This song is an reminder about the kids who often get stuck in the middle in domestic cases.  It's an interesting point of view from an unexpected source.

Alzheimer's on the CBS Evening News

There was recently a story on the CBS Evening News discussing the detection, presentation, and delayed onset of Alzheimer's Disease.  There is text as well as a link to the news program.

As the baby boomers inch towards old age, the prevalence of Alzheimer's - and the care of patients who have it - becomes an ever-more-important issue in our society.

From Divorce Insurance to Divorce Funding

An article published earlier this month identifies a new trend in lawsuit finance: divorce funding.  Companies have been around for years which offer to front the costs of a personal injury lawsuit in return for a portion of the recovery, but the foray into the domestic realm is fairly new.  The article focuses on a company called Balance Point, which was founded by a woman who initially received an inequitable settlement in her divorce because she had exhausted all her resources and could not keep fighting for a better arrangement.

The article is available on the New York Times website, although only page 1 of the story is viewable without a NYT account.

Risks (and benefits?) of being pro se

About a year and a half ago, there was an episode of the public radio show This American Life entitled "Pro Se."  If you've never listened to the show, the typical format is something like this: each week, the editors pick a theme, and provide listeners with a variety of stories - as few as one, as many as five or six - on that theme.

The discussions in "Pro Se" were understandably mostly related to litigants who choose to represent themselves in court.  Very interesting stories; definitely worth a listen.

GPS Surveillance, Part III - Meaning and Other Rulings

I went on ad nauseum two posts (and many weeks) ago about the Ninth Circuit case of United States v. Pineda-Moreno.  I stopped short (I think) of offering any of my own interpretations.  No longer:

If you live in the Ninth Circuit (which is huge; it includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam, and the Northern Mariana Islands), post "No Trespassing" signs at the end of your driveway - or all around your property - if you want to prevent entry.  Those signs will give you a much stronger argument that agents who entered onto your property under cover of night to place a tracking device on your vehicle were operating unlawfully.

However, if your car is ever found in a public place (at a parking meter, for example), law enforcement officials can place a tracking device on your car to trace its location, and such action is not unlawful.

There is an argument (springing from Judge Kozinski's dissent) that GPS trackers are an unlawful extension of the law enforcement's use of technology, but so far the rest of the Ninth Circuit doesn't agree with him. (Other courts do, though; see below.)

Of course, if you are not suspected of any criminal activity, this should not concern you, except on ideological grounds (where you should be very concerned, no matter your criminal or law-abiding tendencies).

Similar rules apply if you live in the Seventh (Illinois, Indiana, and Wisconsin) or Eighth (Arkansas, Iowa, Minnesota, Missouri, Nebraska, and North Dakota) Circuits.  See United States v. Garcia, 474 F.3d 994 (7th Cir. 2007); Unites States v. Marquez, 605 F.3d 604 (8th Cir. 2010).  Both cases are discussed briefly below.

The Ninth Circuit, though, is not the only court with an opinion on this issue. The United States Court of Appeals for the District of Columbia Circuit has also weighed in, and the judges on the east coast (not surprisingly) feel differently.  If you live on that side of the country, you may have slightly more protection from government investigation as to your whereabouts.  What happens when one Court of Appeals says one thing and a different Court of Appeals says something else?  Usually one or more cases with similar facts will find their way to the Supreme Court of the United States.  If SCOTUS hears such a case, their ruling will become binding on all circuit courts.  If they decline to hear it, the difference of opinion, known as a split in the circuits, will continue.

United States v. Maynard
In United States v. Maynard (the full opinion is available here), the DC Circuit Court of Appeals heard the arguments made on behalf of Lawrence Maynard and Antoine Jones.

Mr. Jones and Mr. Maynard were both under investigation for narcotics violations by the joint FBI-Metropolitan Police Department Safe Streets Task Force.  They were arrested and both defendants, along with a number of their acquaintances, were charged at the trial level with conspiracy to distribute and conspiracy to possess with intent to distribute a large amount of cocaine or cocaine base.  Both were convicted in a joint trial.  Mr. Maynard's appeal does not address the GPS argument, so is not significant for these purposes.  (Mr. Jones also made a number of points on appeal which are not significant here, but include alleged error in the admission of evidence secured by wiretap and and by a search incident to a traffic stop, as well as a number of alleged errors at trial.)

Mr. Jones's conviction was secured with heavy reliance by the government at trial on a GPS tracking device which had been placed on his vehicle.  On appeal, Jones argues that this tracking - which went on 24 hours a day for 28 days, with the device automatically transmitting and recording his position at regular intervals - constituted a search which violated his reasonable expectation of privacy under the Fourth Amendment, and was therefore illegal since the agents lacked a search warrant at the time the device was activated.

(1) Did the use of the GPS device constitute a search?

  (a) Knotts is not controlling precedent
The government's argument relied on United States v. Knotts, in which the United States Supreme Court found that using a beeper device to aid in the physical tracking of a vehicle did not constitute a cognizable "search" because a person traveling on public roads has no reasonable expectation of privacy in his journey from one point to another.  The government's argument was that the GPS device was essentially the same as the beeper in Knotts in that it aided the law enforcement agents in their attempts to track the whereabouts of their suspects, and that the GPS was not the type of mass surveillance that the Supreme Court was concerned about in Knotts.

The court here disagreed.  The beeper, they said, was for use only during a "discrete journey." The Supreme Court had specifically reserved the question of "whether a warrant would be required in a case involving 'twenty-four hour surveillance,'" and not just the type of "mass surveillance" that the government was advocating for (such as blanket wiretaps), but even for twenty-four hour surveillance of an individual.  The court cautioned that "if a warrant is not required, then prolonged 'twenty-four hour surveillance of any citizen of this country will be possible, with judicial knowledge or supervision.'"

The court pays homage to United States v. Pineda-Moreno (previously discussed at some length), United States v. Garcia, and United States v. Marquez.  The Seventh Circuit Court of Appeals in Garcia upheld the use of the GPS device, but Mr. Garcia had failed to argue in that case that he had a reasonable expectation of privacy over the totality of his movements for the duration of the surveillance; his only argument was that the placement of the device which led to the tracking was a violation of the search requirements of the Fourth Amendment.  The court in Garcia found the use of the GPS device to be more similar to tracking via stationary mounted cameras or satellite (not a search) than to a listening device on a phone (a search), and hence found no Fourth Amendment violation.

In Marquez, the Eighth Circuit Court of Appeals agreed with the Seventh and Ninth Circuits when faced with an argument similar to the one made in Garcia.  The court, despite finding that the defendant lacked standing to challenge the use of the GPS device, stated that installation of a non-invasive GPS tracking device for a reasonable period of time to a car parked in a public space did not require a warrant.

  (b) Were Jones's whereabouts exposed to the public?
Since Knotts doesn't control the outcome in this case, the court must analyze Mr. Jones's expectation of privacy.  The requirement imposed by the case law stemming from the Fourth Amendment that law enforcement officials be armed with a warrant generally does not apply where a person has no reasonable expectation of privacy.  The question of whether one's actions are "exposed" can be considered in light of either actual exposure or constructive exposure.

    (i) Actual Exposure
When examining actual exposure, the court asks "not what another person can physically and may lawfully do, but rather what a reasonable person expects another might actually do."  The court illustrates the application of this question by looking at a number of different cases, including United States v. Kyllo and United States v. Gbemisola.

In Kyllo, "the Court held use of a thermal imaging device defeats the subject's reasonable expectation of privacy, 'at least where...the technology in question is not in general public use.'"  Thermal imaging was not in public use - it was not something "a reasonable person expects another might actually do" - therefore it violated the subject's reasonable expectation of privacy.

In Gbemisola, in which the subject and contraband were located in the rear seat of a taxi, the court declared that "'one cannot have a reasonable expectation of privacy concerning an act performed within the visual range of a complete stranger, [so] the Fourth Amendment's warrant requirement was not implicated."  The implied corollary in Gbemisola is that, had the act taken place out of view of the public, there would have been an expectation of privacy.

The government's argument in Maynard is simple: knowing exposure of one's movements, movements on public roads visible to anyone who wanted to look, is not subject to Fourth Amendment protection.  Applying the principles from Kyllo and Gbemisola to Mr. Jones's case, the court finds differently: "the whole of a person's movements over the course of a month is not actually exposed to the public because the likelihood a stranger would observe all those movements is not just remote, it is essentially nil."  Jones's movements were not actually exposed.

    (ii) Constructive Exposure
The government makes no argument for constructive exposure, but the court acts on its own initiative to explore the issue.  It relies on United States Department of Justice v. Nation Reporters Committee, in which a Freedom of Information Act request for documents was denied: "Although the 'individual events in those summaries [were] matters of public record,' ...the subjects had a privacy interest in the aggregated 'whole' distinct from their interest in the 'bits of information' of which it was composed."

The court's decision here, while wise, is not particularly well-stated.  "The whole of one's movements over the course of a month is not constructively exposed to the public because, like a rap sheet, that whole reveals far more than the individual movements it comprises."  Prolonged surveillance, which allows the viewer to see patterns of behavior, is vastly more revealing about a person that one-time observation.  "A reasonable person," they said, "does not expect anyone to monitor and retain a record of every time he drives his car, including his origin, route, destination, and each place he stops and how long he stays there; rather, he expects each of those movements to remain 'disconnected and anonymous.'"  Therefore, neither were Jones's movements constructively exposed to the public.

  (c) Was the expectation of privacy reasonable?
The court frames this question within the bounds of a case it previously decided, Reporters Comm. for Freedom of Press v. AT&T: "the Fourth Amendment ... secur[es] for each individual a private enclave, a 'zone' bounded by the individual's own reasonable expectations of privacy."

The government, as was its habit in Maynard, argued that Jones's movements took place on public roadways, and therefore Jones had no reasonable expectation of privacy.  The court fell back on its analysis of actual and constructive exposure, reasoning that no one would expect every movement they made over the course of a month to be aggregated; even if someone observed a single movement, the subject of the observation would expect the others to remain disconnected from that one.

The facts of the case and its own previous analysis lead the court to the conclusion that "[s]ociety recognizes Jones's expectation of privacy in his movements over the course of a month as reasonable...."

  (d) Visual Surveillance
The court takes a bit of time to distinguish between visual surveillance and the use of a GPS tracking device.  It acknowledges the efficiency of GPS tracking, but also notes that the low cost and manpower requirements attendant thereto render it a new type of intrusion into the lives of citizens, not the type of intrusion which had been previously contemplated.  The government, for its part, failed to point out a single instance of prolonged visual surveillance that would be upset by the court's ruling in Jones's favor here, and the court reserves that question for a later time.

(2) So there was a search which was otherwise unreasonable.  Was it rendered reasonable by an exception to the Fourth Amendment rule?
The "automobile exception" to the Fourth Amendment warrant requirement allows the search, without a warrant, of an automobile if the "car is readily mobile and probable cause exists to believe it contains contraband."  The government argued that this exception applies because the device was attached to a vehicle.

Mr. Jones argued, and the court agreed, that the exception does not allow installation of a tracking device.  The exception's allowance of search upon the existence of probable cause is much too narrow to support the government's position.

(3) The evidence was admitted in error.  But was the error harmless?
Evidence obtained from the GPS tracking device was used in Mr. Jones's conviction at the trial level.  If the government could show that the district court's error in admitting the evidence despite its unconstitutionality was harmless, the decision would not be overturned.  The government failed to meet that burden, and the Court of Appeals found that it is unlikely Mr. Jones would have been convicted without the GPS evidence.

The court reversed Mr. Jones's conviction.

Application for Rehearing En Banc
Since the reversal of Mr. Jones's conviction, the government applied to the DC Circuit Court for a rehearing en banc.  The petition was denied.

In support of the denial, Judges Ginsburg, Tatel, and Griffith stated that the government failed to meet either of the requirements for the automobile exception to the Fourth Amendment's warrant requirement, so they needn't reconsider the issue.  Additionally, the government's argument that the case calls the admissibility of evidence obtained from prolonged visual surveillance is faulty because the court specifically reserves that question.

In a dissent written by Chief Judge Sentelle and joined by Judges Henderson, Brown, and Kavanaugh, those judges express their concern that the DC Circuit now stands in opposition to the other circuit courts which have ruled on the issue of GPS surveillance.  Further, they feel that the panel's decision stands in opposition to the Supreme Court's opinion in Knotts, which is binding precedent and must be followed.  They are unconvinced by the panel's distinction between Knotts and Maynard, saying that the only difference between the two types of monitoring is the volume of information obtained.  Such a minute difference, they argue, is not sufficient to render a new line of jurisprudence.

GPS Surveillance, Part II - The Dissent

In my last post, I summarized the opinion of United States Court of Appeals for the Ninth Circuit in the case of United States v. Pineda-Moreno.  As I mentioned, Mr. Pineda-Moreno requested an en banc rehearing of arguments, which was denied.  Chief Judge Kozinski wrote a dissent upon that denial, which is available in full here.

His dissenting argument can be divided into two prongs: (1) a citizen's right to privacy, and (2) the limitations which should be placed on law enforcement officers.  But before we get to that, it's worth taking a moment to enjoy the literary reference in the last blistering sentences of his opening paragraph:

"The needs of law enforcement, to which my colleagues seem inclined to refuse nothing, are quickly making personal privacy a distant memory.  1984 may have come a bit later than predicted, but it's here at last."


Right to Privacy
The chief judge is concerned about the erosion of the right of privacy in the curtilage of one's home.  He cites Oliver v. United States for the position that the curtilage is entitled to the same level of privacy as the interior of the home:

"[O]nly the curtilage...warrants the Fourth Amendment protections that attach to the home.  At common law, the curtilage is the area to which extends the intimate activity associated with the 'sanctity of a man's home and the privacies of life,' and therefore has been considered part of home itself for Fourth Amendment purposes.  Thus, courts have extended Fourth Amendment protection to the curtilage."

In some cases, Kozinski points out, whether the curtilage was invaded is a question of fact - the argument is about whether there was an invasion at all.  Here, the government conceded that there was an invasion.  Therefore, Kozinski argues, all rights and expectations of privacy which normally apply to the interior of a man's home should apply as well.

In this case, however, the panel stated the rights and expectations of privacy would apply to the curtilage only if it was separately established that they should apply for some reason.  Kozinski supports his argument with a discussion of limited right to enter another's property.  He mentions postal workers, repairmen, employees of utility companies, gardeners, and delivery men, all of whom have a limited right to enter property for the purpose for which they have been employed or permitted.  Others who have not been granted a right would not be welcome on the property.

In its original opinion, the panel had used the example of neighborhood children, who could have entered the driveway and crawled under Mr. Pineda-Moreno's Jeep to retrieve a lost ball.  Chief Judge Kozinski argues that such children would be uninvited, and often enter another's property for reasons not nearly that innocent or innocuous.  The "urchins," he says, might "jump the fence, crawl under the porch, pick fruit from the trees, set fire to the cat and micturate on the azaleas."  To allow law enforcement officers to do all of those things just because they are things which unruly children might do "spells the end of Fourth Amendment protections for most people's curtilage."

The few people whose curtilage would not be invaded, he argues, are the wealthy; the poor are not represented in the state or federal judiciary, but that does not mean they are not entitled to the same protections as those who are represented.


Limitations on Law Enforcement
The more controversial of Chief Judge Kozinski's arguments is that proper law enforcement requires human action.  He is troubled by the use in this case of satellite-based GPS tracking devices which "can record the car's movement's without human intervention--quietly, invisibly, with uncanny precision."  He cites the previously-mentioned Knotts case to distinguish the GPS tracker from the beeper used in Knotts:

"The governmental surveillance conducted by means of the beeper in this case amounted principally to the following of an automobile on public streets and highways....But the beeper could perform no tracking on its own, nor could it record its location."

Kozinski seems to focus on the expectation of the citizen.  He notes the general lack of expectation of privacy when one is in public spaces, but also identifies ways to preserve privacy, even in public:

"By traveling at night, through heavy traffic, in crowds, by using a circuitous route, disguising your appearance, passing in and out of buildings and being careful not to be followed.  But there's no hiding from the all-seeing network of GPS satellites that hover overhead, which never sleep, never blink, never get confused and never lose attention."

Chief Judge Kozinski notes that technology is improving, and we must account for that.  He is a believer in the original intent of the Fourth Amendment, and feels its protections need to be adjusted to account for ever-advancing technological devices:

"The Supreme Court has recognized that advances in 'police technology [can] erode the privacy guaranteed by the Fourth Amendment.' To guard against this, courts 'must take the long view, from the original meaning of the Fourth Amendment forward.'"

Kozinski seems unconcerned with the reason for one's desire to evade detection and surveillance.  Rather he is opposed to the general erosion of the right to privacy, because it is a slippery downward slope.  Even law-abiding citizens, he seems to indicate, don't want to live in a police state of constant surveillance.

I imagine he's right about that.

GPS Surveillance, Part I - The Facts and Arguments

A number of news sources [including Reuters, Time Magazine, Yahoo! News, and ComputerWorld (an IT magazine)] reported earlier this month on a decision handed down by the Ninth Circuit Court of Appeals regarding warrantless entry onto private property and GPS tracking by government agents.  The full opinion is available here.

The criminal defendant in this case is an Oregonian named Juan Pineda-Moreno.  In 2007, by all accounts, DEA agents suspected Mr. Pineda-Moreno of growing marijuana.  Agents entered onto his property between 4:00 and 5:00 in the morning on two occasions to place a GPS tracking device on his vehicle, which was parked in a driveway a few feet from his trailer home.  (They placed a tracking device on his car on five other occasions when the car was parked on a public street or lot.)

During criminal proceedings in the district court, Mr. Pineda-Moreno sought to suppress all evidence against him which had been obtained using the GPS.  The district court denied his motion.  Mr. Pineda-Moreno conditionally plead guilty to charges of manufacturing marijuana and conspiracy to manufacture marijuana; the condition was that he be allowed to appeal the rejection of his motion to suppress the evidence.

A Ninth Circuit three-judge panel upheld the lower court's ruling regarding the admission of evidence.  Their opinion is available here.

Mr. Pineda-Moreno sought an en banc review of the decision, which was denied.  Chief Judge Alex Kozenski wrote a scathing dissent of the panel's decision upon the denial of the en banc hearing.  The dissent is available here.

In case you don't want to read it, the very short summary goes like this:
The court finds that Mr. Pineda-Moreno has no reasonable expectation of privacy either in his driveway or concerning the exterior of his vehicle.

For a slightly longer analysis:

(1) Fourth Amendment Violation on Private Property
Mr. Pineda-Moreno first argued that, by entering his driveway between 4:00 and 5:00 am and attaching tracking devices to his vehicle, the DEA agents violated his Fourth Amendment rights (protection from unlawful search and seizure).  This breaks down into two responses:

   (a) Curtilage
In responding to this argument, the judges relied on an earlier case called United States v. McIver.  In McIver, the court first found that the car in question had been outside the curtilage of McIver's home, so he had no expectation of privacy.

Curtilage is defined in Black's Law Dictionary (citing various cases) as "the inclosed space of ground and buildings immediately surrounding a dwelling house," or alternatively as "a small piece of land, not necessarily inclosed, around the dwelling house, and generally includes the buildings used for domestic purposes in the conduct of family affairs."  Traditionally, the area of curtilage around a house was afforded some degree of privacy - perhaps not as much privacy as the interior of the home, but more privacy than is given to a sidewalk or street in front of a home.

In Pineda-Moreno, unlike in McIver, the agents conceded that the vehicle was parked within the curtilage of the defendant's dwelling place.  However, the judges found that concession largely irrelevant in light of their pronouncement that his driveway was "only a semi-private area."  They concluded the followng:

"in order to establish a reasonable expectation of privacy in [his] driveway, [Pineda-Moreno] must support that expectation by detailing the special features of the driveway itself (i.e. enclosures, barriers, lack of visibility from the street)....To the contrary, [Pineda-Moreno's]driveway had no gate, no 'No Trespassing' signs, and no features to prevent someone standing in the street from seeing the entire driveway....Thus, because Pineda-Moreno did not take steps to exclude passersby from his driveway, he cannot claim a reasonable expectation of privacy in it, regardless of whether a portion of it was located within the curtilage of the home."

The time of entry onto the property by the DEA agents is immaterial.

   (b) Vehicle
Second, the three-judge panel found that there was no cognizable "search" as recognized under the Fourth Amendment, because the tracking device was attached to the outside of the vehicle, where there is no reasonable expectation of privacy.

(2) Fourth Amendment Violation on Public Property
Mr. Pidena-Moreno's second argument was that the agents violated his Fourth Amendment rights by attaching the GPS tracking device to his vehicle while it was parked in a public place, but this was quickly shut down by the court, due to the lack of a reasonable expectation of privacy in a public place.

(3) Fourth Amendment Violation due to Continuous GPS Tracking
Mr. Pineda-Moreno's final argument was that the agents violated his Fourth Amendment rights by continuously tracking the location of his vehicle, since such devices are not generally used by the public.

In his argument, Mr. Pineda-Morena acknowledged the case of United States v. Knotts, but believes that the reasoning in that case was challenged by a later case of Kyllo v. United States.  In Knotts, the Supreme Court found that attaching a beeper device to a vehicle did not constitute a cognizable "search" because a "person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another."  In Kyllo, the Supreme Court found that use of thermal imaging technology to obtain "any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a search--at least where ... the technology in question is not in general public use."

The judges disagree, pointing out that the difference between the two cases is what the original search would have been, not what technology was used as a substitute for that search.  In Kyllo, the original search (entering the home to obtain information contained therein) would have qualified as a "search" under the Fourth Amendment, so the technological substitute for such a search does as well.  However in Knotts, as in Pineda-Moreno, the original search would have entailed following a car as it drove down public thoroughfares, which does not constitute a "search" under the Fourth Amendment; therefore neither does the technological substitute for such a search.  They conclude with this: "We have never equated police efficiency with unconstitutionality and decline to do so now."

WedLock

Earlier this summer, an attorney friend of mine and I got discussing health insurance.  Particularly, we were debating the pros and cons of even having insurance, since you never know when you'll need medical care.  It came down to this: insurance is one of those things you'll hate having until you really need it (assuming your insurance company stands behind you when that time comes).

Somewhat inevitably, the conversation shifted slightly to the idea of legal insurance.  I knew that it existed in some form - x number of hours of consultation with an attorney, for the bargain price of $y per month.  I do a lot of family law, so we got thinking about divorce insurance.  Did this exist?  If so, did people actually use it?  Do you need an insurance broker's license to sell it?

Turns out, divorce insurance does exist, though it appears to be a very new invention - the last few months or so.  A company called WedLock (owned by SafeGuard Guaranty Corporation out of North Carolina) appears to be leading the charge, mostly through scare tactics.  The cost of a divorce quoted on their website is not necessarily untrue, but in most cases applies to a higher-asset divorce.  For a couple just trying to divide a small house and modest some bank accounts, and even sometimes when there are children involved, the costs usually only get that high if there is bitter fighting over the coffee table, the blender, the DVD player, the bathmat, the alarm clock, the fruit basket, the....  You get the picture.  Most folks, in my experience, are able to sort out the small details themselves, and the cost doesn't get anywhere near the $15,000 to $30,000 quoted on the site.

High-asset cases, on the other hand, can easily reach that level, even when the parties are cooperative.  More assets means more paperwork to swap and sift through, and that takes time. And time, as they say,  is money.

Undoubtedly, other companies will jump on board with WedLock in the coming months and years.  When that happens, there are two key things to think about:
1. Do you really need or want divorce insurance?
2. If you think you do, which company/policy best suits your needs?

Moving in with a Grandma

How would you like to move in with a grandma?  Here's the catch: she's not your grandma.

The Wall Street Journal reported on a strange bankruptcy in Long Island.  The 81-year-old widow who owned the house in question transferred it to her two children, reserving a life estate for herself.  Her son declared bankruptcy, and now his half interest in the home is on the auction block.  The buyer, however, will have to abide by the original terms of the transfer, meaning Grandma can continue living in the house alone until her death.  Then it will be up to the buyer and Grandma's daughter to sort out who gets what.  According to the son's bankruptcy attorney, "Whoever buys this, buys a lawsuit."

Public Service in the Down Economy

A New York Times article published last month told the story of Nathan Richardson, a University of Chicago Law School graduate who secured a coveted job offer at the LA-based firm of Latham & Watkins, P.C.  When the economy went south, Latham & Watkins, like many large firms, offered newly-minted attorneys a stipend of tens of thousands of dollars, usually about half of their first-year salary (a first-year salary would likely range from $100,000 to $150,000) to not come in to work.  That's right, these lawyers were paid for the year to do nothing.

But as ambitious young attorneys, most of them decided to do something anyway.  Many, like Richardson, went to work at public interest law firms, and the lucky ones were even able to work pro bono thanks to the stipend they received from the deferring firm.  As you can imagine, this was great news for the not-for-profits and the public interest firms, who were now getting top-notch students who were used to working hard and ambitious to make an impression.  That extra manpower certainly helped to clear many a backlogged file cabinet.

According to the Atlanta Journal-Constitution, the Georgia Supreme Court issued a rule late last year allowing limited privileges for attorneys who were not licensed to practice in Georgia and were willing to volunteer their time.  The non-licensed attorneys could work for a non-profit or one of a number of government agencies or offices, and their work had to be signed off on by a licensed attorney working for that organization.  This rule allowed deferred associates or attorneys looking to try out a new career path to get real, hands-on experience, while also providing extra manpower to help out cases which were building up, often due to hiring freezes instituted by the government or governing board.

These circumstances come together to improve the situation for public interest law firms and not for profits - ambitious new lawyers, or lawyers seeking to reinvigorate their passion, are flooding the market - often for free or cheap.

Not quite everything is coming up roses though. Time Magazine article states that the average law student who graduated in 2009 was burdened with $73,000 in debt.  [Repayment terms vary, of course, but those loans would probably require a monthly payment of something on the order of $1,000 to $1,500.]  The Time article quotes Larry Kramer, dean of Stanford Law School, who laments the lack of a suitable loan forgiveness or similar program to help students who could not only not afford to work pro bono, but also those who are having trouble making loan payments even if they are receiving a small salary from their interim employer.

The Un-Divorceds, and the Never-Marrieds

Another New York Times article published recently addresses the forces which cause couples to remain married, even though their relationship does not fit the standard definition of "married."  Perhaps they are living in separate bedrooms, or perhaps they are living on opposite coasts.

The following are some of the primary reasons, according to the article's author, why couples sometimes don't feel it's necessary to divorce:

- Aversion to lawyers/courts
- Desire to avoid a potentially ugly divorce
- Maintaining health insurance for both parties through the employer of one party
- Benefits which come from filing joint tax returns
- Future Social Security benefits
- No desire to remarry, or an excuse not to remarry
- Inability to sell jointly-owned home

The bottom line appears to be financial; interestingly, the majority of couples who choose not to divorce make that choice for the money and benefits, rather than for, for example, their kids.  Is this a reflection of our financially-strapped times?  Definitely.

But does it also indicate that, as a society, we feel differently about divorce and rearing children than we did previously?  Probably so.  The rate of unmarried births is rising, according to statistics in the last post.  The societal trend for change of this type is circular: things which are more common are more accepted, and as things become more acceptable, they become more common.

Marriage and Divorce Statistics

Over the last few decades, divorce rates have actually fallen.  According to a USA Today article, divorce rates peaked in 1981 at a rate of 5.3 divorces per 1,000 people.  When the article was published in 2007, that rate had fallen to 3.6 divorces per 1,000 people.  Provisional CDC data through August 2009 show an even lower rate: 3.4.  There is debate over the oft-cited statistic that half of today's marriages will end in divorce; "experts" cited in the above-linked USA Today article indicate that the divorce rate measured by that statistic is somewhere between 40 and 45%.

It is generally agreed that divorce rates are lower among more highly-educated and affluent couples, as well as among couples who delay marriage (USA Today, Time Magazine).  Similarly, a research paper out of Harvard University entitled The Spread of Single-Parent Families in the United States since 1960 reports that "whereas divorce leveled off around 1980, the fraction of children born out of wedlock continued to rise until the mid-1990s. Since then the rate of increase has slowed dramatically," though it is still increasing.  The paper also indicates, though, that much of this rise may be due to unmarried but cohabitating couples, although research is mixed regarding whether those couples will eventually marry or split up.

The Recession and Family Life

Judith Warner wrote an article for the New York Times on August 6, 2010, entitled "What The Great Recession Has Done to Family Life."  The following is an excerpt:

"The most devastating losses in household wealth over the past two years have been suffered by the middle class. And families are fraying at the seams. The Pew poll showed nearly half of people who had been unemployed for more than six months saying their family relationships had become strained, and a New York Times/CBS poll of unemployed adults last winter found about 40 percent saying they believed their joblessness was causing behavioral change in their children.

Parents who have jobs are working longer hours than ever. Mothers are taking shorter maternity leaves. The birth rate is on the decline. The divorce rate is declining, too — it’s too expensive for people to break up their households — but that’s not necessarily a family-friendly thing, as a report from the Council on Contemporary Families noted in April: 'We know from the experience of the Great Depression of the 1930s that divorce rates can fall while family conflict and domestic violence rates rise.'"

The costs of divorce and running two households are daunting, especially during these tough times.  However, it is important to remember that your and your family's safety should always be your top priority.

State-by-State Divorce

The Pew Research Center compiled statistics on marriage and divorce rates across the country, and came out with this interactive comparison map.

Missouri has more people married, and more people divorced, than the national average.  Consequently, Missouri also has a higher-than-average percentage of people married 3 or more times (7% in Missouri versus 5% nationwide).

(There are also a number of interesting "Related Reports" on the sidebar of the Pew Research Center page.)