August 26, 2019

Archives for November 6, 2014

Killing Them Softly (Part Eight): What We Might Be Missing

rhodesThe Abstract to Prof. Austin’s Killing Them Softly states that “This Article provides a groundbreaking synthesis on the neuroscience of achieving optimal cognitive fitness for all law students, law professors, and lawyers.” The article is all that, and more: it’s also a call to action.

Killing Them Softly looks at issues such as legal ethics and the cognitive performance and general wellbeing of law students and lawyers through the lens of neuroscience. What we see through that lens invites us to change — assuming we don’t like the idea that we’re inflicting brain damage on ourselves and each other.

Strange, though, isn’t it, but articles like this are rarely incendiary. They get read and cited, they prompt dialogue, and then the wheels of change roll slowly through institutions, grinding against a powerful ethos of “this is the way we’ve always done it.” Eventually change happens, but it’s not exactly a forest fire.

What we might be missing is that the market for legal products and services isn’t constrained by institutional sluggishness, and is already running ahead, embracing change. The market isn’t hidebound, it can move as fast as it wants. And if it wants something other than lawyers thinking through a cognitive fog, it can get it. Now.

Presumably, there will always be a need for lawyers who can “think like a lawyer” that way the ideal was originally intended, but nowadays that’s a shrinking market segment. A sizeable and burgeoning market segment has already broken off that apparently doesn’t want lawyers who think like lawyers — at least, not in those brain-damaged, cognitively impaired ways we’ve been looking at in this series. That segment has already found a way to buy legal commodities delivered by non-lawyers that used to be delivered as services by lawyers. (This blog catalogued some of these developments earlier this year. See Future Shock and the Business of Law, The New Lawyer Entrepreneurs, and Learning to Think Like a Lawyer an Entrepreneur. )

Saying “but they’re not supposed to do that” is a finger in the dike. Worldwide ecommerce wants what it wants when it wants it, and the fastest market responders are all over mindfulness and wellness as a business growth strategy. If they so choose, those are the people who will develop a new market segment of law schools and law practices operating at “optimal cognitive fitness” and fostering “achievement cultures,” as Prof. Austin advocates.

Now that’s incendiary change. If we want in on it, the resources are out there. Again, from Prof. Austin:

One of the most supportive achievement workplace cultures can be found at Google. The master of ceremonies, and developer of Google’s Search Inside Yourself (SIY) emotional intelligence curriculum, is Chade-Meng Tan. The benefits of developing emotional intelligence competence include strong work performance, excellent leadership skills, and the capacity for sustainable happiness.

For more about SIY, check out the Inside Yourself Leadership Institute website. Here’s their mission statement:

We develop effective, innovative leaders using science-backed mindfulness and emotional intelligence training.

The World of Woo-Woo has taken up residence on Wall Street. The legal profession might want to join them. Prof. Austin issues the invitation:

Neural self-hacking is likely to be the newest fitness movement and law students, law professors, and lawyers should be among the early adopters of a regimen of cognitive wellness.

Early adopters? The legal profession?

It could happen.

The concept of “emotional intelligence” originated in Daniel Coleman’s book by that name. More on that another time.

Rhodes has been a lawyer for nearly 30 years, in firms large and small, and in solo practice. Years ago he left his law practice to start a creative venture, and his reflections on that topic appeared in an article in the August 2014 issue of The Colorado Lawyer. His ebook, Life Beyond Reason: A Memoir of Mania, chronicles his misadventures and lessons learned about personal growth and transformation, which are the foundation of much of what he writes about here. If you enjoy reading this blog and would like to contribute a blurb to Kevin’s upcoming collection of these posts, please email Kevin at

A collection of Kevin’s blog posts, Enlightenment, Apocalypse, and Other States of Mind, is now available as an ebook. Click the link to sample and download it from the distributor’s webpage. (Soon to be available on iTunes, Barnes & Noble, and Scribd.) Includes Forewords from Debra Austin, author of the Killing Them Softly law journal article, and from Ron Sandgrund, author of an article on lawyers exiting the law in the August 2014 issue of The Colorado Lawyer, in which Kevin was interviewed.

Laura Tighe Appointed to First Judicial District Court Bench

On Wednesday, November 5, 2014, Governor Hickenlooper appointed Laura Tighe as district court judge in the First Judicial District, effective November 17, 2014. Tighe will fill a vacancy created by the retirement of Hon. Stephen Munsinger.

Tighe currently is a shareholder at Bayer & Carey, P.C., where she practices civil litigation and insurance defense, particularly catastrophic injuries, wrongful death, personal injury, ski law, property damage, fire losses, HOA disputes, construction defects, and more. She also serves as a mediator. She is a member of the Colorado Bar Association, Colorado Defense Lawyers Association, First Judicial District Bar Association, the Catholic Lawyers Guild, and the Defense Research Institute. She received her undergraduate degree from the University of Notre Dame in 1984 and her J.D. from the Creighton University School of Law in 1987.

For more information about the appointment, click here.

Tenth Circuit: No Arbitrariness or Caprice in EPA’s Adoption of Better-Than-BART Emission Regulations

The Tenth Circuit Court of Appeals issued its opinion in WildEarth Guardians v. United States Environmental Protection Agency on Tuesday, October 21, 2014.

In an attempt to comply with the Clean Air Act, New Mexico, Wyoming, Utah, the City of Albuquerque, and Bernalillo County, NM (collectively, states), adopted a regional cap-and-trade program to regulate sulfur-dioxide emissions over the Colorado Plateau. In this program, the states had to comply with ceilings on sulfur-dioxide emissions. If their emissions were above the ceiling, they were fined, but if they fell below the ceiling, the states could trade the difference to other entities. The states chose this program over the alternative Best Available Retrofit Technology (BART) program to reduce emissions. The cap-and-trade program had to be better than BART to be acceptable.

WildEarth Guardians and other environmental groups (collectively, WildEarth) protested the adoption of the cap-and-trade program, arguing the EPA should not have approved the cap-and-trade program for various reasons. The Tenth Circuit reviewed the appeal, but its review was bound by the Administrative Procedure Act, and the EPA’s decision could only be overturned by a showing that its action was arbitrary or capricious.

WildEarth argued that the cap-and-trade program, also known as the 309 program, does not achieve greater reasonable progress than implementation of BART. WildEarth contended the EPA acted arbitrarily and capriciously because the BART benchmark improperly adopted the permissive emission cap instead of actual emissions, the states misapplied the “clear weight of the evidence” standard, and the states overstated the effectiveness of the 309 program by applying qualitative instead of quantitative standards. The Tenth Circuit rejected these arguments.

First addressing the argument about the EPA’s reliance on permissive emission caps instead of actual data, the Tenth Circuit noted that the EPA’s own rules allowed reliance on the cap, and also the data concerning actual emissions was not available until the end of the period in which the emissions were studied. The source-by-source study was not required under the 309 program’s better-than-BART standard. Although there was potential for the states to trade emission amounts that they were not actually using, this was permissible under the 309 program.

Next, the Tenth Circuit addressed WildEarth’s argument that the EPA should have compared the 309 program’s milestones to the effectiveness of BART. The Tenth Circuit refused to address this argument because it was not raised in WildEarth’s opening brief, and was raised for the first time on appeal.

The Tenth Circuit then turned its attention to the qualitative versus quantitative argument, and found no caprice or arbitrariness in the EPA’s actions. The EPA determined the 309 program as a whole was more effective than BART because it included non-BART sources of sulfur-dioxide emissions, included new sources of emissions, created a “mass based” cap covering emissions in the aggregate, and encouraged early reductions in emissions. WildEarth argued that the actual pollution would not be reduced, and could even be increased, by the failure of key polluters to agree to the 309 program, the ability of the states to trade their unused emission allotments, and the failure to consider quantitative standards. Although the Tenth Circuit was sympathetic to WildEarth’s arguments, it could find no reason to overturn the EPA’s decision.

The Tenth Circuit denied the petitions for review because it could find no arbitrariness or caprice in the decisions of the EPA.

Tenth Circuit: Unpublished Opinions, 11/5/2014

On Wednesday, November 5, 2014, the Tenth Circuit Court of Appeals issued one published opinion and three unpublished opinions.

Mason v. Watts

United States v. Olivas-Mendoza

Medrano-Olivas v. Holder

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.