Making friends with benefits

“Keep your Socialist hands off my Medicare!”

--Sign I saw at a Tea Party rally, Nashville, Tenn.

“We’re a capitalistic society, OK? I go into business, I don’t make it, I go bankrupt. They’re not gonna bail me out. I’ve been on food stamps and welfare. Anybody help me out? No.”

--Actor Craig T. Nelson, appearing on Glenn Beck’s Fox TV program, May 2009 (link is here: http://www.youtube.com/watch?v=yTwpBLzxe4U)

I offer these quotes not to criticize but to illustrate how little most of us know about the hot-button topic of “welfare.” Even though Mr. Nelson was ridiculed widely because he apparently does not know that food stamps, welfare, and bankruptcy are forms of being “bailed out” by someone else—namely taxpayers and solvent consumers—I don’t think we should judge him too harshly.

In fact, I would argue that, while some people may be better informed than others, it is human nature to downplay our own weaknesses while we pin societal ills on the perceived weaknesses of other people.

The subject of public benefits fascinates me, in part because no two of us can agree on who should get benefits, in what form, under what conditions, for how long, and for what purpose. Even though it’s an intensely political issue, I hope to make a few well-reasoned points based on facts and not just feelings.

If we want good answers, we must ask good questions.

1) What do you mean, “benefits”?

Broadly defined, just about everything the government does confers some sort of public benefit. Most of us drive on public roads, send kids to public schools, rely on the military, police, fire department. Most of us pay taxes, too, but of course the amount varies, as does how much benefit we receive. This is not what usually comes to mind when we say “benefits,” though, although many argue that it should.

Everyone draws the line in a different place, but I think we’re talking about:

a) Social Security (including OASDI, SSDI, and SSI)

b) Medicare

c) Medicaid

d) Food stamps (Supplemental Nutrition Assistance Program—SNAP)

e) Cash assistance (Temporary Assistance to Needy Families—TANF)

It’s a lot of information, so I made this table to cover the broad points:

Program	Wait, what?	Agency	Who funds it?	Who gets it?	Conditions?	How much?
Social Security--OASDI	Retirement	SSA (federal govt.)	Payroll taxes (FICA)	Retired people	Must have worked 40 quarters, must have paid into system, must be a certain age (varies)	Based on how much you made and when you retired
SSDI	Disability insurance	SSA (federal govt.)	Payroll taxes (FICA)	Disabled people	Must meet SSA’s definition of “disabled,” must have paid into system and worked required number of quarters based on age when disabled	Based on how much you made and your age
SSI	Disability insurance	SSA (federal govt.)	Payroll taxes (FICA)	Disabled people	Must meet SSA’s definition of “disabled,” need not have paid into system or worked for any length of time, but must have limited means	Up to $698 for a single person; $1048 for a married couple
Medicare	Health insurance	Dept. of Health and Human Services (federal govt.)	Payroll taxes; also, premiums taken from the insured’s SSA check	OASDI recipients; SSDI recipients who have been on SSDI for 2 years
Medicaid	Health insurance	Dept. of Health and Human Services (federal govt.) with each state’s Department of Human Services	State pays part; fed govt. pays part (in richer states, it’s close to 50/50)	People who fit into certain categories only and then meet income and resource limits	Numerous
Food stamps	Used to buy food at the grocery store	Department of Agriculture (federal)	Fed govt.	Households under a certain income limit, once household size and certain expenses are counted	Numerous	Varies based on HH size, income, expenses, etc.; HH average is $133/mo.
Cash payments	TANF, a vestige of “welfare”	Dept. of Health and Human Services (federal govt.) with each state’s Department of Human Services	Mix of state and fed govt.	Families with children; must be under the income limit	5 year lifetime limit; work requirement; family planning requirement	Varies based on many factors

2) If we have Medicare and Medicaid, why are people uninsured?

You’re eligible for Medicare only if you receive OASDI (Social Security for the aged) or if you’ve been on SSDI for two years.

You’re eligible for Medicaid only if you fit into one of the categories that Medicaid covers AND you have very low income and few assets. (Generally speaking, the categories are poor single-parent families, nursing home residents, pregnant women, some children, and people who receive SSI. Also, poor people on Medicare sometimes qualify to have their premiums and some other costs paid by Medicaid.)

To qualify for Medicaid, for example, a single parent with one child must have a net household income of $896 per month and have assets (such as a bank balance) of less than $2,000.

So… unless you’re very poor AND you fit into one of the categories, you can’t get Medicaid. A 36-year-old single man, for example, cannot get Medicaid no matter how poor or sick he is.

Also, many employers don’t offer health insurance, and those who do must ask workers to pay part or all of the premiums, co-pays, and a deductible. One of my relatives works at a large, established company and pays $350 per month in premiums with a $7,500 deductible for her health insurance.

Also, in this economy, it can be a challenge to find any job, let alone one with health insurance.

Medicaid, Medicare, and private group health insurance cover only part of the population. This leaves a lot of people uninsured (or under-insured).

3) Why do illegal immigrants get benefits?

In general, they don’t.

In order to get the benefits listed above, you must prove that you are a U.S. citizen and that you have a valid Social Security number. In some cases, non-citizens who have permission to live and work in this country can apply for limited benefits after they’ve been here for a set amount of time. (Five years of legal residency is common.)

This is not to say that illegal immigrants don’t use some public benefits. They drive on public roads, for example, and send their children to public schools. While even those who don’t pay payroll or income taxes pay SOME taxes (gas tax at the pump, sales tax, etc.) and contribute to the economy as a whole, I don’t know if it’s “enough” to cover services received. Also, I’ll concede that it’s possible for someone who is eligible for food stamps to buy food and then, for example, prepare a meal for people who are not eligible for food stamps. Further, there is a limited type of Medicaid that covers illegal immigrants: Certain hospitals must accept anyone who suffers from a life-threatening emergency, such as a heart attack or childbirth. The hospital must (very generally speaking) treat the person until they are stable. These hospitals receive some Medicaid funds to cover their expenses.

4) Are benefits a right—or a privilege?

The Supreme Court held in Goldberg v. Kelly 397 U.S. 254 (1970) that welfare benefits are a personal property right. This means that everyone who is entitled to benefits has the right to receive them, and if the benefits are to be terminated, Due Process is required: a written notice and the opportunity for a hearing.

Under the Fifth and Fourteenth Amendments of the U.S. Constitution, then, public assistance is a Constitutional right.

The federal government and the state governments (when the state is involved) can pass laws and make rules, but they must not infringe on the recipient’s constitutional property rights.

5) What about drug testing?

I think drug testing laws can be written to pass Constitutional muster, but drug testing doesn’t seem to be cost effective.

In jurisdictions where a clean drug test is required before benefits are issued, an overwhelming majority of recipients pass the drug test. (In Florida, over 98% of welfare recipients passed).

There’s a confound here, of course: People who are on drugs are not likely to take the test, which would then remove them from the welfare rolls—but would also remove their children from the welfare rolls, and some would argue that the child of a drug user needs help just as much as (or more than) any other child.

Also, the modest savings wouldn’t seem to justify the expense of administering and tracking the test, processing the appeals for those who failed, re-testing, etc. Some states have responded to this by making the welfare recipient pay for the test. The problem with this is: If you’re needy, you won’t be able to afford the test. Also, many states reimburse the cost of the test to those who pass, and taxpayers must pay the administrative expenses, which puts us back to square one, cost-wise (except for some of the failing 2%).

Still others have argued: Why illegal drugs? You can’t test for other wastes of money, such as alcohol, entertainment, some prescription drug abuse, tattoos, etc.

6) Why should people who don’t work get benefits while I work and don’t get anything?

I think good arguments can be made here.

It’s true that many people who receive benefits DO work (or worked for many years until they could no longer work). Some recipients work more than one job.

It would be disingenuous, though, to say that everyone who gets benefits accepts them only as long as they need them and uses the boost to get back to being a productive member of society, as Craig T. Nelson apparently did.

To be honest, this is an issue with which I wrestle. Morally speaking, what is society’s duty here? I’d be very interested to hear everyone’s thoughts on this.

7) There’s a difference: I worked and paid into the system in order to receive Social Security and Medicare.

This is true—partially.

While a person (or their spouse) must work 40 quarters and pay payroll taxes, in order to get Social Security and Medicare, it’s not exactly like we’re all paying into a fund and then getting back only what we paid into it.

I don’t wish to dishonor my parents’ memory, but I’ll submit my own family as an example.

My father died in 2004, and my mother died recently. My parents were decent, hard-working people. I believe that they did their best to be honest, responsible citizens.

For much of her adult life, my mother was a stay-at-home mother. My father was the sole breadwinner. He was a veteran of two foreign wars and was a smart man, but we were not rich.

I don’t know how much my father paid into the Social Security and Medicare coffers, but I am certain that it was not enough to pay for his end-of-life care, which was well over $500,000, nor was it enough to pay for my mother’s many years of experimental cancer treatments and end-of-life care—to say nothing of their Social Security income.

While my parents were responsible and worked hard, in this case, we took more than we gave—and other people paid the rest.

8) Benefits help the poor at the expense of everyone else.

Benefits do help the poor, but they also help the rich and middle-class. Here’s how:

Food stamps began during the Great Depression to help both poor people and struggling farmers. Still, when you buy food with food stamps or your own money, you help farmers, grocery stores, food companies, etc.

If you notice, it is not poor people who lobby to have food stamps pay for more and more items (including fast food!), it is corporate interests such as restaurants, large grocery store companies, and large food companies.

People often complain that food stamps should not be used for junk food. What do you think Monsanto, the Coca-Cola company, retail chains such as Wal-Mart, and Dollar General Market (which sells no fresh food) would say about that? Please note that J.P. Chase Morgan is paid hundreds of millions of dollars to administer the food stamp program in several states. When you consider who has the political power—hungry poor people or wealthy large corporations—it is no surprise that efforts to limit the scope of the food stamps program don’t get very far.

Similarly, efforts to cut Medicaid and/or Medicare don’t just upset sick, poor people. Hospitals and doctors and their related organizations, who hold considerable political power, need to be able to treat more patients with more expensive treatments. The rest of us benefit from having these hospitals, doctors, nurses, technicians, research, MRI machines, etc., available to us, too.

My point is: These programs are so far-reaching and are so intertwined with the economy that it’s not so simple to cut benefits for anyone.

9) “I know someone who gets food stamps and…”

Despite the efforts of the federal and state governments, there is fraud.

Some possible scams:

Buying groceries with food stamps and selling them to someone else for cash.

Faking a painful condition and selling your Medicaid-sponsored prescription pain pills for cash.

Making money under the table and then lying to your caseworker about it, thus qualifying you for food stamps or maybe Medicaid.

If you know someone who is doing this, report it! (Your state’s website has the phone number.) Someone is stealing YOUR money and preventing an honest, needy family from getting help.

How I Passed the Bar

“...Remember, never take no cut-offs and hurry along as fast as you can.” – Virginia Reed, age 12, Donner Party survivor

There is no “right” way to study for the bar except for this: Decide how YOU study and learn best, and then study THAT way as hard as you can.

Because the bar exam was so scary for me, I want to try to ease some of your fears. This is what I learned and what worked for me.

Please remember that this is my advice based on my experience only.

1) Know yourself

How do you learn? What worked for you when you were studying for law school exams, and what didn’t? Think hard, and do THAT when you’re studying for the bar exam.

I knew that I didn’t benefit much from static lectures and videos, and I didn’t benefit at ALL from studying in a group. I had to absorb the information and then work with it all by myself. A combination of briefing the cases, attending the classes (and listening but not talking very much), and then researching and writing my own outlines worked best for me. Same with the bar exam: I listened to the bar exam subject lectures, took notes, outlined, and then practiced on my own. It worked for me.

If your law school experience has taught you that you benefit from the format that one of the bar study courses offers, then do that. I studied on my own, using a variety of tools.

2) Do not listen to the naysayers:

Most “friendly advice” is not very friendly—or very true.

If you’re a law student now (or you’ve ever been one), you can probably rattle off a list of the dire warnings that classmates, professors, and lawyers leveled at you during your 1L year: “If you don’t join this club, you won’t make contacts, and you won’t get a job when you graduate.” “If you don’t form a study group, you’ll flunk out.” “If you hand-write your exams, you’ll be at a speed disadvantage because….”

I wasted a lot of mental energy worrying about this stuff until I discovered this: The only “right” clubs to join, networking events to attend, externships to work are the ones that fit your goals and interests. Everything else is just noise.

It’s that way with the bar exam, too: The doom-and-gloom types will try to tell you that you won’t pass if you don’t take BarBri, or that PMBR is the only way to go, or—even more chilling: “The best predictor of success on the bar exam is (pick one: first semester grades, your score on the MPRE, your score on the LSAT).”

Try not to listen to these people. Your “success rate” has little to do with your past, and it’s almost entirely under YOUR control.

3) Surround yourself with positive people and support.

I had several friends from the upper classes who had taken the bar before I did. I would call these friends—sometimes very late at night—and they would talk me down. Lean on these people. (Email me if you need to lean on me.)

You can do it.

4) Don’t waste time and money on gimmicks

It’s tempting to listen to those who claim to have tips and tricks to “beat” the bar exam. These are silly. Again, hard work and careful study are the only keys. There are no shortcuts.

5) BUT some tools are very helpful and are worth the money.

My state (Tennessee) offered for a modest price the essay questions from some recent past bar exams. I bought these and used them to practice, and they were very helpful.

They were also helpful in another important way: You begin to notice a pattern. DON’T PUT ALL YOUR FAITH IN THIS PATTERN, but take note of it.

For example, I noticed that five out of six of the recent past bar exams featured a Wills and Trusts question. In every one of these fact patterns, someone had died leaving an older will and a more recent will. The will’s validity was in question by putative heirs, for one of the expected reasons: The newer will was handwritten, or maybe the heirs suspected undue influence and/or the testator’s incapacity. You’ll notice these frequently-tested scenarios, and you’d be a fool not to prepare for them.

6) Don’t skimp on your MBE (multiple choice portion) study

This study was far more tedious and time-consuming than my essay study, but I devoted most of my time to it, and it paid off.

Here’s how I did it:

Get your hands on as many sample bar exam multiple choice questions as you can. I borrowed a huge book of them from a friend, and I bought second-hand a book with many hundreds more. In addition to these individual questions, the books had full sample tests.

I recommend this method:

1) For eight or more hours a day for many days on end, I worked one question at a time. I covered up the answer choices, read the fact pattern and question prompt, and quickly tried to answer before I looked at the choices. I then looked at the choices, picked one, and then read the answer and explanation, noting why I got it right (or wrong). Then, I did it again. And again, and again, for several hundred questions, day in and day out.

2) After I had practiced in this manner on a fair sample of the questions for each of the subjects (torts, contracts, etc.), I took a full sample bar exam multiple choice section. I then graded myself with the answer key, became crestfallen at how low my percentage of correct answers was, and tearfully went back to Step 1. I then took another full test. I did this maybe once or twice more. My score got higher and higher, so don’t be alarmed at how poorly you may do at first. That’s normal.

(Also, you’ll wish you had used this method all during law school to learn your subjects, because you’ll be astonished at how good you get at spotting the fine distinctions in the law. As tedious as this is, it’s quite encouraging to see how quickly you begin to really KNOW the law. This is why I said “don’t skimp” on this part. This will help your essay question performance, too! It is time well-spent, so give it the time it deserves.)

7) Work hard

This seems obvious, but even if you do choose a bar study course, I think it’s a mistake to be lulled into just working the daily sessions. For me, it took more than eight hours a day of diligent self-study—every single day.

You’ll notice that you will not feel prepared ever. This is alarming, but it’s normal. I don’t know about you, but I did much better on the law school exams where I didn’t feel that I knew everything. When I felt confident that I had the subject down cold, that was actually a bad sign. You know that you don’t know what you don’t know. If you know, you don’t know, because you can never really know everything. You know?

8) Make peace with IRAC

Bar exam graders have even more exams to grade than do law school professors. The graders are looking for certain things. If you cover what they’re looking for, your answer passes. If not, it fails. This is actually a good thing, because you’re already so good at IRAC, issue spotting, and raising and dismissing counterarguments.

I found that the essay questions did not have as many issues to spot as did a standard law school exam, so you’ll want to signal to the exam grader that you’ve hit the target. To do this, I made very sure to lay on the IRAC a little more thickly than I did on a law school exam, and I think it was wise.

For example:

“This question deals primarily with personal property.

The question asks whether Mr. Jones can get the ring that he left on the grocery store shelf back from Mr. Smith, who found it. In order to determine this, it’s important to determine whether Mr. Jones lost the ring, mislaid or abandoned the ring.

In Tennessee, personal property is ‘lost’ when…”

See? Pretty broad, but it works.

9) I never wrote a sample essay answer

You may choose to, but I didn’t. I just read the question, outlined the answer, and checked it against the sample answer to see whether I had raised the proper issues and had dealt with them correctly.

10) Don’t waste time on RAP

If you don’t already understand the Rule Against Perpetuities or some similarly obscure-yet-complicated law, don’t waste time learning it now. If judges don’t understand it and all jurisdictions have written statutes so that it is never, ever triggered, it’s probably not going to figure heavily on the bar exam (if at all).

Tread carefully, of course. You don’t want to say something like: “I never could remember all of the hearsay exceptions from Evidence class. I’m skipping them!” But if you don’t see something tested in the hundreds of sample questions that you do (or you only see it once or twice), don’t waste valuable time.

 

SUMMARY:

Here’s how I studied for the bar:

1) I knew what worked for me, and I crafted a rough plan based on that.

2) Before I finished 3L, I gathered my study materials. I borrowed a friend’s PMBR Multi-state lecture CDs and practice question book, and I bought used Tennessee BarBri outlines and MBE and essay sample question books from eBay, which I later resold for the same price. From my state bar association, I bought the sample exams (including an online version).

ETHICS NOTE: Companies such as PMBR and BarBri ask you not to do this. I did it anyway. Was it wrong? I don’t think so, but I accept that reasonable minds can differ.

3) I read the bar outlines from the books and listened to the bar lecture CDs. I took notes on my laptop and then crafted the notes into outlines, trying to forget that I had spent many hours just 2 ½ years prior doing the same thing.

4) I then began multiple choice practice, using the method in Point #6 above.

5) I practiced my essays, using the method in Points #5, 8 and 9, above.

6) I took sample exams.

Please do it your own way, but work hard.

I know you can do it. I’m proud of you.

Call or email if I can help.