text:
|Richard W. Painter
Visiting Professor of Law
|335 Hutchins Hall
625 South State Street
Jonathan G. Katz
Securities and Exchange Commission
450 Fifth Street, NW
Washington, D.C. 20549-0609
December 12, 2002
Re: Proposed Rules pursuant to Section 307 of the Sarbanes-Oxley Act of 2002
under File Number 33-8150.wp
Dear Mr. Katz:
I write in response to the Commission's request for public comment on its Proposed Rule for Implementation of Standards of Professional Conduct for Attorneys, 17 CFR Part 205 (the "Proposed Rules"). The Commission has issued the Proposed Rules pursuant to the mandate of Congress in Section 307 of the Sarbanes-Oxley Act which was signed into law by the President on July 30, 2002.
I congratulate the Commission for an impressive job of drafting the Proposed Rules in a very short period of time. Although I and other commentators will suggest changes to some language in the Proposed Rules, only a few of these changes are of critical import (such as clarification that the applicable standards throughout the rules are objective rather than subjective, discussed further in response to Question 4 below). I do not believe that any of these changes warrant reconsideration of the basic principles behind the Proposed Rules or delay in their promulgation as final rules of the Commission.
The Commission, in carrying out the Congressional mandate in Section 307 and proposing these rules, has done much to restore public confidence in the legal profession. The role of lawyers in preserving our democratic form of government, described by De Tocqueville and others, as well as lawyers' role in maintaining the integrity of our economic system, can be carried out only if lawyers conduct themselves in a manner that instills public confidence in our profession. For a lawyer to stand by and do nothing while a client defrauds investors is contrary to everything our profession stands for. Most lawyers thus already do the right thing when faced with client securities law violations and breaches of fiduciary duty, but a few lawyers do not. The Commission's continued efforts in this area, through the Proposed Rules and any future rules that the Commission decides to promulgate under Section 307, will allow honest lawyers and clients to thrive in a legal and economic system that values disclosure - including disclosure by lawyers to their own clients - over deceit.
I discuss below some general questions concerning the Proposed Rules, along with my own response to those questions. Other specific questions are discussed in bullet point paragraphs in the next section of this letter. Finally, I wish to direct the Commission's attention to the Comment Letter of Susan Koniak, Professor at Boston University Law School, Roger Cramton, Professor and former Dean of Cornell Law School, George Cohen, Professor of Law, University of Virginia School of Law and other signatories. I have reviewed that letter and agree with the recommendations made therein. I only address the subject matter of a few of its recommendations below, but I believe that the others are also worthy of your serious attention.
General Questions
1. Should the Commission go beyond the up-the-ladder reporting requirement in Section 307 to address other questions of professional responsibility such as what a lawyer should do if up-the-ladder reporting fails?
The Commission furthers the intent of Section 307, and faithfully carries out the statute's mandate, by addressing questions beyond the up-the-ladder reporting language that is in part of the text of Section 307. Section 307 requires the Commission to:
"issue rules, in the public interest and for the protection of investors, setting forth minimum standards of professional conduct for attorneys appearing and practicing before the Commission in any way in the representation of issuers, including a rule - [setting forth the up-the-ladder reporting requirement]" (emphasis added)
The word "rules" is plural not singular. The reference to "minimum standards" is again plural and, in conjunction with the rest of the sentence, implies that the Commission is being directed to make a general assessment of what standards of attorney conduct are consistent with the public interest and the protection of investors. The statute furthermore directs the Commission to issue rules for attorneys appearing and practicing before the Commission "in any way" in the representation of issuers. Finally, the word "including" drives the point home: Congress does not expect the up-the-ladder reporting requirement to be the only rule issued by the Commission under Section 307.
This approach is entirely consistent with the rest of the federal securities laws. Congress in many instances directs the Commission to decide what specific rules are appropriate in the public interest and for the protection of investors. Congress, when it directs the Commission to determine what rules are in the public interest and appropriate for the protection of investors, does not intend that the Commission should only do the absolute minimum required in the statute. Indeed, for the Commission to limit itself to the absolute minimum, when faced with a statutory mandate as broad as Section 307, would frustrate the intent of Congress.
One obvious question that needs to be addressed by Commission rules under Section 307 is what a lawyer must do if up-the-ladder reporting fails because an issuer's directors will not take appropriate remedial action. This question is closely related to, and logically follows from, the specific rule set forth in the statute. Congress also must have foreseen that the Commission would address this question, even if Congress did not instruct the Commission how specifically to do so. Indeed, Congress knew that the Commission had previously addressed the responsibilities of securities lawyers who face recalcitrant clients. See Letter, dated March 28, 2002, from SEC General Counsel David Becker to Richard W. Painter, citing In Re Carter and Johnson (1981). This question is directly relevant to protection of investors and the public interest, which are the underlying purposes of Section 307. Finally, this question is not just theoretical but real - some issuers (particularly immediately after IPOs) have few independent directors, and even independent directors sometimes refuse to act. Lawyers thus should know what to do if up-the-ladder reporting fails. The Proposed Rules provide a good answer to this question, but even if the Commission were to decide that a different answer is more appropriate, the Commission should not respond to criticism of the Proposed Rules by leaving this question unanswered.
2. Has the Commission appropriately answered the question of what a lawyer is required to do if up-the-ladder reporting fails?
Yes, but other answers are appropriate as well.
In previous correspondence with the Commission, I urged the Commission to require that a lawyer confronted with such a dilemma either (i) resign or (ii) disclose to the Commission information necessary to prevent the violation from occurring. The lawyer would be permitted to choose between these options or to choose both. Under this approach, the lawyer who chose to resign rather than disclose would not have to make a "noisy" withdrawal, although the lawyer might choose to do so.
I still believe that this approach, which is somewhat more flexible than the Commission's Proposed Rules, would be workable, and that an inflexible requirement of a noisy withdrawal is not necessary. I would, however, add two caveats. First, if the lawyer has recently communicated directly with the Commission on behalf of the issuer (perhaps in the last six months), the noisy withdrawal should be required, including appropriate notice to the Commission. The Commission should not be misled into believing that the issuer is currently represented by the lawyer when in fact the issuer is not. Second, the issuer should be required to disclose to the Commission and to investors the fact that the lawyer has resigned (by filing a Form 8-K), although the issuer should not be required to disclose the reasons the lawyer resigned, as it would if its auditor had resigned. This approach avoids requiring the issuer to waive the attorney-client privilege, but still puts the burden on the issuer to disclose the attorney's resignation. This approach also avoids imposing on attorneys the burden of "noisy withdrawal" and would alleviate the concerns of commentators who find this burden to be unreasonable.
I do not mean to imply, however, that the Commission's proposal to require a noisy withdrawal is inappropriate. Noisy withdrawal is allowed under the rules of just about every jurisdiction, and (unless specific client information is disclosed) does not endanger the attorney-client privilege. For the Commission to require it is not unreasonable. I only recognize that this noisy withdrawal requirement in the Proposed Rules will be the subject of substantial criticism and that alternative approaches would likely yield equally desirable results.
I should emphasize also that concerns about the "noisy withdrawal" provision in the Proposed Rules are perhaps overblown in view of the fact that the Commission has made this a default rule. As pointed out in my answer to Question 3 below, the noisy withdrawal requirement is only imposed on those issuers and lawyers that do not choose to operate within the rubric of a QLCC. Noisy withdrawal thus is a "penalty default rule" that many issuers and their lawyers will choose to opt out of by establishing a QLCC. See R. Painter and J. Duggan, Lawyer Disclosure of Corporate Fraud, 50 SMU Law Review 267 (1996) (suggesting that stringent "penalty default rules" requiring notification to the Commission be imposed to encourage issuers and lawyers to agree in advance to their own alternative procedures for reporting violations), citing Ian Ayres & Robert Gertner, Filling Gaps in Incomplete Contracts: An Economic Theory of Default Rules, 99 Yale L. J. 87-130 (1989) (discussing use of penalty default rules in other areas of the law).
However the Commission decides to address the noisy withdrawal question, one thing is clear: withdrawal should be required if the lawyer is unable or unwilling to prevent the conduct in question (for example by disclosure to the Commission). A lawyer cannot represent a client whom the lawyer knows is using the lawyer's services to violate securities laws. See ABA Model Rules 1.2(d) and 1.16. Lawyers who continue to represent clients in these circumstances expose themselves and their firms to significant legal liability, even under the law that preceded Section 307 and the Commission's Proposed Rules. For all of these reasons, it is in the interests of corporate clients, investors, and lawyers themselves that the Commission require a lawyer to resign if the client will not desist from known securities law violations and the lawyer is unable or unwilling to disclose information necessary to prevent the violation from occurring. This aspect of the Proposed Rules - the requirement of resignation - should not be changed in the final rules.
Finally, discussion in the final rules of what the lawyer is required to do should remain distinct from the question of whether the lawyer is permitted to disclose client confidences to the Commission, a topic discussed in my response to Question 5 below.
3. Should issuers be allowed to opt ex-ante into a rule that would allow lawyer reporting to be done through a Qualified Legal Compliance Committee (QLCC)?
Yes, provided the QLCC remains independent of the issuer's senior management in substance as well as form, and provided complete disclosure about the QLCC is made to investors.
I have argued before that federal securities laws and Commission regulations should allow issuers in advance to redirect up-the-ladder reporting by their lawyers to an independent compliance committee instead of to the full board of directors. Painter and Duggan, supra. at 267-68 (1996). I have also suggested allowing issuers to opt out of a rule that would impose a "noisy withdrawal" requirement on issuer's counsel. Id at 268. The issuer, however, should be required to opt out of default rules in Commission regulations and into such alternative reporting procedures ex-ante, and not be allowed to do so after an incident arises that must be reported. Id. at 266. Furthermore, full disclosure of such opt-out/opt-in arrangements should be made to shareholders, or better yet, shareholder approval should be required. Id. at 269. See also R. Painter, Rules Lawyers Play By, 76 N.Y.U. Law Review 716-722 (2001).
With the exception of shareholder approval, these principles are incorporated into the QLCC that is contemplated by the Commission's Proposed Rules. The Commission's final rules should make it clear, however, that the issuer has to opt into the QLCC arrangement in advance and cannot simply establish a QLCC in response to an incident that must be reported. Furthermore, although I would prefer that shareholders approve of QLCC arrangements, full and accurate disclosure by the issuer about a QLCC, including biographical information on its members, should assure that shareholders are at least informally involved in establishing and monitoring the QLCC. Other Commission rules, perhaps in Regulation S-K, should require issuers to make this disclosure to their shareholders.
It is likely that many issuers will establish QLCCs (particularly because, under the Proposed Rules, an issuer using this procedure thereby opts out of the mandatory noisy withdrawal). Lawyers may even insist that their corporate clients establish QLCCs. Because so much reporting under the Proposed Rules is thus likely to be done through QLCCs, instead of through the default terms of the Proposed Rules, including mandatory noisy withdrawal, it is critical that the Commission take steps to ascertain that QLCCs established by issuers are truly independent of issuers' senior management. Shareholder monitors should also be encouraged to participate in assuring the integrity of this opt-in reporting procedure.
4. Do the Proposed Rules use appropriate evidentiary thresholds to trigger the various reporting requirements?
Probably, but on two questions - the amount of evidence required to trigger each reporting requirement and whether the lawyer's assessment of this evidence is held to an objective or subjective standard - the Proposed Rules are unclear.
Congress, when it enacted Section 307, was well aware of the evidentiary threshold that was proposed in my letter to Chairman Pitt of March 7, 2002 (signed by 40 law professors and introduced into the Congressional Record by Senator Edwards). That letter had proposed that up-the-ladder reporting be required "if the lawyer knows that the client is violating the securities laws." Congress, however, enacted a different rule. Congress chose broader language that required "an attorney to report evidence of a material violation of securities law or fiduciary breach or other similar violation." The probability of a violation that creates a duty to report is lower, because the word "evidence" implies something less than certainty or even a high degree of probability. Furthermore, by using the word "evidence," without any reference to the lawyer's own knowledge, Congress implied that the standard used to judge the lawyer's assessment of the evidence should be objective rather than subjective.
Standard professional usage of the term "reasonable" in this context often denotes an objective standard of knowledge. Nonetheless, nowhere does Section 307 itself use the word "reasonable," and because of that word's varying interpretations, I find its use, even as defined in the Proposed Rules, potentially confusing. The fact that many commentators will no doubt urge the Commission to interpret "reasonableness" from a subjective rather than an objective vantage point, contrary to Congressional intent, could lead to yet more confusion in the final rules.
The definitions at the beginning of the final rules should make clear that the applicable standard for evaluating lawyer conduct under the rules is objective rather than subjective. It is also important that the final rules specify how much evidence of a violation is required to trigger specific duties at each stage of the reporting process. For example, evidence that a violation is "possible" could trigger the duty to report to the Chief Legal Officer, whereas evidence that a violation is "likely" could trigger the duty to report to the full board or to the QLCC. Evidence that a violation was "highly likely" or a "near certainty" could trigger the requirement of a noisy withdrawal. In order to avoid reintroduction of subjective criteria, reference should be made throughout the final rules to evidence of which the lawyer is or should be aware, not to the lawyer's own assessment of whether there is or is not a violation. Under this scheme, it should thus be the lawyer's responsibility to report the evidence to the client, going up the ladder if need be, so the client can determine whether there has been a violation and decide what to do about it. At the noisy withdrawal stage, the requisite level of evidence of which the lawyer is or should be aware once again should trigger the requirement that the lawyer act in accordance with the rules.
Professors Cramton, Cohen and Koniak have made more specific suggestions for addressing these problems in their own comment letter, and I will not restate their comments here other than to say that I believe their observations would be useful to the Commission in drafting the final rules.
5. Is the Commission right to allow an attorney to disclose client information to the Commission in some circumstances?
The vast majority of states allow, and some states require, a lawyer to disclose client information in the circumstances described in Paragraph 205.3(e) of the Proposed Rules. A very few states forbid disclosure. This minority rule narrows the lawyer's options for responding to client conduct that could defraud investors and expose the lawyer to liability for legal work that the lawyer has already done. No lawyer representing a client before the Commission should be put in such a situation where the lawyer cannot use a full range of options, including disclosure and the threat of disclosure, to protect investors and the lawyer from financial injury at the hands of a client that has used the lawyer's services to perpetrate a fraud.
State ethics rules that forbid disclosure in client crime/fraud situations are not only contrary to public policy, but contrary to common law articulations of both the duty to keep client confidences and the attorney-client privilege, contrary to the longstanding position of the ABA in the Model Code prior to adoption of the Model Rules, contrary to the current position of the ALI, and contrary to the views of most commentators who have written on this issue. The ABA's own Ethics 2000 Commission has recommended that the ABA's endorsement of the minority view in Model Rule 1.6 be brought into line with the approach in the majority of jurisdictions, and the ABA's Corporate Responsibility Task Force has echoed this recommendation.
It is no secret that the most pervasive argument in favor of the minority rule is that a lawyer who is forbidden to disclose can, if sued for assisting a client in fraudulent conduct, defend the case by claiming that the lawyer had relatively few options in responding to the situation and thus relatively little leverage over the client. Such arguments, however, usually fail to protect lawyers from liability even in jurisdictions with the minority rule, because even that rule allows the lawyer to resign and, in most cases, to make a noisy withdrawal. More important, professional responsibility rules should not be designed with defense of malpractice claims as their primary objective, but with a view toward minimizing lawyer complicity in fraud that gives rise to malpractice claims to begin with. The majority rule, which is adopted by the Commission in the Proposed Rules, furthers this objective.
Furthermore, failure of the Commission to address this question, and to preempt state ethics rules that conflict with both the majority rule and the investor protection objectives of the securities laws, exposes lawyers to conflicting rules in different jurisdictions. Information that must not be disclosed in the District of Columbia may be required to be disclosed in New Jersey or Florida, and a lawyer who represents a client in the District of Columbia and one of these other states may be forced to choose between disobeying the District of Columbia rule and exposing himself to liability elsewhere. A large number of law firms with offices in states with different rules are particularly vulnerable to this dilemma. Such, however, is a dilemma that no client should be allowed through fraudulent conduct to impose on a lawyer or law firm. When the client is an issuer of securities subject to federal securities laws, there should be a nationwide standard allowing the lawyer to disclose.
The Commission should, on the other hand, abstain from preempting ethics rules in the relatively few states that go further and require disclosure in order to prevent a client crime. Powerful public policy arguments can be made in favor of such a rule, which places the lawyer's responsibility to the legal system on a par with the lawyer's responsibility to the client. The ABA Model Rules and ethics rules in many jurisdictions indeed require a lawyer to disclose some client crimes such as perjury, even in circumstances where the actual harm inflicted by the crime is arguably small. States that wish to adopt ethics rules that place financial fraud and other crimes on a par with perjury should be allowed to do so. The argument that mandatory disclosure destroys the attorney-client relationship and leads to the demise of the legal profession is bellied by the fact that lawyers practice in these jurisdictions that require disclosure, and clients hire these lawyers to zealously represent them, every day. Finally, Section 307 directs the Commission to define "minimum standards of professional conduct" for lawyers representing issuers, and such language clearly implies that more exacting state rules on disclosure of client fraud should not be disturbed.
6. Should the Commission address the issue of attorney-client privilege in the Release accompanying the Final Rules?
The Release should only restate the law of privilege in areas where it is clear, and should avoid discussing the Commission's preferred resolution of arguable questions of privilege and waiver.
It is important that the Release clarify basic evidentiary principles concerning the attorney-client privilege, particularly after opponents of Section 307 and critics of the Proposed Rules have raised privilege concerns that simply do not exist. Reporting information to a corporate client's board of directors, for example, does not waive the privilege. Neither does a noisy withdrawal in which the lawyer simply informs the Commission that the lawyer is resigning for professional reasons without disclosing further information about the client. The Commission should use the Release accompanying the final rules to clear up any possible misunderstanding concerning these elementary principles of evidence.
Questions of privilege and waiver are more ambiguous, however, if an attorney chooses to report client information to the Commission, as the Proposed Rules permit even without client consent in some circumstances. In this situation, a selective waiver theory could bar third parties from discovery of the information disclosed to the Commission, although many courts reject selective waiver. An argument can also be made that there is no waiver to begin with, because only the client can waive the privilege. On the other hand, a court might find that the attorney waived the privilege as an agent of the client, even without client authorization, or that the client implicitly authorized the waiver by hiring an attorney subject to the Proposed Rules, providing the attorney with information and then acting in a manner that gave the attorney the option to disclose the information to the Commission. Finally, an argument can be made that the privilege never existed to begin with because of the client crime/fraud exception, but here also the law is unclear because there may be situations where disclosure would be allowed under the Proposed Rules, yet the crime/fraud exception would not apply. The resolution of each of these questions depends on the specific facts of each case and the law in each jurisdiction where the privilege is being asserted. The situation is complicated by the fact that clients could face future litigation in a multitude of jurisdictions and that privilege and waiver questions often turn on fact-specific inquiry.
As I point out in my answer to the immediately preceding Question 5, the final rules should allow a lawyer to disclose client information in the circumstances set forth in the Proposed Rules. However, a lawyer who chooses to disclose specific client information to the Commission should not be misled into believing that the evidentiary privilege is preserved when it may not be. Possible loss of the attorney-client privilege is a factor that the lawyer should consider, and weigh along with other relevant factors, such as the need to protect investors from the client's fraudulent conduct, when deciding whether to disclose specific client information to the Commission. The Release accompanying the final rules should not seek to sway the lawyer's evaluation of these evidentiary questions over which the Commission has little or no control.
Finally, if the Commission seeks to resolve these evidentiary questions definitively in order to assure lawyers that the attorney-client privilege is not waived by disclosure to the Commission, the only effective method of doing so is to seek an act of Congress establishing selective waiver and preempting inconsistent state law. Commission rules, or a release accompanying such rules, cannot alone accomplish this objective.
7. Is the Commission correct to impose different standards of professional responsibility on in-house attorneys than on outside attorneys?
Perhaps, although such an approach has little precedent in the ABA Model Rules or in state ethics rules. There is, by contrast, ample precedent for distinguishing between subordinate and supervisory lawyers, and that approach might be a better way of dealing with the dilemmas confronted by inside counsel.
Last summer, when Section 307 was in House-Senate conference, I was asked by a Senate staff member whether an exception to the up-the-ladder reporting requirement should be made for inside counsel. My response to this question was that neither ABA ethics rules nor state ethics rules impose differing obligations on inside and outside counsel. Such a distinction would be unprecedented and, at least in the context of the up-the-ladder reporting requirement, would be unjustified.
The Commission's Proposed Rules, however, seek to make such a distinction in a very different context - that in which a lawyer who has already pursued up-the-ladder reporting to no avail, must resign if the violation is sufficiently serious. The Proposed Rules answer this question in the affirmative for outside counsel but in the negative for inside counsel. The Proposed Rules then go on, however, to require that inside counsel disaffirm his own work product in a manner that will probably lead to his being fired. The end result in many cases thus will be the same as for outside counsel, except that inside counsel is allowed, as an alternative to resigning, to incur the risk of being fired for complying with the Proposed Rules.
The Commission's Proposed Rules articulate what is perhaps the best possible resolution of this very difficult question. This is certainly not an unconscionable resolution, given the hardships inflicted on inside counsel, for whom resigning from a representation means loss of a job. On the other hand, the additional options available to inside counsel under the Proposed Rules are, for the reasons mentioned above, more apparent than real.
A better alternative might be to require withdrawal of the senior legal officer of the issuer in the exact same manner as withdrawal is required of outside counsel. The responsibilities of subordinate legal officers employed by the issuer would stop with the internal reporting obligations set forth in the Proposed Rules, and these subordinate legal officers thus would not be required to resign or disaffirm work product. Although the issuer's senior legal officer, under this approach, would have to resign if the issuer's directors refused to correct a violation serious enough to require withdrawal, the additional responsibilities, and usually compensation, that come along with the senior legal officer's position justify this heightened duty. The senior legal officer of the issuer is also usually in a position to persuade the issuer to establish a QLCC, which effectively allows the issuer and all its lawyers to opt out of the withdrawal requirements in the Proposed Rules. Furthermore, a senior legal officer who does not resign or put a stop to a violation serious enough to require withdrawal under the Proposed Rules is very likely to suffer professional and financial consequences (including liability exposure) more serious than those that would be suffered through loss of employment. Finally, the Commission, if still concerned about the hardships imposed on inside counsel in these circumstances, could require issuers to undertake to indemnify senior legal officers who resign in accordance with Section 307 for a specified amount of lost salary (perhaps one year).
In summary, while I fully understand the purpose of distinguishing between inside and outside counsel, such an approach is unprecedented in professional responsibility rules and may be inadvisable here. The final rules could instead rely here, as they do elsewhere, on a distinction which does have precedent in professional responsibility rules, that between subordinate and supervisory attorneys. The final rules thus could impose the obligation to resign and/or disaffirm work product only on supervisory attorneys, whether they are retained or employed by the issuer.
Specific Recommendations
1. The definition of "breach of fiduciary duty" should include breaches of fiduciary duty "recognized by state or federal law, including but not limited to fiduciary duty recognized at common law. . . " Breaches of fiduciary duty to pension funds under federal law such as ERISA, and other similar violations would thus clearly be covered, whereas arguably they are not under the current definition in the Proposed Rules. See Dana Muir, Sarbanes-Oxley Section 307: No Mandated Disclosure of ERISA Fiduciary Breaches?. 2 Pensions and Benefits 233 (BNA, December 5, 2002). The reference in Section 307 to "the public interest" as well as to the "protection of investors" clearly indicates that Congress intended the definition of "breach of fiduciary duty" in the Commission's rules to be wide reaching, and to encompass such things as breach of duty to employee pension plans and their beneficiaries.
2. The definition of "material", when qualifying a violation of securities laws, should refer to "information that a reasonable investor would consider important in making an investment or voting decision." The definition of "material", when qualifying a violation of fiduciary duty or other similar violation, however, for reasons explained in paragraph 1 above, should refer to "information that a reasonable person protected by the law or legal duty in question would consider important either in making an investment decision or in taking other steps to protect that person's legal or economic interest." Section 307's reference to fiduciary breaches and other similar violations, and reference to the public interest as well as protection of investors, requires that the word "material", when used outside the context of securities law violations, incorporate interests other than those of investors.
3. The definition of "evidence of a material violation" should read something like "information that would lead a prudent and competent attorney representing clients before the Commission, acting reasonably, to conclude that there is probable cause to believe that a violation has occurred or is occurring." First, for reasons explained in my answer to Question 4 in the General Questions above, it needs to be clear that the attorney's evaluation of evidence is to be judged objectively rather than subjectively. Second, with respect to the amount of evidence, Congress used the word "evidence" without limitation in Section 307. It is thus difficult to believe that Congress intended none of Section 307's provisions to apply when there is evidence constituting probable cause, which is one of the most widely used evidentiary standards applied to the investigative stage of legal proceedings. Higher probability of a violation should not be required for the initial step of reporting to the Chief Legal Officer, and the definitions section of the final rules thus should incorporate an evidentiary threshold of probable cause. Higher evidentiary thresholds should be required to trigger subsequent additional requirements such as up-the-ladder reporting to the directors or withdrawal. These higher evidentiary thresholds could be referred to specifically in the text of the relevant subsections of the final rules.
4. Anywhere the word "reasonable" or "reasonably" is used, whether in the definitions or in the text of the rules, there should be a statement that the applicable standard is objective (what a prudent and competent attorney, acting reasonably, would do or know under the circumstances), not subjective. This is consistent with the text of Section 307, which is devoid of subjective criteria even though subjective tests were incorporated in various proposals known to Congress at the time. The definition also should clarify that the relevant standard is that of a "prudent and competent attorney representing clients before the Commission." Lawyers who choose to practice securities law thus should be held to the standards expected of securities lawyers generally, not to standards expected of lawyers who may not be familiar with securities law.
5. The final rules should address imputation of knowledge within law firms. Lawyers in the same law firm that represents an issuer in connection with both securities matters and other matters (for example environmental or labor matters) should communicate with each other to the extent necessary for the securities lawyers to know whether descriptions of the issuer's business, legal affairs and other disclosures to which the securities laws apply are accurate. The Commission should clarify in the Release accompanying the final rules, if not in the text of the rules themselves, that the Commission would ordinarily expect a lawyer, and a law firm, to take steps to assure that securities lawyers are aware of information about the issuer that is available to other lawyers in the same law firm.
6. Many of the requirements under the Proposed Rules are best directed at law firms in addition to individual lawyers. In some instances a law firm will not have acted reasonably under the circumstances, even if no specific lawyer at the firm can be shown to have fallen below the requisite standard of care. In these circumstances, the firm should be held responsible, even if only sanctioned with a letter of reprimand. Ethics rules in several states, including New York, now allow for discipline of law firms as well as individual lawyers, and the Commission should seriously consider following suit.
7. I have suggested in my prior correspondence with the Commission that rules under Section 307 should address issues that are not addressed in the Proposed Rules, such as contingent fees and equity-in-lieu-of-legal-fees arrangements for corporate transactions. Because of the short time deadline imposed by Congress under Section 307, it would be unreasonable to expect the Commission to address all such issues at this time. The Commission should, however, give these issues serious future consideration under the broad Congressional mandate in Section 307.
I again compliment the Commission on its diligent and detailed effort to address the pressing problems that are the subject of the Congressional mandate in Section 307. Your continued attention to these problems will not only protect investors from those relatively few issuers that choose to violate securities laws and breach fiduciary duties, but will also restore public confidence in securities lawyers. Our economic system and the legal profession will be better for it.
Very truly yours,
Richard W. Painter
Visiting Professor of Law
Professor of Law
University of Illinois College of Law
(217) 333-0712
cc: The Hon. Harvey Goldschmid
The Hon. John Edwards
The Hon. Michael Enzi
The Hon. John Corzine


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BABSON PARK, Mass. – The eighth-ranked Babson College women's basketball team opened with a 16-0 run and never looked back as the Beavers defeated visiting MIT, 70-40, in a New England Women's and Men's Athletic Conference (NEWMAC) contest at Staake Gymnasium on Tuesday night. With their 28th straight conference victory, the Beavers improved to 7-0 overall and 3-0 in the NEWMAC, while the Engineers slipped to 4-4 overall and 1-2 in league play.
Babson was once again led by the trio of Kathleen King, Nicki Wurdeman, and Sarah Collins, who combined for 43 points on 19-of-32 shooting from the field. King scored 16 points to go with five rebounds and four assists, Wurdeman added 13 points, seven boards, and four steals, and Collins finished with 14 points, seven rebounds, four steals, and two blocked shots. Allanah Wynn and Becky Bowman anchored the Beavers' backcourt in the win, with each contributing four points and two steals while combining for five assists.
MIT was paced by Tamara Pena, who scored a team-high 12 points and pulled down six rebounds, and Anna Merrifield, who added seven points and seven caroms. Rachel Hunt chipped in with five points and a game-high eight boards as Rebecca Odim tossed in six points off the bench for the Engineers.
Babson controlled the game from the start, scoring 16 straight points while holding MIT scoreless for the first eight minutes of play. Collins had six of her 14 first-half points during the opening run, while Wurdeman added four of her 13 first-half points. The Engineers would cut their deficit to 12 on two free throws and a lay-up by Merrifield – the first of three 12-point deficits over the remainder of the period – but they would get no closer as the Beavers eventually took a 39-18 lead into the locker room. The hosts would then maintain at least a 20-point cushion throughout the second half before claiming the 70-40 victory.
Courtesy of Babson College Sports Information


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Tuesday, February 07, 2012
The Solution: Move to Houston
77 comments:
- concernedjewgirl said...
I still don't understand why the campaign of the OU is not move to Israel...
- February 08, 2012 8:31 AM
It's because their first duty is to themselves and their own bottom line. They can't sell you kosher products or have you join OU affiliated shuls or send your kids on NCSY shabbatons if you live in Israel.
Toning down the cynicism and snark a LITTLE bit, these organizations looking for "solutions" to Orthodoxy's woes are not going to propose a solution that works against their own interests. They're not going to put themselves out of business. Their affordability teams are going to put out ideas which just so happen to align with the OU's interests and help expand their brand.
They really don't care if there are better solutions out there, even if those solutions better mesh with what their Orthodox mission SHOULD be.
In terms of Israel, I always laugh when these organizations and yeshivas say they're Zionist and are lovers of Israel - they love Israel from afar. Their Zionism is relegated to tourism, the Israel Day parade, protesting in front of the UN, AIPAC, and eating a falafel or schwarma. Nothing wrong with that, but at least be honest with yourself.
These organizations view Orthodoxy as a brand, not a religious movement. Their goal isn't to solve any crisis, it's to keep having people associate Orthodoxy with THEM and not the other "Orthodox" organizations out there.
There's a lot the OU and YU could do to solve the crisis if they wanted to. They don't even work together directly. They each have their "affordability team".
As for Houston, I have friends who moved there from NY. They have just as much trouble getting by. They're planning on making aliyah.
- February 08, 2012 9:14 AM
And they call 10.7K per child for KINDERGARTEN affordable!?
That says it all regarding why there is a tuition crisis.
- February 08, 2012 9:23 AM
We lived in Houston during 1998-2000 and belonged to Young Israel of Houston. People were very friendly, as if we were all family. Jewish education via schools, kollelim, etc., has been increasing steadily.
This is a recent article about one of our former neighbors:
Note that it's very hot and humid outdoors for most of the year.
- February 08, 2012 9:26 AM
"Rabbi Greenman - known simply as "Arnold" at the National Aeronautics and Space Administration (NASA) in Houston, Texas, where he works..."
Imagine that! Calling someone by their first name in the workplace!
- February 08, 2012 9:40 AM
A few thoughts:
1. Did the OU make the claim that Houston is THE SOLUTION, or was that an editorial comment of the JTA writer? (I beleive the latter)
2. If the OU is promoting affordable life in Houston AS COMPARED to NY, why does that imply that they are discouraging aliya? It would seem that many of their broad activities promote an enhanced orthodox lifestyle in the US. Should they stop certifying kosher food in the US so that those who want to keep kosher must move to Israel?
- February 08, 2012 12:24 PM
Houston is the last place I would live, but I think its terrific that people come to understand that there is life outside of the greater NY area. There are a lot of negatives to having orthodox life in the U.S. based exclusively in a few (extremely) expensive areas. What would be terrific are some non-urban options. Not everyone is cut out for the stressful, unnatural life of a big city or a big city suburb.
- February 08, 2012 1:31 PM
"What would be terrific are some non-urban options. Not everyone is cut out for the stressful, unnatural life of a big city or a big city suburb."
Houston is the 4th largest city in America and largest city in Texas.
- February 08, 2012 2:05 PM
Desirability drives up costs, so costs should be lower where people don't want to live! Secrets don't last long nowadays.
- February 08, 2012 2:23 PM
concernedjewgirl - I still don't understand why the campaign of the OU is not move to Israel...
Have you ever seen a political organization tell their constituency to leave (and not be part of their constituency anymore)???
- February 08, 2012 2:28 PM
What would be terrific are some non-urban options. Not everyone is cut out for the stressful, unnatural life of a big city or a big city suburb.
How do you do non-urban and non-suburban and still have the ability to walk to shul? It's mostly impossible.
- February 08, 2012 2:31 PM
Let's look at the NY Democratic Party, which does everything in its power to make residents want to move someplace else.
- February 08, 2012 2:32 PM
- ClooJew said...
While I agree, lulei demistafina, that "move to Houston" has a certain "let them eat cake" ring to it, the fact remains that there is an entitlement mentality to those who choose to settle in expensive areas (i.e., much of New York metro) without sufficient means to do so.
A client of mine, whose children recently moved to Cleveland after years in Israel, told me that he would NEVER move to the NY area today. It is simply unaffordable to anyone but the upper-upper middle class and beyond. We fool ourselves to believe otherwise.
The only true "solution" to the tuition "crisis" is a full blown kehillah mentality which will turn tuition payments into dues, which in turn will make them tax-deductible. This remains the only solution.
The only impediment is the people themselves - the very complainers who kvetch and moan about the costs of living - but who won't, lulei demistafina, band together to make a kehillah happen.
- February 08, 2012 3:04 PM
Mark: You do non-urban non big city suburb by a small town. The town I grew up in had a lovely conservative synagogue with several families who lived within walking distance. The more observant lived nearby and walked. Once a month a van went to the nearest city to stock up on kosher items that weren't available at the local grocer. Business was good enough for that kosher grocer to eventually make deliveries. I don't see why this can't be replicated by an OJ shul. No, you won't have kosher restaurants and some of the amenities, but those things don't matter to everyone.
- February 08, 2012 3:21 PM
"the fact remains that there is an entitlement mentality to those who choose to settle in expensive areas (i.e., much of New York metro) without sufficient means to do so."
The entitlement mentality is well deserved - the community supports those who cannot otherwise afford it.
That said, these people (generally even the ones receiving significant assistance) can afford the NYC metropolitan area, they just can't afford the yeshivas these self-same organizations are telling them are religious requirements.
It's a beautiful irony when the organizations that created this crisis direct people to a new municipality that is also unaffordable but seems cheaper by comparison.
I'd also note: This is just what Houston needs - NYC Jews coming down and accelerating the already meteoric rise in prices by demanding NYC-level services.
- February 08, 2012 3:53 PM
Regarding suburban options, I'd look at communities within a one-hour commute of state capitols where a public school demographic has dwindled and its infrastructure can be purchased. Within an hour of most state capitols are work opportunities.
Another target community possibility are large-to-mid-sized college towns with inexpensive housing. College towns are usually tolerant, pedestrian-friendly, and have plenty of business opportunity.
The cost of maintaining faculty who live in homes costing under $200k vastly reduces the need for high tuitions. Also, in smaller communities, the cost of building is far cheaper.
But the key to this is the willingness of substantial rabbonim to lead the way. People do not want to be pioneers living in a community that is perceived as "not really Torahdik". How to do this? Since typically only one son "inherits" a gadol's legacy and position, the others typically live nearby. Encourage well-known sons-of-Gedolim to start new seed communities.
Once a community becomes so unaffordable that newlyweds cannot afford apartments near their parents, it's bad news. Once homes start to exceed $350k, it is no longer possible for middle-class professional baalhabatim to afford it. Engineers are simply not paid the kind of money to put kids in schools requiring tuition.
We should be emphasizing the kinds of communities where the costs are low enough that the average tuition per child is more like $6k. Thus, a 6-child family paying $36k/yr might be able to survive if the husband earns $80-90k and the wife makes $20-30k and they have monthly housing expenses under $2k. No Pesach resorts or late model cars, but it's manageable.
I've often fantasized about rabbonim being compelled to play SimCity for a day, to get a grasp on the basics of urban and community planning.
- February 08, 2012 10:38 PM
- Avi Greengart said...
Houston has jobs, friendly people, basic MO services, lower housing costs and no income tax. OTOH, there are travel costs for family visits/chaggim, kosher food is more expensive, there are fewer services/resources/restaurants, and tuition is only slightly lower than the most expensive NY area day schools. The weather is a wash - miserable during the summer, pleasant during the winter - and not a significant factor in young families' decision making (if it were, everyone would live in San Diego. San Diego is just gorgeous).
More affordable housing and lower taxes can certainly make a difference on the bottom line, and I see the value in opening peoples' eyes to the possibilities there which they probably never considered. Still, SL is right that even with a lower mortgage and less paid out in taxes, you still need to earn enough income to pay a pretty hefty tuition bill - a bill that may not be lower than options that don't require moving halfway across the country.
- February 08, 2012 11:54 PM
- Avi Greengart said...
concernedjewgirl - There are a lot of good reasons to make aliyah - "it's a mitzvah" is a pretty good place to start - but finances isn't necessarily one of them. For many people, making aliyah solves the tuition crisis by substituting an income crisis.
- February 09, 2012 12:00 AM
- Zach Kessin said...
Aliyah is a good option, if you have a career path that plays well here or can move onto one. I don't speak Hebrew but am working as a freelance computer programmer and am doing pretty well. I will admit to being an unusual case.
I think the real problem is that it is just not realistic to have 6-8 kids, expect to send them all to private school if your annual salary is less than say $250k. Moving from New York to Texas is not going to change that.
- February 09, 2012 1:37 AM
- ClooJew said...
Avi is 1000% correct: San Diego is gorgeous!
- February 09, 2012 1:47 AM
If Houston has lower housing costs and Texas has no state income tax, why is tuition there only slightly below the highest yeshiva tuitions in NYC area?
I'm trying to understand what drives yeshiva tuition costs.
Several articles have indicated that salaries are around 80% of a school's budget. So, if the cost of living is less, wouldn't salaries be commensurately less? Are yeshivas not "allowed" to pay rabbis/teachers less because it's not "kavodik" or whatever?
- February 09, 2012 10:12 AM
If you wear a sheitl and stockings year round, Houston is among the worst possible places to live. Close to the skin or scalp non-breathable coverings is a killer in that heat and humidity. Houston also has some of the worst air quality in the country and its not likely to get much better with the popularity of Texas politicians who are not particular fans of environmental regulation.
- February 09, 2012 10:15 AM
I'd take Boca Raton over Houston any day- Florida also has no state income tax, housing is significantly cheaper than in NY, tuition is cheaper, you actually have a decent selection of schools, and you do have a good array of shuls, kosher shops/restaurants etc- not as vast as NY, but good enough that you really can't complain, even if you're from NY. And the weather is better than Houston. Unfortunately, the job situation is not fantastic, but it's getting better. Also, I would have to learn to drive :-)
BTW, we still live in NY, but just came back from visiting family in Boca, and we're really starting to think things over. If we can find decent jobs down there, we're in!
- February 09, 2012 10:38 AM
JS: I expect these are high end schools serving primarily affluent MO's. Even in Texas, there is only so low you can go paying experienced qualified teachers for these types of schools. A $50,000 a year teacher in NJ isn't going to magically become a $30,000 a year teacher in Houston. You also have to look at where the MO communities are and the housing prices in those particular neighborhoods - Houston is geographically enourmous. A friend had a 2200 sf home in Houston, decent, but no bells and whistles and no granite countertops. He bought it for 100K in the mid 80's, and sold it 2 years ago for 350K. That tells me that even if housing is cheaper than a comparable home in a NY burb, in the neighborhoods that MO's/OJ's might live in housing is not cheap enough that teachers will work for much less than in NY.
- February 09, 2012 10:40 AM
Interesting points. Makes me wonder even more why the OU is pushing this.
Sounds like pushing people to move from one expensive neighborhood to another (slightly less) expensive neighborhood.
If all the Orthodox Jews live in the expensive part of town so housing costs aren't significantly less and all the teachers demand nearly comparable salaries, where are the cost savings exactly?
Why not pick a city that actually offers significant savings as your "flagship" city? Or do these simply not exist? I have to say every time I see postings for "out of town" communities I'm struck by the fact that tuition at the MO yeshivas don't seem all that low.
- February 09, 2012 11:07 AM
- Yannai Segal said...
I'm probably an anomaly in that I took the opportunity to move my family to Houston for a 1-year work term to see that it was like to live in a BIG Jewish community (we are in Calgary, Canada).
A few of the comments have touched on it, but I think that 'moving to Houston' here is a placeholder for a more general change in attitude. Over the past 20 or so years Orthodoxy has enjoyed an amazing increase in infrastructure in the major centres. The proliferation of schools, shuls, mikvaot, eruvim, kollelim, kosher food and the like in the big cities has changed the expectation of the Orthodox to the point where 'small town' Jewish living is considered an unacceptable hardship or a spiritual risk. We have seen this in our small community as families feel the need to move away as they increase their observance and their kids get older.
It's just now sinking in that this Big City Judaism is not economically sustainable, especially the combination of [Large Families] + [Private Yeshiva Education] + [Living in High-Tax, High Cost-of-Living Areas]. Much of the capital spending and the consumption has been funded by cheap debt and that party is certainly over.
The question remains, is there sufficient will in the Orthodox world to take a step back and return to a model where Jews go to where the jobs are, and then build a community around themselves? So far the Orthodox world has resisted this. For example, the late-70s/early 80s oil boom saw a large number of committed Jews move to Calgary seeking good jobs, and they built a shul and school for themselves after a few years. During the current oil boom Calgary has been a large influx of professionals of all types but very few Orthodox willing to give up kosher pizza and/or a choice of a dozen minyan times. In the meantime we have lost many families that have left seeking big-city amenities – if all those families had stayed our own community would have been able to provide those services.
- February 09, 2012 12:32 PM
- Yannai Segal said...
Anon 10:40AM,
(A part) Houston has significantly more affordable housing than probably any full-amenity Jewish community in the US. The Fondren neighborhood is a bit of an island in a sea of slum but offers a reasonable commute, a range of RW/MO/Channab/Sfaradi shuls and an eiruv and you can buy a nice 5-bedroom for under $260k. When combined with low Texas taxes that makes things pretty affordable. Even for those living in (much) more expensive neighborhoods the existence of the Fondren drops their tuition burden significantly because all of the teachers live there.
- February 09, 2012 12:42 PM
- Miami Al said...
I think this stems from an utter collapse of Jewish Civil Society, much of which stems from the Day Schools as requirement/entitlement. You see throughout middle America a decline of volunteerism (though participation rates stay high amongst the affluent). SAHMs were a source of communal labor, which has declined as women have entered the workforce.
But is is strangely pronounced in the affluent MO communities, which is betraying sociological expectation.
But look at the attitude, people ask "what can the community do for me," instead of "what can I do for the Jewish people." You see near zero participation in Communal Jewish Institutions amongst the Orthodox (beyond showing up looking for a check for their cause). Almost zero Orthodox Jews give to the Federation, support the JCC, participate in Tikun Olam projects, etc.
Increasingly, the under 40 Jewish set believes that their contribution to the Jewish community is A, have lots of children, and B, increase their personal ritual observance through rightwing chum rot.
The parents of these people showed up, had limited Jewish educations (partial Yeshiva education is common amongst that set, but 13-15 years was unheard of). But they built institutions and organizations to provide a more complete Jewish community for their children. Sadly, the children, beneficiaries of these institutions, were trained to think of them as an entitlement and not something to build.
The people that built the South Florida Jewish communities built them up from nothing in a few generations. However, the people moving into them now do not have the civic-minded attitude, and the community is suffering for it.
Something in the Jewish educational approach is instilling a decent about of ritual knowledge, but NOT the civic-mindedness that is necessary for civil society. WIthout civic institutions, self governance is impossible, and you see the push for statist solutions - vouchers, not internal directed efforts.
For example, American Orthodox Jews are terrific at arranging meals for those experiencing a birth of a child or a death in the family. What is now seen as a "Jewish" action was once a more common American attitude... look up a recipe for "funeral potatoes" - a staple of Utah Mormon food.
However, as Orthodox Jewry has become more chumrah-focused, and stringent in JUDGING the Kashrut of others, the willingness of neighbors to cook meals for people that they don't know well declines. The bake-sale, the quintessential American fundraiser, is increasingly off limits, and if it occurs, will include a note that the Shul/Yeshiva does not vouch for the Kashrut of anyone's baked goods.
Even in the last 5 years, the percentage of Mishlaoch Manot that included a home baked cupcake has declined.
These sort of attitudes result in replacing volunteerism and civic involvement with purchases and quasi-statist approaches like requiring all food come from a commercial, and therefore supervised, kitchen.
- February 09, 2012 1:14 PM
To add to Al's comment:
The JCC of a heavily Jewish northern NJ region recently closed due to lack of financial support. Over the last several decades it has changed from mixed to 95% Orthodox.
The Orthodox families do have the attitude that their procreation is their contribution.
Their failure to support the JCC was mainly due to their tuition burden and their indignation that the JCC did not offer sufficient separate swimming hours. Note that the hours would have been increased had more than a handful of these families actually become members.
It's also rumored that the head of the local yeshiva gedola refused to support the JCC and discouraged Orthodox families from joining.
However, they heavily use Federation services such as JFS.
- February 09, 2012 1:37 PM
There's a lot of stuff to mine in your comment. I'll just say that the lack of Orthodox involvement in broader communal institutions (other than asking for handouts) has a lot to do with the increasingly widening gap between Orthodoxy and Conservative and Reform.
It's really bizarre to me that the Modern Orthodox and Yeshvish would choose to identify with those on the far right as opposed to Conservative and Reform. They have far more in common with the latter.
Check out this recent article in the NY Post about a woman who left Satmar and tell me you have more in common with the people she left than your Conservative or Reform neighbors:
- February 09, 2012 1:42 PM
Not sure the why link didn't work.
- February 09, 2012 1:44 PM
Last try:
Paste this all together.
- February 09, 2012 1:46 PM
Come to Cincinnati! We have K-12 for girls, K-8 for boys, 4 shuls plus Chabad, a kollel, a kosher pizza & Israeli restaurant (CY), a kosher Indian restau rant, a terrific kosher bagel place, two kosher delis with fresh meat and prepared foods, lots of kosher frozen & other groceries, and kosher catering.
Tuition is on the cheap side, and vouchers available in many cases (depends where you live I think). About 250 Orthodox families, 27000 Jews total. Housing costs, car insurance are quite low. Very tolerant, accepting community. Oh yeah, and a kosher JCC cafe. The JCC is pretty new and offers at least a few men's & women's only classes & I believe also some pool hours and exercise space (during certain hours).
*the above list is not meant to be exhaustive.
- February 09, 2012 4:00 PM
Small correction: I think there might only be women's classes at the j (not men's). But if so, I think its only for lack of demand. There are some set aside hours for each sex I think.
- February 09, 2012 4:12 PM
- Miami Al said...
I didn't mean to put the emphasis on the JCC/Federation work, I was using that as an example of lack of participation in Civil Society.
i.e. Jews with a strong sense of civil society could move to a small town with a strong economy, band together with other Jews, build a Shul, a Mikvah, and a school in time. However, when you believe that everything has to be there for you, you can't take that step.
It makes sense that wealthy MO Jews settle in wealthy towns, that is the nature of 21st Century American housing -- wealthy enclaves/wealthy towns. What doesn't make sense is non-wealthy MO Jews settling there.
It makes FAR less sense to basically subsidize a family making 80k/year to live in a neighborhood of 300k+ homes/15k private schools, than it does to subsidize a OU Affiliated Shul in a neighborhood of 120k homes and establish an OF Affiliated (and subsidized) $4500 school. That's how the Catholic Church has a presence everywhere.
But the wealthy MO Jews fund Shuls/Schools for their children, with no obligation to provide towards amenities for the less well off MO Jews.
That is what I mean by a lack of civic involvement. We have tons of "odd" Orthodox institutions (making expensive weddings for middle class Jewish girls), but efforts to help middle-income Jews stand on their own.
- February 09, 2012 4:18 PM
- Miami Al said...
Something that got me thinking about this, just read Charles Murray's Coming Apart, which is a a kind of interesting look at societal changes across income/educational "classes." To control for racial changes/issues, he limits his stats and trends to white Americans that fit some demographic tendencies.
What's interesting is the descriptions he has of the various "classes" pretty much jives with my anecdotal experiences in my secular world, Facebook is fascinating that way. My friends from "various places" that aren't educated DO live lives like he describes, my "highly educated" friends DO live lives like he describes.
What is utterly startling, to me, is how much my Orthodox friends do NOT play to type in that regard. Hence my comments on civic involvement.
I didn't mean to make this about the JCC, mixed swimming, or whatever other nonsense. Really just about changing attitudes towards involvement.
Many of the men in my parents generation are utterly secular, I would be shocked if they attened services at their non Orthodox synagogue 5 times a DECADE (maybe every other year on Yom Kippur), yet still gives financially to their local synagogue and has supported organizations like the JCC and Federation. When the Chabad Rabbi comes around, they give them a check. They feel that they are obligated to support the Jewish institutions even though they don't partake in them.
I do not know if that attitude persists amongst their children (time will tell), but I do know that amongst my Orthodox Jewish peers, I simply do NOT see that attitude. I see questions of "how much financial aide they'll get" from various schools, and how much the MO school will push to the right to "recruit them," but I don't see much of an attitude towards building institutions.
I see more RW elements showing up in more Left/Center MO towns and demanding/getting concessions, but I don't see a lot of building, unless it is exclusively directed at them.
What I find utterly fascinating about the YeshivaSanity/200kChump blog is these people asking the "rich" to do for them, they are pretty damned rich. If you are in the top 5% of households, I would think that you would be a net contributed to the community, not looking to be a taker.
- February 09, 2012 4:34 PM
- Mr. Cohen said...
Several people in this discussion mentioned aliyah.
Maybe the next discussion topic should be a serious analysis of the financial feasibility of aliyah.
- February 09, 2012 6:10 PM
Mr. Cohen, if anyone did seriously analyse the financial feasibility of aliyah, then absolutely no one would ever make aliyah. The benefit of cheaper tuition is vastly eclipsed by the staggeringly lower income and the fact that almost everything is more expensive in Israel.
- February 10, 2012 2:00 AM
"K-8 for boys"
lack of a high school is a deal killer.
if i were to consider the midwest i'd look at columbus. i don't know how the job market is compared to cincinnati, etc., but i liked the community there (people and infrastructure, although there are no restaurants)
- February 10, 2012 9:00 AM
Columbus has a K-12 school, though somewhat fewer Jewish "amenities" otherwise, I think. It's also only 90 minutes from Cincinnati, so I don't think it would be a big deal for a Cincinnati kid to go there, either as a commuter (via chartered bus if there was enough interest, like the kids from Providence who attend Maimonides in Boston), or even as a boarder (who could easily come home every Shabbos if desired). We don't have kids yet, so I don't know exactly what we'll choose, or even what options will be available. But I understand that for some people, a local high school is a must and no alternative arrangement will do. To each his own.
- February 10, 2012 10:51 AM
- Miami Al said...
Abba's Rantings,
I think you reconfirmed my comment about lack of civic involvement. People that moved to various towns and established Orthodox communities over the past 50 years built schools as they went.
Modern Orthodoxy (lowercase M) expects everything to be in place before they show up.
Not everyone is cut out to "pioneer" a new town, but the fact that a lack of high school is a "deal killer" for one with elementary school (or younger children) shows the unwillingness to create institutions.
If you can't build a high school by then, you can always choose to board or move at that point, but the unwillingness to step out of one's comfort zone is part of the problem.
- February 10, 2012 10:52 AM
P.S. I have also heard that Columbus is a very nice community. I'm going to be "boarding" there myself for about a year (living there during the week for work reasons), so I will find out firsthand.
- February 10, 2012 10:57 AM
- Yannai Segal said...
I'll second Miami Al - it's silly for a family with their oldest child in early elementary school to disquailify otherwise-ideal locations because of a lack of high school.
If the establishment is not willing to encourage people to move to communities without an existing high school, what is the likelyhood any new communities will reach that milestone. Likewise for ervim, etc.
Is the map of Orthdox communities frozen (or doomed to shrink) forever?
- February 10, 2012 11:01 AM
Miami Al - What I find utterly fascinating about the YeshivaSanity/200kChump blog is these people asking the "rich" to do for them, they are pretty damned rich. If you are in the top 5% of households, I would think that you would be a net contributed to the community, not looking to be a taker.
Yep, it's "tax the rich" taken to a ridiculous extreme!
- February 10, 2012 11:19 AM
I've visited Cincinnati several times, and it's a very nice religious community. They have both modern and frum shuls. Their day school looks very impressive. They have kosher restaurants. By the time your children are old enough, they may have a boys' high school. Problem is it's very far from the Northeast. But pioneering families have been moving out to Cincinnati. Distances are far though and any trip to anywhere in the neighborhood turns out to be a 15 minute car ride at least! What Cincinnati has plenty of is space. Really nice people, though. If you can find a job there, I'd recommend Cincinnati.
- February 10, 2012 12:26 PM
"Columbus has a K-12 school"
i know, that's why i suggested columbus
"It's also only 90 minutes from Cincinnati, so I don't think it would be a big deal for a Cincinnati kid to go there, either as a commuter"
that's a pretty long commute
"or even as a boarder"
as me later, but for now i don't understand the whole boarding thing
it doesn't make sense to me. if someone is already relocating, why choose cininnati over columbus (all else being equal--no idea if it is or not) if the former has the high school?
"I have also heard that Columbus is a very nice community"
"I'm going to be "boarding" there myself for about a year"
i commute there for work every so often.
- February 10, 2012 12:38 PM
If you can find a job there, I'd recommend Cincinnati.
Orthonomics or others - can you recommend how couples interested in relocating can go about finding employment for both parents in potential cities, be they Cincinnati or Columbus or Oshkosh? It's less of an issue when one spouse is a SAHM or SAHD or when one spouse works from home (freelancing, home-based business).
For two parents with conventional employment, I imagine this could be daunting.
If the OU or others are suggesting relocation as a financial solution, they had better address this issue. I know the OU has a job board, but it's hard for me to believe they seriously have the resources to help secure employment for both parents.
- February 10, 2012 12:38 PM
i don't understand your point. no, not everyone is cut out to be a pioneer, and there is no need for them to be pioneers. a place like columbus is a relatively cheaper OOT community. it has the high school (as well several large ortho shuls, chabad, kollel, mikveh, eruv. (and there are other communities like it.) so why scare someone off by trying to make them into a pioneer when there are existing cheaper communities?
- February 10, 2012 12:45 PM
- Abba said...
yes, that is a big problem, with columbus and other midwestern communities that have weak economies. (btw, the big appeal of houston is for medical professionals, for which there is a great demand there. if you're a doctor, nurse, etc. you don't need the OU to get you a job in houston)
- February 10, 2012 12:49 PM
" i don't understand the whole boarding thing"
A lot of people don't. I went to boarding school (secular prep school, I didn't grow up observant) for high school and loved it, so my perspective is colored by that. But it's not for everyone. I don't assume that my kid(s) will all be cut out for it.
Anyway, I'm not saying Cincinnati is the best choice for everyone. Just that it's a valid option. I moved here for work and was only planning to stay for 1-2 years. If I hadn't met my spouse here, I wouldnt have made it my home. But now that I have, I'm very glad I did.
- February 10, 2012 1:40 PM
Tesyaa, you say finding a job in a city like Cincinnati and Columbus is daunting, that the OU has not addressed this or found you and others the jobs you need. You remind me of the Russians who emigrated to America and asked, "And where is my job?"
If my dad had waited for someone to supply him with a job, his family would have starved. He left Tennessee with only copies of his resume, took Greyhound to Washington and left a copy of his resume with every agency in DC. Someone in HR told him he had to take the civil service test. He did that. Then he took the bus to Baltimore and applied at the headquarters of the Social Security Admin, where they were hiring, and that's where we all landed up, husband, wife, and 3 small children, from Yenemsvelt in the Bible Belt to a new Jewish community where they knew no one. But without my father traveling on that Greyhound bus with nothing but guts and a sheaf of resumes, where would we be today? He didn't ask any organization to find him a job. He searched for a job! Why do people expect their job to be supplied to them, along with all the amenities, ready made? What are you made of? Where is character, courage? Don't you know how to look for a job in a strange city? You don't? Then you won't be hired. Employers are looking for people who can solve problems on their own, and your first problem is lack of initiative.
- February 10, 2012 1:57 PM
Practically, Tesyaa, the main breadwinner should go looking for a job in the other cities first. When he finds a viable job, and I assume it's the husband, the family should move. Then the wife should look for a job. One job at a time is enough. Once they are settled, the wife can worry about her job. The main thing is - do it yourselves. Don't wait for an organization to "find you a job".
- February 10, 2012 2:20 PM
Anon 1:57 (please choose one of the many screen names you have used in the past), no need for the log cabin speech. I'm merely pointing out that if both spouses are already employed, it may be challenging logistically for both of them to find new employment in a new city, especially if they are employed in different industries.
Anon, in my household both spouses earn almost exactly the same salary. Is that so uncommon?
Finally - it would be RIDICULOUS to ask the OU to find you a job. I didn't realize anyone took that seriously. I'm laughing just at the thought! But it's certainly easy for the OU to say "move to Houston" without taking into account the logistical difficulties of securing 2 new jobs.
- February 10, 2012 3:29 PM
tesyaa - in my household both spouses earn almost exactly the same salary. Is that so uncommon?
Yes, it is VERY uncommon (among MO folks). But it is becoming slightly more common with time.
- February 10, 2012 3:45 PM
You left the plain impression of lack of initiative, Tesyaa. You rapidly backpedaled when it was pointed out to you that a person has to search for a job, not expect an organization to find you one. Your original post left the clear impression that you hoped others on the board would teach you how to search for a job, and you ended with the expectation that if the OU suggests moving, that the organization should proffer help to people in your position. No wonder I compared my father's 1840 log-splitting mentality, read-law-books-at-night by the fireplace, to your passivity. You are not alone in the expectation of help. You and your cohort all expect, expect, expect. No wonder you are resentful. You have great expectations, and they have not been fulfilled.
- February 10, 2012 4:07 PM
I don't think job hunting will be consistently more difficult in the South or Midwest, just different. It will vary across fields and locations. I think that the overwhelming majority of professionals know how to effectively look for work. Maybe older people less familiar with the internet would need some assistance.
In our community, and I imagine in most smaller communities, many local Jews (not only frum ones) are happy to meaningfully assist potential newcomers with finding a job. Not necessarily "securing" a job for them on a silver platter (though this can happen if the fit is right), but providing information on available openings and making helpful introductions to others in that field. We like to see our communities grow (as you can probably tell by my persistent trolling for Cincinnati in this thread).
If someone is looking to relocate and doesn't have a specific place in mind, I'd advise them to cast a wide net with as few dealbreakers as possible. Once they have a sense of what jobs are available where, they can winnow the list based on other considerations. Or they could just skip all that and come to Cincinnati ;)
- February 10, 2012 4:37 PM
Midwestlurker, you are proof that Cincinnatians are good friends and neighbors, at least in the religious community. It's very kind of you to offer assistance with information and introductions to newcomers investigating Cincinnati.
May I add that just around the corner from the heart of Golf Manor (full disclosure: "around the corner" in Cincinnati means a 20 minute drive) there is a beautiful new JCC with a glistening pool with a deep end. The JCC advertises "single gender" activities, which I assume includes the pool, though Midwestlurker could tell you more about separate hours. But first and foremost, you need a job before you move to Cincinnati or any city.
- February 10, 2012 4:59 PM
Golf Manor is the religious neighborhood in Cincinnati.
- February 10, 2012 5:01 PM
No idea how this turned into a conversation about tesyaa's (or anyone else's) lack of initiative or expectations to have a job handed to them on a silver platter.
The point being made is simple. If the OU (or any organization) is pushing people to move to a new city or community, it should understand that people will only move there if there are jobs for them. Certainly people are responsible for finding their own jobs and whatever work and research that entails. But, the organization should understand that if no jobs are available or if it's difficult to find jobs, it's objectives will be thwarted. It's really that simple.
If an organization's mission is to get underprivileged youth to finish high school it can sit on its laurels and simply put out PR statements that finishing high school is wonderful and opens up worlds of opportunities, but it shouldn't be surprised if more underprivileged youth don't graduate. If it wants to see results and have its mission fulfilled it behooves it to do more - tutoring, mentoring, etc. That doesn't mean that the heavy lifting isn't still on the students, but an organization is foolish if it doesn't take steps to ensure it is successful in its initiatives.
- February 11, 2012 7:59 PM
JS, I don't expect anyone to find me a job, except an agency whose interests are the employer's, not mine. I still think you and Tesyaa represent your generation of entitled people who expect others to do the spade work for them. The opinion of the OU where Jews should move or live has nothing to do with my expectations of having to do the heavy lifting myself. I'm grateful I was raised with the "do it yourself" mentality. It has served me well, in sense of accomplishment and in actual accomplishment. You and Tesyaa are typical of your generation of modern Orthodox who feel others are responsible for their well being. You haven't convinced me of your initiative. You have convinced me that you feel entitled to the OU's help in presenting you with the answer to your financial problems. Who needs the OU? I have the initiative to choose my own city and research its possibilities. You do not have that can do way of thinking. Think for yourselves for a change. I know this is an unwelcome message, but we are coming from different generations and different characters. There is nothing that raises my spirits more than a challenge, and nothing that frightens younger people more than a challenge.
- February 11, 2012 11:14 PM
Anon 11:14 - I still think you and Tesyaa represent your generation of entitled people who expect others to do the spade work for them.
You cannot imagine how much wronger you could be. Anyone who's been a participant on this blog and others like it KNOWS that Tesyaa, JS, and me are exactly the opposite and we are just the ones that decry the current entitlement generation!!!!
- February 12, 2012 12:32 AM
Not to mention that Tesyaa and me are one generation older than JS :-)
- February 12, 2012 12:33 AM
Mark an JS, thanks for defending me... but it's probably useless as Anon ( who also uses the names Eileen, EP, Observer and my favorite, Tzeirtel) will surely retun to point out that I am the poster child for entitlement since I have used publicly available educational services for my autistic child. She's also the commenter who had strong ideas about Chanukah gifts and kept the conversation going far longer than it might have otherwise. I wouldn't call her a troll, exactly, just a lady who enjoys provoking a debate and won't stop once she's involved. I expect several more insults from her today, but if we're lucky, maybe she has a busy day planned with her many nieces, nephews, and their children.
- February 12, 2012 8:21 AM
If you are talking about me, I'm busy writing for the Baltimore Sun today so you are in luck. You may have read my writing in the New York Times where I am frequently published. Why do I blog? Sheer perversity!
- February 12, 2012 3:00 PM
- Miami Al said...
JS's point was NOT the idea that the OU was responsible for finding you a job. His point was that if the OU's goal was ACTUALLY to get Orthodox Jews to relocate to Houston, they would focus on job publishing job availability and other things that might help families relocate.
Nothing makes the OU responsible for this, but if the OU actually wanted people to move, they'd take steps to make it happen.
- February 12, 2012 9:56 PM
The best time to relocate is before starting a career. While the OU can't create jobs or be a job placement agency, college students and new grads should be encouraged to explore other options before settling into the greater NY area. One way to do this is to encourage summer jobs and internships in OOT areas like Houston. That could be done, for example, by setting up a netwoork of OOT families where students could board for the summer or during an internship or, get OOT business owners to help arrange for internships. These days, most college students understand the importance of internships - even unpaid internshps, as part of building a resume and real world experience.
- February 13, 2012 8:33 AM
- Dave said...
The best time to relocate is before starting a career.
I've lived in five different states in the course of my career, moving generally because of jobs, once because I wanted to live in a certain region of the country, and once for a combination of the two.
And I'm not particularly unusual in this. At least not in American society.
- February 13, 2012 9:52 AM
- Miami Al said...
More unusual than you think. The percentage of Americans that live within 25 miles of where they were born is staggering.
It's not unusually amongst the professional class of America, but overall, pretty unusual.
- February 13, 2012 10:06 AM
I live in Houston and am very happy but I still don't understand why the OU is doing this. If the OU wants to help it should take the money they are spending on PR and invest it in the community. This is a silly thing for the OU to do and they are taking a successfully growing community and making it seem like they were the catalyst for doing so.
- February 15, 2012 3:57 PM
Anonymous (3:57 PM),
It's not so bad if OU took credit for a Houston success already in the making, if this would motivate them to do similar projects in other promising cities.
- February 15, 2012 4:43 PM
I would disagree if they don't give credit where credit is due. The community has a program which actually provides financial incentive to move here. That seems to be missing from all of its press. This OU plan (as Steve Savitsky said himself in AMI magazine) is a PR plan with a little bit of job resources mixed in, thats all. If they wanted to help they should have pitched in with financial incentives not posters and articles.
- February 15, 2012 5:32 PM
- Mr. Cohen said...
- February 16, 2012 9:54 AM
- Mr. Cohen said...
- February 16, 2012 1:22 PM
- February 16, 2012 2:02 PM
Another article about this -
Shabbat Shalom Umevorach to all.
- February 17, 2012 12:25 PM
- Mr. Cohen said...
Rabbi Reuven Spolter says that Israel and Michigan are both better options than Houston:
- February 19, 2012 8:50 PM
You must be kidding when you suggest that it is possible to look for a job remotely while continuing to be gainfully employed locally.
Almost no Employers would entertain extending an interview, let alone a firm job offer, to someone not living locally in today's economy with 10 applicants per job opening.
Never mind the logistical nightmare involved in traveling to interviews, etc.
- February 28, 2012 12:44 AM


text:
Slippery Rock University, the only large business in the Slippery Rock area for many years, has been a great influence on our economy. Through the years it has offered, and still offers, many jobs including administrators, teachers and blue-collar positions. People have come from all over the country seeking jobs to provide a good living for themselves and their families. They've bought or built homes and some retired here.
Young people from all walks of life have come to further their education. Would all the business and restaurants be here if the university, originally called the Normal School, had been located some other place?
The community has always provided a place for students. My husband's grandmother, his two aunts, my mother and my aunt all came to Slippery Rock to pursue their education. They all rented rooms from residents. Two aunts went on to become nurses; one became a teacher and taught in a one-room school for more than 50 years; and the other became a homemaker.
Later, older homes were converted for student rentals and student housing complexes were built.
There have been students living in the borough for many years, and along with them came various problems. I can remember when there were issues between the "townies" and students. Problems with student-filled houses and fraternities with no supervision.
Through the years, the borough and university police, along with the state police, and borough council and landlords worked to solve many of those problems.
University students answer the call to help in the borough when there is a need. Just the other morning, I saw a student sweeping the sidewalk at Main and New Castle streets. I was told it was a volunteer working under the auspices of the Slippery Rock in Bloom organization.
One issue stems from the belief by some that landlords don't pay their fair share for garbage collection. Most renters have a contract with the garbage company, not the landlord. The garbage bill is added to the water bill, which they also pay.
Unless the landlord has a roll-off container, he does not have a contract with the garbage company. Students living in most apartments pay monthly for garbage collection and are charged even for the summer months and vacation time they are not in here.
I challenge borough council to dig deeper into the history of the impact the university students have had in the borough and make it a better place for them to be while getting their education.


text:
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text:
Adding a porch swing to your home adds charm, comfort, and style. Porch swings come in a variety of different styles, from wood porch swings to wicker porch swings, so you should be able to find one that will match your home decor as well as give you a comfortable place to sit and relax. Once you decide on which porch swing you like, it's time to get it installed so you can enjoy it! We've put together 7 easy steps to help guide you in your swing selection as well as show you how to hang your porch swing.
7 Easy Steps to Help You Select & Hang a Porch Swing
Step 1: Measure Your Porch
Start by measuring the area where you are going to hang the porch swing. Give yourself at least 2 feet on each side as clearance for when the swing is in motion. Make sure the area has an overhead wood beam that is at least 2'x6′ where you can secure the chains.
Step 2: Purchase a Porch Swing
With your measurements in hand, do a little research online to see what types of porch swings are available to you and find a swing that will match the look of your home. If you find a good deal on a wooden, metal or resin wicker porch swing, but it just doesn't coordinate with the colors of your home, don't be afraid to put in a little extra work and paint it.
Step 3: Purchase Additional Porch Swing Supplies
- Screws or other chain connectors
- A drill (Make sure it's charged and if you have one, your backup battery is charged as well) & drill bits
- Four heavy-duty chains, 7 feet long
- Screw-in swing hooks
Step 4: Attach the Swing Hooks
Begin by measuring the width of the swing, from one side to the other. Mark the distance on the beam and drill one pilot hole into the beam on each of the two markings. Screw one hook into each of the two pilot holes until they are snug. Tip: To determine the size of drill bit that you will need to drill your pilot hole, hold up a hook next to your drill bits and choose the drill bit that is a tad bit smaller in diameter than the hook.
Step 5: Attach the Chains to the Porch Swing
Depending on the type of porch swing you bought, you will need to attach the chains in the proper manner. For example, with a wooden porch swing, you can attach the chains to eyebolts and screw the eyebolts into the wood. Chain connectors might need to be used for certain types of swings, such as a wicker porch swing or a metal porch swing and you should follow the manufacturer's instructions to install them correctly. Be sure that the chains are secure; two in the front, and two in the back.
Step 6: Hang the Porch Swing
Have someone help you with this step so that you do not end up injuring yourself or damaging the swing. Stand on a sturdy ladder and have your helper hand the swing up to you. Hang one front chain and one back chain to each hook. Depending on the preciseness of the chains, you may need to adjust them a little bit so that they are the right length. You want your swing to be 17″-19 " above the ground. Hanging Tip: If you don't have someone to help you hang it up, you can still get it done. Set up your ironing board below the beam, place the swing on it, climb the ladder, pick up the swing and hang it up. Be extra careful when using this method.
Step 7: Test the Porch Swing
Give the swing a test by pushing it. If it swings smoothly, go ahead and have a seat and see how it feels! If it does not swing smoothly, look over your work and see where you can make a change. Now invite some friends over and enjoy a relaxing afternoon on your new porch swing.


text:
Gingrich expected to leave GOP presidential race Wednesday, sources say
Newt Gingrich plans to formally drop out of the Republican presidential race on Wednesday, senior sources told Fox News.
The campaign earlier had been expected to make the exit official on Tuesday, but has pushed the announcement back by a day.
The former House speaker may endorse presumptive GOP nominee Mitt Romney, something Rick Santorum has not yet done.
Gingrich is leaving the race after struggling to follow up his comeback victory in the January South Carolina primary. Gingrich went on to win his home state of Georgia, but watched as Santorum won far more states and emerged as the Republicans' most viable alternative to Romney.
Both candidates' campaigns confirmed their exit from the race this month.
Fox News' Bret Baier contributed to this report.