Author: TSA Press

At the epicentre of the cash challenges are the rent-seeking activities and contradictions surrounding the exchange control. A misplaced introduction of bond notes in 2016 was the genesis of the financial crisis, a backfiring attempt to monetise a deficit created by fiscal indiscipline in which the Zanu PF administration under Chinamasa had spent beyond the government’s means.

The trend has continued under Mthuli Ncube, with the government raiding NOSTRO accounts, printing money, incurring new debts outside Parliament and issuing toxic treasury bills. It was bound to happen that the need to monetise the fiscal deficit would push the government to revert to a currency they can print. This was a misinformed decision because a full introduction of a local currency ought to have been supported by proper economic fundamentals.

In any case, a currency is a relationship between your imports and exports or your trade position. Countries with a stronger trade position tend to have stable currencies. An abused citizen rejects the authority of the government and a country’s currency becomes an immediate casualty, as has become the case in Zimbabwe where people have organized themselves outside the realms of the State, creating what is loosely called the alternative market.

It is, however, important to note that what is called the black market is a second-generation problem emanating from a first generation problem of shortages. The shortages are a result of unreasonable exchange controls. In the Zimbabwean case they are compounded by government expenditure.

We have a government which spends foreign currency which it does not earn. They raid accounts and impose unreasonable export retention laws which encourage exporters to evade the Zimbabwean banking system. A reasonable government would give incentives and not punish production.

Then comes the contradictions of several statutory instruments, including a misplaced ban on the use of forex when in fact the economy has dollarised. What has worsened the situation is another contradictory instrument that gives exemptions to some individuals and sectors exemption by allowing them to use forex, which the government purports to have banned.

More contradictory is the government’s affinity to levy taxes in foreign currency, which foreign currency the same government purports to have banned. Therefore, policy contradictions by the inept and illegitimate regime are at the epicenter of our national crisis. With the fundamentals not supportive of introduction of a local currency, coupled with policy inconsistency and lack of public confidence, it was predictable that the introduction of the Zimbabwean dollar was premature and unsustainable.

Inflation is sky rocketing to the extent that the government even barred publishing of annual inflation figures. Shortages of imported goods including mealie meal, fuel and electricity are now the order of the day. This has resulted in the unpalatable suffering of the Zimbabwean masses; prices have gone beyond the reach of many while the wages of the few that are still at work have remained the same. The value of the money in bank accounts has been eroded; pensions have been wiped out again while health insurance has been rendered ineffective. The MDC therefore restates its position that the following measures be taken:

We propose the following urgent remedies:

i) Immediate scrapping of the Zimbabwean dollar

ii) Returning to and strengthening the regime of multiple currencies in the short-term.

iii) Rationalizing the capital account.

iv) Increasing productivity and growing GDP in order to build substantive reserves in the country.

v) Ring-fencing USD Dollar balances in banks at a specific date to protect depositors against a second attack.

vi) Pay civil servants in US dollars

vii) Offer supply-side solutions to the crisis, increase productivity and shift from consumption-based revenue collection.

Post published in: Business

The government this week announced it will soon introduce subsidized garrison shops for soldiers that will be financed by a 2,5 per cent tax which will now be deducted from the remuneration of every government employee.

Back in 2013, Danielle Teuscher and her spouse turned to the use of donor sperm to conceive and grow their family. They chose an “open ID” donor, meaning that the donor was open to being known by the child once the child turned 18. All was good, until Christmas 2018, when Teuscher’s family decided to take 23andMe home DNA tests and included Teuscher’s donor-conceived daughter in on the fun.

Teuscher’s daughter’s test results showed that she was likely related to a paternal grandmother who was “open to contact” on 23andMe. In a short message, Teuscher reached out and let the woman know about the predictive granddaughter’s existence, and that they were open to contact. That must have been a big surprise to this unknowing grandmother. The next thing Teuscher knew, she received a Cease and Desist letter from the sperm bank, which said that Teuscher was liable for $20,000 in damages for breaching the contract between Teuscher and the sperm bank.

But the sperm bank didn’t stop there. It also told Teuscher that it was ending Teuscher’s rights to the five other vials of the donor’s sperm which the sperm bank was storing for Teuscher — sperm which Teuscher planned to use to conceive a sibling to her daughter. The sperm bank further changed the donor’s status from “Open ID” to “anonymous” — a change applicable (and likely upsetting) to all families that chose that donor, not just Teuscher. And the sperm bank shut down the donor sibling portal that the sperm bank had been running, which had allowed Teuscher and other patients to connect with parents of genetically connected half-siblings to their children.

Like any good American, Teuscher responded by suing the sperm bank, NW Cryobank, alleging, among other things, that the clinic did not have the right to take her property (the five vials of sperm).

Can Teuscher Be Guardian Ad Litem For Her Own Daughter?

As the two sides slug it out, one of the positions taken by the sperm bank is that Teuscher should not be permitted to act as guardian ad litem for her own daughter, who is another plaintiff in the case, asserting her own legal rights. In support of its argument, the sperm bank submitted an affidavit from a well-known psychologist in the area of assisted reproductive technology. The psychologist asserts that since the question of whether to find out the identity of your genetic father is always a deeply personal question, giving decision-making authority on the matter to a parent cuts against the child’s autonomy. The sperm bank thus moved that an independent guardian ad litem be appointed for the daughter.

I’m no psychologist, but as a lawyer, that seems like a pretty aggressive argument to advance. Every parent of every donor-conceived child makes the decision regarding whether and how to discuss their biology, and many make the decision not to tell their children despite numerous opportunities to do so. It’s a strange position as a legal matter to contend that those parents who might choose to tell their children their genetic history are less fit as guardians because the children would then lose the autonomy of choosing not to know their genetic history.

In any event, the judge found it just as unpersuasive as I do, and ruled in Teuscher’s favor.

Why Is This Case Such A Big Deal?

I spoke with Professor Jody Madeira, of Indiana University’s Maurer School of Law, about the implications of this case. She explained, “this case is extremely important for several reasons. First, it perpetuates donor anonymity as an ideal, which is akin to Don Quixote tilting at windmills — widespread testing ensures that banks can no longer guarantee anonymity. Second, this case sets a terrible precedent for other situations that families are experiencing NOW.”

Madeira explained that she knows of cases involving parents of a donor-conceived child with a genetic condition that (a) have connected with other families from the same donor experiencing an identical situation; and (b) know who the exact donor is, either because they have been matched to him via a home DNA testing kit, or because they have been able to identify him on Facebook or through other families. (Look at all of this subverting of child autonomy going on!) But even given the serious health concerns at play, parents who use donors continue to have a dilemma. If they use the 23andMe or Ancestry.com service to contact the donor, they may be in the very same situation as Teuscher, risking a demand letter and legal action from the sperm clinic. But if they don’t, they might go without critical medical information that might be needed to protect the life and health of the very child who was conceived with the aid of the donor.

And What About Mom’s Property Rights? And The Dystopian Implications.

Among the other issues, Teuscher’s attorney, Jill Teitel, finds the destruction of property rights especially axiomatic. She wrote to me, “NW Cryobank does not have any right to withhold Danielle Teuscher’s gametes from her. Its customer contracts say nothing indicating that NW Cryobank can seize its customers’ gametes or other fertility-related property that customers agreed to store at NW Cryobank facilities. There is no legal authority that a company can simply take its own customers’ paid-for property when it disagrees with their actions. The fact that the ‘property’ at issue is Ms. Teuscher’s only possibility of bearing a genetic sibling to her daughter is particularly dystopian.”

As this case rages on, I want to be balanced and understanding given the sperm bank’s difficult position of defending the anonymity it promised to its donor clients. However, we live in a different world now, even from the one that existed in 2013. To side with the sperm bank would have some serious negative consequences, both to access to information and to property rights. Sorry, sperm bank. Have you considered settling? Because I don’t think anyone living in 2020 thinks you should win this case.

Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com. 

I am reading Non Obvious Megatrends: How to See What Others Miss and Predict the Future. Written by Rohit Bhargava, who has spent a large part of his career at big ad agencies and who identifies as a futurist and innovator, it is the latest in a series of books he’s written called the “Non Obvious Trend Series.” This is the first book of his that I have read. He has some ideas that lawyers can apply to our own lives and careers (note that I wrote “lives” before “careers.”)

What I have found most useful so far is the section on nonobvious thinking.

Bhargava draws on the research of Stanford psychology professor Carol Dweck, who says that people have either a fixed mindset or a growth mindset. In the former, the ability and skills are set, while in the latter, it is expandable, open to new ideas and new experiences.

What is nonobvious thinking, and how do you do it? It takes a growth mindset, the attitude that there is always something new to be learned, a new way of doing something, a fresh approach to a problem that has stymied resolution. Nothing is set in concrete in a growth mindset. The growth mindset peeps are innovators and disruptors, unsatisfied with the status quo.

In the first part of the book, Bhargava describes the five mindsets of nonobvious thinkers. The first mindset is to be observant, to see what others miss. That’s very hard to do in these days of smartphone addiction, of people totally focused on what is on the screen, rather than the world around them. They miss so much by missing important clues in body language, speech patterns, and how people react.

Years ago, I conducted a wholly nonscientific experiment on Manhattan’s Upper East Side. I walked the block from Third Avenue to Lexington along 77th Street. I did not see one single person who looked at me. Every last one of them was fixated on a screen, even those with strollers and dogs; no one paid me any attention. Have we lost our powers of observation? What do we see when we really look? Do we even care anymore? We should, as it’s a vital skill for good lawyering.

Another mindset of nonobvious thinkers is to be curious, always asking why. I think that depends on the setting as to whether this is a good idea. We’re all told in law school — or at least we should have been — “never ask a question that we don’t know the answer to.” Certainly in adversarial situations, that mantra makes sense. However, when interviewing a client, you want to know the full story, you want to be curious about what the client has told you and, even more importantly, what the client hasn’t told you, what the client has left out, whether inadvertently or intentionally. Consider the circumstances and the setting.

Be thoughtful, another mindset of nonobvious thinkers. I think more problems could be resolved if we would just slow down and think before we speak. But we tend to function in a “ready, fire, aim” mode, so hurt feelings and the like lead to the exchange of nasty emails that lead to litigation, where no one wins (except the lawyers who bill the hours). It’s so hard in the heat of litigation to see the other side, to understand that the opposing side’s ideas may be equally valid.

The most difficult conversation for any attorney to have is to tell that client that the opposition has valid points to consider. How many times have I (or you) heard the clients wail that we are “taking the other side?” If they only knew how wrong that was and how what we were doing is trying to protect the client from legal and financial trainwrecks.

Don’t be in such a hurry to respond. You don’t get points for being the quickest mouth in the land; you get points for being thoughtful when you do respond. Sometimes, waiting, just waiting, before answering can be a very effective technique. As the author says, don’t be afraid of  silence.

Yet another mindset of nonobvious thinkers is to be fickle. Allow ideas to soak in before analyzing them. Collect ideas and then give them time to marinate. How many times have you had a brilliant idea for your litigation strategy right off the bat? Your negotiation tactics in a huge deal? Usually the best ideas, the most strategic ideas don’t happen overnight. You think about them, consult with others before deciding whether it truly is a brilliant idea or not. Being fickle means not being wedded to any one idea, to be flexible enough to figure out whether something makes sense or not.

Lastly, the final mindset is to be elegant, and that doesn’t mean in how you dress. Write simply. How many times has a client said that she didn’t understand a word of the memo because it was written in legalese? How many times have we been asked if we bill by the word? What about writing it simply from the get-go? Clients don’t want law review articles or an analysis of all the cases in the area. They want elegance, although they don’t know that’s what they want.  They want simplicity and advice that is to the point. It’s the old “KISS” method — “Keep It Simple [or Short] Stupid.”

So, which mindset are you? Today, more than ever it’s imperative to have a growth mindset. We have to expand our thinking in how we practice. As we’re seeing, the fixed mindset ways of doing things doesn’t cut it anymore.

Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.