November 2, 2007
Jurisdiction and Textualism: Interview with Peter J. Smith
Click the link at the bottom of this post to listen to our interview with Peter J. Smith of George Washington University Law School about his article Jurisdiction and Textualism. Thanks to Peter for giving a great interview.--Counseller
Associate B Team
As we mentioned here, some law firms are creating two tiers of associates in the wake of the latest round of associate pay hikes. The ABA Journal follows up its earlier report on the two-tiers of associates with this story about a law firm that is creating a "B Team" of associates who get paid less and can't make partner but work less than partnership-track associates.--Counseller
October 31, 2007
Crash on the 1L job hunt
We introduced our anonymous 1L, Crash McAvoy, here. We've heard about Crash's first-week experience, his fear of a fundamental misunderstanding, and how Joseph Glannon is heroic. This week Crash provides perspective on other aspects of the 1L experience:
Just when I thought I might be starting to get a handle on law school-- a much needed fall break had allowed me to strike a balance between preparing for class, participating in extra-curricular activities, and maintaining some semblance of a social life-- a couple new factors were added to the mix. My professors have recently started making constant references to approaching exams, and the law school administration has been flooding me and my classmates with information about the summer job search. So much for my attempt to “just focus on learning the law.”
I suppose that, because exams are only two months away, it makes sense that my professors have finally stopped acting like they are never going to happen. It is the point in the semester where it seems necessary to start looking back and seeing things as a developing whole. Even thinking about exam preparation makes me a little nervous, but as I understand the material better on a day-to-day basis, I begin to think that maybe I am ready to start working on application and integration. This same cautious optimism, however, does not extend to the other new item on the to-do list: the summer job search. I do not feel at all ready to start planning, months before my first legal evaluation of any kind, for my debut into the legal profession.
The first time I truly felt the difference between getting a liberal arts education and attending professional school was the day I opened my email inbox and saw nearly the entire first page was full of messages from career services. Initially, I could not believe they would send so many emails in such a short time, but now I can't help but think that it was appropriate. The flood of career information seemed overwhelming and poorly timed; after a week of attempting to navigate the process, I can say that is exactly how the one L job search feels.
Part of the difficulty is that I, like most of my peers, feel stretched for time and pulled in too many different directions; the fact that my first practice exams were distributed the same week that job search panels began significantly compounded the difficulty of trying to figure out what the best use of my time is. I realize, ultimately, I am attending law school to get a job, so I definitely don't want to short-change the search. However, in the long run, my grades will presumably play a large role in determining what my job options are. Without having recieved a single grade in law school so far, I have no sense of whether the amount and way I am studying is preparing me to succeed. It seems nearly impossible to make any estimate about the marginal benefits of using my time in a particular way; the lack of information I have this first semester has left me feeling completely unable to maximize the utility of my time. The more things I have to schedule in, the more frustrating that becomes.
The other difficulty I am experiencing is how disconnected my law school experience thus far seems from this upcoming job search. I feel this disconnect on a number of different levels. The first is that I am no closer than when I started to being able to answer the first question every non law student I meet asks: "what kind of law do you want to practice?" Other than the fact that on the worst days of Civ Pro I feel sure I want to do transactional law, it seems my first semester of professional school has done very little to prepare me to make an informed choice about taking the first step of my professional career. While I am sure I now probably have more knowledge about the philosophical underpinnings of procedural due process than the average American, I am not sure I understand much better what it means to be a lawyer. Even Civil Procedure, which I expected to be the most practical part of my first semester education, has provided me with only a minimal sense of what a trial lawyer-- let alone a typical lawyer—does.
I'm certainly not criticizing the classes I’ve taken or the method of instruction; I have enjoyed them, learned a lot, and I am far from qualified to comment on how they will serve me in the future. However, it does seems somehow ironic that I am being pulled away in the middle of a semester full of theorizing to attend to the supremely practical matter of ensuring employment. I think that holding off this flood of information about the job search process, at least until I have had an opportunity to apply the knowledge I've gained to an exam question, would make the apparent disconnect easier to deal with. Also helpful, and perhaps more realistic, would be hearing from a professor how what has interested us about a particular class might point in one career direction or another.
The ad-hoc strategy I have developed for now is to think of the career search as a factor completely unrelated to my classes; I’m just studying for my classes as I have been and looking for jobs that somehow seem interesting to me independent of anything I have learned in law school. Still, I hope that, at some point, my professional education and my chosen profession won't seem like such distinct entities. ~Crash
October 30, 2007
A Great Opportunity
The University of Missouri-Kansas City School of Law is looking to fill an endowed professorship--the Douglas Stripp Distinguished Professor of Law in Advocacy. David Achtenberg, chair of the search committee, says the position would be a nice fit for a CivPro Prof. Here is the official UMKC Advertisement.--Counseller
October 29, 2007
Judge McConnell on the Relitigation Exception
Courts and commentators have not uniformly interpreted the scope of the Anti-Injunction Act's relitigation exception. This exception allows federal courts to enjoin state court proceedings to "protect or effectuate" a previous judgment of the federal court. The Supreme Court seemed to make clear, in the Chick Kam Choo case, that, while the relitigation exception has its roots in res judicata and collateral estoppel, the scope of the exception is not so broad as to be coextensive with both claim and issue preclusion. While there is some language in Chick Kam Choo that could, if viewed in isolation, support such a broad construction, I have always taught in my Federal Courts class that the err of the broad interpretation is just that -- that it views the language in isolation. Judge McConnell is spot on in his analysis, which thoughtfully considers the impact of a previous Supreme Court case, Atlantic Coast Line, and the policies underlying preclusion and the AIA. Several excerpts from Judge McConnell's opinion appear below (and are edited without notation for readability):
Since Chick Kam Choo, this Court has dealt with the AIA's relitigation exception three times, but we have never squarely addressed its scope. We do so now and, like the vast majority of circuits that have explicitly or implicitly considered this issue, conclude that Chick Kam Choo leaves little room for doubt: the AIA's third exception does not authorize a federal court to protect the full res judicata effect of its decisions. Instead, it authorizes injunctions against state adjudication of issues that "actually have been decided by the federal court." Chick Kam Choo, 486 U.S. at 148.
The Ninth Circuit appears to be the only circuit that has rejected the majority reading of Chick Kam Choo and continues to apply the broader conception of the relitigation exception. Some commentators have also taken issue with the majority view. Admittedly, the Chick Kam Choo opinion contains language pointing both ways. The Court broadly stated that the relitigation exception is rooted "in the well-recognized concepts of res judicata and collateral estoppel." 486 U.S. at 147. Given that res judicata extends beyond claims actually decided and includes those that could have been raised,this statement might be seen to conflict with the opinion's later statement that the exception applies only to "claims or issues ... actually ... decided by the federal court." Chick Kam Choo, 486 U.S. at 148. As the Ninth Circuit explained:
To read Choo as the other Circuits have ... would in essence be to read res judicata entirely out of section 2283. Any issue which was "actually litigated" by the parties in a prior proceeding will be barred by collateral estoppel ("issue preclusion"), without any need to rely on res judicata ("claim preclusion").
Be that as it may, we think Chick Kam Choo's specific explication of the scope of the relitigation exception, along with the case's actual outcome (and that of Atlantic Coast Lines ), leads to the conclusion that the relitigation exception does not encompass all aspects of claim preclusion. Whether or not this is the best interpretation of the statute, and whether or not this limitation undermines the rights that are supposed to attach to a federal judgment. Chick Kam Choo says what it says, and we must follow it.
In any event, we believe this interpretation is consistent with the dual purposes of the AIA: to respect comity while also "ensur[ing] the effectiveness and supremacy of federal law." Chick Kam Choo, 486 U.S. at 146. When a federal court affirmatively decides an issue, that decision is entitled to respect and finality. But when a federal court has not passed on a specific claim, the main concern raised by subsequent state litigation is harassment of the opposing party. That concern is not to be taken lightly, but it is the province of res judicata, a defense that a party is free to raise in the subsequent state-court suit--and that the state courts "are presumed competent to resolve," Chick Kam Choo, 468 U.S. at 150.
You can find the full opinion here. --RR