November 27, 2011
Browsing On A Sunday: Lobbying SCOTUS, The Legal Cloud, And Defending Law Faculty Idealism
The idea that deep pockets can affect congressional action is hardly a new one. What surprises me, however, is this account in The Hill, describing lobbying attempts to affect the deliberation of the Supreme Court as it considers the constitutionality of the healthcare reform law. These take the form of media campaigns designed to sway public opinion on the law. The Supreme Court is mostly immune to these actions, though it’s hard to imagine that the Justices never watch television. Another new partisan tactic is raising the debate on whether several of the Justices should recuse themselves from the consideration of the case. Justices Scalia and Thomas, for example, had dinner with challengers to the law. Justice Kagan was part of the administration when the law was pending. If history is a guide, all nine Justices will weigh in. Amicus takes on a whole new meaning in this context.
Somewhere back in February of 2010 the LLB reprinted with permission an article from BNA called Privacy and Data Security Risks in Cloud Computing. BNA now reports on an Iowa State Bar Association ethics opinion concerning the storage of client data in the cloud. Iowa says it’s ok, provided a lawyer perform due diligence as to the mechanism and security of the storage. The concerns raised include whether the lawyer will have unfettered access to the data, including a back-up in case the cloud is down; whether the lawyer has a clear understanding of the reputation of the storage company and the terms of the contract to store data; and what happens to the ownership of the data if the lawyer does not pay the required fees. Other practical concerns include who at the company has access to the data and passwords, whether third parties can get to it, and whether the lawyer controls the encryption scheme. Expect to see future ethics opinions (or court cases by aggrieved clients) as reality meets standards.
Noah Feldman defends law professors in light of the article in the New York Times that paints faculty as out of touch with the legal practice class. He notes in Bloomberg how former and current law professors dominate politics, including Justice Anthony Kennedy, Elizabeth Warren, Cass Sunstein, Bill and Hillary Clinton, and of course, President Barack Obama. Law professors, he says, tend to compare the ideal with reality and become frustrated with the way reality works out. Faculty members do not want to accept “messy compromises” that exist in reality.
Because they tend to like logical principles, law professors are also big believers in the power of reason to prevail. If they could just get the public to see things clearly, they tell themselves, results would surely improve.
Well, Professor Feldman, as many of the faculty you cite who are now part of government, they have all had to deal with those messy compromises dictated by politics. Justice Kennedy, for example, tends to be pragmatic despite being labeled a conservative. Presidents Clinton and Obama surely understand negotiating deals that are less than ideal but pass into law. If anything, it seems they have not let their law faculty past affect too much their roles in government.
Law professors consider having an impact on policy to be a plus. One test of the value of a legal scholar’s ideas is whether anyone in the real world bothers to listen to them.
Indeed, though even philosopher-kings had to exercise power at some point. [MG]
One other thing - all law schools have FREE access to Practical Law. If these students in the NY Times article had attended a Practical Law workshop in their library, they would have been able to answer the questions posed to them. http://www.practicallaw.com is a fabulous resource that students would learn about from their law professors in law school.
Posted by: vicki | Nov 27, 2011 10:37:56 PM
There is an excellent post on Concurring Opinions by Daniel Solove titled "The Relationship Between Theory and Practice." I think Solove brings up some worthy points in this debate. http://www.concurringopinions.com/archives/2011/11/the-relationship-between-theory-and-practice.html
Posted by: vicki | Nov 27, 2011 9:46:49 PM