Saturday, September 30, 2006
posted by Alan Childress
Previously, I posted the abstract--then just up on SSRN--to Nancy Levit's classic 2001 article on women's "domesticated" roles in law teaching. It was probably somewhat afield of "legal profession," and, I now see, in the way of posting new abstracts of older articles lies madness. (At the time I thought my job was to post the latest SSRN abstract up that ID'd itself as on "legal profession," so I did.) Anyway, it was a classic worth a second look, so it stays, with promises of more focus from me. True, a "classic" is any article I read five years ago that I still remember actually reading, so take that with a saltgrain too. Yet I do recall reading this--no mean feat considering the metals I have inadvertently ingested over the years--and thinking she's right and especially that I liked her "domestic" spin, but worrying about its implications.
You'll recall (assuming fewer metals in your youth, or just current youth) that she nicely argued--actually showed through some good statistical work and not just observation and theory--that women in law teaching appear disproportionately in the supposedly-lower-prestige jobs of untenured legal writing and clinical positions or courses with traditionally female content to them like family law. I think we all intuited that distribution before (if not necessarily agreeing with all her characterizations--e.g., in many schools, clinicians are tenured and valued), but anyway Levit has numbers. She adds a clever and persuasive spin: characterizing those positions as requiring more "housework" and "childcare" around the law building than the male counterparts have to perform. To that I observe that any 1L class requires more hand-holding and domestic-like work than most upper year classes, but I think this supports her point because I'd bet we find that women disproportionately teach, or at least start a career teaching, certain 1L classes like civ pro and torts. Her thesis and statistics are worth taking seriously and should be read by our Appointments Committees as well as Promotion & Tenure.
But I do fear that some reading it may think the solution is to just hire men for legal writing, while I would hope the goal would be to expand women's presence in the academy generally, for every open position, and not create some kind of backlash against (or diminution of value for) women in clinics, legal writing, or assitant deanships that deal with student issues. It's sort of the problem some African American actors say they faced in the 1970s: as Hollywood realized it had demeaned blacks by making them portray stereotypes, many actors found themselves out of work by the PC response. They lamented that their first priority was to get a job, maid or pimp or otherwise.
Maybe the long-term solution is found in hiring more women period, but--the harder part--then really valuing what they/we do, including legal writing, clinics, and family law. After all, family law will profoundly touch more lives of more human clients and the students themselves than will first amendment law, much less third amendment law. More after the jump.
Posted by Jeff Lipshaw
I suppose one reaches a point in one's academic career when one no longer jumps around the house shouting "yes, yes, yes, yes, yes" when one places a law review article, or, as we say, "kvells" quietly upon being cited by anybody, much less a fine scholar in a really interesting and insightful article, and even when you're not sure the citation is for precisely the point you thought you were making. But I'm still a neophyte, that explains my happy reaction, apart from the real value of the article, to Explaining the Value of Transactional Lawyering, posted by Steven Schwarcz (Duke Law School) in the ExpressO pre-print series.
The really interesting approach Professor Schwarcz has taken is to collect data from lawyers and clients on their perceptions of the value lawyers create in transactions, and uses it to challenge the "transaction cost engineering" approach proposed over twenty years ago by Ronald Gilson. With all the appropriate disclaimers for the flaws in the data, Professor Schwarcz hypothesizes that the primary value transactional lawyers bring to the party is not transaction cost engineering (in the sense of reducing the likelihood of future litigation), or acting as reputational intermediaries, but in reducing "client regulatory" and "transaction regulatory" costs.
More below the fold.
September 30, 2006 in Abstracts Highlights - Academic Articles on the Legal Profession, Economics, Highlights from bepress and Law & Society Review, Law Firms, The Practice | Permalink | Comments (0) | TrackBack (0)
Posted by Jeff Lipshaw
Law.com has an interesting story on the strategy of one of the old-line London city firms, Slaughter & May. The firm has foregone global expansion a la Clifford Chance or Allen & Overy (and many of its American peers) in favor of "best friend" alliances with similar independent firms around Europe - Germany's Hengeler Mueller, and Italy's Bonelli Erede, for example.
I concur in the sentiments of the Diageo general counsel quoted in the article, who said he had an expectation of seamlessness in the end product, regardless of the internal structure. The irony, from my standpoint, is that multi-national clients do not get that kind of seamlessness, even when they hire some of the more well-known global firms. I still remember conversations, when I was a GC, with senior partners in some of those firms, telling them that it was their job, not mine, to insure, where a deal involved a French subsidiary of a German company holding Spanish assets being sold to a Netherlands buyer, that the Paris, Barcelona, Frankfurt, and Amsterdam offices were talking to each other.
Notwithstanding my own deontological bent, my experience with law firms as partner and customer is that they may well be perfect laboratories to test the predictions of competing economic theories. My casual experience is that nothing will tell you more about your upcoming relationship than knowing how the firm's internal compensation system works, not only as a matter of partnership or LLC operating agreement, but as a matter of culture. Here's an example of contractarianism gone wild. Some years ago, when I was leaving AlliedSignal, I was approached by a smallish suburban Detroit law firm whose compensation system worked like this. As the "rainmaking" partner for a piece of work, you controlled the profits. If you needed tax work on the deal, you had to go to one of the tax partners and negotiate a split. (It's entirely possible that the system worked for relatively independent trial lawyers; I couldn't imagine trying to rope in everyone I needed for a deal.) The next time I encountered a system like this was negotiating a "preferred global law firm" deal with a major U.S.-based international firm. I was told that if the U.S. office agreed to too much of a discount, it would not be able to entice its sister offices to participate!
Lisa Bernstein's study of the diamond district in New York was a classic. The next "gem" for the empirically inclined is a longitudinal study of those interesting beings whose days are measured with time sheets and hourly rates. Is behavior different in firms where all the partners have perfect information (i.e., the billable hour and billing leaderboard are open documents) or the information is asymmetric? Do partners look to the long term, or is the availability heuristic at work?
Friday, September 29, 2006
Nancy Levit (UMKC Law School) has posted this abstract on SSRN under Law & Society--The Legal Profession; the article was originally published in 2001 in 49 Kansas Law Review 775:
Keeping Feminism in its Place: Sex Segregation and the Domestication of Female Academics
|The thesis of Keeping Feminism in Its Place is that women are being “domesticated” in the legal academy. This occurs in two ways, one theoretical and one very practical: denigration of feminism on the theoretical level and sex segregation of men and women on the experiential level intertwine to disadvantage women in academia in complex and subtle ways. |
The article examines occupational sex segregation and role differentiation between male and female law professors, demonstrating statistically that in legal academia, women are congregated in lower-ranking, lower-paying, lower-prestige positions. It also traces how segregation by sex persists in substantive course teaching assignments. Female law professors are much more likely than male law professors to teach substantive courses addressing familial issues, as well as skills courses that demand intensive labor and student nurturing. In addition, female law professors are performing a disproportionate share of domestic chores within the law school relative to their numbers on faculties - they are doing more of the occupational equivalent of the “housework” and the “childcare” than their male counterparts. The article looks at the ways both women and men are disadvantaged by importing traditional domestic behaviors into the workplace.
This occupational segregation is coupled with a second pattern. Some feminists who espouse more radical or provocative theories suffer a different kind of domestication: a taming of the individuals through promotion and tenure processes and castigations in print of their more radical theorizing. Third, a number of traditional theorists have accused some feminists and other critical scholars of attacking reason because they urge acceptance of atypical points of view. These separate threads - concerning the roles of female academics, the career jeopardy for particularly radical feminists, and the assault on feminist theory as work lacking in reason - unite to keep feminism in its place.
--Posted by Alan Childress
Fred C. Zacharias (U. San Diego School of Law) has posted The Image of Lawyers on SSRN. Here is the abstract:
This Article identifies some of the different images of lawyers that exist and the ramifications of emphasizing each image (e.g., as a paradigm) in the professional codes. It then considers how code drafters can best deal with the existence of multiple, sometimes inconsistent, conceptualizations of lawyers. Currently the codes emphasize and rely on overriding paradigms that ignore the existence of the alternative images. The article addresses the likely consequences of thinking in less paradigmatic terms - for code-drafting, discipline, who should regulate, and the substantive regulation of attorney-client interrelationships. It attempts to provide some postulates, or baselines from which professional regulators should begin in order to formulate coherent and useful legal ethics codes. Although this article does reach some conclusions, the purpose of its analysis is not to propose or criticize specific rules. Its point is both simpler and broader: the regulators should openly acknowledge the theory, or theories, on which they proceed. Inevitably, after a code is adopted, individual reforms will be proposed - some addressing minor or isolated issues - and will be adopted more because of their factual setting (e.g., a period of corporate scandals) than because of their consistency with the codes' overarching paradigms. Unless the initial drafters have made the limits of their general theory clear, or identified how and when other paradigms might reasonably be considered when reform becomes an issue, the idiosyncratic or fact-based reforms are likely to undermine the codes' coherence.
Posted by Jeff Lipshaw
September 29, 2006 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (0)
Posted by Jeff Lipshaw.
We kick off Straddling the Fence with some thoughts on careers.
I had lunch with one of the student groups here at Tulane a couple weeks ago (One of the very nice restaurants in the French Quarter, Bacco, features 10 cent martinis with a lunch order - 30 martini limit per person - but since I have never had the fabled three-martini lunch, much less a single martini lunch, I went with mango flavored iced tea. I am not a teetotaler by any means, just a very cheap drunk.)
The question came up about career choices, opportunities, and training. My bona fides in this area include the fact that I've been law firm associate, law firm partner, law firm of counsel, divisional general counsel, and general counsel of a public company. I've done litigation and corporate. I've been interviewer and interviewee. I have been hirer and firer. So the thoughts may not be right or helpful, but they do spring from a well-developed (if twisted) point of view.
Here are thoughts in no particular order:
1. "You Don't Know What You Don't Know, But It's Your Basic Skills and Attributes That Matter"
There are entering law students who know precisely why they are here, and what they want to do with their lives. If you are one of them, skip to the next paragraph. My brother-in-law wanted to be a sports agent representing skiers. But he never really wanted to practice law. He went to law school at Denver University, got his degree, and then knocked on doors until somebody hired him. The one that opened happened to be International Management Group, one of the largest agency and promotion firms in the world, and his career was off and running.
Most of us don't have that focus that early. For many of us, it's a default path where merely being bright and analytical provides some likelihood of a decent living and professional status. Don't worry if you don't know precisely what you want to do, because you don't know what you don't know, and it is going to take a while for you to find out. I was a history major, and tired of being poor, so I went to law school instead of graduate school in history. I had no business experience or acumen whatsoever. Tax, corporations, securities regulation, the UCC, even first year contracts, were all foreign to me. I gravitated to the natural writing, speaking, arguing kinds of courses - civ pro, evidence, federal courts - and assumed I was meant to be a litigator. It took ten years in practice, including having made partner as a litigator, to realize that I HATED being a litigator. I didn't know what the business lawyers did, and couldn't even begin to make a sensible decision as long as I didn't know.
Jeff Kindler, the recently appointed CEO of Pfizer, Inc., one of the largest companies in the world, started his career as a litigator at Williams & Connolly. He moved in-house at GE as senior counsel for litigation, and then got recruited to McDonald's, where he was first the general counsel, and then the president of the division that ran Boston Market and Chipotle. He then became the general counsel for Pfizer, and most recently its CEO. The point is that I suspect it's highly unlikely that Jeff knew when he started law school that he had the business acumen to run a huge company.
When I was hiring lawyers for in-house positions, I looked for "the best available athlete." Business people tended to believe that the critical thing was knowledge of their business area. My position was that a great lawyer could learn the business, but as the coach said in Chariots of Fire, I couldn't put in what nature left out. An example: I was hiring for the general counsel position of a billion dollar business. The best young lawyer I knew was an associate in a local law firm - and he had a number of very attractive qualifications: Harvard grad, African-American, great writer, smart as a whip, but he was a pure litigator with almost no business experience. To me, the basic skills and the diversity impact (we needed it badly) trumped the holes in the resume on business experience.
More below the fold.
posted by Alan Childress
The ABA Journal's ubiquitous on-line news source reports here that the NY bar is considering defining blogging by lawyers and law firms as "advertising." That'd pull it in under all sorts of filing and document-maintenance requirements as well as possibly dragging in out-of-staters. I don't see this proposal as feasible and predict that it will never make it to the finish line. Meanwhile, though, the media will play with the notion a while and treat it as a serious idea likely to happen. Even if the intended target, as suggested by the outcry quoted in the ABA piece, is small firms, solos, and plaintiff's lawyers, the [unintended?] reality is that its reach would sweep in all sorts of white shoe firms and their marketing programs too. Quite apart from the odd implication that they actually wear white shoes, they won't go for this idea either.
It's still a great hypo for an ethics class, or a first amendment one. Is it really speech proposing a commercial transaction and thus subject to the lesser protection given commercial speech? While we often teach the line between advertising and solicitation exemplified by targeted direct mail [as protected in Shapero v. Kentucky Bar Ass'n, 486 U.S. 466 (1988)], we may not explore the line between ads and something less--communication that does not rise to the world of ads and their intermediate scrutiny level of protection. This example arguably takes us there. And students can identify with blogging much more readily than in-hospital solicitations; cyberspace is their world the state is wanting to screw with, and they won't like it any more than they want MySpace to gratuitously announce their personal postings to all buddies on a user's list. They will get excited talking about this idea, and have to decide where ads end and human communication--but heaven forbid solicitation--begins. Already two of my students have emailed me queries about this.
That it is a perfect class hypo is further proof of its unreality, which means it'll never fly.
Thursday, September 28, 2006
posted by Alan Childress
Two cherry pop-tarts, and I feel "badly" about the Iraq War. There, I am officially a blogger.
Mainly to practice using links and inserts, this post announces that Tulane Law School's summer school in Spetses, Greece--open to students from all law schools--includes a course in Comparative Legal Professions. I will be teaching it (and can be reached by this corrected email). The course description:
Lawyers perform different roles in many countries. They are organized and regulated in various ways. Even the concept of "profession" defies a uniform label. This course explores the profession's functions and rules in nations of the civil law (including Greece, Germany, Venezuela, and Japan) and common law (UK and USA). Topics include advertising, conflicts, legal education, and advocacy.
Photo is a view from the site of Tulane's summer school program on the Greek isle of Spetses. In addition to the above, it includes courses on international civ pro, contract theory, comparative family law, and healthcare & justice. The 2007 session will run three weeks from June 17-July 6. Tulane also has programs in Rhodos, Greece, as well as several other countries. My opinion: these programs are amazing and rewarding. More photos from the Spetses program (spot the one with Justice Scalia?--his really great wife Maureen favors Greece) are here and that site's home [first] page.
posted by Alan Childress
You know the old saw: “Fool me twice, shame on, er somebody…oh hell I want a refund from Toastmasters Club of Greater Beaumont.” Apparently that policy drives the trend in state bars –- notably about to include California –- to create a new punishment: "Permanent Disbarment" [hear the echo sound?]. That's where the candidate for readmission to the bar is told years in advance that the answer will be No, Never – regardless of wholly changed circumstances, proven sobriety, or mechanisms in place to protect clients. It’s the One Strike Rule, I guess because Three Strike Laws have worked so well in the real world and this one looks three times tougher. Recidivism among the disbarred must be rampant, and the bar has given up on imagining redeeming or correcting its bad apples.
My view: public policy should not be built on old saws that even Yale-educated Presidents cannot keep straight. My real view: recidivism is not the policy basis for Permanent Disbarment at all. Rather it is a cheap PR trick (public relations, not professional responsibility), and nothing more. There is no social science, or logical experience from those of us who care about how the profession self-regulates, to show that Regular Disbarment has failed.
For now, I consider the PR value of this trend and find it wanting. I actually favor cheap PR stunts, but not bad ones. Here we have an ad agency pitching to Wendy’s that they should falsely finally admit they add worms to their burgers, then make a big deal publicly about ending the practice. Dave would not retain those ad wizards, if only because he is dead. Must be the same ad guys who think I will buy a VW Passat just to drive it white-knuckled while obsessively wondering whether the next green light will be my last. More below the fold.
Monday, September 18, 2006
To test Jeff's claim to spongeworthiness, I ask him, and anyone really, this highly geekish question: Of all the cases cited in the U.S. Reports, over centuries of U.S. Supreme Court decision-making, one case is cited more than any other. Even Leiter has not yet counted this. Jeff, name that case.
Hint: it is not Marbury v. Madison.
UPDATE: Jeff gave up too early and Frank Snyder got it, in the hand grenade sense. I'll leave the answer for the Comments just in case you stumbled on this.
Alan Childress, Mike Frisch and I are delighted to be editing this blog whose general subject matter will be the profession and, in particular, its complex relationship with the academy. This post is a placeholder to get us up and formatted, but we will start churning out posts in mid-October.
I know just enough to be dangerous, which is why we have the other two distinguished editors. Alan (S. Alan to his friends and "hey you" to his very close friends), in addition to his Harvard law degree, has a Ph.D. in Jurisprudence and Social Policy from the University of California at Berkeley, which gives us official cross-disciplinary bona fides. Alan has been on the Tulane faculty since 1988, and is visiting this year at George Washington. (Louisiana was not big enough for the two of us.) His major claim to fame is that his brother Mark is a best selling novelist (One Mississippi). According to Alan, whenever you find an obnoxious suck up in one of Mark's stories, Alan was the model.
Alan has taught "The Legal Profession" at Tulane since 1990, and "Comparative Legal Professions" since 2002, and our readers will be the beneficiaries of his expertise in both areas.
Mike is currently Ethics Counsel to the Georgetown University Law Center and previously served as Senior Assistant Bar Counsel to the District of Columbia Court of Appeals. He teaches American Legal Profession, Ethics and Professional Identity, and Professional Responsibility at Georgetown. Mike is a Georgetown lifer, having also gotten his law degree there.
My qualifications are limited to a wry sense of humor, being one of the 70% of the population who can roll his tongue up but not down, and a sponge-like memory for useless trivia. I was a partner in a large law firm based on Detroit whose present advertising epigram ("A Law Firm Unlike Any Other") will be the trigger for some musings on law firm ad epigrams at some point in the future, so I'm familiar first hand with the issues of associate-dom, partner-dom, and the somewhat uncomfortable activity known as "client development" (in short, the phenomenon in which every other human being is classified in one's mind based on the likelihood of becoming a fee paying client). I've also been the senior vice president and general counsel of a large public company, so I've been a buyer of services (and became the target of others' client development), as well as the manager of an in-house staff.
On the theory that it's better to over-deliver than over-promise, I won't list here the incredible features, links, commentary, guest bloggers, and other delights you will find here, but stay tuned.
- Jeff Lipshaw