Legal Profession Blog

Women in Academia Redux: a classic Levit article

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.

Part of the problem with noting the relegation of women to certain positions in law teaching is that the era of expanded hiring of women has overlapped with a trend in all parts of the academy: to make shorter-term hiring decisions as an alternative to the expense and inflexibility of the tenure track.  It's fair to argue that some of that is itself a reaction to the perceived influx of women and other minorities into university-level teaching.  "Perceived" because the numbers Levit cites don't support anything close to Tipping or for that matter Influx.  But the fear is there, undoubtedly, in dark entrenched corners of the academy, and it may look like an influx when one goes from zero minorities to two, since the increase is infinity%.   

So I am not discounting the unequal effect and possibly intent of expanding second-class and non-tenured instructional and deaning positions in law schools.  But the reality is that for many law schools, the open jobs are disproportionately in the same positions Levit deems less prestigious, so if women are going to be hired at all those are the jobs that are there -- absent some revolution in re-thinking the status of all sorts of institutional responsibilities around the building.  I doubt her article has or will spark[ed] revolution, but it absolutely raises the question of differentiated prestige or hand-holding workload, and whether women are given too much of it, which deserves discussing in that building. I hope it does that.  Hence my call to assigning it to various actors in hiring and firing.  I just hope in the process some schools don't accidently hire fewer women to show that they don't stereotype and men can be legal writing teachers too.  That can't be Levit's point (though of course they can).

In addition to the Appointments issue and assignment of teaching duties, Levit's second part--about the Promotion and Tenure wing of this--is to me a little less convincing.  She posits that feminist scholars have a hard time getting tenure because their scholarship is cast as too radical and "un-reasoning" by male reviewers and critics.  Just from my own observations, she may be right, but it may have less to do with the feminist aspect of it than the radicalness.  I'd advise any budding scholar--male or female, left or right wing, family law or viagra law--to be careful before tenure.  I don't trust the system to fairly judge any untenured person's radicalness or difference of any stripe. 

Levit may be right that women are forced to deradicalize in the tenure process, but I'd add that is a phenomenon that pre-dated the hiring of any women ever in law teaching.  There may be some bigot--or well-meaning but intellectually constipated old white guy--lying in wait to write a negative tenure letter for a woman's scholarship, but I assure you his counterpart is lying in wait for some boy's tome too.  He may just be resenting all of them for their youth, and it actually is age discrimination.  I certainly resent their exceptional metal-free power of recall.  Still, the firing committees (er, P&T, sorry) really ought to be sensitive to whether a wide variety of good scholarship--narrative pieces, feminist theory, articles on clinical teaching, reparations writings--are getting their fair due in the traditional scholarly evaluation system.  Hence my assigning Levit to the firers too.  In this sense she is raising, fairly but incompletely, the larger problem of how any non-traditional scholarship should be paper-processed in the hiring and tenure sieves. (One echoed recently by an exchange between our Jeff and Shubha Ghosh on the PrawfsBlawg site, over whether practice or theory matters for evaluating writing.  One thing they agree on: the test of significant scholarship is whether it is remembered 100 years later. Don't ask me to recall past five years, guys.)

Update this concern with a phenomenon that Levit would not have anticipated in 2001:  blogging.  There is a question now floating around, quite similar -- for very different reasons but consistent with her thesis and concern about workload -- to ones asked by Levit about radical writing.  This one is, "Should Female Legal Academics Blog?"  A very interesting post on that question/title by Rachel Godsil of Seton Hall is found on Concurring Opinions (discussing Rosa Brooks and Brian Leiter), along with some fairly strongly stated Comments in reply.  Obviously the blog posts themselves don't count for tenure, but the link to this post and Levit (beyond workload concerns) is the real possibility that someone who blogs and otherwise produces won't be taken as seriously, and perhaps that stereotype will fall harder on women in the tenure process, like Levit's "un-reasoning" thesis.

One final [admittedly controversial] point I'll make, purely from anecdotal observation and comparing notes and not at all from social science that counts, is a concern that Levit does not explore:  my worry that some of the issues she raises about how feminist scholarship is reviewed in the P&T process fails to take account of the negative reviews of fellow feminist scholars and other women.  I am not sure she adequately considers how much they eat their own.  Some of the nastiest and deadliest reviews of women's teaching and scholarship I have seen and heard of were penned by [wait for it] ... women.  Partly this is a function of our failing to recognize that there is no single brand of feminism and no uniform woman.  The surprise, if any, only comes when one stereotypes women and even radical feminists as having a single worldview and a shared vision of what good scholarship is.  Plus it is possible that the old boys have built a better network and ethic of old-boyism that could be emulated within other more radical communities.  Just a thought.

As for my nostalgia that 70s African American actors lamented losing roles due to PC cleansing, I swear I've heard this (the 60s, maybe?).  But one of my brothers tells me I am full of crap, e.g., the rise of the blackploitation film pre-dated the PC backlash I am positing and provided more film work; my point's just an urban myth.  Whatever. Since I'm now A Blogger, being crapful nearly equals getting my wings.  Plus I already built in a defense that my memory is shot from eating mercury in tuna and shards of aluminum foil.  Or all that open-air nuclear testing when Mom was carrying me.

At any rate, I think we can do a better job of accepting a wider variety of scholarship, judging it on its own terms with less of a lens of how we'd write it or what subject we'd pick.  I am just saying that means all of us.

The Value of Transactional Lawyering

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.

I think there's gold in some of this data, and it helps direct the next aspect of empirical research.  (Not the smallest bit of gold from my standpoint is support for my merely casually empirical assertion at the outset of The Bewitchment of Intelligence (78 Temp. L. Rev. 99) that there is little relationship between what lawyers focus on in the negotiation and what is actually litigated - something that Judge Posner had asserted was actually tied together in a way expressable by a mathematical function.  According to the survey data, 66% of the clients surveyed reported their experience being that fewer than twenty percent of contract litigations were over issues anticipated during the negotiation.)

Professor Schwarcz cites my Contingency & Contracts:  A Philosophy of Complex Business Transactions (54 DePaul L. Rev. 1077) generally for the point that lawyers prepare contracts to minimize future contingencies.  I think the citation belongs in the article, but as support for his broader conclusion: that good or effective transactional lawyering is not reducible to economic formulae, something I suspect is intuitive to both of us as long time transactional practitioners as well as, at least in his case, academic thinkers.  I've read and wrestled with the Gilson thesis, feeling intuitively that it is over-reductive.  What I wish Professor Schwarcz's data had done, and propose for additional research and thinking on the subject, is to provide a basis for a regression on what clients and lawyers believe to be the value. 

My hypothesis (consistent with the themes of Contingency and Bewitchment that the contingencies of the world are too complex ever to be captured fully by the language of contracts) is that the value of lawyering reflects many, many concerns, some of which can be reflected in cost reduction, and some of which cannot.  For example, one transaction cost is the risk of not making a deal at all.  Lawyers who have a skill in crafting meaningful (or, in my case, often slick but meaningless) compromise language ARE transaction cost engineers in a sense, but I'm not sure (and certainly not without going back and re-reading Gilson) in the sense the economic approach has considered.  Those factors and concerns ought to be the subject of a regression analysis, and good survey data of the kind Professor Schwarcz has begun might address that issue.  My intuition is that we will see a number of "value perceptions" but none that we could really call "primary."

The other data I find interesting (along the lines of something I've noodled about) is that close to half the lawyers and clients surveyed say that clients should "seriously consider hiring a highly reputed law firm in all transactions where opposing parties hire highly reputed law firms."  Think about this for a second.  It's a Prisoner's Dilemma.   There are two sides to the deal.  Neither knows whether the other side will hire a lawyer (we could put probability into the matrix).  Recall that in a single play, the prisoners will always confess and get a middling sentence, because the payoffs of holding out are worse whether or not the other prisoner holds out.  The best payoff only occurs if there is cooperation to hold out, something that most likely occurs only with trust and repeated plays of the game.  If, as client, I think that the other side will hire a lawyer, I have to hire one as well.  I could go to the other client and say "there are no regulatory or other costs here; let's both save on costs and do this on a sheet of paper."  My hypothesis (I didn't come up with this today; I've been thinking about it for a while) is that there are a certain segment of transactions in which the lawyers provide NO value, but are present in the deal because their clients are facing a Prisoner's Dilemma.

Well, that was stimulating for a Saturday afternoon....

Global Law Firms as Economic Laboratories: One Way to Think of Lawyers as Rats

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?

Levit on Women Slumming in Academia

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

Zacharias on The Image of Lawyers

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

Straddling the Fence - Career Questions

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.

2.  Training and Path Dependency

Unless you loaded up on clinical course and outside clinical activities, you probably don't have much idea what it will be like when you practice.  Even the big firm summer associate's usual fare of research memoranda (in between the river cruises, softball games, and museum parties) is more like law school than most of what you will end up doing as a lawyer.

There is a theory in economics called path dependence. It has to do with the long-term impact of our initial choices.  I joined a law firm in 1979 just about the time of the downfall of the Shah and the return to Iran of Ayatollah Khomeini.  That precipitated an energy crisis, the reaction to which was something called the Emergency Petroleum Allocation Act, under which the Department of Energy regulated how much gasoline could be sold to marketers under the Mandatory Petroleum Allocation Rules.  We represented a large oil company, and I got stuck for almost two years doing responses to petitions for greater allocations filed in the DOE's Office of Hearings and Appeals by what seemed like every Stop 'n Shop in the country . (One of the best days of my life was January 23, 1981, when President Reagan, for whom I did not vote, issued an executive order ending the MPAR system.)

My concern at the time was the incredibly narrowing effect of this particular practice on my future.  If I had wanted to be an expert in the minutiae of DOE regulation, it would have been a wonderful experience.

If your lifelong passion has been to write railroad car leveraged leasing agreements, or to represent amateur sports organizations, or to write constitutions for developing African nations, go for it.  If, on the other hand, you don't know what you don't know, avoid the wrong path dependencies.  Many lawyers move from the biggest firms in an area to smaller ones.  It doesn't usually happen the other way around.  Many lawyers move from major financial centers like L.A. or New York or Chicago to firms in smaller cities.  It doesn't happen as often the other way around.  Lawyers often move in-house after several years at a law firm.  It doesn't usually happen the other way around.

The basic approach of general to specific or large to small or broad to targeted also enhances training, I think.  Shortly after I made my move from litigation to corporate, I found myself as the representative of acquirer monitoring a shareholders' meeting of the close corporation (owned by a dispersed and highly dysfunctional and factional family).  One of the family members asked if the acquirer could explain the reason for its interest, and there I was, standing in front of thirty people, most of whom hated each other, and were ready to transfer that emotion to me.  Ten years' experience on my feet as a litigator was not wholly irrelevant at that moment, nor was the kind of judgment you get making quick legal/business decisions along the way.

3.  Theory in Practice

"Don't give me theory.  Just tell me the rules."  There are kinds of practices in which one will rarely need to resort to the kind of theory that law professors are inclined to teach.  Just sit in the average county courtroom on the morning when uncontested divorces are being finalized, or driver's license reinstatement hearings are going on.  (In Wayne County, Michigan, where Detroit is the county seat, the civil motion call was on Friday mornings.  If you had a motion to dismiss, or a motion for summary judgment, or a discovery motion, the call would start at 8:30 a.m. or so, but the order of the motions was determined by the signing in of BOTH lawyers.  If your opponent did not show up early, you were forced to sit through a hour or two of the matters that only needed one lawyer, like uncontested divorces and drivers' license reinstatements.  I was pretty sure after a while I could do an uncontested divorce in my sleep, even though I knew nothing about it.)

It doesn't have to be deep theory, but whether it's in litigation or negotiation, law is best practiced as narrative.  (See Dennis Patterson's great article on this subject.)   Expect why the theory behind a statute supports your client's cause, and you are a long way toward winning.  Expect why a provision doesn't work or doesn't make sense (rather than we just don't want it) and you are a long way toward making a deal.

4.  Deep Focus and Ball Juggling

I once hired a brilliant young corporate lawyer from one of the firms that regularly ranks in the top two or three in the country in size, profitability and significant corporate deals.  His job was to be the general counsel of one of our business units.  He decided after a year to leave.  I think the issue was the way his work had been organized in the law firm versus the way it was organized in the in-house practice.  In the law firm, he worked on mega-deals, putting in mega-billable hours, but never having the pressure of competing priorities.  He worked on one deal until it was done, and then moved onto the next.  Moreover, he had the luxury of being able to devote exquisite amounts of attention to the projects.

In-house practice is almost all about priority setting.  There are matters you simply must let fall off the table.  My dictum was that if a contract involved less than $100,000, and was terminable at will or in less than a year, our law department would not review it (beyond making sure it qualified under those criteria).  If you are emotionally incapable of letting some slip by at less than the best, then consider putting yourself in a place that can accommodate you.

Blogging = advertising?

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.

Comparative Legal Professions class in Greece

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.

Permanent Disbarment aka Fries-With-That?

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.

Without some evidence that disbarment has failed or routinely leads to reinstatement, this new category of discipline fixes a non-problem while telling the public that lawyers are bad, and lots of them are so bad that they cannot be redeemed.  Even the proponents of the new rule in California (quoted at link above) talk "symbolism" and "public reputation" while converging, it turns out, on one anecdote about one repeat offender who wound up disbarred anyway. Under this view, the only solution is to throw in the towel on future acts of discretion, mercy, or reason in the reinstatement process.  Let’s pretend we know now what the future will bring, and who can contribute to society down the road.  But don’t trust the future review committee to sort it out with actual data and personalized experience.

The PR value of this to us bar members puzzles me.  I guess passing a new Permanent Disbarment is supposed to tell laypeople that we are getting tougher on lawyer abuses.  I think they will be shocked to hear that disbarment was not permanent before.  If they thought it through, they may be able to imagine some circumstances in which a disbarred attorney, years later, would be re-barred (an imagination we now deny is legit).  But they would have assumed (and rightly so, statistically) that most disbarred lawyers will never practice law again.  Without a wave of recidivist bad apples, reinstated under the old rule who then abuse such a gift by repeating their failure, we seem to be confessing to a crime we did not commit.

 

I think the public will focus more (if at all) on the underlying laxity confessed than on the new get-tough stance taken.  It will surely draw attention to the justified-but-likely-unpopular reality that most punishments meted out to unethical lawyers are suspension or less.  At best it is a definitional muddle:  to a layperson, isn't a non-permanent disbarring just a "suspension"?  At worst it implies that all the lawyers given regular disbarment are really "only" suspended.

 

This message to the public does not scream out "We are tough on bad apples."  [BTW, it's time the cliche became bad spinach.  I count zero deaths from apples this year.]  It screams out "We have been candy asses before but now we will be really hard on a few lawyers if you kindly ignore that we are giving almost all other unethical lawyers a level of punishment we just confessed was candy ass."  That is not a PR program I wish to join, or one for which I predict success.  More directly than the Wendy's analogy above, this is really Chez Nous advertising it has rats in the kitchen, when it may not in numbers being advertised, but Hey look within a year or three we will eradicate the worst of them.  The public might have expected zero tolerance on kitchen rats, if only a tad unrealistically -- and feel disinclined to praise the restaurant's new policy, much less eat there.  Fire that ad agency, please.  I don't think the agency ought to go out of its way to hide Chez Nous's shortcomings, but making them front and center of a positive campaign is not good PR.

 

On the merits, looking at the kind of acts that lead to Permanent Disbarment in states already using it, we find they are quite similar to those which used to lead to Plain Vanilla Disbarment.  That includes commingling of funds, lack of cooperation with the bar in the discipline process, practicing on a suspended license, and much other puzzling behavior which can only be explained by personal implosion by the lawyer--drug abuse, alcohol, gambling debt, bad divorce.  These are often horrific acts that deserve punishment, but ironically they are also often so context-driven (like alcohol abuse or severe depression leading to no contact with clients and ignoring the bar's discipline inquiries) that one can fairly predict that the lawyering problem can be fixed once the person problem is.

Permanent Disbarment denies such a possibility.  Denies it is even possible or worthy.  Bars set up alcohol remedial programs all the while saying by its highest discipline that such human weakness is unforgivable or such disease is incurable.  As for funny money habits that deserve severe punishment, this form says that no amount of institutional control of practice down the road (such as accepting independent accounting oversight and making restitution to past victims) can persuade us that person can practice again under any conditions.  It is just giving up, and mainly on the kinds of problems that actually could be fixed.  [More on the policy arguments in a future post, and maybe even some actual proof so I am not just posturing with the rubric of social science.  Nah.]

And even so, it smacks of occupational arrogance that the message seems to be that the candidate will do more harm as a lawyer who is specifically watched and regulated -- or put on notice that they need to fix a problem before seeking reinstatement -- than as a bartender, spinach inspector, tunnel builder, or VW salesperson.  I deny that we lawyers are so special that our exclusivity is unending and unyielding to those otherwise qualified to do the job.

 

John Dean did learn from Watergate, and to many he leads a worthy life.  Are we saying that people like him, even the New him, belong better hawking french fries?   I don't think we should, and I especially don't think we have the perfection to know in advance who cannot be redeemed, who cannot be cured, who cannot be made safe, who cannot be better.  It surrenders on the imagination of what could happen and what people can become.  It creates no incentives for them to become better.  Bluntly, it closes a necessary door, for the bar's members and its own disciplinary personnel, just to make some sort of public statement.

A law school parallel is the readmissions process offered to students who fall below a 2.0.  The real standard has to be the prediction of future success, in school and after.  Any other standard -- such as how this will look to others or the kind of message we want to send the rest of the students -- is for show.  At least there the show sends a message many would find legitimate, and perhaps deserving of hard and fast rules for readmitting students rather than individualized discretion.  With Permanent Disbarment, I fail to see the PR plus that is worth the sacrifice and hamstringing that results.  But even on the merits, anyone who criticizes a readmissions committee years later when it took a chance on a kid, but lost, is best answered by a colleague of mine who defended readmissions discretion from 20-20 hindsight thus:  all we need is a crystal ball or a time machine.

All this human and institutional toll for a PR stance with no real positive kick to the profession.  If it's just to make a PR statement, at least it should make the right one, and Permanent Disbarment does not.