October 6, 2006
Straddling the Fence: Harvard's Take on Interdisciplinary Skill
Posted by Jeff Lipshaw
One more time on the interdisciplinary skills issue. I was looking at the Empirical Legal Studies blog, where the recent blogosphere debate on interdisciplinary skills in the legal academy appears to have started. Professor Solum in turn proposed a set of core competencies, to which Gerry Rosenberg observed:
I’m not sure I’ve ever met Solum’s "complete legal academic." Indeed I’m not sure such a person exists. I have met legal academics who are quite sure they meet the criteria. My impression is that their knowledge is a mile wide and an inch deep. That kind of foundation is incapable of supporting much academic weight.
I don't think Professor Solum was addressing how scholars ought to focus their energies. What he was addressing was the continued vibrancy and flourish of law schools as institutions: "The alternative is the fragmentation of the legal academy into warring camps of specialists whose real loyalties lie with their home discipline. The legal academy will not flourish if we economists value only economics, philosophers only philosophy, and empricists only empirical work." Professor Solum was addressing the flourishing of the legal academy as a scholarly institution; since I straddle the fence between academia and the practice, it's hard for me not to consider this as well in the context of teaching and the continuing relationship between a law school and its alumni.
It's serendipitous, then, that Harvard has just issued its Preliminary Report of the Task Force on General Education. Here's what the preliminary report says about students' concentrations:
Concentrations are designed to ground students in a scholarly discipline, but less than four percent of our entering freshmen name college teaching as a career goal, and only five percent of seniors say that they intend to pursue doctoral study in the arts and sciences in the fall after graduation. (Eighteen percent say that they plan to pursue a Ph.D. some time in the future.) On the other hand, close to thirty percent of entering freshmen say that they plan to become a physician or lawyer, and last year, fifty-three percent of our seniors said that they were expecting to enter a professional school - business, medicine, or law. We have tried to design a general education curriculum with these facts in mind. The role of general education, as we conceive it, is to connect what students learn at Harvard to life beyond Harvard, and to help them understand and appreciate the complexities of the world and their role in it. The mission of general education is not utilitarian or pre-professional.
What is the point of this general education? To prepare graduates who will not be specialized scholars to deal with the inter-connectedness of the world:
Many of our graduates will become businesspersons, lawyers, policy-makers, educators, designers, and health care providers; all of our graduates will have to deal with, and will therefore need to understand something about, business, law, public policy, design, education, and health. [The point is] that our students should see how the ideas, facts, and perspectives they are learning in the College come to life in real-world scenarios: how philosophical ideas about justice and equality bear on legal decisions, how economic theory only partly explains the causes of poverty in different parts of the world, how an understanding of neuroscience translates into medical practice; how cultural and religious traditions affect debates over public policy.
I have this lingering desire to believe there is a place in the world for those who are a mile wide and an inch deep (remember, I spent most of a career as an M&A lawyer, and that's pretty much a professional pre-requisite - you need to be a corporate person, but a little bit tax, and a little bit HR, and a little bit ERISA), but perhaps they are only formally trained in business schools. As I said earlier about the myth of the horizontal organization, somebody has to know enough about the specialties to see the issues and opportunities that lie in the gaps. Harvard has done that for its general education; I wouldn't presume to put words in Professor Solum's mouth, but I think his vision is that law school faculty should be able to do the same.
Schwarcz on Public Responsibility of Structured Finance Lawyers
Posted by Jeff Lipshaw
Steven Schwarcz (Virginia) has posted The Public Responsibility of Structured Finance Lawyers (1 Capital Markets L. J.) on SSRN. Here is the abstract:
Lawyers, increasingly, are scrutinized as to their public responsibility when companies fail, particularly where the lawyer's involvement with the failed company is nontraditional and, arguably, intertwined with the failure. One of the least traditional roles of lawyers today is as counsel in structured finance transactions. This article focuses on the public responsibility of lawyers involved in these transactions.
October 6, 2006 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack
Outsourcing Law Firm Jobs and Document Production
Posted by Alan Childress
Clifford Chance is outsourcing 300 staff and IT positions to India over the next four years, the firm announced this week (as reported by the UK's Legal Week), following on its 2005 initiative to reroute much document production out-of-house to an Indian company. Some US law firms have also begun outsourcing document work, and the Orrick firm has already moved many of its staff and tech jobs to West Virginia since 2002. Although such cost-savings measures (CC estimates that the staff moves alone will save around $57 million) raise real issues of law firm economics and hands-on control over legal product by the profession, any such trend among US firms will also raise potential issues under bar rules of professional conduct and state laws governing the unauthorized practice of law.
A rather non-critical take on the trend--with the quick conclusion that the authorized-practice rules allow this--is found on a website by law marketing consultant Prism Legal. It quotes an opinion of a committee of the City of New York's bar association for approval of the trend and pronounces it as "good news for firms that want to send work offshore, including document review."
Next up: offshoring law professors?
All Time Great Legal Ethics Articles?
Posted by Jeff Lipshaw
Andy Perlman over at Legal Ethics Forum got to thinking about this after posting the all-time downloads in the SSRN Legal Ethics and Professional Responsibility category.
I have posted my suggestions as a comment over there.
By the way, despite what he says, Brad Wendel (left) of the Cornell Law School and Legal Ethics Forum does NOT look like Chewbacca. More a Han Solo type. What he does have - in that Obi-Wan Kenobi mentoring kind of way - appropriate to this time of year is a great essay on trying to get a job as a law professor. ("Use the force, Luke.")
Evaluating Your Disciplinary System
by Michael S. Frisch
The attorney regulation regime in each state and the District of Columbia is ultimately the responsibility of the jurisdiction's highest court. One indication of the quality of regulation is the extent of public access to information concerning disciplinary process and results. If you are interested in the disciplinary system in your jurisdiction, the best starting point is the website of your state bar association. Does the web site provide ready access to all public information? If the answer is "no", this should be a cause for concern.
In the District of Columbia, proceedings are public when charges against an attorney are filed. The hearings are open to the public. The report of the hearing committee (two lawyers and a public member) is a public record. Lamentably, the charges, date and place of hearing and the report of the committee are not available on line. The last omission is particularly significant, as the key to any system is the quality of the decisionmaking at the hearing level. If the public cannot readily review such decisions, it is difficult to evaluate whether your state bar regulatory system is more concerned with protecting the interests of lawyers or consumers of legal services.
It is most definitely in the interests of both the public and lawyers who care about the integrity of our profession to press for open proceedings and meaningful access to information about the operation of disciplinary processes.
October 5, 2006
Signs of the Pedagogical Apocalypse
Posted by Jeff Lipshaw
Desperate times call for desperate measures. From my assignment postings last week:
In connection with the discussion of the Atlantic Salmon v. Curran case, whether or not you are on-call, if (a) you volunteer with a moderately intelligent and non-disruptive comment which is actually pertinent to the discussion (i.e., you are not just floundering), (b) you include within the comment a fish pun (it's okay if you bone up ahead of class), and (c) in my sole, absolute, and plenipotentiary discretion, I decide it is the best fish pun of the discussion (of that case only please, and no use of Gill-berts is permitted), then I will excuse you from your next on-call duty.
*Offer not good in Mississippi. Professor not required to acknowledge that ANY pun meets the criteria.
Straddling the Fence: Solum on Specialization Redux
Posted by Jeff Lipshaw
If you follow the link over to Larry Solum's latest you will get to most of the blog discussion around specialization. That discussion more than thoroughly covers the academic and scholarship ground, and is far more articulate than I could be.
My take on all this goes to the teaching of the overwhelming percentage of our students who will not be law professors. Even if they specialize in ERISA, or criminal law, or employment discrimination, it's a wholistic world out there in which the appropriate response to a moral position may be an economic one, or vice versa. The answer may lie within the specialty, or without. The litigator needs to know some corporate, the corporate lawyer some ERISA, the ERISA lawyer some tort law. Indeed, it may be helpful to understand some high legal theory that is common to all of them.
One of the canons of the business world is The Machine that Changed the World, a study of the organizational design of companies in the automobile industry - primarily contrasting the mass production methods of Henry Ford and Alfred Sloan against the lean production methods of Messrs. Toyoda and Ohno. The authors of that study later wrote an HBR article entitled "The Myth of the Horizontal Organization." The thesis was so-called "flat organizations" - highly decentralized and specialized businesses - had the value of being highly responsive to market trends because there were so few layers between the cerebral cortex of the organization and the plant floor. The downside was that each business was so specialized nobody saw the opportunities in the spaces between them. I think there's an analog here.
I'm not saying what follows is right, but here's an example of cross-fertilization. One of our professors gave a brown bag talk yesterday on a paper idea in the fair housing area. I was teaching Secured Transactions this morning. What struck me was the commonality between the two areas of the issues of statutory intent, statutory effect, and interpretation. I ended up doing a short riff on the relationship of intent and effect (in housing, employment, and antitrust), with a particular view to how Article 9 tries to slice (very finely, I might add, not only on an effects rather than intent basis, but using rules rather than a standard) between a transaction that is a lease and a transaction that is a sale with a security interest. (See UCC 1-203: in this case, to arrive at the result a lease is a transaction in which the lessor retains a meaningful residual interest without having ever mentioned "meaningful residual interest".) The theoretical and pedagogical point was that we understand and, more importantly, are better positioned to argue the application of those rules if we see them as looking at the effect side of what otherwise would have been an intent inquiry. The rule standing alone is, in some respects, nonsensical. It only takes on coherent meaning if you understand its point. (This by the way is my dumbed-down version of Dennis Patterson's thesis on interpretation in law.)
The point can be moral or economic or social policy based. Not having some grounding in those "disciplines," like being overspecialized in business, likely causes us to miss opportunities for learning or advocacy or growth that lie in the cracks.
SOX not working so great for banks?
Over on the banking law professors blog, Ann Graham (Texas Tech) reports on SEC Chair Christopher Cox's 9/19/06 testimony before a House committee on Sarbanes-Oxley in the banking industry. He "recognized the Section 404 requirement that auditors evaluate management's internal controls assessment as one of 'those parts of SOX that aren't working as well as they should.' " Her editorial retort: "Now there's a surprise to banks footing the bill for staggering compliance costs!" --posted by Alan Childress
ABA teleconference 10/11 on bias in profession
It is on Bias in the Legal Profession -- featuring speakers Michael Z. Green (Texas Wesleyan, pictured at left), Stephanie Padilla (private practice in CO), and Theresa Beiner (UALR).
--posted by Alan Childress
Japanese Lawyers Set to Explode by 3150%
posted by Alan Childress
Not each one ("Daaaad, that would be gross"). But the overall number of lawyers licensed in Japan is about to grow, big-time. By a new system of testing (and adding a new exam alongside the traditional one) set to start this year, the pass rate will effectively go up--from the toughest in the world (about 1.5% passing) to a fundamental increase in bar admittees that may actually come close to the percentage I made up in my title. The new pass rate will probably fall somewhere around 45%, though for the past two years the bar and law schools have negotiated over projected ratios between 20% and 60%.
It is a reform worth watching, to be sure. And the wholesale expansion of the formal bar is real, with real effects to anticipate. But much of the stereotype of the old rate has always been overstated, and its shock value depended on an American-centric definition of "lawyer" that ignored the reality that tons of Japan's law graduates were doing what we’d call the practice of law without the title of "bengoshi" and its specific exam. We have always undercounted Japan's legal occupation, by assuming the people worth tallying looked like the classic U.S. generalist private practitioner-advocate licensed to appear in multiple courts. It does not work that way in civil law countries--certainly not Japan.
The disconnect will likely continue. It is still a low pass rate compared to other industrial countries, and we will likely tend to ignore lots of legal actors with a law diploma who are not given the supposedly-analog title of bengoshi. If one has to look like Matlock or Perry Mason to really be a lawyer, we'll continue to mis-census Japan's legal profession -- and continue to make silly political arguments based on the supposed superiority of the lawyer-lite Japanese economy.
The old pass rate, used forever and mentioned in U.S. cocktail parties, was notorious: imagine the coffee- and Xanax-abuse in your school if the students knew that 5 of their graduating class of 320 would pass the exam and get a license to practice law. No other modern country came close. More after the jump.
No other country has shared the virulence of that kind of formal gatekeeping: even Germany, proud of its rigorous testing, apprenticeship, and retesting, eventually licenses a majority of its law graduates. That’s needle-eyed enough to raise a real question of whether it will hold up under EU directives that ease licensing across borders; the Greek and English lawyer may become eligible to practice in Germany easier in many ways than a German–-guess the backlash to come within Germany on that one. (I’ll explore transnational licensing in the EU in a later post. It is fascinating and ironic, given how hard it is for a New York attorney to get licensed in New Jersey). But the German gauntlet is not as weeding as even the new standard set by Japan. By contrast, one can expect that the new pass rate in Japan will continue to be low by western standards and its bar still "elite" to any outside voyeur.
Even so, much of the cocktail party value of the Japanese lawyer-counting comparison was always vastly overstated. Worse, the myth of the purported figure–-Japan has only like 25,000 attorneys in a country half our size while we have millions–-has fueled policy debates and lawyer bashing in the U.S. as Japan’s low-attorney-emission society is presented as driving a superior economic engine. Politicians as different as Jimmy Carter and Dan Quayle, plus both Presidents Bush, have ridden the anti-lawyer horse to election, expressly relying on the chestnut of the comparatively smaller Japanese lawyers, meaning in numbers. Harvard’s president Derek Bok, in speeches and print, made the most sustained public call to numbers-comparison-as-why-our-economy-stagnates, and even lamented the waste of talent attending law schools. Typical is this count:
"Japan boasts a total of less than 15,000 lawyers, while American universities graduate 35,000 every year." Bok, Derek C. (1983). "A Flawed System of Law Practice and Training." Journal of Legal Education 33: 574.
Now imagine your law school with its PR campaign being led by a guy telling your 320 1Ls they, morally, should have enrolled in drywall school.
At least Bok used real numbers, if only based on a definitional apples-and-oranges. Quayle famously asked in 1991, "Does America really need 70% of the world’s lawyers?" It sounds like the only reasonable answer is, Hell no, if the 70% figure is even close to accurate. The figure is based on no known arithmetic, as noted by Marc Galanter in 1994, but has been off-repeated as fact in later political and media discourse. It is not just bad statistics, it is "an accusation of monstrous disproportion," Galanter nicely adds.
All of this counting does not work if the analog bengoshi is not the only legal actor with a law degree that does basically "law" work in Japan. And it should not be surprising in any civil law society that the core legal actors are not private practitioners representing multiple clients independently, but rather a huge number and variety of legal workers in government, corporations, and institutions doing the bulk of legal work in a system not driven by the advocacy model we use. Judges, prosecutors, legal bureaucrats, court employees, notaries, law professors, salarymen in the law department–-they all really matter. Public and corporate employment of the legal work force is at much higher rate than we are used to, and much of the heavy lifting of legal work, including even litigation and administrative work, is done by unlicensed legal professionals trained in law school. Yet if the estimate for Japan included all who perform lawyerly functions in other countries, the ratio is similar to modern countries in Europe (nearly 1200:1). Indeed, Japan’s law schools—eighty of them and not just the institute which produces bengoshi—graduate approximately 37,000 students per year. This is comparable to the output of U.S. law schools. Admittedly their "law school" is an undergraduate degree in law, as with almost all other nations besides ours. Yet if even a healthy fraction of those graduates do what we would consider the practice of law, the stereotype count of 15,000 to 25,000 total lawyers in Japan breaks down, along with the policy implications it fuels in public discourse and cocktail parties.
Here is hoping the new arithmetic in Japan ends the false comparison stunt so common here. I have my doubts because it is still a relatively low pass rate and the rhetorical value of the Japanese contrast remains; it has never really depended on accurate numbers. The real bar pass rate will still be low to U.S. eyes, but in truth the shock and awe of that ought only recur if we continue to ignore the fact that not all lawyers are Matlock, and that is especially so in civil law countries like Japan.
"5 NO 5 EQUAL 1ST 60,000"
Posted by Jeff Lipshaw
In a previous post, I commented on Steven Schwarcz's Explaining the Value of Transactional Lawyering.
One of his survey data points was to compare the extent to which lawyering provides a road map for the parties versus protecting the client in future litigation.
Back in the days when I was down in the in-house trenches, our consumer products group sold large quantities of stuff to go on mass market retail shelves (the old "Plan-O-Gram"). I would get term sheets I was supposed to turn into contracts with phrases like the one in the title to this post. The grizzled old sales veteran would say to me, "now don't be putting this contract in a bunch of legalese." To which my response was usually, "no, first I think I will take a shot at English."
I thought I was adding value at the time; I'm less sure now.
Answer to the puzzle below the fold.
One of the means of competition in the brutal mass market consumer goods category (shampoo, toothpaste, whatever) was known as the "stock lift." Competitor A would simply buy up all of Competitor B's stuff and replace it on the shelves with Competitor A's stuff. In addition to the one-time payment for Competitor B stuff, the terms of payment for the initial load of Competitor A stuff, say $60,OOO worth (1ST 60,000), would be that customer would not have to make any payments for the first 5 months (5 NO) and then make five monthly payments of $12,000 (5 EQUAL). I've previously written on what I think is a myth of opportunism when there is a colorable ambiguity, but this is a case where I think I agree with Judge Posner that one makes a rational decision about whether making this clear to a third party (a judge) is really worth the upfront cost.
Posted by Mike Frisch
State Bar regulations with respect to lawyer advertising vary widely among the many jurisdictions. Perhaps the most restrictive state is Iowa, where lawyers are prohibited from advertising "unverifiable" claims and may not "rely on emotional appeal or [make] any statement or claim relating to the quality of the lawyer's services." Iowa Rule 7.1. A recent letter from the Federal Trade Commission's Office of Policy Planning, Bureau of Consumer Protection and Bureau of Economics commenting on proposed amendments to ethics rules governing New York attorneys suggests that state regulation may be overly broad and restrictive. The letter lends credence to the suggestion that consumers benefit from "robust competition among attorneys and from important price and quality information that advertising and solicitation can provide." It will be interesting to see the effect of the FTC's position on the proposed New York rules and to see if the anaysis emboldens attorneys in restrictive jurisdictions to challenge bar regulation on the grounds of First Amendment protections.
Teaching Tips for the Frustrated Thespian
Posted by Jeff Lipshaw
Mike Madison over at Madisonian.net has posted the kind of party game I can't resist - favorite "law and..." movies. He brings a - how do I say this? - a delightful kind of non-linear thinking to his list.
His listing of Shakespeare in Love as his favorite copyright movie reminded me I wanted to follow up on something. Some weeks ago, over on Conglomerate, I made some fairly snarky comments about the use of certain movie clips as pedagogical tools. Here's an admission that a foolish consistency, blah, blah, blah....
I was working out on the Stairmaster several weeks ago, and to relieve the tedium I usually put on a DVD. I happened to grab Shakespeare in Love, watched the first scene, and realized it was the perfect lead-in to the class I was prepping at the time: introduction to partnership. I thought about playing the clip, but it meant more technology set up than I wanted to deal with, and then the light went on: we would act it out in class. I hope it was fair use, but now imagine the scene. Professor Lipshaw enlists three of his "on-call" students to come down to the front. The professor takes the Geoffrey Rush role of Henshaw, the owner of the Rose Theatre, who is being tortured (feet in the coals) by his moneylender, Fennyman, Fennyman's accountant, and a thug (played by the coerced students). (We had a limited set, so I lay down on the front row bench and squawked loudly.) Henshaw gets out of his predicament by offering Fennyman not a deferred and fixed payment (debt), but a partnership interest (equity). And the story proceeds from there. Not only do we have a pedagogical introduction to the motivations for partnership (additional risk, but additional return); another benefit is that the professor quickly gets a reputation as something of a loon, capable of doing strange things in class on a moment's notice, and this seems to have a salutary effect on attendance.
October 4, 2006
HP Indictments Filed
posted by Alan Childress
One in-house lawyer facing indictment as the California Attorney General filed a criminal complaint today. Also named is the Chair, Patricia Dunn. The GC, Ann Baskins, was not named, nor were any outside counsel. Cold, or at least cool, comfort, I suspect, to Ms. Baskins.
Andy Perlman has comments at Legal Ethics Forum.
Update: The complaint filed is now available on line from the AG's office.
Saltzburg on death penalty failure--lawyers and courts
posted by Alan Childress
Stephen Saltzburg (George Washington) has posted on SSRN his article, A Grand Slam of Professional Irresponsibility and Judicial Disregard, also published in 34 Hofstra Law Review 783 (2006), detailing a case study of system-wide failure of lawyer and judicial duty in a death penalty case from 1981. The abstract:
Many examples of bad lawyering and indifferent judicial responses to bad lawyering concern those who seek to raise the standards of professional conduct and assure adequate legal representation for all clients. This article discusses one case (a death penalty prosecution of William Charles Payton for rape, murder and attempted murder in 1981) to illustrate just how poor the performance of lawyers can be and how largely indifferent judges often are to such performances. With the defendant's life on the line, it appears that none of the legally trained professionals at trial did what professional standards required of them. The prosecutor acted unprofessionally and disregarded the constitutional right of the defendant in a capital case to rely on mitigation evidence, the defense counsel failed in his responsibility to protect the defendant from the prosecutor's improper conduct, the trial judge failed to correct the prosecutor's conduct or to take measures to assure that conduct did not prejudice the defendant, and the California Supreme Court (and to some extent the United States Supreme Court) pretended that nothing untoward had occurred. The article concludes that the professionals at trial breached their responsibilities: the California Supreme Court failed to appreciate the extent of the breaches and affirmed the resulting death sentence; and federal habeas corpus review under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) proved too limited to set aside a sentence that resulted from the breaches.
October 4, 2006 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack
First Blog Attempt
My name is Mike Frisch. This is my first venture into the intimidating world of blogging. As a former longtime prosecutor of Bar discipline cases in the District of Columbia as well as a professor teaching professional responsibility courses at Georgetown University Law Center, I am grateful to have a forum to discuss my primary concern about regulation of the legal profession, namely that the public interest in an honorable and ethical profession is too often subordinated to "the parochial or self-intersted concerns of the bar." ABA Model Rules, Preamble at comment 12. It is my intention to stimulate discussion about the regulatory regimes of the various state bars in aid of heightened public awareness and to encourage reform where necessary to the public interest. I look forward to input from around the country of persons who either share or wish to dispute my concerns.
Solum on Cross on Interdisciplinary Ignorance
Posted by Jeff Lipshaw
Larry Solum has a provocative post on the interdisciplinary skills law professors ought to have. What I think is so interesting about it is that it cuts a different direction from what I perceive to be either a pure professional school approach or a Ph.D. + J.D. "law and ..." approach. Though I would have to think about whether defending DUI cases is the extreme counter-example to the following, I like to think of lawyers as "applied social philosophers." It was a philosophy or an approach I tried to use in practice (more in-house, but certainly possible as a senior statesman kind of out-house lawyer) as counselor, ethics advisor, strategic thinker, devil's advocate, agent provocateur, gut-checker, brain without portfolio, advocate. I think Larry's model is the teacher for that kind of professional.
Top Ten - Legal Ethics and Professional Responsibility
Posted by Jeff Lipshaw
The current top ten downloaded papers as reported by SSRN for its Legal Ethics and Professional Responsibility Journal, as of October 3, 2006:
1 Illuminating Secrecy: A New Economic Analysis of Confidential Settlements Scott A. Moss, Marquette University - Law School
2 Therapeutic Jurisprudence and Readiness for Rehabilitation David B. Wexler, University of Arizona - James E. Rogers College of Law
3 Judicial Ethics, the Appearance of Impropriety, and the Proposed New ABA Judicial Code Ronald D. Rotunda, George Mason University - School of Law
4 Politics, Office Politics, and Legal Ethics: A Case Study in the Strategy of Judgment David McGowan, University of San Diego - School of Law
5 Lawyers' Ethics in Interdisciplinary Collaboratives: Some Answers to Some Persistent Questions Alexis Anderson, Lynn Barenberg, Paul R. Tremblay, Boston College - Law School, Boston College - Law School, Boston College Law School
6 I Can Tell When You're Telling Lies: Metadata in Litigation and Transactional Practice David C. Hricik, Mercer University - Walter F. George School of Law
7 Legal Hazard: Corporate Crime, Advancement of Executives' Defense Costs, and the Federal Courts Peter Margulies, Roger Williams University School of Law
8 Judicial Opinions as Minefields of Misinformation: Antecedents, Consequences and Remedies Jacob Jacoby, New York University - Department of Marketing
9 The Images of Lawyers Fred C. Zacharias, University of San Diego - School of Law
10 Ethics and Corporate Responsibility Marina Ricci, Valparaiso University School of Law
October 4, 2006 in Weekly Top Ten: SSRN Legal Ethics & Professional Responsibility | Permalink | Comments (0) | TrackBack
McGowan on Judgment
Posted by Jeff Lipshaw
David McGowan (San Diego) has posted Politics, Office Politics, and Legal Ethics: A Case Study in the Strategy of Judgment on SSRN. Here is the abstract:
This article argues that the core of legal ethics curriculum should be decision theory. That means that legal ethics courses should integrate rational choice theory (in the form of game theory) and limitations on rational choice (in the form of lessons from social psychology) so that the course becomes a study in the nature of judgment. The point of the curriculum should be to explain what makes good judgment good, and to illustrate risks that might cause lawyers to make errors in judgment. To ground these rather abstract points, the article develops them through a case study of a real lawyer. Her name is Jesselyn Radack. A graduate of Brown University and the Yale Law School, Ms. Radack worked in the Professional Responsibility Advisory Office of the Department of Justice (PRAO). Ms. Radack claims the Department forced her out of her job in retaliation for giving the Department advice it did not want to hear about its treatment of John Walker Lindh, the so-called "American Taliban." The Department claimed she exercised poor judgment and did a poor job. I discuss Ms. Radack's story in detail (and reach conclusions that differ from accounts of the case published to date.) I then explain how rational choice theory implies conclusions that differ from those Ms. Radack reached, and offer conjectures grounded in social psychology that might explain how someone in Ms. Radack's position might reach conclusions that differ from those implied by rational choice theory. I conclude with recommendations for integrating decision theory into the legal ethics curriculum.
I'm going to use the Larry Solum method of changing the font color to comment, and, imitation being flattery, give this article a Solum-like compliment. It is provocative, and very, very interesting, even though I think the analysis is flawed. I've previously characterized Professor McGowan's approach to ethics as "pragmatic defeatism" - a form of Posnerian consequentialism that Benjamin Zipursky described as "instrumentalism": the criterion for the truth (value?) of a legal rule is whether it is a useful instrument toward an end we have already accepted. Because conflicting values are so hard to sort out, we just look at consequences, and we measure consequences with utility and payoffs.
Here it's applied to the ex ante exercise of judgment, the question being whether a former Justice Department lawyer should have leaked an e-mail demonstrating that there was an attempt to purge DOJ files in the John Walker Lindh (the "American Taliban") case. Professor McGowan advocates not only the use, but the teaching of rational choice theory and variants to assess costs and payoffs of ethical decisions. There are two fundamental insights: (a) that judgment can be reflective (see Robert Audi's The Good in the Right for a theory of reflective intuitionism), and (b) judgment requires checking against one's own first instincts by attempting to see oneself from the perspective of another. The flaw, I think, is the failure to wrestle (because it is assumed away in the very instrumentalist assumptions) with the idea that somebody does something dutifully, and without regard to consequences. Christine Korsgaard's assessment of this level of scientism in making judgments in The Sources of Normativity comes to mind: even if you grant all of these tools to the decision-maker, is there any assurance that one can calculate the right decision? The counter view is that judgment is exquisitely and essentially free and autonomous - at the end of the day, all scientific rules, rules of thumb and heuristics will either under-determine or over-determine an outcome, because there is no rule for the application of a rule.
The interesting thing (and this is a quick reaction on a quick read) is that Professor McGowan comes to a conclusion similar to my own (in the article in which I criticized his approach) - one needs to take a second person approach to the mind of the other. Whereas I took the view this was to provide a check on one's own tendency to rationalize toward consequences rather than duties, I think the upshot here is to provide one with a better basis for understanding the person on the other axis of the game theory matrix, so as better to calculate your payoff.
And now, to say something I've always wanted to say on my own blog: DOWNLOAD IT WHILE IT'S HOT!
October 3, 2006
Ethics in Representing Children--UNLV Conference Now Published
posted by Alan Childress
For the results of UNLV's conference on representing children (including ethics issues), here's the link to the SSRN abstract. The conference co-organizer, Prof. Annette Appell, writes there that UNLV "hosted a working conference, Representing Children in Families: Children's Advocacy and Justice Ten Years After Fordham, on January 11-14, 2006. The conference was a follow-up to the Conference on Ethical Issues in the Legal Representation of Children held at Fordham University School of Law in December 1995, which produced the influential Recommendations of the Conference on Ethical Issues in the Legal Representation of Children. The UNLV conference brought together nearly 100 academics and child and youth advocates...."
She adds that their work is now "published in 6 Nevada Law Journal 571-1423 (2006). The volume's table of contents, Foreword (by Bruce Green and Annette Appell), Recommendations, and Working Group Reports are available on the conference website..." or just the table of contents through her SSRN link. [I note that the website features a nice photo of everybody involved, and they seemed glad to have attended, including the ubiquitous rabbit ear trick which suggests some of them represent children because they, happily, think like them.]