October 25, 2006
WSJ Reader as Cro-Magnon or Neanderthal? You Decide
Over at Money Law, in a single post, I confess to being a lifelong reader of the WSJ op-ed pages, and to voting for a Democrat. How is this possible? A mid-afternoon quad soy latte caffeinated rant awaits you.
Foxes Guarding Henhouses
by Mike Frisch
In researching an article about a Massachusetts discipline case, I came across a report of the Massachusetts Bar Association evaluating the state bar regulation system. It is a object lesson in the need to insulate discipline from the influence of the organized bar. The Task Force pays lip service to the public interest and then launches its attack on Bar Counsel, blaming the prosecutor as the sole source of all delays in the system (I haven't studied this issue but doubt the whole story is told here). The solution: statutes of limitations for bar discipline, extensive expansion of discovery rights for accused lawyers (what about the delay issue?), a higher burden of proof, expanded motions practice for accused lawyers, and limiting the use of prior misconduct to aggravate the sanction for the next violation.
The title of the report pays tribute to the work of George Orwell. It's called Protecting the Public: Reforming the Disciplinary Process. It would be refeshing to hear stories about the organized bar doing meaningful work to improve disciplinary operations. The ABA has been a leader in this area, but the state bars have too often strayed from the path of independence from the bar recommended by the ABA Model Rules for Lawyer Disciplinary Enforcement.
October 24, 2006
We Link Up With Money Law
Posted by Jeff Lipshaw
There are great law bloggers, and great blawgers, and great prawfs, and great entrepreneurs, but there are only a few great law blog entrepreneurs, and high on that list are Paul Caron, our own fearless leader, and Jim Chen (Minnesota) of Jurisdynamics fame. Jim has been kind enough to invite me, like Paul, to the occasional contribution over on Money Law. So when it doesn't quite fit here, look for my exercises in random thinking over there! (Wait a little while before you click that Money Law link - and don't be eating when you do - there's a really scary picture posted right now.)
Sheldon and Krieger on the Corrosive Effects of Legal Education
Kennan Sheldon (Missouri-Columbia, Psychology) and Lawrence Krieger (FSU School of Law, below right) have posted Understanding the Negative Effects of Legal Education on Law Students: A Longitudinal Test and Extension of Self-Determination Theory on SSRN. Here is the abstract:
Longitudinal studies suggest that law school has a corrosive effect upon the well-being (Benjamin, et al. 1986; Sheldon & Krieger, 2004) and values and motivation (Sheldon & Krieger, 2004) of students, ostensibly because of its problematic institutional culture (McKinney, 2002; Schuwerk, 2004). In a three year study of two different law schools, we applied self-determination theory's dynamic process model of thriving (SDT; Deci & Ryan, 2000) to explain such findings. Students at both schools declined in psychological need satisfaction and well-being over the three years. However, student reports of greater perceived autonomy support by faculty predicted less radical declines in need satisfaction, which in turn predicted better well-being in the third year, and also a higher GPA, better bar exam results, and more self-determined motivation for the first job after graduation. Institution-level analyses showed that although students at both schools suffered, one school was more controlling than the other, predicting greater difficulties for its students in terms of well-being, job motivation and bar passage. Implications for SDT and for legal education are discussed.
Just anecdotally and not empirically, I would be highly doubtful that law students have a higher incidence of SDT's than the control group or the general population, if only for the institutional culture reasons on which the authors report. [Posted by Alan Childress]
October 24, 2006 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack
I'll Bet He Sits in an Aeron Chair
Posted by Jeff Lipshaw
Tim Zinnecker (stage right), over at South Texas College of Law in Houston (just down the road from the former Enron Field, and where they have a special interest in following this) pointed out this Business Week squib about Daniel Petrocelli and O'Melveny & Myers running up a tab of $70 million dollars defending Jeffrey Skilling.
1. Gordon Smith was agonizing over whether to invest in a $600 Aeron chair. Gordon, I'll bet the paralegals over at O'Melveny sit in Aeron chairs. But do they have work-life balance?
2. $70 million was roughly the revenue of my entire 300-lawyer Prestigious But Regional Midwestern Law Firm (as Belle Lettre would say) in the year before I left the partnership (1991 or so).
3. I hope like hell my colleague Pamela Metzger here at Tulane doesn't see this and choke on her beignet. Pam's Criminal Defense Clinic has been working against tremendous odds to bring an entire criminal justice system out of the Katrina rubble. What might be done with a fraction of that money?
Top Ten - Legal Ethics & Professional Responsibility - Oct. 23
There were no changes in this week's reporting of the ten papers with the most downloads in the SSRN Legal Ethics & Professional Responsibility journal, except the appearance at number 7 of a new article, scheduled for Volume 120 of the Harvard Law Review, by Orly Lobel (right) of the University of San Diego and PrawfsBlawg fame. Congratulations, Orly, on the placement, from those of us who measure our progress by the number of hours it takes to get a rejection from the HLR!
1 Therapeutic Jurisprudence and Readiness for Rehabilitation David B. Wexler, University of Arizona - James E. Rogers College of Law
2 Politics, Office Politics, and Legal Ethics: A Case Study in the Strategy of Judgment David McGowan, University of San Diego - School of Law
3 Southwest Airlines: Hedging and Shareholder Value Michael R. Ingrassia, Georgetown Law Center, Victor Fleischer, University of Colorado School of Law
4 Judicial Ethics, the Appearance of Impropriety, and the Proposed New ABA Judicial Code Ronald D. Rotunda, George Mason University - School of Law
5 Judicial Opinions as Minefields of Misinformation: Antecedents, Consequences and Remedies Jacob Jacoby, New York University - Department of Marketing
6 Plato, Hegel, and Democracy, Thom Brooks, University of Newcastle upon Tyne
7 The Paradox of Extra-Legal Activism: Critical Legal Consciousness and Transformative Politics, Orly Lobel, University of San Diego School of Law.
8 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
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 24, 2006 in Weekly Top Ten: SSRN Legal Ethics & Professional Responsibility | Permalink | Comments (0) | TrackBack
October 23, 2006
Tony LaRussa and the Mystery of Moral Judgment
Posted by Jeff ("My Favorite Number was Six Because It Was Al Kaline's") Lipshaw
I concede to nobody (well, maybe an individual - not a business - who actually kept season tickets for the last thirteen years or so) more Detroit Tiger fan bona fides than my own (see typically handsome Tiger fan, below right*), but my Old English D cap is off this morning to that lawyer (yes, folks, he has a law degree from Dan Markel's permanent gig, Florida State) who also happens to manage the St. Louis Cardinals, Tony LaRussa.
For those of you who weren't watching, or missed the sports report this morning, Kenny Rogers, a 41 year old pitcher, whose skill lies in his craft rather than sheer power, threw a gem last night, as the Tigers tied up the World Series at one game a piece. But the big story is that the Fox television cameras picked up, in the first inning, a substance on the fleshy part of Rogers' palm that looked suspiciously like pine tar. Now pine tar is a substance that is around just about every dugout, because batters use it to help provide a better grip on the bat. But the rules in baseball are absolutely and unambiguously clear: a pitcher may not use any foreign substance to affect the flight of the ball, or have it anywhere on his person.
8.02 The pitcher shall not . . . (b) Have on his person, or in his possession, any foreign substance. For such infraction of this section (b) the penalty shall be immediate ejection from the game. In addition, the pitcher shall be suspended automatically for 10 games.
There is no doubt in my mind that LaRussa knew the text of this rule by heart. Yet he did not demand an inspection by the umpire, merely "complaining" between innings. It appears that the home plate umpire said something to Rogers, and the substance was gone by the time Rogers came out for the second inning. Rogers, by the way, after the game, was a paragon of inconsistency, but claimed it was a "clump of dirt" that he did not realize was there. Right. And I'm not sure if I'm wearing my glasses right now.
Now cheating in baseball (and I don't mean steroids) is the stuff of lore and legend, whether it has been emery boards, Vaseline (usually stored in the pitcher's nether regions), corked bats or stolen signs. In his classic book, Ball Four, Jim Bouton claims that the Hall of Fame pitcher Whitey Ford could make a baseball dance funny if the league president's name was stamped crookedly on the ball.
Why then do I think LaRussa, as lawyer, deserves accolades for a sublime moral judgment? More on that below the fold.
The talking heads on ESPN Sports Center (Rece Davis, John Kruk, Dusty Baker, and in particular, a former baseball executive, Steve Phillips) this morning could not for the life of them understand why Tony LaRussa did not march out and demand an inspection.
It happens that I have written on just this issue (well, the example was of a despicable CEO with a golden contract, not a baseball manager), and the article will be coming out in Law, Culture and the Humanities (Volume 3, Issue 1): Freedom, Compulsion, Compliance and Mystery: Reflections on the Duty Not to Enforce a Promise. I just happen to have the abstract at my fingertips (untainted by any pine tar):
I suggest the difference between the law of consensual relationships (i.e., contracts) and the morality of those relationships is one of compulsion and freedom. In the former, we find ourselves being compelled by, or compliant with, a rule some distance removed from the basic norm; in the latter we find ourselves in touch, constantly and sometimes in the face of more visceral obligatory rules, with a far deeper and more fundamental (transcendental) sense of fairness. Moral decisions are the ones made without any threat of compulsion from the law. The clearest example in commercial relationship of a moral decision unfettered by the positive law is the promisee's choice not to enforce an otherwise legally binding contract.
LaRussa knew precisely what would have happened if he demanded an inspection. The rule is brutally mandatory: if any foreign substance were on the pitcher's body, Rogers would have been ejected from the game, and ineligible for the remainder of the World Series.
Here's my speculation: LaRussa understood precisely the impact of such an action, and determined in that instant he did not want to be the beneficiary of the rights to which he was entitled under the rules. Would winning have become more likely? Yes. Did LaRussa want to win that way? Over his best friend, the Tiger manager, Jim Leyland? I don't think so. So he signaled that he knew there was a problem, and let the matter be resolved without full recourse to his legal rights.
Was it utilitarian? I don't know. This is precisely the dilemma that Professor McGowan and I agree will never be resolved. Do we conclude that LaRussa simply would not derive enough utility from beating the Tigers without Rogers to overcome his not wanting to hurt his friend or his not wanting to test his team against the best? I do think the culture of winning (whether in sports or litigation or business) is so pervasive as to make a decision not to grab the rights to which one is entitled almost inexplicable in utilitarian terms. So my conclusion is that LaRussa made a spontaneous distinction between the positive law and the moral law, determined that the positive law did not accord with his own sense of justice, and deferred to a different solution.
* My son, Matt.
Chambliss on Law Firm In-House Counsel
Elizabeth Chambliss (left, New York Law School) has posted The Professionalization of Law Firm In-House Counsel on SSRN. Here is the abstract:
This Article examines the structural evolution of the firm counsel position from a volunteer, part-time position filled by an existing partner to a specialized, often full-time position increasingly filled by career in-house counsel. Based on focus groups and interviews with firm counsel, as well as participant observation at meetings and conferences aimed at firm counsel, I examine how the professionalization of the firm counsel position affects: (1) the definition of the firm as the client; (2) the authority of firm counsel with partners; and (3) firm counsels' professional commitments and attitudes about ethical rules.
I find that, from a regulatory standpoint, the professionalization of firm counsel is a positive development. The increasing formalization and specialization of the firm counsel position has helped to clarify the identity of the firm as a client without compromising the authority or commitment of lawyers who serve in that role. Although ?professional? firm counsel - that is, full-time firm counsel and those appointed from outside the firm - tend to draw on different sources of authority than part-time firm counsel who grew up in the firm, most respondents report that their role is expanding and that they have sufficient authority to be effective. I argue that professional networks among firm counsel are likely to play a critical role in defining the future standards for law firm regulation and urge legal ethics scholars to collaborate with firm counsel in promoting the vibrancy of such networks.
This is an interesting article! I served for a short time as a member of what was called the "counsel committee" in my law firm in the early '90s. The firm did not have a general counsel in the sense of a person responsible for all the legal affairs of the firm (say, negotiating a new lease arrangement, or the merger agreement with another firm). Those were doled out to the partners on an ad hoc basis. "Counsel committee" was euphemistic for "loss prevention committee" which itself would have been euphemistic for "malpractice committee."
I skimmed the article quickly, and many of its insights ring true to my experience. But as a big regional firm: (1) we were far more concentrated in one or two big offices with a few outlying offices; and (2) our malpractice insurer was Attorney Liability Assurance Society (ALAS), a law firm cooperative which I believe excluded New York City firms. It looks like the bulk of the firms interviewed were "east coast," and most of the anecdotal evidence appears to come from NYC-based firms.
One of our primary duties on the counsel committee was to act as liaison to ALAS whose staff was very, very active in proactive loss prevention. As Professor Chambliss' interview results indicate, one of the big issues was getting lawyers to come to us early on in the problematic situation. The chair of the committee was also the head of the commercial litigation group, and his expertise and trial skills were unquestioned. When he spoke, people listened. And the hallmark of the committee was complete confidentiality, so as not to chill early communication.
Interestingly, on my quick read, it looks like most of the issues faced by the "professional" firm general counsel are intake and conflict issues. I think the reason for the ALAS decision to exclude the NYC firms had to do with the issuance of opinions in securities offerings - a big deal back then. But I didn't see a lot of discussion of "opinion issues" in the article. But the question whether law firm partners would view a professional general counsel as peer, and not "administration" is a good one.
October 22, 2006
Being Right Redux
In the post that began the dialogue between David McGowan and me, I talked about the Sarat & Kearns take on law in everyday life, and their description of instrumentalists and constitutivists. David appropriately jabbed me (horrors!) for my snarky reference to law and economics professors as an example of constitutivists, those who see the law as actually shaping society.
For a less Posnerian and more Willistonian-Langdellian constitutivism, see the series of comments to Gordon Smith's Training Business Lawyers over at Conglomerate. I am happy to see that my point is not mere abstraction; there are people in the world who believe that all can be made right with a well-drafted contract. Scriveners of the world, unite! You have nothing to lose but your writer's cramp!