December 1, 2006
Legal Profession Blog Named "Popular Law Professor's Blog"
Posted by Alan Childress
LPB is called that! ...by the "tattoo couture" website needled.com. That's how LPB gets described in the post, "Not There Yet...," while exploring the body art bias and faux criminal heuristic present in my post here about the GR8 TaT2 Maker (that I had recommended as part of your next Toy Tats For Tots contribution). The blog adds about my post, "Granted, it could be an attempt at humor -- in my experience, something law professors often fail at." Ouch.
This follows with a fair point about professionals and tattoos--and hiding them with clothing at work. The reason: fear of bias from "these old(er) white guys." Yeeouch! [Memo to self: change pic on linked webpage to high school shot. Must photoshop out plaid pants. Oh, never mind, she must be talking about Lipshaw.] She adds, "And if you look at who are the majority on US judicial benches, CEOs, international firms, tenured professors ... yup, it's these guys. And they don't like our tattoos."
Followed by her two Sponsored Links: "Tattoos and Hepatitis C -- There are ways to get Hep C from a tattoo -- find out if you're at risk: haveyouever.com." Also one for "Absinthe: you don't have a creative block...you're just SOBER!" [Memo to Paul Caron: change incessant LPB ad for Black's Law Dictionary to cool ads like this. No one buys Black's anyway except some old aunt as a going-to-lawschool present sort of like a carton of Camels for a new convict. Memo to State AGs: There's millions to be made in suing Absinthe using big-tobacco model. Just endow me a Chair as a HT.]
In my defense, I'm only as old as I feel. And today is the last day of the first of my life. I really don't have much of an issue (apart from the cheesy boys' photos, and maybe its aiming at the low age range) with GR8 TaTs -- nor with its chief rivals Mr. Potato Skull, Barbed-Wire Buns Barbie, and of course the Britney Spears Upskirt Artmongerer.
I honestly do have a real discussion in Professional Responsibility every year about tattoos and bias by judges or juries: Does ABA Model Rule 1.7(a)(2) require the lawyer to wear long sleeves and remove piercings at trial? It is a tough call and a fair debate in class...and by this blogger. I probably do like your tattoo. I sure like the Louis Vuitton one adorning Susan Scafidi's house pet.
Jeff's email to me, on hearing the kudos, denied that our blog was named 'popular': "The popular modifies YOU not the blog. Except that reading is contradicted by the hyperlinking. Hmm." I then emailed back some hilarious re-parsing of the punctuation and its dual meaning. I am confident that the reality of two guys sitting in front of their laptops giggling about their punctuation-modifying jokes has thoroughly undermined--nay, decimated--needled.com's statement that humor is "something law professors often fail at." [Memo to Jeff: There's an at at the end of the sentence. Hee hee! The post is "something up with which I shall not put." Snap!! Just proved second-grade principal wrong who told my parents, "Alan is not as funny as he thinks he is." Take that, Mr. Purtlebaugh!] Inexplicably, Mike bowed out of this exchange, even as Jeff and I continued to laugh about the apostrophe's ambiguity until the laughing made one of us get diet coke up our nose and it really hurt.
I am sure the fine folks at Spin Master make a GR8 product, and I withdraw the lame prison references. Frank Snyder has already emailed me that he's getting two TaTs: Jack, 7, likes death's heads while Charlie, 6, likes unicorns. I'd invest heavily in Spin Master if I thought they would be smart enough to sell official accessories. "Two AA batteries, GR8 Hep C Test Kit, and Absinthe not included."
Which States Require Disclosure of Malpractice Insurance Non-Coverage?
Posted by Alan Childress
The legal profession's watchdog group HALT offers this memorandum on the current status of a state bar ethics requirement it endorses: mandatory and public disclosure of whether the attorney maintains insurance coverage for malpractice liability. So far only Illinois has accepted HALT's suggestion in full, including ready public access to the status of such coverage, to be linked here. A handful of other states, including Kansas, Virginia, and North Carolina, have some form of mandatory reporting with some public access to the information, while four (Alaska, N.H., Ohio, S.D.) require disclosure to a client directly. HALT has elsewhere urged California to improve in this area, and more generally urges states to sponsor or endorse insurance so as to keep rates lower and induce more lawyers to buy in. (HALT has its offices on K Street in D.C.--home of the Abramoff-ish world of lobbying and influence--but hardly seems a part of the worst aspects of those circles.)
It used to be that the prevalence and extent of malpractice claims and awards was the "profession's dirty little secret," as described by Manuel R. Ramos in his important 1994 article (47 Vand. L. Rev. 1657). By digging through actual insurance company records, Ramos exposed the reality that real claims happen much more frequently and with money amounts in excess of what lawyers, professors, and writers had long assumed. Now groups like HALT are trying to make sure that actual non-coverage, essentially exposing clients to the potential for uncompensated malpractice, will not remain a secret either.
UPDATE: For Pennsylvania's new disclosure requirement, in its rule 1.4(c), go here. For the ABA's helpful updating chart on the state-by-state status of such requirements or proposals, link here. Its model court rule on the subject, and a cite to an article criticizing such disclosure and analyzing the ABA proposal, is here.
Review Sessions, Exams and Other Exercises in Paranoia
First, we could do a Wittgensteinian philosophy of language riff on what is posted over at Law Librarian Blog with regard to ambiguous exam questions, or just laugh.
Second, I'm about to roll into the second of my review sessions (classes ended yesterday). A full semester's good will and reputation as a "nice guy (for a prof)" evaporates as I get in touch with my inner snark, particularly in regard to (a) any question that starts with "are we responsible for...", given that I have repeated ad nauseum that we are responsible for anything in the readings or discussed in class; and (b) any matter that could have been answered by reference to my copious postings on TWEN (e.g., is the exam open book? will you tell how many points each question is worth?).
I almost incited a riot yesterday yesterday when in response to the question "will we need a calculator?" I uttered the infamous three words: "let me think...."
"Send A Message!": Improper Closing Arguments by Prosecutors
Interesting post, here, over on Concurring Opinions by Wake Forest prof and former AUSA Jennifer Collins. She is collecting inappropriate and outlandish arguments some prosecutors have used in closing. A commenter notes [and shares transcription of and cite to] a death penalty trial in which the DA arranged the victim's bloody clothes on a chair and commenced a dialog with the victim as part of closing. You don't see that on Law & Order: SUV. Yet. [Alan Childress]
Lipshaw on Rationalization, Business Ethics, and the Art of Empathy and Dialog
Posted by Alan Childress
Just out on SSRN's Law & Society: The Legal Prof. journal edited by Bill Henderson is an article by Jeffrey M. Lipshaw (Tulane Law, and also LPB and MoneyLaw), entitled: "Law as Rationalization: Getting Beyond Reason to Business Ethics." It is published at 37 University of Toledo Law Review 959-1020 (2006). Its abstract:
Embedded in the way we use the law is the tendency of human reason to justification; in the words of one philosopher, a thirst for rationality [that] is a major source of lies. I contend that this tendency is exacerbated by the conflation of what is knowable as a matter of science, and that which we might believe is normative. I rely on Kant's critique of theoretical and practical reason to assess claims to objectivity in social science approaches to law, and to suggest it is not surprising that the operation of theoretical and practical reason would tend to the conflation of the descriptive and the normative. When we understand the illusions of which reason is capable, we may be more circumspect about claims of objective knowledge and more willing to challenge assertions of a single right answer on normative issues (the modus operandi of most legal argumentation).
Nevertheless, we have a sense that there are objective standards of right and wrong, bespeaking right answers, if not single right answers, on difficult issues, and these are the basis for ethics, if not law. How does one bring broad universalisms down to practical application, and have the confidence one's judgments are right, and not someone else's view of dogmatism? I discuss the mystery that lies behind the process of judgment, and conclude that the best check against the illusions of reason is our ability to have a relation with, and understand the viewpoints of, others. In particular, I consider Buber's concept of dialogue, and how it might affect common types of ethical decisions in business.
Bashing the Legal Profession: Miss Manners Says Suck It Up (Post Your Own Snarky Replies Here)
Posted by Alan Childress
Well, more like she says get used to it, but the prognosis is the same. We have previously posted on lawyer bashing and related tort-reform campaigns against lawyers. We have also noted (and linked) the important contribution of lawyers to American culture, particularly the gift to gemeinschaft that is the gelled cranberry sauce. But even that may not be enough, incredibly, to buy the legal profession out of the cultural dog house.
In response to a 1L's question as to how to deflect intrusive questions about student debt and the high cost of law school, Miss Manners implies that the rudeness is just getting started and will soon extend beyond tuition curiosity. In "Conflict of Interest," the 1L notes that people like to hypothesize the debt she must carry and adds, "I assume that Miss Manners would consider me responding with 'Don't worry because I'm filthy rich' bad manners." [Editor's note: LPB has no such manners compunctions. Try responding, "I'm here on a full scholarship courtesy of your tax dollars, thank you very much." LPB does not quite know how that would be true, short of JAG or some kind of Northern Exposure deal, but does not care.]
Anyway, Miss Manners' first thought was apparently not meant to comfort 1L: "If you dislike the unfiltered remarks people make when hearing that you are in law school, wait until you hear what they say when you are a lawyer." No sweetness and light for that 1L. On the other hand, Miss Manners' two actual offerings for reply sound better than mine and reveal a level of irony and putting-in-place that suggests that even she may be getting impatient with that whole 'manners' notion:
- "Education is expensive, isn't it? I don't know why anyone bothers."
- "You're so kind to worry about me. I think I'll manage, but I'll keep you in mind if I run into trouble."
The floor is open to your own suggested reply (to any form of lawyer-bashing question, or the debt one for 1L), to be posted in Comments here (which will be delayed because the system requires one of us editors to check a virtual box before they appear on the blog). No cranberries, please.
An Admissions Issue
by Mike Frisch
The Supreme Court of Oregon recently denied admission to an attorney who is admitted (but inactive) in Illinois on character and fitness grounds. The applicant is also licensed as a physician in Illinois and served briefly as a vice-dean of academic affairs at the College for Medical Sciences in Katmandu, Nepal.
The issues regarding admission relate to claims by the applicant that a fellow law student had cheated, a defamation action he had filed against an assistant dean of the University of Illinois, an airport arrest for disorderly conduct and a claim that his opponent in a judicial election had run a smear campaign. The Oregon authorities sought a psychological evaluation and recommended against admission after the applicant declined to participate. An evaluation was later done but the applicant sought to place conditions on the use of the results. The Court declined to consider the report and rejected the suggestion that the applicant could place conditions on its consideration of the report.
One interesting aspect of the decision is that it points out that one bar may decline admission even where another has admitted the applicant. Here, the applicant had been admitted ("admission [in Illinois] was not without its difficulties") and apparently had been in good standing for over a decade.
The opinion is linked here.
Is It Okay to Fudge to the Judge (If Your Opponent Misses It)?
Posted by Jeff Lipshaw
I've just been transfixed by a war story about a witness getting skewered on cross-examination because of a false statement in an affidavit prepared by his lawyer. The war story comes from the cross-examiner, Bill Dyer, right, who goes under the nom de blog of Beldar (Conehead, I presume), to which Professor Hricik links over at Legal Ethics Forum. Professor Hricik concludes with the warning that "it's always a mistake to fudge the truth."
It turns out that this story, with a couple tweaks by yours truly, fits nicely into a thesis I've been discussing at various law schools over the past little while. An older and incomplete version of the thesis has been up on SSRN for a while now, but we can boil it down to the following: when the contract says that you can only rely on its affirmative representations as to the state of a business you are buying, and cannot rely on anything outside the contract, what is the effect of the "anti-reliance" clause if it turns out the the contractual representation is literally true, but is a fudge?
The most articulate response to my thesis, which is that the contractual disclaimer has to be construed narrowly, is that contract negotiations among sophisticated parties are a stylized, ritualized business, and the ordinary use of language defers to the particular language of lawyers (and I suppose business people) in that particular setting. Indeed, one responder said that the reason for the writing was to speak to a judge some day if necessary; hence, even more support for the notions that the only words with meaning were those expressly set forth, at least in the face of the disclaimer. Indeed, on several occasions when I have strayed (no, that's misleading, I have charged) into a Coaseian default rule analysis, I have stirred significant response with the assertion that in that circumstance it is the fudger, not the fudgee, who is the best cost avoider, at least as to later disputes around whether the statement was a lie. So it is incumbent (or the burden rests) on the fudger, not the fudgee, to make it clear that the parties have negotiated around the default rule.
I think what I am saying is controversial because it tends to undercut the lawyer's self-image of value creation (something on which it is difficult to have a balanced perspective if you've always been a lawyer, looking at the world through lawyer's eyes). In particular, one response to the thesis is that making the language clear and precise is what we do as lawyers, and why do we bother if that's all for naught? To the contrary, say my colleagues, we operate in a special community of language technicians, in which the relative cost-avoiding positions of the receiver of the statement (the fudgee) and the maker of the statement (the fudger) are up for grabs.
That is a cogent criticism, and I have heard it now on several occasions. So with due credit to Mr. Beldar, I mean Dyer, let's take his war story, but with just a tweak to make it fit my purposes. But it's long, so we'll do it below the fold.
Here's Bill Dyer's set-up for his story (slightly redacted by me):
The defendant in the lawsuit — that is, the alleged trademark infringer — I'll call "Doe Corp." The plaintiff, whom I'll call "Doe Inc.," asserted that it had a superior right to use the tradename "Doe." Both companies were based in Europe, where they'd done business side by side for centuries. Both of them manufacture what I'll call "widgets." And both were in fact founded and are still owned by families named "Doe." But Doe Inc. claimed that it had started using the "Doe" name in connection with its widgets in the U.S. and the Western Hemisphere several years ago, and that it had spent lots of time and money promoting the "Doe" name here — whereas Doe Corp. was, according to Doe Inc., a new-comer to the widget market in the US and the Western Hemisphere. Doe Inc. also claimed that Houston is the widget capital of the Western world, and that Doe Corp. was causing customers here to become confused between Doe Inc. widgets and Doe Corp. widgets, in turn causing Doe Inc. to lose sales.
So Doe Inc. had gotten an emergency "temporary restraining order" in state district court in Houston that prohibited Doe Corp. from using the name "Doe" in this half of the world. Doe Inc.'s lawyers did so "ex parte" — meaning without anyone from Doe Corp. being present — based on Doe Inc.'s assertion that this was such a big emergency that there just wasn't time to give Doe Corp., all the way over in Europe, any notice of the hearing on Doe Inc.'s TRO application.
That very directly affected the business of my client, whom I'll call Acme. Acme is a Houston-based company that buys and then re-sells widgets from many companies, among them both Doe Inc. and Doe Corp. Because of the TRO, Doe Corp. suddenly couldn't sell Acme any more widgets — and the world-wide widget market is smoking hot right now, and Acme needs lots and lots of widgets as fast as it can get them! Indeed, Doe Inc. was even making noises about trying to use the TRO it had gotten against Doe Corp. to stop Acme from "acting in concert with Doe Corp." In other words, Doe Inc. was suggesting that Acme was deliberately helping Doe Corp. infringe on Doe Inc.'s tradename, even if just by re-selling the Doe Corp. widgets that Acme already had in its inventory. So even though Doe Inc. hadn't yet directly sued Acme, Acme instructed me to jump into the middle of this lawsuit (i.e., to "intervene") to protect Acme's own interests.
Thus it came to pass that in mid-October, we had a two-day evidentiary hearing on Doe Inc.'s application to convert its TRO into a longer-lasting pretrial injunction. . . . A defendant can defeat an injunction by showing that the plaintiff was not diligent in trying to protect his rights — in other words, that the plaintiff knowingly let his rights be trampled for a long time without saying a peep. That's especially important in a trademark/tradename contest. So precisely when Doe Inc. first learned of the alleged tradename infringement by Doe Corp. in the U.S. was potentially very important — and could possibly even decide the outcome.
The TRO had been issued in part on the basis of an affidavit of Doe Inc.'s Mr. Smith that he first became aware of the conflict between the two Does in August. The rest of Bill Dyer's story has to do with how he was able to discover (through metadata, as a result of having taken Professor Hricik's CLE course!) that Smith had really heard about it back in February or April but somehow his affidavit (drafted by his lawyer) ended up with the far more favorable, from a laches perspective, unequivocally false statement that he first heard about the problem much later.
My twist is to change the story into a hypothetical wherein the problem is not that you lie to the judge, but you fudge the judge. Assume, for my purposes, that Mr. Smith told his lawyer (call her Ms. Jones) he heard about the other Doe in April, then forgot about it, then recalled again in August. So his affidavit says "I became aware in August." This statement is literally true, but it is a half-truth, but because what is left out is that Mr. Smith also became aware in April. Assuming Doe Inc. is chargeable, for laches purposes, with Mr. Smith's earlier becoming aware, it's a significant half-truth!
Here's the dilemma (or trilemma). Put aside morality or professional ethics for a moment. Let's consider this as a laboratory in which every participant in the test is an equally proficient parser of language. Ms. Jones has deliberately fudged the truth. In the adversarial setting, is it fair game to fudge, and then incumbent on Ms. Jones' opponent (call her Ms. Johnson) to ferret out the full truth? Presumably, Ms. Jones and Ms. Johnson are equally capable of discerning impreciseness in language that gives rise to the ambiguity that in turn gives rise to the half-truth (i.e. does "became aware" imply "first became aware")? And assuming Ms. Johnson misses the trick, the judge is also a lawyer, and is also, presumably, as capable as either lawyer of discerning that kind of trick.
So why is everybody so angry (particularly the judge) when it turns out that Ms. Jones has slicked both Ms. Johnson and him? My thesis is that even sophisticated lawyers presume the truth of the words in their communicative action, accordingly to a community standard that is far less precise than lawyers (or economists) would generally like to think. We have an intuitive reaction, even as sophisticated lawyers, that we have been wronged in this instance. I can muster, I think, a coherent explanation through philosophy of language, and I think, in Coaseian terms, if I consider Ms. Jones to be the lowest cost avoider. But if I make all the lawyers and judges fully rational actors in their use of language, I have no accounting for the sense that something has gone terribly amiss.
Since the posting on SSRN, I've developed the thesis quite a bit, and even tweaked the title: "Of Fine Lines and Blunt Instruments: Business Acquisition Agreements and the Right to Lie."
Hyman and Silver on Tort Practice, Incentives, Fee Caps, and Reform Rhetoric
Posted by Alan Childress
New in SSRN's Torts & Products journal is an article that considers among other things the role of the torts bar in processing med mal cases and the perverse impact of attorney fee caps and similar tort reform, authored by David Hyman (U. Ill.) and Charles Silver (Tex.). It is "Medical Malpractice Litigation and Tort Reform: It's the Incentives, Stupid." The first half of its abstract is here (the rest after the jump):
Health care providers and tort reformers claim that the medical malpractice litigation system is rife with behaviors that are irrational, unpredictable, and counter-productive. They attack civil juries, asserting that verdicts are skyrocketing without reason, are highly variable, and bear little or no relation to the merits of plaintiffs' claims. They complain about patients, arguing that the few with valid claims sue rarely, while the many who receive non-negligent treatment sue all the time. They attack greedy lawyers, alleging that they rake in obscene profits by routinely filing frivolous complaints.
Many of the preceding claims are facially implausible. The medical malpractice liability system is an enormous market whose principal trading partners -- trial lawyers and liability insurers -- are sophisticated, economically-oriented repeat players. They run the system, and they have the knowledge and incentives to select efficient means to accomplish their respective ends.
The article is also published in 59 Vanderbilt Law Review 1085 (2006). The rest of their abstract:
Given this backdrop, their behavior and the behavior of the system they administer should not be random, or even particularly hard to explain. Nor, given the absence of market power and barriers to entry, should attorneys earn more than market-driven returns on the services they provide.
Most of the preceding claims are also inconsistent with empirical studies of the medical malpractice liability system. These studies depict a system that is stable and predictable, that sorts valid from invalid claims reasonably well, and that responds mainly to changes in the frequency of errors and the cost of dealing with them. The system does have a number of pathologies, however, including its loading costs, the snail's pace at which it processes claims, and its failure to compensate patients injured by medical negligence as fully and as often as it should.
It is possible to reform the liability system to address these shortcomings, but tort reform proposals like caps on non-economic damages and attorneys fees will not do so. The goal of these proposals is to reduce insurance prices by making the system less remunerative for claimants. If implemented, these measures will predictably worsen the problem of under-compensation, and weaken providers' incentives to protect patients from avoidable perils.
December 1, 2006 in Abstracts Highlights - Academic Articles on the Legal Profession, Law & Society | Permalink | Comments (0) | TrackBack
November 30, 2006
Unlicensed General Counsel Should Not Lose the Client Its Privilege
That's the perfectly reasonable position taken by this op-ed piece from the National Law Journal (and Law.com), echoing as well Jeff's earlier call to take MR 5.5(d) seriously on its common-sense flexibility regarding corporate counsel in good standing with some state's bar but not licensed in the corporation's home state. The writers note that 5.5(d) "would largely cure these problems but it has not yet been uniformly implemented." [Alan Childress]
Thompson Memo: Even Thompson Urges Limits; Senate To Buck Up Privilege?
A follow-up to the earlier post on the Thompson Memo (DOJ policy forcing corporate waiver of privilege): see today's articles by the Washington Post and AP on further movements to push back against the memo and other prosecutorial policy. The Post says that the Senate Judiciary Committee may come forth as early as Monday with a bill reversing the memo's policy on inducing waiver to be "cooperative."
Larry Thompson himself now thinks it's gone too far: speaking at the Heritage Foundation today, he said, "We may be entering an era where the department should consider perhaps making appropriate revisions to the memo," as reported by AP's Lara Jakes Jordan. Thompson suggested that prosecutors have "overreached" what he presents as his memo's more "limited" call for pressuring cooperation.
Update: Here is the WSJ Law Blog story Dec. 1 on Thompson's speech, as well as a great post by Ellen Podgor at White Collar Crime Prof on the need to legislate instead of humoring the internal DOJ solutions some of the Heritage speakers were touting. [Alan Childress]
Federal Circuit's 'Amicus' Is Patently Obvious: No Traction in Supreme Court?
Posted by Alan Childress
Over at Legal Ethics Forum, Davids McGowan and Hricik are asking (here and here) about the ethics, or at least unusualness, of Federal Circuit opinions on "obviousness" that read more like detailed amicus supplication to the Supreme Court while it is considering the unpublished Federal Circuit ruling in KSR Int'l v. Teleflex. Now the case has been argued, and it appears from yesterday's Legal Times story (per Law.com here) that perhaps the Justices are not taking the hint from the erstwhile amicus opinions. Several Justices expressed hostility to and confusion about its obviousness test (showing no appeasement from later clarifications in the lower court). So much so that the story reports a phone interview with the court's Chief Judge later--also an unusual public defense if you will, though he emphasized he was not responding to any particular Justice's comments.
Reminds me of a story about the late, very great Fifth Circuit Judge Reynaldo Garza, who appeared openly frustrated at an en banc argument in which counsel was butchering the job of defending a panel opinion Judge Garza had written. Judge Garza kept interrupting so much from the bench to toss softballs, and fix the argument, that other judges seemed annoyed. Litigants in that beautiful courtroom in the John Minor Wisdom Courthouse to this day swear they heard Judge Garza's distinctive voice directed in exasperation to another judge: "But, but...he's losing my case for us."
Perhaps it is time for the Federal Circuit to let the litigants (well represented here by, for example, Thomas Goldstein), industry groups and the patent bar (several filed as amicus), and able law professors (noted in Hricik's post and link, including my former colleague Chris Cotropia) all address these kinds of issues to the Supreme Court and defend circuit law. And especially be the ones to speak to the press after the cases are heard. Not that there is necessarily a "violation" of anything, even an elusive "appearance of impropriety," in what transpired here. I am only saying it ultimately just isn't their place. It's not their case.
Nonetheless, there is no truth to the rumor that Justice Scalia appeared ready to rule that a patent is valid only if it is obvious, given that "patent" and "obvious" are literally and unambiguously synonyms. Nor was Justice Kennedy prepared to say that an obvious patent cannot be executed, based on international norms of customary law.
The most obvious test for obviousness that the Court should tell the Patent Office to use? "I know it when I see it."
Discipline By Stipulation
by Mike Frisch
A case decided by the Idaho Supreme Court involving a lawyer who neglected a personal injury case and failed to advise the client that the case had been dismissed is interesting because the court accepted the stipulation of misconduct entered into between the Idaho State Bar and the attorney but rejected the proposed agreement as to sanction. The court found that the proposed sanction failed to give full weight to the "dramatic consequences" of the misconduct and the pattern of repeated violations. The court imposed a thirty six month month suspension with thirty months withheld. The lawyer may apply for reinstatement after six months. The opinion is linked here.
The case demonstrates a common sense approach to discipline by agreement in that the court retains the ultimate authority to revise the sanction but is not obligated to move the case back to square one for further proceedings. This strikes me as an approach that permits cases to move promptly and minimizes the danger that the result will not protect the public from unfit lawyers.
Top Ten - Legal Ethics & Professional Responsibility, Nov. 30, 2006
Steven L. Schwarcz (Duke, below) is the star of this week's top ten, with two papers currently highlighted. Here are the papers with the most downloads in the Legal Ethics & Professional Responsibility Journal, as reported by SSRN for the last sixty days.
1 Law and the Humanities: An Uneasy Relationship, Jack M. Balkin, Sanford Levinson, Yale University - Law School, University of Texas Law School
2 The Paradox of Extra-Legal Activism: Critical Legal Consciousness and Transformative Politics, Orly Lobel, University of San Diego School of Law.
3 Options Backdating, Tax Shelters, and Corporate Culture Victor Fleischer, University of Colorado at Boulder - School of Law
4 Harry Potter, Ruby Slippers and Merlin: Telling the Client's Story Using the Paradigm of the Archetypal Hero's Journey, Ruth Anne Robbins, Rutgers School of Law - Camden.
5 To Make or to Buy: In-House Lawyering and Value Creation, Steven L. Schwarcz, Duke University School of Law
6 Southwest Airlines: Hedging and Shareholder Value Michael R. Ingrassia, Georgetown Law Center, Victor Fleischer, University of Colorado School of Law
7 The Public Responsibility of Structured Finance Lawyers Steven L. Schwarcz, Duke University School of Law
8 Scholarship Advice for New Law Professors in the Electronic Age, Nancy Levit, UMKC School of Law
9 Plato, Hegel, and Democracy, Thom Brooks, University of Newcastle upon Tyne (UK)
10 The Legal Penalties for Financial Misrepresentation Jonathan M. Karpoff, D. Scott Lee, Gerald S. Martin, University of Washington - Business School, Texas A&M University - Department of Finance, Texas A&M University - Department of Finance.
November 30, 2006 in Weekly Top Ten: SSRN Legal Ethics & Professional Responsibility | Permalink | Comments (0) | TrackBack
November 29, 2006
New Orleans (and Tulane) Are More Than Still Alive: Parts Are Vibrant
Posted by Alan Childress
I'm not on-topic at all, but Frank Pasquale just nails it here on Concurring Opinions, on the mixed message of New Orleans: parts are inexplicably and unforgivably the same as Sept. 05, others are thriving, beautiful, and well worth visiting or living in. I fear that the latter message is like the Who people before the little kid on Horton piped up. I had the same phone conversation today with a well-read and educated law professor at another school that I have had so many times with so many people--the same question reported to me by Tulane colleagues in November interviewing [great] candidates for the AALS FRC in D.C., when they themselves ran into well-meaning and smart professors too from law schools all over...
That Groundhog Day question we all get? "Is Tulane having classes yet? " The answer is Yes -- since Jan. 06 in fact -- and all caught up, thanks to the commitment of amazing students and devoted teachers and staff all willing to do class on Saturdays and school through June. And a new 1L class every bit as amazing (and incidentally as highly test-scored) as the ones before. They want to be part of something bigger than themselves and saw Tulane as an opportunity of a lifetime, which it is (as is Loyola, by the way, also relatively blessed by location on uptown's higher ground, and having devoted profs and committed students). With all the work left to be done in the region, some of it generously by the law schools' community itself, the reality is that Tulane's glass is not just half-full, it has been brimming for nearly a year now in a way that cannot be explained. That is my impression of Loyola and many other city mainstays as well. (So the question is not, in fact, Ned Ryerson asking if I have enough insurance. Watch out for that step, it's a doozy.)
Thanks, Frank, for seeing both sides on your trip.
First Circuit Ruling on Indemnifying Exec's Defense Costs May Skew Incentives
Posted by Alan Childress
A recent First Circuit ruling allows a corporation to recoup the massive legal fees it had paid (over an indemnity agreement under Delaware law) to finance an executive to defend himself against insider trading, fraud, or similar charges--if ultimately he is found to have acted in bad faith. See the Law.com story here. Ultimately the exec (a director) owes his old company a million dollars for an offense in which he was civilly fined $70k.
At first blush, no one defends an exec 'rewarded' for acting in bad faith by paying his or her fat cat lawyers. It does not seems fair that he or she gets the company defense. But run-of-the-mill insurance contracts with a duty to defend built-in are really just indemnification agreements too. Is anyone suggesting that each of us pay Allstate back after we lose the auto accident case for which it paid our defense? Well, you say, this one acted in bad faith, but we don't when we run into a light pole. Yes, but all sorts of insurance policies which cover bad faith--where allowed to--provide for defense costs. I have not heard of paying back the insurer after losing such cases, if the policy is valid and covers the loss and defense. It does not appear that the First Circuit is ruling that it is invalid as a public policy matter to contract for such defense. The case then ultimately turns on this particular indemnity clause and the "out" it gave the corporation when the exec lost his civil case. (in that sense it may just be fairly narrow and consistent with rulings in Delaware courts over Disney on which Jeff has posted.) But I fear it will not be read in that limited way.
This kind of ruling, while focusing on an unsympathetic party, ultimately creates rules for the rest of us. It is one more notch in the expanding belt of disincentives to get smart people (who can do basic risk analysis) to be directors. It also skews the risk analysis an innocent accused must do when presented with charges, a settlement offer, and the prospect of a bonus fine of one million dollars (past the smaller substantive exposure) if one rolls the dice and loses. Wouldn't the smart innocent person just settle every time and swallow the pretense of guilt but no finding of bad faith rather than risk ruination with a formal guilty finding? Or if the settlement or plea is proof of bad faith, so that settling equals a massive debt to the employer, wouldn't everyone innocent or not have to roll the dice, precluding rational settlement? The implications are not just about sympathy for the bad corporate apple.
Lawyer Responsible for Spam Promoted
Gotcha. Per today's Wall Street Journal, the CEO of Hormel Foods Corp. is Jeffrey M. Ettinger, 48, who "began his Hormel career as a corporate lawyer, but then jumped to the food side of the business where he managed the chili division before moving up to head Jennie-O, a successful subsidiary specializing in turkey. He was named CEO of Hormel last year, having been handpicked by his predecessor, Joel Johnson, without an external search, and last week, he took on the additional post of chairman of the board."
Anything I were to say from here on would be a cheap laugh, and I only go for cheap laughs in class.
by Mike Frisch
The Supreme Court of Washington has adopted a "bright-line rule that no duties exist between co-counsel that would allow recovery for lost or reduced prospective fees." The court expressed concern that such a cause of action would impair the duty of loyalty that co-counsel jointly owe to the client. The opinion is reported here.
The underlying case involved a worker who had been electrocuted when a drilling company drilled into a buried electric line. Client hired Lawyer Mazon, who brought in Lawyer Krafchick, who had "special expertise" in such cases. Mazon drafted the complaint; Krafchick filed it. Krafchick's paralegal was directed to effect service but failed to do so, despite assuring Krafchick that service was obtained. As a result, the complaint was dismissed and the statute of limitation had run.
Client sued both lawyers and the case was settled for an amount in excess of a million dollars. Mazon then sued Krafchick, seeking recovery of the expected fee, advanced costs, his insurance deductible and the payment made on his behalf in the settlement. The Supreme Court found no basis for claims of co-counsel that are jointly liable to a client against each other.
The lesson: choose co-counsel as carefully as you would a partner. You may be stuck with co-counsel's errors without legal recourse.
Experimental Philosophy with Bagels and Coffee: WWKD?
Posted by Jeff Lipshaw
I'm sitting in the Tulane Law School multi-purpose room, in the process of paying off my debt to Professor Eric Dannenmaier arising out of the recent World Series. The deal was that if the Tigers won, Eric would serve breakfast to my morning class, and if the Cardinals won, I would do the same for his. As you may recall, the good guys lost.
So when I saw Larry Solum's post this morning about a new article on experimental philosophy, and I recalled Frank Pasquale's interest in the subject, it occurred to me that I had recently faced an experiment in deontology versus consequentialism. Eric and I decided that rather than simply serve breakfast to one or the other of the classes we would make the bagels and coffee available to all of our classes.
Now here's the duty versus consequence question: you are going to announce this windfall to the class that wasn't going to get served. It also happens to be the morning that you are passing out the teaching evaluation forms. Do you announce the bagels and coffee before you pass out the evaluations, or after they are filled out and collected? WWKD?
The Lawyer as Doctor: "Yeah, Well, Go Heal Thyself"
Today's ABA Journal, on-line here (for its November issue), features a story on the ethics of a title entitled "Lawyers Are Doctors, Too: But there is no clear ethics rule on whether they may say so." How about clear norms of civility against pretension? Many states, in any event, find the practice inherently misleading--or misleading in certain contexts like ads for med mal cases. [Posted by Dr. Dr. Alan Childress, Ph.D., J.D., M.A., B.A.]