December 7, 2006
Update on Limited Representations: "Unbundling" Discrete Legal Tasks
As a follow-up to our posts here and here on "unbundling" and various states' movements toward limited representations, consider this ABA Journal eReport story on the Massachusetts pilot project for family courts we previously noted here. The Louisville, Kentucky blogger Divorce Law Journal urges here that her state consider such a status, especially in divorce court: "Sounds like a promising solution to the courts being overwhelmed with unrepresented litigants," she writes. [Alan Childress]
Legal Profession Blog Not in Finals for Best Blog
Alas, neither were most of the blogs I read (but congrats to Concurring Opinions of the blogs up there on my Firefox bookmark toolbar; it almost doesn't count as a blog to me anymore since I actually have met five of the six protagonists!).
I can't speak for Alan or Mike or the people representing the 11,000+ plus discrete hits on this site since we started it in late September, but I'm going to enjoy the wedding of my brilliant and beautiful daughter, Arielle, and our newest family member, Simon Pride, this weekend, and not let this disappointment rain on our parade.
GCs, Not Just CEOs, All Over Backdating Options Fallout
This morning's Law.com's "In-House Counsel" reports, "Stock Option Scandals Take Down a Record Number of GCs." Says the story, "These legal chiefs constitute about a quarter of the 40-plus executives who have lost their jobs in the steadily expanding options controversy. Indeed, backdating has forced out as many GCs as CEOs." While "the casualty list will only grow," the story adds that "in some cases, the GC appears to have been little more than a fall guy." More bad news for GCs: "At least seven ... have been named as defendants in shareholder derivative actions."
And the Wall Street Journal today, here, adds Home Depot to the list of companies reporting, via internal investigation, "routine" backdating, from 1981-2000. [Alan Childress]
December 6, 2006
Joy on Systemic Prosecutorial Misconduct
Posted by Alan Childress
Peter Joy (Wash. U.) has posted on SSRN the article, "The Relationship Between Prosecutorial Misconduct and Wrongful Convictions: Shaping Remedies for a Broken System." It is also in 2006 Wisc. L. Rev. 399. The abstract:
Prosecutorial misconduct is one of the leading causes, or contributing causes, of wrongful convictions. This paper contends that prosecutorial misconduct is not chiefly the result of isolated instances of unprincipled choices or the failure of character on the part of some prosecutors. Rather, prosecutorial misconduct is largely the result of three institutional conditions: vague ethics rules that provide ambiguous guidance to prosecutors; vast discretionary authority with little or no transparency; and inadequate remedies for prosecutor misconduct. These three conditions create perverse incentives for prosecutors to engage in, rather than refrain from, prosecutorial misconduct.
In order to reduce the number of wrongful convictions, it is essential to understand the institutional conditions that facilitate prosecutorial misconduct. This paper identifies and analyzes these institutional conditions and makes modest, concrete proposals to reduce the incidence of prosecutorial misconduct. The ultimate purpose of the proposals is to prevent wrongful convictions and not to impose unnecessary obligations or unrealistic expectations on prosecutors.
December 6, 2006 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack
Toys For History-Buff Tots Just In Time For Generic-Holiday Giving
Posted by Alan Childress
Beyond the always-recommended tattoo maker, LPB submits for your consideration toy U.S. Presidents. Such "political action figures" actually speak famous quotes, but have small parts so they cannot be used unsupervised by kids under age 8 (unlike the tattooer's age 6). Legal historian Philip Katz (GW [shown right, not actual size]) recommends the Ulysses S Grant as "a president who believes in what he says."
The maker says: "Our products endorse the democratic system of government itself." Does your toy do that? This company knows stuff the rest of us are only guessing at: its replicas of Jesus or Moses each are an "action figure...realistic down to the finest detail and comes with an Individual Certificate of Authenticity." As, by the way, with Hillary Rodham Clinton, Laura Bush, and Arnold Schwarzenegger. I don't know if the Hillary action figure runs. But I do know that "Jesus Ships Immediately!" Ah, what would Linus say about that?
Rand on Teaching The Practice of "Social Justice" & Defining It Via Empowerment
Posted by Alan Childress
Spencer Rand (Temple, Law) has posted on SSRN (L&S: Leg. Prof.) the following: "Teaching Law Students to Practice Social Justice: An Interdisciplinary Search for Help Through Social Work's Empowerment Approach." It is also at 13 Clinical Law Review 459 (2006). Its abstract:
In clinical classes, students should learn that working toward social justice in their practice is both good and possible. After looking at the ABA Model Rules of Professional Conduct's lack of a clear definition of social justice and the way that this can hamper teaching students about social justice, this paper looks at social justice definitions from other professions and how social work in particular has demanded that their definition of social justice be actualized in practice. Discussing social work's “empowerment approach,” the paper describes the way it develops social work's definition of social justice and demands that social workers practice toward it. The paper suggests ways that we can adapt the empowerment approach to law practice so that our students will develop a strong sense of social justice toward which they can strive and by which they can evaluate their work.
The Moving Finger
A student just stopped by, having just turned in a take-home exam for someone else, and now doing a post-mortem on everything that went wrong, no doubt to the detriment of study for the next exam. I turned to the adages I store on my PDA, and pulled out one we were taught by the late great John Kaplan* at Stanford:
"The Moving Finger writes; and, having writ,
Moves on: nor all your Piety nor Wit
Shall lure it back to cancel half a Line,
Nor all your Tears wash out a Word of it."
- The Rubaiyat of Omar Khayyam
* For a lovely remembrance of Professor Kaplan (the first law professor ever to call on me), see "A Student Remembers," 42 Stan. L. Rev. 847, 852 (1990), by my friend and colleague at Tulane, Jancy Hoeffel.
Does the Privilege Extend to the Interviewed Corporate Employee Too?
That was the question facing U.S. District Judge Lewis Kaplan in the KPMG tax-fraud matter, and on these facts he ruled that it did not, according to a New York Law Journal story reported here. Her subjective belief that she was covered, too, was not enough. [Alan Childress]
When in Doubt, Be an Empirical Scholar
Posted by Jeff Lipshaw
To recap the bidding, I suggested last night a hypothesis that if you looked at "tort" and "employment" lawyers in the regional elite law firms, the breakdown of "top 25" versus "non-top 25 schools" would look like Bill Henderson's data comparing the law schools of elite plaintiffs' lawyers versus the more traditional corporate big firms. Alan, being the great scholar and teacher that he is, attacked my thesis at its weakest, the admittedly visceral and non-rigorous appeal to tort versus contract jury instructions. I hereby cry "no mas, no mas"* on that point; it's a red herring, I admit.
But I decided it would be interesting to look at just a little bit of data to test my hypothesis; after all it is falsifiable, and hence legitimately empirical.
Let me also add that I'm making generalizations, not value judgments. Among my former colleagues, the best mergers and acquisitions lawyer I ever met (Martin B. Cohen, formerly of Skadden, Arps, and AlliedSignal/Honeywell) did not go to a top 25 law school; one of the best tort trial lawyers I have ever met,** Jim Feeney (right, who went up against super-plaintiffs' lawyer and former gubernatorial candidate Geoffrey Fieger in the Jenny Jones "outing" wrongful death case in Michigan) did go to a top 25 school. Nor am I making judgments about the exam-taking skills that get you into law school or through it with "distinction;" I have here on my desk a book just in from Amazon.com entitled Appreciative Intelligence: Seeing the Mighty Oak in the Acorn, which is about the creative and leadership abilities. I don't claim any relationship between traditional measures of intellectual achievement and "appreciative intelligence."
But on to the data below the fold.
Here is the result of my little empirical experiment this morning.
Because I had mentioned the firm as an example, and because I have never worked with it, and don't know anybody there, I chose the listing in the 2004 Martindale-Hubbell (the one in the Tulane Reading Room) for Thompson Coburn in St. Louis, MO. I just looked at the partners (although it would be interesting to compare the data for the associates).
Each partner describes his or her practice area. I divided the sample as follows: if the practice description used the words "product liability" "tort" "insurance" "labor" or "employment" I counted that as "tort and employment law, " even if the partner described his or her practice as including something else. Everything else, including litigation that did not specify the above, was "all other."
I counted 133 partner biographical entries. There were 34 "tort-employment" partners and 99 "all other." I used the USNWR top 25 as my index for schools.
34 total partners
14 partners from top 25 schools or 41%
2 partners from non-25 listed Order of the Coif
Within "all other"
99 total partners
55 partners from top 25 schools or 55%
13 partners from non-top 25 school listed Order of the Coif
I have to admit I was most of the way through when I realized that St. Louis University has "Order of the Woolsack" which I did not count, but I don't think it would change the result much.
So compared to Bill's data (32% from the top 25 for Inner Circle Trial Lawyers versus 64% for Am Law 200), my quick and dirty for one firm somewhere down the Am Law list was 41% for tort-employment versus 55% for all other. I'm not a statistician so I don't know if that's significant, but it seems to point directionally toward my hypothesis.
*This poster and many others like it are available on eBay.
**And the Commissioner of my daughter's tee-ball league back in 1991 or so.
Peter Joy reports on the legal externship listserve that Yale Law School is offering an externship experience that enables student to get a real world exposure to the Connecticut bar discipline system. This could be a model for other law schools to follow in creating programs that give students a sense of this little-known and widely misunderstood area of the law. Link here. [Mike Frisch]
by Mike Frisch
The Supreme Court of Ohio issued a public reprimand to a Justice of the Court who had been convicted of driving a motor vehicle while under the influence of alcohol. The case was presented based upon a stipulation entered into as to the facts of misconduct and mitigation. The panel consisted of the Chief Judge of the Ohio Court of Appeals and the presiding judges of each of the 12 appellate districts (the governing rules disqualify the Supremes from adjudicating a complaint against a member of the Court). Notably, the stipulation did not mention allegations that the judge, while under the infuence, made statements "that might be construed as an attempt to persuade the officer to release her because of her high judicial office" that had been reported by the media. One concurring judge felt that a hearing should have been conducted to address "some unanswered questions as to how the investigator came to the conclusions and recommendations that he presented to the panel."
Jeff Is Wrong: I Am Right
Posted by Alan Childress
Alternate and more accurate title, "Jeff May Be Right But Not For His Wrong Reasons: I Am Still Right." Bill Henderson's post proposing further research on the plaintiffs' bar (including the "elite" of the plaintiffs' bar, and stretching beyond stereotypes of what plaintiff lawyers do) struck either a chord or a nerve in lots of people and is getting blogosphere attention out there. Jeff's reaction to it here suggests that maybe the demographic and credentialism differences Henderson is preliminarily seeing are less about the "plaintiff" client represented and more about the subject matter of practice. In this sense he is making a very non-elitist statement that even "defense" attorneys in respected and important law firms will shake out to have similar stats as Henderson attributes to the plaintiffs' elite.
To that extent I suspect even Henderson would say that such a proposition--not the usual stereotype of the plaintiffs' lawyers vs. their law firm insurance-defense bar opponents--is worth considering when he crunches all the numbers. It is a factor that ought to be part of his eventual multiple regression analysis. Further, their subject matter focus--whether on the plaintiff or defense side--ought to be sorted out as well, again as just good follow-up in the studies that Henderson is proposing. I suspect Henderson agrees and I know I do: that would be interesting to figure out and would have some explanatory power beyond the categorization of "plaintiff" bar. And Henderson might find that the credential-differentiation, whatever that means and however useful that stat is--gets reduced a lot or down even to zero, when compared to more narrowly defined counterparts in "prestigious" firms.
But then Jeff proposes what he thinks would be the explanation, or part of it. This is where, I think, his wheels start coming off. And that seems to be that the big divider will be subject matter or focus of the trial work, because tort and employment trial practice is--I caricaturize his argument because that's what bloggers do--plugging emotional facts into an accepted legal framework that may require and reward various skills, but complex legal analysis is not at a priority there. This unlike heavy duty securities fights or those contracts cases where consideration instructions are all over the place and must be deciphered and analyzed before one can even try that kind of case. My problems with this (especially after I frame it for him that way) below the fold.
Can you guess that Jeff teaches contracts and corporate law? (Can you also tell, less importantly because I am objective and right, that I do not?) I am reminded of a guest speaker to our faculty one time who was talking about unauthorized practice and letting paralegals do the job for certain types of practice like wills, trusts, and uncontested divorces. Until finally, inevitably, and correctly our chaired professor who teaches wills and trusts--and the law of [seemingly uncontested but undoubtedly that is hiding something like a spouse does not know they may be entitled to half of the 401(k) in the other's name] divorce--piped up and asked just how easy does the speaker think those subjects are? I am accusing Jeff of remembering torts through the lens of a first-year subject and bar review (a while ago, for both of us). The reality is more than he is crediting.
Jeff chose the strawman of the negligence instruction to make his point, as if that is the paradigm of tort practice today. I emailed him, "You don't think that even trying malpractice/products/negligence cases is more complicated than it was ten years ago--before tort reform, new immunities, weird causation rules, the R.3d, and new forms of damages--all needing special findings or at least attention by the jury?" I don't agree that the prepackage is very useful in lots of them, especially the cases tried by a big chunk of lawyers (plaintiff and defense) who are not just glorified insurance adjusters. To the extent some tort lawyers are pouring their wine into those familiar wineskins, they are not doing the job, especially under tort reform. Admittedly a lot of the dynamic this changes is pre-trial and takes form as a matter of legal argument rather than the jury-trial moment Jeff uses. But after reform of summary judgment practice, mandatory ADR, and Daubert hearings [see the very good New York Times article on that yesterday here; HT to Kris Das], the jury trial "moment" is not really the paradigm anymore either.
So his point is supported by the simplest, vaguest, most fact-intensive claim--the element of negligence--cast through the lens of litigation being about the day or two of jury trial. I think there is a much bigger picture to this practice, even the trial aspects of it, and it is not just about applying emotional facts to an accepted legal construct. Jeff may be right about the result and demographics, but I don't think it's because of the intricacies of contract law and practice versus the mere fact-slathering of a traffic-accident negligence case.
Put in another direction, I doubt the skills he says are premium for trial of tort and employment cases are any less essential to effective trial work in year-long antitrust cases and securities fraud defenses. Show me the attorney in those situations who is all brain and no heart and soul, and I will show you an ineffective robot jabbering on and on about how the judge or jury is not smart enough to "get it." I am sure Jeff agrees with this point too and would value the complex litigation lawyer or deal transactionalist who knows how to reach people and not just crunch doctrine or numbers, but I go further in not seeing the skill set as all that different for trying--even just "litigating"--different types of cases.
Finally, I don't even see the definitional distinction he seems to be drawing. Torts cases are contracts cases. They are corporate cases. They involve arcane insurance clauses and law, as well as sorting out tricky business arrangements and accounting of damages. Rare is one that does not require deciphering and analyzing all the same brainiac issues he seems to attribute to other fields. (Same with employment law.) We teach them separately in law school because Langdell did, but no decent tort lawyer is anything but a decent contracts lawyer.
Jeff correctly asks Bill Henderson to look for other demographic and background trends when he completes his work. But I don't think what Bill finds can readily be explained by the subject matter distinction Jeff's post proposes.
Reimbursing Theft Victims in Ohio
The web site of the Supreme Court of Ohio reports that its Client Security Fund has awarded over $350,000 to 26 victims of attorney theft. Ten former or suspended Ohio lawyers were found to have misappropriated entrusted funds. The amounts awarded by the Fund comes solely from the registration fees that are paid by all members of the Ohio Bar. [Mike Frisch]
Solum, Constitutional Possibilities, and the BCS
Posted by Jeff Lipshaw
Every once in a while, I like reading an article completely out of my field, if for no other reason than to shake the cobwebs loose, and to focus on learning! Larry Solum (Illinois) has posted a new article called "Constitutional Possibilities" (highlighted over at Legal Theory Blog, left). I thought it was an accessible and non-ideological introduction to the subject of constitutional reform. Here's the abstract:
What are our constitutional possibilities? The importance of this question is illustrated by the striking breadth of recent discussions, ranging from the interpretation of the United States Constitution as a guarantee of fundamental economic equality and proposals to restore the lost constitution to arguments for the virtual abandonment of structural provisions of the Constitution of 1789. Such proposals are conventionally understood as placing constitutional options on the table as real options for constitutional change. Normative constitutional theory asks the question whether these options are desirable - whether political actors (citizens, legislators, executives, or judges) should take action to bring about their plans for constitutional reform or revolution. Frequently, normative constitutional theories are criticized on the ground that they are undesirable, unwise, on inconsistent with the best theories of political morality and legitimate legal authority, but sometimes one hears a very different form of criticism, expressed in locutions such as the following: “That is unrealistic.” “That's not possible.” “That is pie in the sky.” “You are imagining castles in the air.” “Your suggestion is utopian.” “That isn't feasible.” These objections invoke the idea of ephemeral constitutional possibility - constitutional options that are not real or actual possibilities.
What are our constitutional possibilities? How should we think about the feasible choice set for constitutional change? What are the differences between ideal and nonideal theory? What role should the ideas of path dependency and second best play in constitutional theory? These inquiries cross the lines between normative, positive, and conceptual constitutional theory. At the conceptual level, we can ask what phrases like “constitutional possibility,” “ideal theory,” and “the feasible choice set” mean. At the level of positive constitutional theory, we can ask about the forces and institutions that condition constitutional possibility. At the level of normative constitutional theory, we can ask about the implications of constitutional possibility for political morality.
“Constitutional Possibilities” proceeds as follows. Part I introduces the idea of ephemeral constitutional possibilities. Part II will cobble together a conceptual toolkit for thinking about possibility and necessity in constitutional theory: the tools will range from the familiar distinction between ideal and nonideal theory to a quick a dirty guide to the metaphysics of modality. Part III will explore the implications of the resulting proto-theory of constitutional possibility in two stages: stage one will investigate the normative implications, whereas stage two will reconnoiter a set of standards for making modal claims in constitutional arguments. Part IV provides a case study in constitutional possibility by examining Sanford Levinson's proposal for a constitutional convention. Part V concludes with the problem of false constitutional necessity.
I confess that I feel like a quotidian clod when the constitutional theorists elevate to high theory. But I was actually able to put one part of it in terms even I can understand (and over which I have obsessed just bit here and here over the past week or so): reform of the Bowl Championship Series. Sanford Levinson's proposal for reform in Our Undemocratic Constitution is Professor Solum's case study in using social science and philosophical tools to assess the feasibility of any constitutional reform proposal.
Not to trivialize the subject (but I'm a trivial person), but, among others things, what struck me in the analysis was the similarity to assessing the possibility of college football reform:
- a constitution-like structure
- highly independent and multi-leveled institutional and individual participants, plus an interested public (e.g. bowl organizers, conferences, schools, coaches, etc.)
- significant stakes in the present system
- a present system that is largely the product of historical accident
- wide perception that the system needs reform
Is the call for a playoff system among large portions of the public, many football coaches, and some college administrators, in opposition to the interests of bowl organizing committees, conferences, university presidents, and the NCAA, a parallel to Levinson's call for collective action by individual citizens to overcome Congressional and other institutional inertia? Can Professor Solum's toolkit - of feasible choice sets, path dependency analysis, agent relativity, and the like - be employed to assess "Football Championship Possibilities?"
December 6, 2006 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack
Top Ten - Legal Ethics & Professional Responsibility, Dec. 5, 2006
It's changeover week at SSRN, and we have four new entrants to the top ten this week, including Michael Hatfield (Texas Tech), whose article we highlighted yesterday, and David Schizer (Columbia,
right), whose article addresses the imbalance between government and private tax counsel we noted here a couple months ago.
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 Scholarship Advice for New Law Professors in the Electronic Age, Nancy Levit, UMKC School of Law
7 The Strict Character of Fiduciary Liability Robert Flannigan, University of Saskatchewan
8 Enlisting the Tax Bar David Schizer, Columbia Law School
9 Fear, Legal Indeterminacy and the American Lawyering Culture Michael Hatfield, Texas Tech University School of Law
10 The Promise of Compelled Whistleblowing: What the Corporate Governance Provisions of Sarbanes Oxley Mean for Employment Law Elizabeth Chika Tippett, Harvard University - Harvard Law School
December 6, 2006 in Weekly Top Ten: SSRN Legal Ethics & Professional Responsibility | Permalink | Comments (0) | TrackBack
December 5, 2006
Plaintiffs' Lawyers or Trial Lawyers?
Posted by Jeff Lipshaw
At the risk having of having me provoking tort and employment lawyers into doing for our page hit statistics what Alan managed with the tattoo gemeinschaft, I am going to make an observation from many years of big firm practice on Bill Henderson's intriguing hypothesis about the educational pedigree of big-time plaintiffs' lawyers and big firm lawyers. Alan has already commented below, and Bill's post is getting lots of blog play at sites like MoneyLaw and Concurring Opinions.
Here's a hypothesis. Go down the lists of big regional firms, not the mega-firms based on the coasts (I'm thinking firms like my old firm - Dykema Gossett in Detroit, and its comparable firms in other midwestern cities, Thompson Coburn in St. Louis, Reed Smith in Pittsburgh, Ice Miller or Baker & Daniels in Indianapolis, and the like). I am willing to bet that if you compare the schools of lawyers describing what they do as tort or employment litigation to everyone else, you will see a similar split pattern of educational pedigree.
This is not in any way to disparage the complexity of tort or employment law. But TRYING tort and employment cases is, frankly, less an intellectual and more an emotional quotient game. I angered an academic colleague some time back by making this comparison, but if you take the standard jury instruction on negligence across the country, it doesn't vary by five words (that may be hyperbole, but not much), whereas the standard instructions on consideration, where they exist at all, are all over the lot. This is not to diminish the particular skills it takes to be a great personal injury lawyer. But the reality is that you are generally laying the factual story onto an off-the-shelf, pre-packaged "law."
My all-time favorite fictional character, the Old Bailey hack Horace Rumpole (above), the world's cleverest and most ferocious cross-examiner, the barrister who never let a client plead guilty, who trumpeted the golden thread of British justice, said over and over again he, like most great trial lawyers, had no particular use or calling for the "law."
Student/Young Lawyer Essay Contest on Legal Ethics: ABA Prize of $5000
Law students and young lawyers are eligible to compete for a $5000 prize and an April trip to D.C. for the prize ceremony. It's the ABA's 2007 Bert W. Levit Essay Contest, mean to generate interest in professional liability issues among students and young lawyers (who have joined the ABA by 2/14/07 [ignore flyers that suggest the join deadline was 2/06 -- it's really 2007, I checked]). The essay is based on a provided Hypo, and this year's theme is aiding and abetting a client's breach of fiduciary duty. Deadline: Feb. 16, 2007. See the Hypo, rules, and details at this link. [Alan Childress]
St. Mary's Symposium on Legal Malpractice & Professional Responsibility 2/23/07
If Adopting New Casebook by Zitrin, Langford and Mohr...
For those professors planning to assign, for Spring 2007, the new third edition of Zitrin, Langford, and Mohr, Legal Ethics in the Practice of Law, the publisher LEXIS has announced that it will be available in time for student use. More immediately, professors can download chapters now in page proofs so they can prepare for the course or design the syllabus, and need not wait till the book comes out. Contact Sean Caldwell here for directions to do this. Or they will ship a hard copy of page proofs for those adopting it, by asking Pali Chheda here. [Alan Childress]
Videocast CLE 12/19 by West/PLI on Privilege and Internal Investigations
Link here to a CLE webcast and video by PLI sold through West, for Dec. 19 and running 2 hours 10 min., entitled The Attorney-Client Privilege & Internal Investigations 2006. [Alan Childress]