Sunday, September 30, 2007
Posted by Jeff Lipshaw
I've started but not finished a wonderfully creative piece by my colleague, friend, and office next door neighbor, Jessica Silbey (left), The Mythical Beginnings of Intellectual Property Law, forthcoming in the George Mason Law Review, but it was only this morning that I reached back to the very infancy of my academic life, and concluded that what was old is new, and, I suppose, vice versa.
If I may grossly oversimplify, Jessica's ambitious thesis is that utilitarian (read: economic) theories of intellectual property law do not fully account for its importance. She posits a narrative significance to creativity, supported by intellectual property rights, as a form of the "origin myths" or "origin stories" (I think of Horatio Alger, or George Washington and the cherry tree, or Abraham smashing the idols) that serve as models for human behavior and give meaning to our lives.
There is an inescapable link between my first dive into academic rigor as undergraduate some thirty plus years ago in the vibrant history department at the University of Michigan, and Jessica's call for narrative. I still recall the graduate student instructor (my long time friend Andy Achenbaum) in the first session of the small section of my first U.S. history course describing the paper requirements, and telling us that we should think of them as "legal briefs." As I had no idea what a good history paper nor a good legal brief looked like, it was not, at the time, particularly helpful advice. But I know now that all scholarship, implicitly or explicitly, makes an argument linking data through some structure or process of theorization.
The hot topic back then (mid-1970s) was the call to import social science methodology into historical analysis, as a (or the) way of making that argument. Another of my professors, Robert F. Berkhofer, Jr., had then recently written a book entitled A Behavioral Approach to Historical Analysis, a call to employ historiographical methods that pierced through the possibility of myth-making by understanding the roles of actors and interpreters in the writing of history. It was a reaction to the interpretive or narrative nature of the study of history, which had no doubt as much to do with the time and place of the narrator as it did of the actors. (The example I recall most vividly was that Arthur Schlesinger's The Age of Jackson seemed to import a fair amount of the The Age of Roosevelt, reflecting as much the author as the subject.) That is, to what extent were historians writing history, versus writing the Great Stories?
I was separately, and for my own purposes, trying to construct what had happened to Berkhofer's thesis about social science methods in history, and did a Google search this morning. I came upon a review, authored by Thomas Haskell at Rice, of Berkhofer's 1995 book, Beyond the Great Story: History as Text and Discourse (Harvard University Press, 1995). (The review is "Farewell to Fallibilism: Robert Berkhofer's Beyond the Great Story and the Allure of Post-Modernism," 3 History and Theory 347 (1998)). Now, I have not read the book, only the review, but it serves my point here just as well. The review was devastating, but, despite my fond memories of my time with Professor Berkhofer, I have to admit I was sympathetic to its point, which was essentially this: there's nothing like the reaction of the disappointed absolutist (read: Berkhofer the behavioral theorist) who despairs of his theory, and proceeds from rigorous causal explanation to a rejection of all theory with no stop in between for the possibility that life (read: history) is too complex either for algorithmic solution or complete deconstruction.
From our door post discussions, I suspect that Jessica herself has little patience for my meta-thinking about how academic or practicing lawyers think in models. But it seems to me that the same unresolved (and if Haskell is to be believed - and I think he is - unresolvable) issues of historiography, the perseverance of the old antinomies like explanation and understanding, of empiricism and intuition, prevail in the legal briefs we want to write as legal academics. This paragraph of Haskell's review of Berkhofer stopped me in my tracks:
The lamentable inadequacy of the so-called "modernist paradigm" turns out to be that it will not reduce to an algorithm. On [Berkhofer's] account, the normal paradigm makes of historical inquiry a fallible project, the crucial features of which cannot be embodied in any set of explicit instructions, or be carried out in any fixed mental mode. It requires of its practitioners that they be nimble enough to shift mental gears as the intellectual terrain varies and to juggle alternative modes of thought, which may pull in different directions. They must even dare to make judgment calls, with no guarantee of being right and every prospect of being criticized. Rather than declaring history to be purely an art or purely a science, the conventional paradigm assumes that historical inquiry, like life itself, displays elements of both. Indeed, it assumes that the mental repertoire of the historian differs in no deep, fundamental way from that of common sense, which is eclectic through and through. This strikes Berkhofer as intolerably messy and methodologically promiscuous, a project bound to fail because it naively encourages crossbreeding between different species of thought.
So here's a toast to the "intolerably messy" and the "methodologically promiscuous" as reflected in Jessica's new piece, at least as it stands as a humanities approach in contrast to the prevailing social scientism of the legal academy. And to more crossbreeding between different species of thought.
Saturday, September 29, 2007
The Illinois Supreme Court issued an opinion exploring the issue whether advanced fee payments are property of the lawyer on receipt. The case involved a claim by an adversary of the law firm's client that the fees remained the client's property and thus subject to attachment. The court held that the agreement between the client and the firm controlled, and that the fees were the firm's property. The Illinois ARDC web site provides a summary of the opinion with a link to the decision.
Friday, September 28, 2007
The Tennessee Supreme Court recently considered whether a non-lawyers involvement on behalf of a corporation in a proceeding before an administrative board was permissible. The court held that "[w]hen a non-lawyer's participation is put at issue, it becomes the duty of the Administrative Judge to determine whether the non-lawyer's participation may require the exercise of professional legal judgment. " It did here, thus the non-lawyer's involvement constituted unauthorized practice. (Mike Frisch)
A lawyer who ran for a State Representative position in Louisiana was found to have falsified his domicile address in official forms that provided notice of his candidacy. A hearing committee found that "[the attorney] was well aware that public offices have domiciliary requirements and that proper and accurate domicile had to be indicated on the qualifying forms." While the lawyer was a "pleasant and cooperative witness...[h]is testimony...was not believable. It appeared to vary to fit the circumstances, and in each case, exonerated him from responsibility." ( I would note that I have seen many bar discipline cases where the fact that the lawyer's testimony varied to fit the circumstances did not lead to a similar conclusion regarding credibility). The committee recommends a one-year suspension with six months deferred. (Mike Frisch)
Posted by Jeff Lipshaw
A week or so ago, I referred to an essay by the Israeli philosopher, Joseph Agassi. As I sit here (procrastinating) with a stack of nine books (not articles) I want to read, not including Charles Taylor's A Secular Age, which just came out and is almost 900 pages, but which I have yet to order, I take some heart from Professor Agassi's advice in his essay, Scientific Literacy, on the art of browsing, which I recommend browsing. Except when you are browsing, don't skip the introductory paragraph from this student of Karl Popper:
The central end of all my research activities was the effort to break down the walls of the academy. The wall is defended by the idea that not only do experts possess knowledge beyond the ken of lay people, which is trivially true, but that there is an unbridgeable gulf between the two. The aim of this presentation, then, is to discuss the possibility of building a bridge between the ordinary educated citizen and the expert.
This is apropos to legal academia, in particular, for three reasons: (1) the issue of walls and the breaking (or construction) thereof implicit in "law and..." disciplines; (2) the particular position of legal academia between scholarship (the expert?) and professional training (the ordinary educated citizen?), and (3) the fact that most of us, experts and ordinary educated citizens alike, are in fact simple ordinary educated citizens with respect to MOST of what we know, as almost any Tuesday or Thursday law school faculty lunch presentation will demonstrate.
Thursday, September 27, 2007
Posted by Jeff Lipshaw
If it happens that you read this blog and not Tax Prof Blog, then you are missing Paul Caron's series in which he asks "legal luminaries" to state the single most important piece of advice for the reform of legal education they would give Erwin Chemerinsky, the new-former-new dean of the new law school at UC-Irvine. Paul was lacking for luminaries one day, and asked me to respond, which I did, with my usual incomprehensible and stratospheric flair.
A law firm dissolution proceeding that was initiated in 1992 still is unresolved after a recent decision of the New York First Judicial Department. In remanding the case to a referee, the court awarded prejudgment interest to the defendants in light of the plaintiff partners use of funds that were the property of the dissolved firm. The plaintiffs also had failed to provide records concerning two client matters and had been held in contempt for disobeying court discovery orders. The referee had failed to explain the basis for determinations regarding allocation of firm assets. The court ordered the referee "to make detailed findings on each of the issues remanded for consideration. " (Mike Frisch)
The New York Second Judicial Department affirmed a judgment awarding a law firm unpaid fees in an action against a former client. The defense based on the absence of a written retainer agreement was rejected because the representation had commenced before New York adopted a rule required a writing setting forth the fee agreement. (Mike Frisch)
A psychiatrist engaged by the defense in an espionage case disclosed information to the wife of the person he had evaluated. After his services were terminated, he revealed information to "local, national, and international media." As a result, a complaint was filed with the Maryland State Board of Physicians that led to a probationary sanction. The psychiatrist appealed and the sanction was affirmed by the Maryland Court of Appeals.
During the evaluation, the defendant disclosed a "long history of sexual betrayal and expiolation of his wife." The retaining attorney instructed the doctor not to disclose the information, but the instruction was ignored and the information provided to the wife. The doctor's services were then terminated and he was instructed to make no further disclosures. The doctor nonetheless spoke to Sixty Minutes about the evaluation.
In rejecting challenges to the discipline, the court concluded that the doctor had breached his ethical duties to maintain confidences, which "did not end when [the doctor] was terminated." The court also rejected the doctor's claims that the disclosure was permissible under a Tarasoff-type duty to disclose and that his role in the evaluation process did not create a doctor-patient relationship. (Mike Frisch)
Wednesday, September 26, 2007
The Nevada Supreme Court recently announced the adoption of new rules regulating judicial fund raising. Under the rules, a judge may not solicit contributions until she has opposition in any election. The court's announcement states that the "new rule will have the effect of taking much of the money out of judicial elections." Let's hope so. (Mike Frisch)
An attorney appealed a judgment dismissing his lawsuit against two attorneys and their law firms for prosecuting an action against him without probable cause and with an improper purpose. The underlying federal lawsuit alleged that the attorney had been part of a scheme to defraud their client. Summary judgment was granted in this matter on the ground that the plaintiff had failed to demonstrate that the defendants lacked probable cause to sue.
On appeal, the Oregon Court of Appeals reversed and remanded the case. The court held that the element of favorable termination of the initial suit (an essential element of the claim) was "not well suited to summary judgment." The original suit had been settled but "the record gave rise to competing inferences regarding defendants' motivations for settling the federal action, thus precluding summary judgment." Further, the plaintiff was permitted to amend his complaint to request punitive damages as to some, but not all, of the defendants.
A disbarred lawyer who had referred six client matters to a law firm sued that firm for breach of contract and unjust enrichment when the firm failed to honor an agreement to share fees from the referred cases. The New York First Judicial Department ordered the complaint dismissed. The disbarred attorney may not recover fees based on the referral agreement. Any amount sought by a disbarred lawyer on a quantum meruit theory must be fixed by court order after notice to the client. Bacause the disbarred lawyer was never counsel of record in the referred cases, he had no basis to assert a charging lien. Thus, there is no viable theory of recovery in the matter.(Mike Frisch)
The New York First Judicial Department disbarred an attorney had pleaded guilty to a misdemeanor "involving his unlawful solicitation of business." In a seperate proceeding, the attorney was found to have engaged in extensive misconduct involving six clients. The attorney hired a non-attorney to solicit clients from hospital clerks. The lawyer paid the runner approximately $1,000 per referral. The payments totalled over $100,000. He deducted the payments on his tax returns "as business and personal expenses" and had not amended his returns to eliminate the improper deductions.
The court had earlier concluded that the solicitation offense was a serious crime and suspended the lawyer pending resolution of the ethics charges. (Mike Frisch)
Tuesday, September 25, 2007
Posted by Alan Childress
Thanks to the generosity of Randy Lee (Widener) and Russ Pearce (Fordham), and many others who contribute to it, here is the recent quarterly newsletter of the AALS Section on Professional Responsibility. It contains all sorts of case and rules summaries, article cites, announcements of conferences and meetings, career opportunities and updates, and editorials...in short, a wealth of info helpful to anyone interested in the field, not just law profs. Retrieve it in PDF format here: Download profrespnewsletter_sum07.pdf
The Wisconsin Supreme Court ordered the reinstatement of a lawyer whose license had been revoked in 2001 for multiple instances of dishonesty and conversion of client funds. A referee had recommended such action, finding that the attorney had been "of better than average quality" prior to suspension and that the misconduct was the product of "a difficult domestic situation, significant depression, some suggestion of unwise use of alcohol, and taking more legal work than he could reasonably hope to accomplish." The lawyer was ordered to pay the costs of the reinstatement proceeding within six months. He had made restitution and the referee concluded that the instances of conversion "could best be characterized as sloppy recordkeeping and failure to memorialize agreements with clients." (Mike Frisch)
The Louisiana State Bar has recently issued an ethics opinion on the issues that are presented when non-associated lawyers share office space and support staff. The opinion offers tips on "maximizing the utility of office-sharing without becoming ensnared in unintended adverse consequences..." (Mike Frisch)
Monday, September 24, 2007
Here's an interesting piece from the New York Times, courtesy of David Lat's blog, suggesting that there is little connection between taking courses in law school that are tested on the bar exam and actually passing the bar. I wish I had known this before I suffered through two semesters of commercial transactions. (Mike Frisch)
A Georgia lawyer was represented by counsel in a personal injury action. After judgment, he disputed an attorney's lien asserted against the proceeds. When his appeals bore no fruit, he filed a pro se civil action against the former lawyers, the trial judge and a member of the judge's staff, several court clerks and the judges who ruled against him on appeal. A bar grievance was filed and the civil action was voluntarily dismissed.
The Georgia bar counsel filed ethics charges. The Georgia Supreme Court concluded that the lawsuit was frivolous in that judges are immune from suit when acting in their judicial capacity. "[T]he lawyer's] claims of conspiracy amount to false statements that the Court of Appeals did not tell the truth simply because they ruled against him." The court expressed concern about the mental health of the lawyer, suspending him for at least one year with reinstatement conditioned on a mental health evaluation and compliance with treatment recommendations.
In an unrelated matter, the court disbarred an attorney for misconduct as a Department of Justice trial attorney. He took a Rolex watch and currency that had been seized pursuant to a search warrant. When questioned by the DEA, he returned the watch but not the money. He also had submitted a number of false travel vouchers. (Mike Frisch)
Sunday, September 23, 2007
Posted by Jeff Lipshaw
It's always interesting when something you are studying is the subject of popular commentary. The New York Times "Week in Review" today has an article on algorithms and the interactions between humans and computers that turns on the Turing test (developed by British code and cybernetics genius Alan Turing, the breaker of the German Enigma code at Bletchley Park during World War II). The ultimate test of artificial intelligence is whether a tester corresponding with a computer cannot tell if her correspondent is a computer or a human. (The article points out that the word "algorithm" comes from the name of the ancient Baghad scholar ibn Mus al-Khwarzimi, pictured on a Russian stamp at left.)
I happened to be reading an essay, "Analogies Hard and Soft" by Joseph Agassi (Tel Aviv University, Philosophy, right) (in David Helman's 1988 anthology, Analogical Reasoning: Perspectives of Artifical Intelligence, Cognitive Science, and Philosophy, which I picked up from Cass Sunstein's citation to it in his 1993 Harvard Law Review article on analogical reasoning). The essay also addresses the Turing test and the limits of artificial intelligence. To summarize, analogies fascinate because they waiver between "hard" copies or forgeries of something else, at one extreme (e.g. a computer simulation so good that it cannot be distinguished from a human correspondent, or a piece of expert art forgery), and wispy soft comparisons: "they are vague in the limits of their applicability, they are suggestive, they are not simply vague and indefinite, they stimulate one's thinking, they offer possibilities which scintillate between promise and disappointment." Here is the metaphysical issue Agassi raises: is it possible to program so powerfully that it replicates all possible human (i.e. brain) programming? The problem is one of self-reference and infinite regress. The Turing test requires a tester. If the tester concluded that the program was the ultimate copy, then the program should also be able to replicate what the tester just did. But that would mean that there had to be a "meta-program" to be tested now by a "meta-tester." And so on.
Indeed, the natural hypothesis here, that no program will ever be able wholly to replicate the power of the brain, particularly as it relates to creation or inventiveness, is, as Agassi points out, an inductive and not a deductive conclusion. Showing that a computer cannot replicate something, for example, as noted in the Times article, image or sound recognition (try posting a comment to this blog for an example of that!), merely supports but does not prove the thesis.
I suppose I ought to conclude this with a couple of implications that make this somehow relevant to lawyers. The point being made by the Times story is not: it is about systems that make up for the failure of the perfect algorithm by incorporating human brains into cybersystems, thus taking advantage of what human brains (creativity? inventiveness? analogy?) and computers (speed of processing) each do best. But a point made by Agassi is: the vagueness of analogy finds its practical frustration in the determination of patentability. "[H]ow inventive should a forgery be in order to make it patentable? . . . Michael Polanyi, the famous philosopher of science who took expertise as axiomatic and undefined, has claimed that no formula can be given to justify the patent-tester's decision." Indeed, Agassi notes the infinite regress of the attempt to use algorithms in the patent office; once a court states the formula, "competitors forge new forgeries by what is technically known as going around the patent, i.e. varying it trivially but with sufficient significance using formulas accepted by courts. Courts may take notice and improve their formulas, but not in retrospect!"
That's a lot of food for thought on a Sunday morning.