Saturday, March 10, 2007
Posted by Alan Childress
At my school, the mailroom guys who run the sports "gaming" pools always seem to have chosen and eliminated the 24-10 result -- or Duke in the Final Four -- before the rest of us get the pickings (though this year it won't be Duke at least for men's). Me? I'm left with the chance to win $100 if only the score reflects three safeties by the end of the third quarter, or Slippery Rock makes the Final Four. "Go The Rock." That is one college mascot you don't want to screw with.
But not this time, baby! I am picking 132 as Jeff's final scaled MPRE score and intend to win this sucker.
Please post your own estimate of Jeff's score (0 to 150) in Comments here (which will show up later after someone posts them). If you're closest, you win a lunch at the next AALS (or sometime in Boston or New Orleans) courtesy Jeff. At least I say so without his authorization. Relatives of Jeff, and Jeff, may play as well. His students are in fact expected to play, not only for the chance to win lunch with him where he won't mention the UCC, but also better yet for just investing emotionally in having that feeling that he is going through what you are going through. We will trust that he will report his score accurately even if it means he loses the pool and costs himself $17.50 in free food to someone else.
A personal prediction and warning: If you pick "79," and win, don't expect that he will follow through on this vicarious offer in any way.
Keep in mind that Jeff has recently been described this way by no less than David McGowan: "Lipshaw is one of the best and most interesting writers currently working on ethics-related issues." Hazardous Use: despite this accolade, choosing "150" is a sucker bet, like Vegas putting up the highly lucrative but illusory odds that next year the Oakland Raiders will run the table and finally join the '72 Dolphins as the only unbeaten team. But if one of his three kids wants to pick "150" just to put more public pressure on him and be able to have that "at least you tried" faux-supportive parental-esque conversation with him after he scores 132 (priceless), well by all means do so. Shame is the high-voltage cattle prod of all winners, and parental disappointment masked in Lifesavers speeches the ultimate secret to success. Enjoy.
Posted by Jeff Lipshaw
It's over. I have taken my first standardized test (other than for my driver's license renewal) in almost thirty years (the administration of the Multi-State Bar Examination in East Lansing, Michigan in July, 1979). Here are some thoughts on, and reactions to, the preparation for and taking of the Multi-State Professional Responsibility Examination.
1. I admit that I did think a couple of times this week about bailing out. I don't need to waive into the Massachusetts bar. And maybe nobody would remember that I had publicly called myself out. On a similar note, you may fill in a box that says where the NCBE should send the score, but you don't have to have it sent anywhere (you contact them later to send it, but pay an additional fee). At first I thought about not filling it in, but then thought that was an unnecessarily defeatist view, and decided I would go for it.
2. I don't know how I did, and won't for about five weeks. I would be shocked if I didn't score high enough to get the 85 (on a scaled basis out of 150), but, of course, merely squeaking by would be somewhat embarrassing, even if not life-changing. I recall the real bar exam being much harder. Yes, you can always eliminate two answers, but the number of times when I felt really hung up between the remaining two seemed fewer than I recall from 1979. I still have the recollection, these many years later, that I guessed between the two best answers on EVERY question of the bar exam.
3. I cannot speak to the competing review courses, but I used the BAR/BRI materials, and they were helpful. Before doing any studying at all, I was consistently getting about 75% right, and probably was getting tricked up by putting in the most ethical answers in areas on which the rules are either technical or exceptional, like judicial clerks applying for jobs, or the entire Code of Judicial Conduct, or government service.
4. BE FOREWARNED! You have to attach an original passport-sized photo to the admission ticket. You get an e-mail from the NCBE with the ticket in a PDF file. If you merely download and were not to read it (ask the man who knows) until the morning of the exam, you would be screwed unless you had quick access to a passport photo taker (Kinko's or most drugstores nowadays, I understand). I happened to download it a couple of days ago, but that was pure luck.
5. My undisclosed location was Indianapolis, where I live, rather than New Orleans, where I teach. The idea of taking it with my own students was a little more than I could bear.
6. There were multiple rooms, by first letter of your last name, in the business school at IUPUI. You lined up, gave your admission ticket and ID to the proctor, and then were seated every other desk in the room. Right near the end, a couple old people came in, so I didn't feel quite so out of place.
7. Sitting and waiting for an exam to start recalls Einstein's homilies on relativity. I had five precisely sharpened Number 2 pencils, and I found myself doing a "Monk"-like thing trying to line them up perfectly.
8. My major concern was being stuck in the room if I finished early. I asked one of the proctors about it when I walked in and she said she thought we had to stay. I was relieved to find out you can leave when you are done. (I was, I think, the second person to leave the room. I took about 75 minutes to do the whole thing, and the first person was about 15-20 minutes ahead of me. I process pretty fast, so I was impressed if in fact she completed the whole thing and scored well.)
9. My only moment of near-panic was during the part where you fill in your name and address on the front of the answer sheet, and fill in the machine-readable circles. One, my hand was getting tired from gripping the pencil and, two, the proctor seemed to be going really fast. I was worried about whether I might cramp up.
10. After all the personal data, you have to fill in how many times previously you have taken the exam. I got to say "zero" but looking at the "four or more," oy vey!
11. By far, the most helpful preparation was taking the practice exams in the BAR/BRI book. With all due respect to Brad Wendel's excellent E&E book on the subject, which I have already praised, there is, it seems to me, "sport-specific" training going on here. There is a certain thought process and logic to the construction of the questions, and you need to work yourself into that. Moreover, the practice exams have explanations of the answers, so you can learn from the mistakes. Indeed, I decided to save about twenty of the practice questions for this morning, and did them as a kind of warm-up while I was eating breakfast. I got eighteen of the twenty right, so I figured I was okay.
12. Where I thought there was a close call on an answer, I circled the question number in the book, and reviewed those at the end, although I didn't change anything. I also kept checking about every five questions or so to make sure I was still filling in the line on the answer sheet.
13. Don't drink a "Venti" Starbucks thirty minutes before you start the exam.
14. I still don't know about the grading scale - it seems a little unsettling that we admit people to the bar if the 85 out of 150 really reflects that you don't know the answers to almost 50% of the questions (and I still don't know if I am one of those people!). On the other hand, many of the wrong answers aren't really wrong; they just aren't the best answers, or they are the "too ethical" answers.
15. It was a salutary exercise. I learned something substantive. I understand more thoroughly the experience our students will undergo. And I will seek therapy for the obsessive concern about each pencil being precisely the same length and degree of sharpness.
Aspasia Tsaoussis (ALBA--Bus., and Aristotle Univ. of Thessaloniki--Law), pictured below right [apparently with the beautiful area called Vouliagmeni in the background], has posted to SSRN a new article, "Female Lawyers as Pragmatic Problem Solvers: Negotiation and Gender Roles in Greek Legal Practice" (Feb. 2007). Here is her abstract:
The role of gender in negotiation has been extensively explored and documented in a now rich body of literature. A main strand of empirical evidence suggests that women, largely due to their gender socialization, tend to be weaker negotiators relative to men and consequently, less effective in pursuing their economic, social or family interests in diverse bargaining settings. We will present findings from a Greek setting that paint a different picture, in which gender does not have a strong impact on the negotiating process when the negotiating parties are members of a competitive profession. We used two different classrooms (one comprised of Greek attorneys-at-law and another comprised of Greek business students) as laboratory settings and distributed self-assessment questionnaires to test for negotiator style and gender-specific negotiation behavior. Our findings suggest that differences which may be attributed to gender are less pronounced for Greek legal practitioners. Stronger determinants of successful outcomes in negotiations were negotiators' individual characteristics (competitive negotiating style, persuasion, social and emotional intelligence) and the conformity of Greek lawyers of both sexes to the competitive group norms of their profession. All successful negotiators fit the profile of “pragmatic problem-solver” -- and most of these negotiators were female lawyers. We discuss these findings in the context of a larger social setting, especially by reference to the changing hierarchies and shifts in power in a legal profession increasingly populated by women.
Carolyn Elefant's comment to my Justice Denied post last Thursday has caused me to reflect a bit on my approach to this blog. It may appear to some that I am a lawyer hater who thinks every ethical lapse should be sanctioned without any consideration of the context or circumstances. I wish to make clear that, to the contrary, I love lawyers and the legal profession. My concerns about self-regulation arise when I see lawyers who use their license to abuse clients, opposing interests and the courts and are then excused for serious violations. My passion is particularly intense in the District of Columbia, where I have seen the disciplinary system up close and personal.
The Elgin case was a case where the hearing panel resolved every disputed fact favorably to the accused attorney, to the exclusion of highly persuasive contrary evidence as well as common sense. The committee attacked and revictimized the client/victim, making it clear that one who complains about a lawyer in D.C. risks being pilloried for their trouble. The committee "deliberated" for 2 1/2 years, despite a rule that requires that the report be filed within 60 days. The facts they found were ugly enough-- he caused the client to be sued as a result of an unethical business transaction, concealed and settled the suit behind her back, and used the client's credit card as a personal piggy bank. The lesson there is not the danger of representing friends, but the danger of being a client and trusting your lawyer.
In reading the decision, realize that the recitation of facts is the best spin that can be put on a representation that reflected discredit on our profession. If you want to read the hearing committee report, it is not available electronically even though it is a public document. If you want to know what really happened here, read Bar Counsel's post-hearing brief and you will see the extent to which uncontradicted evidence was ignored. Presumably, these public records are available on request from the D. C. Board on Professional Responsibility at 202-638-4290.
The vast majority of lawyers are ethical persons devoted to the public interest. The profession must show diligence in removing the few bad apples. Justice was denied here. (Mike Frisch)
Posted by Alan Childress
We have previously posted here, here, and here on "unbundled" legal services (a/k/a "limited representations"), where lawyers provide pieces of legal service to largely self-help clients. Many states, we noted, are approving the role, especially in certain courts or practices like family law. A hybrid and more integrated form of that in family law and other practices, called "collaborative law," has been presented as growing and here to stay. It involves disputing parties and their lawyers agreeing upfront that the clients will be enabled to do much of their own dispute-resolving, with the lawyers there for assistance and legal structure -- but that those lawyers will not go to court if the talks fail. The agreement also provides for full disclosure of relevant information.
The plan goes beyond mediation in the sense that the lawyers are actively involved in the process but without the threat of their own involvement in litigation. It is seen as client-empowering and only working with those whose main goals are cooperation and long-term practicality, and assumes some client sophistication and understanding. The goal is to stay out of court. In this sense it is very different from typical "limited representations," which are often used to facilitate court matters by prepping witnesses and ghost writing briefs. But it certainly limits upfront the goals and scope of this particular lawyer-client representation.
A Colorado state bar ethics committee has issued somewhat of a rejection of the notion that lawyers can ethically participate in collaborative law without risking conflicts of interest and violating an unflagging duty to their own client. [Link here to a downloadable version helpfully posted by idealawg. The opinion is dated Feb. 24, 2006, but I think it is really a 2007 ruling. I glean this not only from the sudden buzz on it among family law blogs but also because the opinion cites handbooks and law review articles from 2006 that I doubt would have been out by 2/06.]
The problem is perceived as one where the lawyer has agreed in advance to look out for the other client's interest and is not in a position to urge litigation where that is what may be best for his or her own client. The opinion's focus is on the pre-agreement that the lawyers sign and the ways they are limiting themselves in advance, said to be violating the Rule 1.7 duty not to allow third party interests (the other client's) to materially limit what they would be doing with their own client (like filing a motion in court). Specifically, the ethics opinion ruled that the standard lawyer agreements used in such collaborative plans are per se unethical.
There are helpful posts and comments on this ruling here and here. The latter blog, by John Crouch, criticizes the Colorado opinion as too patronizing to clients and not recognizing that the lawyer has given up a piece of his or her normal zealousness at the insistence of the client. So it is not correct to view the limitation as one inconsistent with doing what is best for the client as the client perceives it. In other words, even if the lawyer could not unilaterally take on a role that represents one client while considering the preferences and interests of the opposing client, in this arrangement the lawyer does so because that is what the client wants and agrees to. The lawyer can still advise the client to go to court but has simply agreed not to be part of that. "Just to clarify, collaborative clients do not give up the right to litigate. They only give up the right to litigate with the particular lawyers they hired."
Despite his view that the ethics opinion is wrong, Crouch goes on to say that the same result can be obtained by having only the two clients sign the agreements. I am not so sure that the ethics opinion would be as approving of that way around its essential problem with this arrangement. Crouch may be right in suggesting that this bar committee has a (my characterization) truncated and client-disabling view of the zealous lawyer in family law conflicts. But, if so, I doubt those with such a gung-ho conception of lawyer zeal would be very approving of facilitating clients' agreements in such a way either. Still it remains to be seen whether other states will view these agreements the same way, or whether the suggested solution of client-only agreements maintains the positives, structure, and binding power of collaborative law while passing ethical muster in various states.
Friday, March 9, 2007
Posted by Jeff Lipshaw
As Vic Fleischer over at Conglomerate observes, The Fetishization of Independence just posted by Usha Rodrigues (Georgia, right) is a terrific piece of work. Here is the abstract, with some comments following (in Larry Solum blue):
According to conventional wisdom, a supermajority independent board of directors is the ideal corporate governance structure. Debate nevertheless continues: empirical evidence suggests that independent boards do not improve firm performance. Independence proponents respond that past studies reflect a flawed definition of independence.
Remarkably, neither side in the independence debate has looked to Delaware, the preeminent state source for corporate law. Comparing Delaware's notions of independence with those of Sarbanes-Oxley and its attendant reforms reveals two fundamentally different conceptions of independence. Sarbanes-Oxley equates independence with outsider status: an independent director is one who lacks financial ties to the corporation and is not a close relative of management. Delaware's approach to independence, in contrast, is situational. As different conflicts arise in different contexts, the focus of concern - the influence from which we wish to insulate directors - varies as well.
There are at least two lessons for corporate reformers. First, the definition of independence should be refined to address the conflict at hand. For example, if the area of concern is executive compensation, the question is not merely whether the director lacks financial ties to the corporation and familial ties to corporate executives, but also whether the director lacks financial ties to the executives being compensated. Current independence rules overlook this obvious hole. Second, and more fundamentally, independent directors are useful only in situations where a conflict exists. An independent director - a part-timer whose contact with the corporation is necessarily limited - is not inherently better suited to further the interests of shareholders than is an inside director. Current rules thus over-rely on independence, transforming an essentially negative quality - lack of ties to the corporation - into an end in itself, and thereby fetishizing independence.
I wholeheartedly agree with Vic: this is a tremendously thoughtful approach to an issue often overwhelmed not only by conventional wisdom (as Usha puts it), but by those (within academia and without) with a particular agenda to push. Here are some additional thoughts on the subject:
1. My intuition (primarily as an old practitioner who spent a lot of time in corporate boardrooms) is that the SOX and SRO rules for non-independence are asymmetric as to their over-inclusiveness and under-inclusiveness. That is, I would venture that many directors are independent under the rules but not really courageous, smart and/or experienced enough to be independent in the Delaware sense (think, for example, about the court's characterization of Sidney Poitier's role in the Disney case. Fine actor, upright and moral citizen, but "independent" in a good governance sense?) On the other hand, if somebody has a conflicting financial interest, you at least know that there is some agency cost basis for thinking they might not be independent, or appear to be independent. So the definition of non-independence may be under-inclusive in not picking up the the patsies, and over-inclusive in picking up fine directors who happen to have a financial tie. My intuition is there is more of the former than the latter. And from a policy standpoint, I understand the over-inclusiveness more than the under-inclusiveness, but for that you have to think about the following point.
2. As Usha points out, the more fundamental question goes to the question whether there is any relationship between independence, however determined, and "good governance," whatever that means (and I suspect my definition matches hers). I think she is onto something near the end on comparing rules and standards, and Delaware's standards based approach truly does better approximate that inquiry than the meat-ax rules approach of SOX and the NYSE.
3. Not that I am hankering for a citation (I've already sent a contribution to Usha's favorite charity), but I discussed the failure of the rules-based approach to good governance two years ago in my Wayne Law Review article on the jurisprudence of Sarbanes-Oxley. Then I picked on the general meaninglessness of the SOX requirement of an audit committee financial expert (the infamous "ACFE"), and always thought that independence was another prime target. I am delighted to see Usha take it to the next level.
Thursday, March 8, 2007
Like Michael C. Jensen (Harvard Business School, right) needs my endorsement, but I was going to wait a couple days before posting a new top ten. I was reading through the abstracts, however, downloaded the slides he has posted on a theory of integrity (see paper #2), and got excited enough about it to go ahead with the post today. (Plus Alan Childress is a little under the weather and not posting - everybody say "feel better, Alan" - so I want to take up the substantive slack that occurs when he is not around.)
The thesis appears to be that integrity as it appears in the corporate world is a fact capable of description and measurement, as opposed to other less testable norms or values. While I am not sure that he has succeeded in demonstrating that integrity is measurable and testable as an empirical-analytic (as opposed to a normative-analytic) matter (those are Habermas' terms, by the way, not mine), I think this is tremendously interesting and exciting. My sense is that he is trying to do the impossible, which is to find a scientific basis for the justification of integrity, and that ultimately it is a normative proposition. But he is clearly onto something - which is that other proxies for good governance don't work, and that is the failure of things like Sarbanes-Oxley. My initial stab at trying to say something like that (in a fumbling, puerile sort of way) was infamously titled Sarbanes-Oxley, Jurisprudence, Insurance, Game Theory, and Kant: Toward a Moral Theory of Good Governance (much downloaded not for any particular insight, I'm pretty sure, but because it has a good technical explanation tucked in the middle of how D&O insurance works).
The abstract to the Jensen piece is below the fold.
And here are the top ten papers in the SSRN Legal Ethics & Professional Responsibility Journal as measured by downloads in the last sixty days.
1 Young Associates in Trouble, David T. Zaring, William D. Henderson, Washington & Lee University - School of Law, Indiana University School of Law - Indianapolis.
2 Integrity: A Positive Model with Applications to Corporate Governance and Finance (PDF file of Keynote Slides), Michael C. Jensen, Werner Erhard, Steve Zaffron, Harvard Business School, Independent, Landmark Education Business Development.
3 The Hypocrisy of the Milberg Indictment: The Need for a Coherent Framework on Paying for Cooperation in Litigation Bruce H. Kobayashi, Larry E. Ribstein, George Mason University School of Law, University of Illinois College of Law
4 Tax Opinions, David T. Moldenhauer, Clifford Chance LLP.
5 The View from the Trenches: A Report on the Breakout Sessions at the 2005 National Conference on Appellate Justice, Arthur D. Hellman, University of Pittsburgh School of Law.
6 Critical Legal Ethics Paul R. Tremblay, Boston College - Law School
7 Take Back the Night: Why an Association of Regional Law Schools Will Return Core Values to Legal Education and Provide an Alternative to Tiered Rankings Jon Garon, Hamline University School of Law
8 Effects of Reputation on the Legal Profession, Fred C. Zaharias, University of San Diego School of Law.
9 Differentiating Gatekeepers Arthur B. Laby, Rutgers University School of Law - Camden
10 Investment Banking: Immediate Challenges and Future Directions , Andrew Tuch, University of Sydney - Faculty of Law.
March 8, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession, Ethics, Lipshaw, Weekly Top Ten: SSRN Legal Ethics & Professional Responsibility | Permalink | Comments (0) | TrackBack (0)
The integrity of the legal profession in the District of Columbia sustained another body blow today when the District of Columbia Court of Appeals adopted a Board on Professional Responsibility recommendation of a six-month suspension for a wide array of serious client abuse including settling a case without the client's knowledge or permission, intentional prejudice to the client, conflicts of interest, impermissible business transaction with the client, dishonesty and interference with the administration of justice. The Board felt the hearing committee's one-year proposed sanction was too harsh. The court rejected Bar Counsel's exception calling for a meaningful sanction.
In most jurisdictions this type of conduct would and should get a lawyer disbarred. In D. C., the court with the moral and ethical obligation to uphold the integrity of the Bar defers to its board and treats the misconduct as relatively minor. Read the facts and weep. Also, the reader should be aware that the hearing committee bent over backwards to make findings favorable to the accused lawyer and hostile to the client/victim. And, it only took eight years to resolve the case!
Disclosure: I had some involvement in the prosecution prior to leaving Bar Counsel almost six years ago. (Mike Frisch)
Tuesday, March 6, 2007
Peter Lattman at the WSJ Law Blog is reporting that former managing partner and bankruptcy maven Harvey Miller may be returning to Weil Gotshal & Manges after a stint as an investment banker.
That is merely an excuse for me to say that Weil Gotshal is the home of corporate lawyers extraordinaire Tom Roberts (New York) and Jay Tabor (Dallas), and the country's top antitrust deal lawyer Steven Newborn. But what really distinguishes the firm is that fact that my daughter Arielle Lipshaw-Pride is a paralegal in the New York office.
I. Lewis "Scooter" Libby is a member of the District of Columbia Bar. He will be suspended immediately when the D. C. Court of Appeals receives a certified copy of the docket entry reflecting the jury's guilty verdict. The court will then order the Board on Professional Responsibility to determine whether any crime for which Libby was convicted involves moral turpitude per se. Perjury and obstruction of justice are crimes that the court has previously held involve moral turpitude per se. Thus, the board is required to recommend disbarment. The court will not take final action until the appeals process is finished.
If Libby is pardoned, the court may impose sanction based on the underlying facts of the case but not on the conviction. The court so ruled in the case involving Elliott Abrams. (Mike Frisch)
Monday, March 5, 2007
Son of Even More Than You Ever Wanted to Know About Lawyer Unhappiness Returns - The Sequel, Part IV
Building on my earlier empirical work on associate satisfaction, law firm culture, and billable hour expectations, I designed a national cross-profession study of lawyers practicing in firms, corporations, and government offices. The study obtained qualitative and quantitative information using two questionnaires: one designed for managing attorneys and one designed for supervised attorneys. We also conducted focus groups in five cities around the country.
Close to 50% of supervised attorneys agreed with the statement, "I feel stressed and fatigued most of the time." 63% of supervised law firm supervised respondents agreed that they are forced to sacrifice fulfillment outside work in order to advance their careers. Nearly half of the supervised attorneys in law firms and supervised attorneys in corporate offices reported that they were interested in exchanging lower compenation for working fewer hours.
I discuss these findings and others in a NALP Foundation book called, IN PURSUIT OF ATTORNEY WORK-LIFE BALANCE: BEST PRACTICES IN MANAGEMENT. I would be happy to send interested people a short article published in the NALP BULLETIN. I also discuss select findings in a Fordham symposium article called, The Billable Hours Derby: Empirical Data on the Problems and Pressure Points, 33 FORDHAM URB. L.J. 171 (2005).
I don't know how that compares to other professions (dentists, medical residents, inner-city school teachers), or to managing lawyers, but it's certainly another set of data points, and confirms that this is hard work that generally pays a pretty good wage. Whether I felt stressed and fatigued would have depended on what day you caught me (at any level). Fifty-fifty sounds about right. I would also have answered that I sacrificed fulfillment outside work every day of a twenty-six years career in the practice - as associate, partner, of counsel, and general counsel. Almost every second of certain points of my life was devoted either to work or to the needs of my children, and it was only as they grew up and pursued their own interests that I returned to many things that fulfill me: golf - at a handicap less than 20; art, such as I produce it; writing; teaching (first as an adjunct), etc. Even now, I have a hard time giving up writing (blog, article, book review or otherwise) to go play the little Audubon Park course, and I still haven't managed to regrout the mosaic that has been sitting in my apartment since August. You can take the boy out of the Type A environment, but you can't take the Type A out of the boy.
Posted by Alan Childress
Greg Baker (Wm. & Mary--Law, adjunct faculty and Director of Therapeutic Jurisprudence Program) has posted to SSRN's Law & Soc'y: Legal Prof. journal his article, "Do You Hear the Knocking at the Door? A Therapeutic Approach to Enriching Clinical Legal Education Comes Calling." It will also be published in Whittier Law Review. He describes his and his law school's experience with a student externship in "Therapeutics Court Practice," including the skepticism of colleagues. His abstract is reproduced below the fold.
March 5, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (0)
Posted by Alan Childress
Geoffrey Corn (South Texas College of Law), left, has posted to SSRN his article, "Developing Warrior Lawyers: Why It's Time to Create a Joint Service Law of War Academy." It recommends updating and consolidating JAG education for the military legal profession. It was published last year in Military Review. Here is his abstract:
This article critiques the current military legal education paradigm. It asserts that one lesson from the Iraq War is that there is no longer sufficient justification to disperse law of war education for military attorneys among the different service Judge Advocate General's (JAG) schools. Instead, the Department of Defense should consolidate the substantial expertise that exists throughout the military legal community into one center of excellence: a Joint Service Law of War Academy. This article asserts that such a center of excellence is essential to fully prepare military legal advisors for the demands of the modern battlefield.
March 5, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (0)
Posted by Jeff Lipshaw
I swear I read The New York Times Sunday Magazine for the articles (and the crossword), not the pictures. Which is why I skipped yesterday's "Soft Core on Campus" in favor of "Why Do We Believe? How Evolutionary Science Explains Faith in God" by Robin Marantz Henig.
This is another in the recent round of articles, inspired by the "unholy trinity of neo-atheists," Richard Dawkins (The God Delusion), Sam Harris (The End of Faith), and Daniel Dennett (Breaking the Spell), that explores the boundaries between science and faith. Recently, Time hosted a dialogue between Dawkins and Francis Collins, the director of the Human Genome Project, who is a believing Christian, and wrote The Language of God.
It is an interesting article, with evolutionary accounts for three phenomena: agency detection (those who presume an animus in a rustling sound - i.e., that it is a sabertooth tiger and not a rush of wind - are more likely to survive and propagate), causal reasoning, and theory of mind (i.e., understanding that others have an internal point of view like your own). The problem, of course, with this framing of the debate, while suitable enough for the pretentious folks who read the NYT Sunday Magazine, is that it still pits extreme versus extreme - the atheist who says belief is delusion against the fundamentalist to whom God is as real as my office mates. All of which is not particularly helpful to those (like me) I like to think of as transcendental agnostics. We TAs generally take the accommodationist (or Kantian) route of distinguishing between what can be known empirically as truth, and that which, even if we believe it to be universal and is often expressed as a "truth," can never really be known to be true.
Here's an additional take from a great thinker, Christine Korsgaard (Harvard - Philosophy, right), on this issue. Suppose, she tells us, that there is science that gives morality a genetic basis. Assume further it has been proved empirically that "right actions" are those which promote the preservation of the species, and "wrong actions" do the opposite. Accordingly, we have evolved into beings with a strong sense of "right" and "wrong." But, she asks, even if you believe the theory as a matter of explanation, would it "be adequate from your own point of view" in making moral decisions?
While it is true that a theory which cannot justify moral conduct normally also cannot explain why anyone who believes that theory acts morally, the basic philosophical problem here is not one of explanation. The case of the evolutionary theory shows that a theory could be adequate for the purposes of explanation and still not answer the normative question. And there is an important reason for this. The question how we explain moral behaviour is a third-person, theoretical question, a question about why a certain species of intelligent animals behaves in a certain way. The normative question is a first-person question that arises for the moral agent who must actually do what morality says. (Christine M. Korsgaard, The Sources of Normativity (Cambridge, Cambridge University Press, 1996), 14-16.)
Why does this have any bearing on, or place in, a blog about the legal profession? Because Korsgaard's "bugbear," the "Scientific World View," which holds normativity at arms'-length in favor of explanation, may well be at work in a discipline like law, in which we are far more comfortable giving third party scientific explanations (Langdellian or Posnerian, no matter) than addressing the first-party moral issue. Or as Brian Tamanaha has suggested, viewing what lawyers do as amoral instrumentality.
The National Organization of Bar Counsel's case of the month for January 2007 is a reinstatement case from Wisconsin. The attorney had been disciplined three times for a variety of misconduct that appears to be a product of an ingrained lack of civility ("cantankerous and grouchy" in the words of the majority). In one instance, he had hounded a judge with charges of misconduct, hiring a private investigator to look into the judge and taking out newspaper ads soliciting complaints against the judge. The judge committed suicide. The petition for reinstatement was granted despite testimony of several witnesses in opposition and over the dissents of three judges of the Wisconsin Supreme Court. The NOBC reports a newspaper quote from the attorney that he expects to practice law as he had prior to his various suspensions. (Mike Frisch)
Posted by Jeff Lipshaw
Dan Solove at Concurring Opinions has launched an interesting riff on Steven Levitt's assertion that there ought not be a tenure system in academia. My point here is not is to express an opinion on the merits of the tenure system one way or another. I am new to this system, and don't have tenure, so I will wait a while before jumping into that debate. But I do want to react to several of the comments which compare job termination and elimination in the business world to what the academy might be like were there no tenure.
My observation from perches at every level of a law firm and at high levels of a corporation is that structure and culture will influence how the organization deals with termination issues. I'm not sure the corporate model is the right one when speculating about a world without tenure. There is a model occupying the middle ground: the governance of a moderately democratic law firm.
"Could a dean fire a "pain-in-the-ass" professor?" presumes the corporate hierarchical model. It might also presume the model of the more hierarchical (or autocratic) law firms. But many law firms do just fine with a more congenial model. Back in my day, for example, our firm had a very, very transparent compensation and advancement system - too transparent perhaps - yet it was possible for a partner to be booted out for cause. On the other hand, the word was that at Jones, Day, as in most corporations, nobody knew how much anybody else made, and that Dick Pogue made every personnel decision. (Obviously, the current situation at Mayer, Brown suggests that the hierarchical or autocratic models still exist.)
Moreover, long before I had any idea what it was like to be on a faculty, I described a law firm partnership of the moderately democratic variety as a "loose aggregation of prima donnas." Let me see. You had partners who really didn't want to be bothered with administration: "just let me practice law." You had partners who wrote angry notes to the managing partner on a regular basis about everything from the coffee machine to office size to global strategy. You had partners who at partners meetings appeared to be in love with the sound of their voices, even though there was no clear substance being emitted. You had partners about whom other partners complained for their relative lack of productivity. You had partners who were technological wizards, and others for whom anything beyond quill pens and inkwells provoked a vehement Luddism. Sound familiar? Yet, at least in the fly-over parts of the country, these faculties, oops, I mean, law firms, are, I think, still managing to govern themselves.
This is simply to say that the options, if we look at other models, are not just (a) tenure as it exists versus (b) at-will employment at the discretion of the dean.
Sunday, March 4, 2007
Posted by Alan Childress
Jeff has helpfully re-raised the question whether anecdotal accounts of young lawyer unhappiness, or even statistical measures of relative satisfaction, state a universal attitude -- or are more or less an individual sentiment projected onto an entire demograph or the profession itself. The effort to frankly discuss not only the substantive issue but also the scholarship of it has been picked up by such noteworthies as Robert Ambrogi here at Legal Blog Watch, who cleverly wrote [and linked to Jeff at SSRN]:
Are lawyers unhappy? From a scholarly perspective, one might think the question is right up there with, "Do dogs bite?" and "Is grass green?" But thanks to Jeffrey M. Lipshaw at Legal Profession Blog, we learn that legal scholars are examining the evidence -- and coming to different conclusions.
And also Stephanie West Allen at idealawg, who here likens the cacophony of lawyer malaise as possibly the clucks of Chicken Little:
I am glad to see that more critical thinking is being applied to the question of lawyer unhappiness. I have long been skeptical about the widespread and dire conclusion that the lawyer sky is falling. Discussion is what is needed; it continues in the blogosphere.
Other bloggers, including John Steele and David McGowan (and excellent commenters) over at LegalEthicsForum, have cited Jeff's review essay and are asking the useful 'canons' question: What are the right books and articles to read to get an informed or entertained picture of young lawyers in big law firms? They and their readers list everything from fiction to chi-squared empirical studies. On that list, I added my comment that John Jay Osborn, Jr.'s The Associates (1979) is a less-known classic and fun read of biglaw life among young Hart-like idealists; it's a worthy successor to his iconic The Paper Chase. I love the part about a firm's fuming insistence on using an upside-down ampersand in its name. But the ending, without giving away too much, does not necessarily indict the idea or ideal of practicing law in one's young years. Anyway, very good writing, for a robot pimp. Or a law professor.
One could add to the list a fairly recent book of interviews and observations regarding beginning lawyers that were so dissatisfied with law practice that they simply got out. That is Deborah Arron's Running from the Law: Why Good Lawyers Are Getting Out of the Legal Profession (3d ed. 2003). Also consider the more spirtually-driven but positive-to-law book by Steven Keeva (then an editor for the ABA Journal) called Transforming Practices: Finding Joy and Satisfaction in the Legal Life (2001), which Booklist termed an "important book for practicing and would-be lawyers and a healthy antidote for law-bashing laypersons." Not necessarily about biglaw practice -- but not all doom, gloom, and "golden handcuffs" either.
Here is the link to the Second Circuit case mentioned in Alan's recent post. The lawyer was involved in a legal dispute with his former broker. He was accused of having faxed a forged court order to opposing counsel from his home fax. The case featured fax experts called by both the prosecution and defense. The faxed order purported to return a pending matter to a federal judge from the magistrate judge. The evidence showed that whoever composed the fax had an intimate knowledge of the case, which the defendant/lawyer did. The fax took over three minutes. The defendant denied throughout knowing anything about the fax, saying that he may have attempted to telephone opposing counsel at the time but did not connect. There was evidence that such an attempted call would have taken no more than 41 seconds.
The jury convicted on all counts and the court upheld each conviction. The defendant was subject to an enhanced sentence because he had used his skills as an attorney to compose the fake order. (Mike Frisch)
Fordham Conference on International Arbitration & Mediation Offered June 18-19 in NYC By Stein Center on Ethics
The Louis Stein Center for Law and Ethics at Fordham will cosponsor its second annual conference on International Arbitration and Mediation, including substantial attention to ethics issues for both subjects. It will be held in New York City on June 18-19, 2007. CLE credit is also available. The conference director is Fordham Adjunct Professor Arthur Rovine. [Alan Childress]