Legal Profession Blog

Do Judges Have A Bias Favoring The Legal Profession?

There is a new article that raises a question that I find both interesting and relevant to my concerns about the legal profession's prerogative of self-regulation. The thesis is that there is a systematic bias favoring the interests of the legal profession that permeates judicial decisionmaking. Kudos to Prof. Benjamin Barton of the University of Tennessee-Knoxville College of Law for his exploration of this issue.  (Mike Frisch)

Graying of the Judiciary: NY Reconsiders Mandatory Retirement or Recertification

Posted by Alan Childress
Following up on a previous post about coming ethical issues in the demographic wave of aging baby boomers, I note that David Giacalone over at f/k/a has helpfully posted on the issue of mandatory retirement and related age issues for judges.  He discusses and links this Law.com (NYLJ) article today on a proposal in New York to recertify judges after age 70, along with rethinking the mandatory retirement rule:  "Court of Appeals judges should not be exempted from having their physical and mental fitness certified if they want to remain on the Court past age 70, the New York State Bar Association's House of Delegates determined Saturday."  The trend in the House of Delegates is, however, away from a fixed cut-off age, and the House "also adopted the recommendation of another committee...that law firms should abandon mandatory retirement age limits for their partners and show flexibility in hours and work assignments for older lawyers who want to keep practicing."

By Any Measure. . .

Miranda Perry Fleischer over at PrawfsBlawg has invited us to think about the relative incommensurability of being a law professor and the ways we substitute other measurements outside of school life.  This is a challenge I can't pass up, particularly if it is likely that someone can post more, better, or funnier ones than me.  Here are several off the top of my head (which on good days is five feet ten and half inches off the ground without shoes):

1.  Bad cholesterol.
2.  Good cholesterol.
3.  Pounds.
4.  Golf handicap.
5.  Inches taller than Childress.
6.  Delta Frequent Flyer Miles.
7.  Total count of "Great Philosopher Finger Puppet" collection.
8.  Number of the American Film Institute Top 100 movies I have seen.
9.  Zulu coconuts collected.

[Jeff Lipshaw]

Sserdlihc Was I Ere I Saw Childress

Apropos of Alan's post below, I have unearthed evidence that he was not shorter than Napoleon.  I have to admit that I now cannot recall if the photo at the left is of Napoleon, or from Alan's page on the Tulane Law School faculty web page.  If the latter, I believe it's a candid shot of a lecture in a Legal Profession class.

[Jeff Lipshaw]

Kritzer on Personal Injury Defense Practice and Sociology of the Defense Bar

Posted by Alan Childress

Herbert Kritzer (UW, soon Wm. Mitchell) has posted to SSRN his article: "Defending Torts: What Should We Know?"  It is forthcoming in the Journal of Tort Law.  It follows a study on the commodification of insurance defense practice that Bert published last year in Vanderbilt Law Review and posted here.  Here is his abstract to the new article:

This paper considers the state of our knowledge about the process of defending tort claims. A variety of specific topics are covered including relationships among the key actors on the defense side (alleged tortfeasor, insurer, and defense lawyer); the incentives faced by these actors; the resolutions of issues of liability, causation, and damages; different types of claimants; variations among tortfeasors and their insurers; conflicts on the defense side; staff lawyers and in-house counsel; the problem of defending sure losers; and the use of experts by the defense. A brief appendix presents some data on the sociology of defense practice (i.e., the characteristics of lawyers who describe themselves as specialists in personal injury defense).

California Bar Ethics Symposium in L.A. at Southwestern on 5/19

The California bar website announces the 11th Annual Statewide Annual Ethics Symposium --- May 19, 2007, Southwestern Law School, Los Angeles.  "This year’s theme is 'Ethics Around the Edges' and will include sessions on transactional practice, Sarbanes-Oxley and other topics."  MCLE credit is available.  Call 415-538-2167.   [Alan Childress]

Schmedemann on Pro Bono Volunteerism Ethos in Law and Elsewhere

Posted by Alan Childress

Deborah Schmedemann (Wm. Mitchell--Law) has posted to SSRN her article, "Priming for Pro Bono Publico: Inculcating a Norm of Public Service in New Lawyers."  Here is her abstract:

The paper explores pro bono by new lawyers as a form of professional volunteerism, relying on data gathered from 1,000 law students and lawyers. The paper first presents social science insights into volunteerism outside the law, including the psychology of helping, sociologists' insights into the social context of volunteering, and economists' analysis of conscience goods. The paper then presents data from two major surveys: recent law school graduates and students in Professional Responsibility courses. The study includes (1) individual attitudes, including approaches to moral reasoning, attributions related to poverty, and community orientation; (2) the impact of law school, including skill building and comparisons to family and religious influences; and (3) the role of the profession, including the impact of professional responsibility rules and invitations to participate.

Debunking the Debunking: 20 Greatest Myths of History?

Posted by Alan Childress

I am big into myths and hoaxes, and looking forward to the Clifford Irving biopic movie.  He would've gotten away with it too, if it weren't for those meddling kids!   Because I already posted on debunking legal myths and those infamous passed-on chain emails suggesting someone won a big verdict for getting coffee in the back of an RV while it crashed etc. -- as well as on email hoaxes of medical and health news -- I felt duty bound to post a link to this blog post (HT to Electronic Ephemera) purporting to detail and debunk the 20 greatest historical legends that are not true.  Number one is supposedly that George Washington was not our first President of the United States.  Not Prez #1?  Apparently he would be more appropriate for the 15 dollar bill.

But the true entertainment is in the 115 (!) and counting angry comments following the post, which blast the writer for being wrong most of the time in all sorts of ways, as well as another guy's blog post refuting the original list item by item.  Some of the other commenters provide persuasive reasons why some of the myths are indeed wrong, but not for the reasons cited by the original poster (e.g., the proper date for U.S. independence). 

I am, however, intrigued by the possibility that Napoleon was actually taller than me, which may serve as some distinction when 1Ls make their complex analogy on my Torts student evaluations.  Maybe they mean I have stomach problems.  Anyway, the original top-20 list got picked up by Digg for its requisite 15 minutes of spam, but says one arch debunker, "I don’t know why, since everyone in the blog’s comments and on Digg is maligning it, and rightfully so."

I do wish that someone would compile a list debunking the most common and pervasive legal history myths.  Unrelated, I once enjoyed a thorough law review article arguing in detail why footnote 3, not 4, of Carolene Products should have been the foundation for modern Equal Protection law.  Footnote 3 deals with the butterfat content in various forms of milk and milk products.  It was a great article.

More on hoax:  Here is a list of the ten greatest college pranks and hoaxes of all time.  Certainly Caltech has the best one, in the 1961 Rose Bowl.  Worthy of George Clooney himself.

Roy Kreitner's Calculating Promises

Posted by Jeff Lipshaw

Roy Kreitner (Tel Aviv, right) has just published a new book, Calculating Promises, published by Stanford University Press.  The sub-title "The Emergence of Modern American Contract Doctrine" probably does not do justice to its original and very interesting thesis.  Here's a portion of the blurb:

Breaking with conventional wisdom, the author argues that our current understanding of contract is not the outgrowth of gradual refinements of a centuries-old idea. Rather, contract as we now know it was shaped by a revolution in private law undertaken toward the end of the nineteenth century, when legal scholars established calculating promisors as the centerpiece of their notion of contract.

The author maintains that the revolution in contract thinking is best understood in a frame of reference wider than the rules governing the formation and enforcement of contracts. That frame of reference is a cultural negotiation over the nature of the individual subject and the role of the individual in a society undergoing transformation.

More precisely, Professor Kreitner insists (persuasively) that we cannot really grasp the development of contract doctrine over the last hundred years or so without placing it in what I interpret as a sociological context, the modern individuation of the human.  The book points out the error of thinking about the movement from tribes and communities to modern organization as a kind of foreordained and unidirectional teleology.  If modern management theory - teams, cells, non-command and control - is a reaction to precisely the Sloan-like or Ford-like scientific management the book describes, what can we say about the present "scientific" conception of law that developed at the same time as the scientific conception of management, and which pervades current thinking (albeit perhaps not Langdellian)?  Let me suggest that even the corporation is not as calculating as if often portrayed in legal academic writing.  While the corporation is a place where scientific decisions could be made (probably more so than a family, but recall Cheaper by the Dozen), it doesn't mean that within the corporation a certain tribal or group culture doesn't exist.  Computers still don't make judgments within corporations; people do.  And the battle between data and intuition as the basis for the decision making rages in a very complex way.

The book arrives as I have been honing my essay on the futility of trying to impute either morality or economics as the sole axiomatic justification for the institution of contract law.  Professor Kreitner's thesis involves a societal individuation; mine, I think, comes at it in reverse as an individual objectification.  Both pieces are relatively disinterested in the normative evaluation of particular doctrinal rules; both instead are trying to draw a line of demarcation between all the other relationships we might have, and those that happen to be regulated by the law of contract.

Tennessee CLE 5/4 on Lawyers Entering Public Service

As if answering Jeff's call for (or query about) lawyers as legislators and in other public positions, the Knoxville Bar Association, as part of its Law Day program and luncheon, offers this CLE:  The Importance of Lawyers in Public Service.   "A panel of local lawyer legislators and former legislators will discuss how they became involved in public service and how they managed to practice law and fulfill the obligations of their elected position."  It will be May 4, 2007, and equals one ethics hour.  More importantly, the buffet features Hand Pulled Hickory Smoked Pork.  Pigs appreciate the personal touch.  [Alan Childress]

Encyclopedia of Law and Society: American and Global Perspectives Announced by Sage, Out June 12

Posted by Alan Childress
Sage Publications announces its new Encyclopedia of Law and Society, to be shipped June 12.  It is edited by comparative law scholar David S. Clark (Willamette), shown right, and can be ordered from Sage here or Amazon here (the latter at a nice discount for pre-order).  The project includes a 5000-word entry "Lawyers," about the legal profession in the U.S. and comparatively, written by me.  I have attached that entry (with their permission) as a PDF file, LawyersChildress.pdf. 

The encyclopedia project was founded on David's vision and this ambitious mission:

     The three volume one million word Encyclopedia of Law and Society: American and Global Perspectives (Sage) is planned as the largest comprehensive and international treatment of the law and society field ever undertaken.  Its Advisory Board of 62 members, from 20 countries and six continents, represent interdisciplinary perspectives on law from sociology, criminology, cultural anthropology, political science, social  psychology, and economics.  Almost 700 entries will be biographical, historical, comparative, topical, thematic, and methodological, varying from 500 to 5,000 words. 

     By globalizing the encyclopedia's coverage, American law and society will be better understood within its historical and comparative context.  Conversely, the rich diversity of European, Latin American, Asian, African, and Australasian developments for the first time can be presented in one place.  In this way the truly holistic, interdisciplinary virtues of law and society can be revealed.

Improper Withdrawal

An attorney was reprimanded by the Missouri Supreme Court for withholding the labor certification of his client in an immigration case after the lawyer had terminated representation. He then sued the client for the fee and wrote a letter to the INS attacking the client's character. The court found that the lawsuit did not justify the disclosures to the INS, which violated the duty of confidentiality.  A dissent would have imposed a six-month suspension, noting that the attorney said he would possibly do the same thing if he had the chance for a "do over." (Mike Frisch)

Bar Exam And The ADA

The South Dakota Supreme Court affirmed  a decision to deny a bar applicant double time to take the bar exam. The applicant had been diagnosed with ADHD and depression while in law school and had been accommodated in law school exams.  He was allowed time and a half on the South Dakota bar and sought double time, which was denied. The court accepted  the conclusions of the expert retained by the Board of Bar Examiners over the conclusions of the applicant's expert. (Mike Frisch)

CSI: Foggy Bottom (The Harry Houdini Episode) + Alferd Packer's Indigestion

Posted by Alan Childress
Law professors don't often get to seem like rock stars, except for the time a law firm described Kathleen Sullivan that way, but my GW colleague James Starrs (right) gets his celebrity moments way more than the rest of us.  The school website has this one-sentence teaser on him:  "Starrs to Exhume Harry Houdini.  At the request of a great-nephew, law and forensics Professor James Starrs will try to determine if the famous escape artist was poisoned more than 80 years ago."  (Then links to this TV Guide story.)  Turns out from his faculty bio that he has recurring roles on this CSI: Foggy Bottom adventure:

Professor Starrs has directed or participated in scientific investigations into the Lindbergh kidnapping, the Sacco and Vanzetti robbery-murders, the Alfred Packer cannibalism case, the assassination of Senator Huey Long, the hatchet murders of the Bordens, the CIA-LSD related death of Frank Olson, the identification of Jesse James, the death of Meriwether Lewis, the location of the remains of Samuel Washington, and the Boston Strangler case.

Uh, OK, and I teach legal ethics and once owned a cat.

My theory has long been that Lizzie Borden's dad was originally from New Orleans; in response to a routine question from his daughter, he carelessly told her to go ax your mama.  Then the mom said go ax your father, thereby frustrating Lizzie (caught in an endless parental do-loop) beyond reason.

Alfred "Alferd" Packer was America's first man convicted of cannibalism when he and his five friends' roadtrip through the Rockies went awry.  But for lawyers' purposes, note that his conviction was reversed by the Colorado Supreme Court in 1886.  (Then he was convicted of manslaughter.)  And there is modern evidence that he killed in self-defense; but this legal 'out' may not satisfy Kantian vegetarians: "Okay, and then Packer gnawed on a few of them," this report continues.

I also note (true) that the University of Colorado's cafeteria was traditionally named something like the Alferd C. Packer Memorial Grill, but came back in the 80s updated as the Alfred Packer Grill.  Recently it has been threatened with further updating:  students "see the Grill as having a tired and dreary appearance."  And it is, ironically true to its name, off the beaten path:  "foot traffic to the Grill is poor because it is somewhat hidden from the main drag." 

Unrelated, two years ago school officials near Tucson pulled the plug on the Packer-bio student production of "Cannibal:  The Musical," deeming it "inappropriate."  Guess they prefer Hamlet.  Very likely the play was based on Trey Parker's first movie (a Packer musical), begun while a student at CU --  long before South Park showed the kinder, gentler side of Colorado living. 

The end of the Packer story leads us to New Orleans, says Wikipedia: "Through some unexplained process, Packer's head, dissected and carefully preserved, has come to be in the possession of Ripley's Believe It or Not Museum in the French Quarter...on permanent display."  But the man deserves some Kantian praise:  "He is widely rumored to have become a vegetarian before his death."  My own philosophy is that anything that "tastes just like chicken" is a reason just to eat chicken.

New Edition by July of Steinberg Casebook on Business Ethics

West announces its new 2d edition of Marc Steinberg (SMU Law [right]), Lawyering and Ethics for the Business Lawyer, slated for June 29 release.  It applies the problem method.  Its description is beneath the fold.  According to the webpage (so far), it is a pretty good deal:  "Suggested List Price: $0.00."  Still, some of my students would be asking me if it is OK to read the old 2002 edition and buy it cheap used.  And copy the model rules from a friend.  [Alan Childress]

"Description: This book is a timely and useful supplement to such basic courses as Professional Responsibility, business enterprises, and even commercial law. It may also be assigned in such classes as securities regulation, business/corporate ethics, and inside counsel. Indeed, a course in ethics for the business attorney may adopt this book as its primary source. The book uses the problem method to provide a concrete mode of analysis. This method works nicely to bring reality to the scene and energize the students. Rather than discussing abstract issues in a vacuum, the problem method in this setting enables students to apply the book’s materials to real situations. The book contains material devoted, for example, to the following subjects: 1) the role of the business lawyer; 2) identifying counsel’s client; 3) client-fraud dilemmas; 4) conflicts of interest; 5) role of in-house counsel; 6) related party transactions; 7) internal investigations; and 8) basics of business practice."

ADD as Mitigation?

The Maine Supreme Court imposed a one-year suspension, with all but 15 days suspended, where an attorney had manipulated his trust account to avoid discipline for prematurely taking a fee. The attorney's denial of misconduct was contradicted by a videotape that showed he had cashed the check in question. His mitigation was attention deficit disorder, which was not definitively accepted by the court, but rather was treated as a "working hypothesis." The court imposed probationary conditions that included treatment for the condition. (Mike Frisch)

New Certificate in Lapp Law Offered

To supplement its world-renowned international curriculum, the Tulane Law School announced today that it will be offering a mini-seminar next fall in the law of Lappland, to be conducted by Professor Lufnan "Loof" Lirpa of the Sverige-Suomi Institute of the University of Uppsala.  The one-credit offering will focus on the relationship between social norms and law, particularly in the herding of reindeer, the reaction of local population to the institution of the so-called "Arctic Magistrate's Tribunal," and the law of snow.

[Jeff Lipshaw]