Saturday, January 27, 2007

Disciplining North Carolina Prosecutors

The current media storm regarding ethics charges against D.A. Mike Nifong arising out of the investigation and prosecution of three Duke lacrosse players may shed light on past disciplinary cases brought against criminal prosecutors in North Carolina. The Charlotte News Reporter relates a case where a man was sent to death row as a result of concealment of evidence and other serious misconduct by two prosecutors. The disciplinary charges were dismissed as untimely. They further report that another set of prosecutors who sent an innocent man to death row were reprimanded by the Bar. It will be hard to square that result with heavy discipline against Nifong but at least this matter may shed some light on the institutional bar leniency for abuse of the public trust by lawyers who undertake the sacred obligation to do justice. (Mike Frisch)

January 27, 2007 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Another Gift From the Legal Profession: Bizarre Warning Labels

Posted by Alan Childress
The legal profession gave America its cranberry sauce, Howard Cosell, Star Jones, current sales of Spam and Red Lobster, and even Howard Stern (not that one; the one who possibly fathered a child with client Anna Nicole Smith--known in the industry as the non-refundable retainer).681573_signage_3 The profession is also widely credited with overblown and frivolous personal injury litigation

Many of the most infamous cautionary "cases" of the suehappy millionaires--picture that RV nearly driving itself ["Toonces, look out!"] while its proud new owner is back getting coffee; or the house thief locked in the garage eating Purina Chow--are in fact urban myth spread by emails worthy of a U.K. lottery scam.  And Stella Liebeck's McDonald's-hot-coffee case is overused for tort reform rhetoric, without examination of her true injuries and recovery.  Even Miss Manners says members of the650904_notice_sign_1 profession just have to suck it up when it comes to our bad rep and the sport of lawyer bashing, though she says it more politely than that. 

But there is little doubt that one real by-product of tort lawyering in America, or at least the perception of it, is imaginative warning labels and instructions.  Sleeping pills warn that they may cause drowsiness.  Even baby shampoo says keep away from children.  Classics include the baby stroller warning to remove child first before folding, and the hair dryer warning not to use in oxygen tents.   In each such case, you get the feeling that the label scriveners were not being imaginative at all--that it was a response to an actual use and perhaps even a lawsuit.  You immediately visualize the precise activity that inspired a new warning Not to do that.

In the case of the oxygen tent, I see a blue-haired and handsome old lady much like the one tiptoeing over the Titanic remains, then tossing that hunking jewel that could have fed Biafra but hey she held onto it for memories and now it is time to let it go.  But instead in this scenario she sits in an oxygen tent and she has decided to look exceptionally well-coiffed for a possible visit to her bubble by an imagined Leo DiCaprio or by her real grandchildren (she likes it when they hug her a lot, but of course they're just groping her trying to score the Heart of the Ocean that they have long suspected she 585267_chemicals_applied_2 has muled).  She is just about to look blow-dry maahvelous when poof, lawsuit. 

Didn't she even see the early scenes in Apollo 13?  Bill Paxton was in that too, for crying out loud.  Learn from your co-stars, lady.

Here is a website that collects Wacky Warning Labels [Hat Tip to the entertaining yet trivial Electronic Ephemera].  A chapter summary of its wacky project and some omitted warnings with decent explanation (the PMS Midol that warns against use if you have an enlarged prostate) are here.  Their winner for year's wackiest warning is:

  • The warning label on a washing machine at a laundromat that warns, “Do not put any person in this washer.”

But I like two of the also-rans (shouldn't that be alsos-ran?) even better:

  • a label on a personal watercraft that warns: “Never use a lit match or open flame to check fuel level.”
  • warning on a cell phone which says: “Don’t try to dry your phone in a microwave oven.”

Three past winners, worth considering their652600_signs_02_1 origins:

  • warning on electric drill for carpenters cautions: “This product not intended for use as a dental drill.”
  • cartridge for a laser printer warns, “Do not eat toner.”
  • digital thermometer: "Once used rectally, the thermometer should not be used orally."

January 27, 2007 in Law & Society | Permalink | Comments (1) | TrackBack (0)

Friday, January 26, 2007

Critics of the DOJ McMemo Say It Changes Little

Story here today on Law.com as to the McNulty Memo and whether it realistically alters the prior 603021_memo Thompson Memo.  Quoted critics say that it just drives the prosecutorial tactics or demands underground, sort of "don't ask, don't tell."  I argued on LPB here, last month, that the new DOJ policy was tweaking, semantics, and mainly a publicity stunt -- as long as the carrot-stick ratio remains the same.  Ultimately so far I would say that it is really just the McNulty Pocket Part.  [Alan Childress]

January 26, 2007 in In-House, Privilege | Permalink | Comments (0) | TrackBack (0)

Moss on Secret Settlements and Competing Economic Analyses

Posted by Alan Childress

Previously we posted links on the ethics and economics of various proposals to prohibit confidential settlement agreements -- as well as links to good articles by Drahozal & Hines, and Dana & Koniak, on the subject.  Now Scott Moss (Marquette--Law), pictured right, has posted on SSRN his economic study of secret settlements: "Illuminating Secrecy: A New Economic Analysis of Confidential Settlements."  ItMossscott  will appear this spring in Michigan Law Review, volume 105.  Here is his abstract:

Even the most hotly contested lawsuits typically end in a confidential settlement forbidding the parties from disclosing their allegations, evidence, or settlement amount. Confidentiality draws fierce criticism for harming third parties by concealing serious misdeeds like discrimination, pollution, defective manufacturing, and sexual abuse. Others defend confidentiality as a mutually beneficial pay-for-silence bargain that facilitates settlement, serves judicial economy, and prevents frivolous copycat lawsuits. This debate is based in economic logic, yet most analyses have been surprisingly shallow as to how confidentiality affects incentives to settle. Depicting a more nuanced, complex reality of litigation and settlement, this Article reaches several conclusions quite different from the economic conventional wisdom - and absent from the existing literature.

First, contrary to the conventional wisdom that banning confidentiality would inhibit settlement, a ban may promote early settlements. No ban could effectively cover settlements reached before litigation, so any ban would incentivize parties to settle confidentially pre-filing - and such early settlements save more litigation costs. Second, a ban would affect high- and low-value cases differently, depending on whether publicity-conscious defendants worry more about one big settlement or several small ones. Third, more settlement data could help parties settle and also, by decreasing litigation uncertainty, deter frivolous litigation. Fourth, more settlement data could reveal which companies engage in unlawful practices, yielding more efficient decisions 10019_21858494 by consumers, workers, and investors who otherwise engage in over-avoidance when unable to distinguish hazardous from safe goods.

In sum, a confidentiality ban would decrease settlements of cases already in litigation but it would have many countervailing positive effects: increasing pre-filing settlements; deterring frivolous lawsuits, and improving product and job market decisions. We cannot predict the net effect of all these competing effects, however, contrary to the traditional economic story. Economics thus does not counsel against a confidentiality ban; jurisdictions adopting a ban would be undertaking a worthy experiment with a promising but uncertain policy.

This analysis typifies the schism between traditional economic analyses, which reach definite conclusions by simplifying complex realities, and many contemporary economic analyses, which are realistically nuanced but do not yield categorical conclusions. Ultimately, the latter brand of economics is sounder and still can clarify important matters such as parties' incentives, rules' costs and benefits, and the tradeoffs and competing effects of a policy like a confidentiality ban.

January 26, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession, Economics | Permalink | Comments (0) | TrackBack (0)

Do Law Blogs Fit Under NY's New Ad Rules?

Posted by Alan Childress
That is certainly a question that will take more than one post or one blog to answer -- and the answer may have to come from the courts -- but here are some thoughts from NY lawyer-blogger Nicole Black 410779_66811632_2 (at Sui Generis) on why, despite all the blogger angst about the new rules, she thinks most law blogs do not come under the rules.  And a good comment after, as to why she may be wrong (or at least found to be, by future courts).  Black also offers a helpful round-up of various sources on the new NY ad rules which go into effect 2/1.

January 26, 2007 in Blogging, Economics, Ethics | Permalink | Comments (0) | TrackBack (0)

Iowa's Attorney Ad Disbarment Case Makes NOBC's Case of the Month

Posted by Alan Childress
Previously Mike Frisch had posted (and linked) here on the Iowa Supreme Court's opinion disbarring the anything-for-an-ad attorney Dennis Bjorklund.  And the case made 'Case of the Month' status at the National Organization of Bar Counsel.  It is reported here from NOBC with details and clever commentary showing that the dagger to his license was the material misrepresentations he apparently made during the bar discipline process for the ad (which he claimed was published by a third party without consent).  A taste:  "Evidence was, however, submitted at the disciplinary hearing that the publisher had a telephone number that was, coincidentally, the same as Bjorklund’s office telephone, save for the last two digits."

Bjorklund's elaborate Rube Goldberg machinery to hide the source of advertising and allow him plausible {?} deniability is both comic and tragic:  When will candidates for the bar and members under investigation get that lack of candor and cooperation with the bar is often worse than the underlying Bridges_of_madison_county_3charge?  As Mike wrote about misleading testimony in the prior bar investigation, "that misconduct should invariably result in severe discipline, as it demonstrates present unfitness to practice law." 

In Bjorklund's long history with the bar discipline process, the Iowa Supreme Court at most reprimanded him for the advertising infractions.  Catching him lying about the ads, and avoiding service of process from the bar by calling himself 'Jake' and outrunning the server (save for a shoe he lost in the chase), meant disbarment.  Doh!

January 26, 2007 in Bar Discipline & Process | Permalink | Comments (7) | TrackBack (0)

Zaring and Henderson on What Two Lawyer Novels, and the Stats, Say About Associates' Happiness

Posted by Alan Childress
David Zaring (Wash. & Lee [left]) and William Henderson (Ind.--Bloomington) have posted on SSRN here their new review essay:  a comparison of the life and unhappiness of big-firm "elite" associates portrayedWihender_2 Zaringd in two recent novels with the available empirical data on job satisfaction gleaned from associates from lots of different law firm experiences.  They call it "Young Associates in Trouble," and it will appear this year in Michigan Law Review, volume 105.  Here is the abstract [I added book links]:

In the Shadow of the Law.  By Kermit Roosevelt.  New York: Farrar, Straus and Giroux.  2005. Pp. 346. $24. [Here on Yahoo.]

Utterly Monkey: A Novel.  By Nick Laird.  London & New York: Harper Perennial.  2005.  Pp. 344. $13.95. [Here from HarperCollins.]
 
Two recent novels portray the substantively unhappy and morally unfulfilling lives of young associates who work long hours in large, elite law firms. As it turns out, their search for love, happiness, and moral purpose is largely in vain. In the rarefied atmosphere of bothSimg_t_t0312425880gif110 fictitious firms, the best and the brightest while away their best years doing document reviews, drafting due diligence memoranda that no one will read, and otherwise presiding over legal matters with lots of zeros but precious little intrinsic interest. If this is what large law firm practice is like, the reader is bound to ask why large law firm jobs are so coveted. Is it really all about money?

In this review essay, we compare Kermit Roosevelt's and Nick Laird's bleak portrayals with findings from a unique dataset on law firm profitability, prestige, hours worked, and various measures of several associate satisfactions. We also mine the findings of several 9780060828363 empirical studies that track the experience of lawyers over time. We observe that higher firm profitability is associated with higher salaries, bonuses, and prestige. Yet, higher profits also have a statistically significant relationship with longer hours, a less family-friendly workplace, less interesting work, less opportunity to work with partners, less associate training, less communication regarding partnership, and a higher reported likelihood of leaving the firm within the next two years. Nonetheless, graduates from the nation's most elite law schools tend to gravitate toward the most profitable and prestigious (and most grueling) law firms. The attraction of the most elite firms may be superior outplacement options. Or perhaps, as both novels intimate, it may stem from a reluctance to make hard life choices.

The available empirical evidence suggests that success within the elite law firm environment often entails a difficult array of personal and professional trade-offs. Although we find our empirical data to be informative, the novel may be a particularly effective vehicle for examining the rather existential nature of these choices. Thus, we suspect that the accounts drawn by Roosevelt and Laird will resonate with many elite, large law firm lawyers.

January 26, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession, Associates, Lawyers & Popular Culture | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 24, 2007

"360 Reviews" and the Confidentiality of Internal Employee Evaluations

Posted by Alan Childress
Just as Jeff was posting here on the possible expansion of the "360 Degree Review" of employees (considering not just their superiors' views) into the world of law firms, came this unusual story and interesting reader comments today on WSJ's law blog:  Sullivan & Cromwell passed around a client's actual internal employee reviews (that it acquired in representing the client) to show its own lawyers how they could benefit from the 360-degree perspective. But in the process S&C did a minor and not particularly shielding job of redacting client employee names on the exemplar evaluation forms.  Of course the actual review forms then found their way to the press.  No one is saying whether the client consented but it appears obvious that at least the employees did not.  The client is Goldman Sachs and three of the employee forms were about bigwig partners.  So WSJ is asking about the ethics (and judgment and client relations) of that and the readers' comments are exhausting the many ways this was a mistake on all those fronts.

January 24, 2007 in Privilege | Permalink | Comments (0) | TrackBack (0)

N.C. Bar Amends Nifong Ethics Complaint To Add DNA Withholding

The AP is reporting (here is the New York Times on-line version) that the North Carolina bar's ethics complaint against DA Mike Nifong is now amended -- as announced today -- to include charges based onDna his withholding DNA evidence from the defendants in the Duke lacrosse prosecutions and for, related to that, misleading the court.  Here too is the local North Carolina TV version of the story, from WRAL, just updated.  [Alan Childress; HT to Ray Diamond]

January 24, 2007 in Bar Discipline & Process, Hot Topics | Permalink | Comments (0) | TrackBack (0)

New Text Recommended

I have taught a two credit Professional Responsibility course for many years. This semester, I am teaching a three credit version of the course called American Legal Profession, using my former materials supplemented by Dzienkowski and Burton's Ethical Dilemmas in the Practice of Law: Case Studies and Problems (2006). I have been very favorably impressed with the book, which uses a combination of problems and key cases to illustrate real world issues that students will encounter in legal practice. (Mke Frisch)

January 24, 2007 in Teaching & Curriculum | Permalink | Comments (0) | TrackBack (0)

Reality and Student Evaluations

Posted by Jeff Lipshaw

Kaye_1Anders Kaye (Thomas Jefferson, left) has posted a blogging instant classic over at PrawfsBlawg on preconceptions and the way they distort how professors and students perceive the reality of each other.  It is not to be missed.

This is also the season in which most of us rip open the envelope and look at our student evaluations (assuming our grades are in).  I am a relatively rookie to this, but I have been dealing with getting and giving evaluations in a professional setting for going on twenty-eight years.  The form differs.  In the law firm (back in my day), getting an evaluation as an associate was pretty thorough.  There was a form that every partner and senior associate for whom you did work filled out, and a "kindly" partner reviewed that with you.  Of course, it didn't reveal if you were a buddy-stabbing two-faced creep to your peers, the younger associates, the paralegals, and the staff.  And, in my firm, you were relieved of this misery once you became a partner.  At that point, the process was Hayekian:  all that information got synthesized in the marvel of the price mechanism:  your compensation points.

The corporation tried to deal with two different problems.  First, there was the hierarchical review model in which the only input for the review was your direct boss.  That would have been cured by using a law firm model, but it didn't deal with the second problem, the two-faced creep issue, which still infected the law firm model.  So corporations (mine included) went to the 360 review, in which even your peers and the people who reported to you got to weigh in.  (This is a digression, but my favorite performance review dilemma was the annual ritual in which my boss would begin my review by telling me I was too defensive.  Think about it.  Either I disagreed, proving him right, or agreed, proving him right.)

And finally, we have student evaluations of teachers.  I'm assuming that even if you are God's gift to teaching, you still get evaluations that make you feel like an axe murderer.  But this is what struck me about Anders' amazingly perceptive post and student evaluations, at least compared to the ones I'm used to:  the institutional gap that exists between reviewer and reviewee.  The task in dealing with any criticism (or praise for that matter) is facing down denial, self-deception, and self-justification, and facing up to reality.  But the harder part in dealing with student evalutions - the praise and the pan - is determining just what that reality is.

January 24, 2007 in Teaching & Curriculum | Permalink | Comments (1) | TrackBack (0)

Tuesday, January 23, 2007

Whelan on Professionalism and Values

This sounds like a very interesting article from Christopher J. Whelan (Oxford); unfortunately, only the abstract and not the full download is posted to SSRN.  Look for it in Volume 54 of the Buffalo Law Review (2007).  Here is the abstract:

This article explores two key core values of the legal profession - the exercise of independent professional judgment and respect for the rule of law - in the context of the relationship between Vinson & Elkins and Enron. V&E was the outside law firm turned to most frequently by Enron prior to its spectacular fall from grace in 2001. The analysis suggests that core values do play a significant role in corporate law practice but in unexpected ways. While core values promote a professionalism ideology that has an impact on the lawyer-client relationship, this ideology serves to undermine the public interest role implicit in professionalism. The reason is that lawyers define their role in terms of the law, of what the law allows and predictions of what the law will be. The 'problem' of their behaviour is not one of deviance - breaking the rules - but of compliance - delivering legality.

Therefore, there needs to be some realism about professionalism.  Corporate lawyers are legal realists. The regulation of corporate lawyers is less a problem of lawyers as professionals but a problem of law and its capacity to control.

[Jeff Lipshaw]

January 23, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (0)

The Judge Judy-fication of Legal Ethics - Part II

Posted by Nancy Rapoport

My tracking of the Judge Judy-fication of legal ethics continues with a Herronor ("Horronor"?) sighting on Ellen today.  Judge Judy argued that she's useful to the people appearing on her show because she has experience.  That statement reminds me of the famous quote, apparently attributed to Jim Horning, although I'd heard that the quote originally came from Mark Twain:  "Good judgment comes from experience. Experience comes from bad judgment."  (Others attribute that quote to, among other folks, Rita Mae Brown and to Higdon's Law.) 

January 23, 2007 in Ethics, Lawyers & Popular Culture, Professional Responsibility, Rapoport | Permalink | Comments (0) | TrackBack (0)

Parsing things just a tad too closely

Posted by Nancy Rapoport.

On yesterday's The Colbert Report, Stephen Colbert dissects the Attorney General's testimony before Congress in his regular segment called "The Word." This video could be useful in statutory analysis courses.

January 23, 2007 in Lawyers & Popular Culture, Rapoport, The Practice | Permalink | Comments (0) | TrackBack (0)

Wendel on Freedman, Rawls, and the Lawyer as Moral Agent to Clients

Posted by Alan Childress
Bradley Wendel (Cornell) has posted on SSRN--Law & Soc'y: Legal Prof. his article, "Institutional and Individual Justification in Legal Ethics: The Problem of Client Selection," which will also appear in a Hofstra Law Review salute to Monore Freedman.  Here is the abstract:

Monroe Freedman is well known as a proponent of the "standard conception" of legal ethics - that is, that a lawyer cannot be criticized in moral terms for actions taken in a representative capacity. Surprisingly, however, Freedman has argued that client selection is a decision for which a lawyer may be required to provide a justification in ordinary moral terms. This apparent inconsistency reveals a conceptual distinction in normative ethical theory, which is often blurred, between justifying a practice (in this case, the legal system or some specialized practice such as criminal defense) and justifying an action falling within the practice (here, either actions of a lawyer while representing a client or the decision to accept or decline the representation of a client). A practice as a whole must be justified on the basis of moral concepts, such as consequences, rights, and other values. Once a practice exists, however, particular "moves" within the practice areB_wendel_2 justified on the basis of the constitutive rules which make up the practice, not on the basis of underlying moral concepts. This is the practice conception of rules, defended by John Rawls in an influential 1955 paper.

This paper makes two arguments - one metatheoretical and one a substantive argument within legal ethics. The methodological or metatheoretical argument is that professional ethics should proceed at one level of abstraction or another, but not equivocate back and forth between them. One can give systemic reasons why a lawyer ought to act on rules of a practice, and not on the basis of an all-things-considered moral evaluation of what she ought to do in the situation. Once committed to this style of reasoning, however, consistency demands that the frame of reference for the argument not suddenly be shifted to ordinary moral considerations. On the other hand, one might believe that clarity or some other consideration demands addressing questions of professional ethics exclusively in terms of first-order moral values. If one adopts that stance, however, it is impermissible to appeal to blanket permissions on the basis of the rules of the game. Every action must be justified on an all-things-considered basis. Subtle shifting between the two levels of justification creates unnecessary confusion, and may account for the occasionally frustrating nature of debates in legal ethics, where the participants seem to be talking past each other. Moreover, it is part of the general pattern of ethical justification in the public domain - including political and legal ethics - that the primary focus of evaluation is the institutional structure through which action occurs. This evaluative perspective, which is one rough distinction between political and moral philosophy, excludes from deliberation the full range of reasons that would ordinarily be relevant in practical reasoning. The client-selection debate, like any controversy within legal ethics, should therefore be resolved not as a matter of straightforwardly applying ordinary moral values, but in the way suggested by Rawls, with due attention given to the institutional setting of the action.

The substantive argument within legal ethics is that the concept of agency does not require that a practice build in significant opportunities for the exercise of judgment on the basis of ordinary moral values. Reflective self-consciousness, which is constitutive of moral agency, is consistent with opting into a practice at a relatively high level of generality, and considering onself bound by the rules of the game. At the very least, whatever one may say in terms of moral agency, in support of an argument that a lawyer has moral discretion in client selection, can be said in support of an argument that a lawyer ought not to follow the standard conception while acting in a representative capacity. Client selection and representation stand or fall together, from the point of view of their effect on agency.

[UPDATE:  Brad Wendel, in this new post at LegalEthicsForum, applies his analysis of client identity and selection to the particular recent problem of the DOD's Cully Stimson's comments on representing "terrorists."]

January 23, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (0)

Monday, January 22, 2007

Nancy Rapoport to Kevin Bacon in Four Steps

Posted by Alan Childress
Given Nancy Rapoport's credited role in the Enron movie, I proposed here that she be subjected to the degrees-of-Bacon analysis.  This cannot be done with your usual law professor, though I guess one could name a few other possibles (especially if relatives count, such as Elizabeth McGovern's dad  [and she starred in She's Having a Baby directly with Kevin Bacon]). 

My best solution for Nancy-Kevin was five links, and each actor portrayed a lawyer at least once in the chain.  She 'saw' my five and raised.

  • My five:  Nancy to narrator Peter Coyote in her movie; Coyote (as DA) to Glenn Close (as defense attorney) in Jagged Edge; Glenn Close to Michael Douglas (as attorney/cautionary tale) in Fatal Attraction; Michael Douglas to Demi Moore in Disclosure; and Demi Moore (as military attorney) to Kevin Bacon (as same) in A Few Good Men.
  • Her four:  start same but connect Glenn Close to John Lithgow in The World According toRibbon Garp; then Lithgow to Bacon in Footloose

Nancy wins.  In this particular game, however, second prize is more prestigious.

January 22, 2007 in Blogging, Lawyers & Popular Culture, Rapoport | Permalink | Comments (2) | TrackBack (0)

Judges Should Not Abdicate Decisionmaking to Rock-Paper-Scissors

Posted by Alan Childress
That assertion seems pretty obvious, but I take it one step beyond.  While some courts have disciplined their members for making judicial decisions based on coin-flips and the like, a more subtle abdication seems to be catching on -- a Georgia federal court borrowed it from a Florida one -- that is no less troubling to me than deciding by lot:  it is the practice or threat of ordering opposing455284_rock_paper_scissors_2 attorneys to resolve their own differences by playing rock-paper-scissors. 

Frank Snyder reports on the trend here at ContractsProf Blog, and adds a great note on the Texas version (rock-paper-gun).  He has an excellent icon for his post that you need to click on to appreciate (much better than my generic one, right). 

Judges are supposed to judge and decide.  That function demands more than making litigants decide everything themselves, especially by arbitrary methodology.  In the Georgia case, for example, one side was asking for a protective order.  It may have no merit, or some, or a lot.  But it should be decided by a judge, or worked out by the parties, and it brings no legitimacy to or confidence in the legal system if left to chance.  I do not see much difference from the judge employing chance himself. 

True, the Georgia judge (unlike the Florida one) did not quite "order" the new ADR, but the message still is that decisions made by the dartboard are as good as those made by people.  That may be so in fact, but legitimacy and public expectation require more from the judicial process.  Resolving disputes is not the only value added by judges.

January 22, 2007 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Lawyer Advertising in Virginia Yellow Pages

Yellow_pages Over at Concurring Opinions, William & Mary's Nathan Oman offers this funny observation on the smiling family photo a Virginia attorney uses in the Yellow Pages to advertise his law practice in divorce and custody disputes.  Nate's post is on The Mysterious Logic of Lawyer Advertising, and it even has a reference and link to "Anthony Kronman's pseudo-mystical paean to the legal profession gone by."  [Alan Childress]

January 22, 2007 in Economics, Ethics | Permalink | Comments (0) | TrackBack (0)

Sunstein on Prediction Markets

Posted by Jeff Lipshaw

Cass Sunstein (Chicago, right) hardly needs me to plug or critique one of his articles (another 100 orSunstein_3 so articles posted and another 36,000 or so SSRN downloads and I will have him beat), but he has recently posted Deliberating Groups versus Prediction Markets (or Hayek's Challenge to Habermas), which is to be published in Episteme.  Here is the abstract, followed by some comments:

For multiple reasons, deliberating groups often converge on falsehood rather than truth. Individual errors may be amplified rather than cured. Group members may fall victim to a bad cascade, either informational or reputational. Deliberators may emphasize shared information at the expense of uniquely held information. Finally, group polarization may lead even rational people to unjustified extremism. By contrast, prediction markets often produce accurate results, because they create strong incentives for revelation of privately held knowledge and succeed in aggregating widely dispersed information. The success of prediction markets offers a set of lessons for increasing the likelihood that groups can obtain the information that their members have.

Much of the description of the problem, like much of behavioral economics, made sense to me.  The prescription - to replicate the price mechanism for what would normally be the result of deliberation - is more problematic.  Professor Sunstein cites the predictive accuracy of the Iowa Electronic Markets, which allow people to place bets on presidential elections, or the Hollywood Stock Exchange, in which traders use virtual, not real, money to bet on Oscar winners.  Orange juice futures predict the weather better than the National Weather Service.

Granted, Professor Sunstein acknowledges the limits of prediction markets:  you cannot use a prediction market to determine if a jury reached the wrong conclusion, and "[m]ore generally, it is not easy to see how prediction markets could be used on normative questions."  But he claims, nevertheless, that even if prediction markets are not feasible, understanding them can help us understand what goes wrong in, and to improve, deliberation
:

It should be possible for deliberating groups to learn from the successes of markets, above all by encouraging their members to disclose their privately held information.  When such groups do poorly, it is often because they fail to elicit the information that their members have.  Good norms, and good incentives, can go a long way toward reducing this problem.

Thus, as to small groups like corporate boards, the way a prediction market is instructive is by showing group members the consequential value of "dissent and epistemic diversity."

There is a logical leap here that loses me.  I have little doubt deliberating groups suffer from a collective action problem for the reasons stated:  cognitive errors, withheld information, and cascades.  But prediction markets don't "overcome" the collective action problem, they avoid it.  Markets create a collective result from individual actions in which there is no gap between actual preference and stated preference - when we place our anonymous bets, we do so in the equivalent privacy of the voting booth.  When we step back and look at the result, we are as awed as Hayek that somehow this price mechanism, without deliberation, has created a result that aggregates all of the factors.

When we ask a corporate board member (or a lawyer advising the board) to "disrupt[] the conventional wisdom" or to overcome "fear of social sanctions," we are not asking her to act atomistically, but autonomously.  Prediction markets can tell Costco how many shoppers will buy the twenty pound tub of cashews, but they cannot help me in the decision whether or not to overcome my gluttonous instincts.  When all is said and done, the corporate board member will have to invoke some sense of duty to reveal his private information and thereby rock the boat.  Learning that from a prediction market is something like pumping up one's courage from the knowledge that electrons will spurn their orbitals and make quantum jumps.  If it helps, great, but it's a thin analogy.

January 22, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession, Economics, Ethics, Law & Business, Law & Society | Permalink | Comments (0) | TrackBack (0)

Incivility and Anger Playing Out in the Bar Admission Process? A Nebraska Denial of Membership

Posted by Alan Childress

Barbara Glesner Fines (UMKC School of Law, and coeditor of the Family Law Prof Blog), during her research on family law, came across this interesting case of the denial of bar admission in Nebraska based on the behavioral history of the applicant, including lack of candor in the bar admission and 38993_70899667 law school application processes.  She thought of us "since you've just mentioned anger and incivility," in posting on Rob Rosen's book chapter here. We appreciate her forwarding the example and link to us.  The case is In re Application of Charles J. Antonini III for Admission to the Nebraska State Bar, decided Friday (and is also found at 272 Neb. 975; 2007 Neb. LEXIS 12).

January 22, 2007 in Ethics | Permalink | Comments (0) | TrackBack (0)