Legal Profession Blog

Lisa Dolak on Civil Litigation Failure and Ethics Lapses, Especially in IP Cases

Recently posted on SSRN is an article by Syracuse's Lisa Dolak called Trial Lawyers in Trouble: Litigation Misconduct and Its Ethics Fallout. Its abstract is:

Misconduct in civil litigation is not a new phenomenon. Nor is it confined to particular types of cases. Because of their characteristic intensity, however, intellectual property cases may be more likely to inspire bad behavior than other types of cases. In patent cases, in particular, often much is at stake for both counsel and client. The potential outcomes range from a judgment for the patent owner, potentially including trebled lost profits, a permanently enjoined infringer and even an attorney fees award, to a ruling that the asserted patent is partly or entirely invalid, or even unenforceable, with the patent owner ordered to pay the infringement defendant’s attorney fees. And the complexity and potential intensity only increase when multiple patents and/or multiple accused products are involved. The associated pressures seem, on occasion, to lead litigants and trial lawyers to succumb to the temptation to step outside the bounds of vigorous advocacy.

Where to draw the line can be a challenging question. And the stakes are high. Courts have the power to impose a wide variety of sanctions on parties and their counsel. The lawyers involved risk injury to their reputations and even, potentially, bar discipline. Following an overview of the key sanctions regimes available to the federal courts, this paper draws on some recent IP decisions examining litigation conduct to illustrate the range of conduct with which courts must contend and the application of various sanctions frameworks.

[Alan Childress]

Nominations for Prestigious Prize in Professional Responsibility Scholarship

Word from our long-time reader Sam Levine at Touro:

Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility

Submissions and nominations of articles are now being accepted for the fourth annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility. To honor Fred's memory, the committee will select from among articles in the field of Professional Responsibility with a publication date of 2013. The prize will be awarded at the 2014 AALS Annual Meeting in New York. Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: slevine@tourolaw.edu

The deadline for submissions and nominations is September 1, 2013.

Fred is shown right; we miss him. [Alan Childress]

Rebecca Aviel Earns Zacharias Prize

Touro Law Center's Samuel Levine let us know that the recipient of this year's Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility is Rebecca Aviel, for The Boundary Claim's Caveat: Lawyers and Confidentiality Exceptionalism. The award will be presented at the Section Lunch of the AALS Section on Professional Responsibility, which will take place on Saturday, January 5, at 12:30 pm, at the Palace Cafe on Canal Street.

Get the molten chocolate dessert, Sam! [Alan Childress]

Fraidin on How We Talk About Child Welfare and the Lawyer's Role

Matthew I. Fraidin, a visiting associate professor at Georgetown Law, has posted to SSRN his 2012 essay, "Changing the Narrative of Child Welfare." Its abstract:

In child welfare, the difference we can make as lawyers for parents, children, and the state, and as judges, is to prevent children from entering foster care unnecessarily. And we can end a child’s stay in foster care as quickly as possible. To do that, we have to fight against a powerful narrative of child welfare and against the accepted “top-down” paradigm of legal services.

In this essay, Professor Fraidin suggests that we can achieve our goals of limiting entries to foster care and speeding exits from it by looking for the strengths of the people involved in our cases, rather than their weaknesses. We can look for what they can do, rather than what they can’t. We can focus on their abilities, not the shortcomings over which we often obsess — like drug addiction, impatience, illiteracy, poverty. We can start from a premise that families involved with child welfare are bundles of assets, rather than collections of problems. If we can do all this, we can help families build, rather than watch them fall.

[Alan Childress]

Weisselberg and Li on the White Collar Defense Bar in BigLaw and How it Has Changed

Charles Weisselberg and Su Li (Cal., Berkeley Law [and its great Center for Study of Law & Society]) have posted to SSRN their study of the transformation of the white collar defense bar. Its title is Big Law's Sixth Amendment: The Rise of Corporate White-Collar Practices in Large U.S. Law Firms and its abtract is:

Over the last three decades, corporate white-collar criminal defense and investigations practices have become established within the nation’s largest law firms. It did not used to be this way. White-collar work was not considered a legal specialty. And, historically, lawyers in the leading civil firms avoided criminal matters. But several developments occurred at once: firms grew dramatically, the norms within the firms changed, and new federal crimes and prosecution policies created enormous business opportunities for the large firms. Using a unique data set, this Article profiles the Big Law partners now in the white-collar practice area, most of whom are male former federal prosecutors. With additional data and a case study, the Article explores the movement of partners from government and from other firms, the profitability of corporate white-collar work, and the prosecution policies that facilitate and are in turn affected by the growth of this lucrative practice within Big Law. These developments have important implications for the prosecution function, the wider criminal defense bar, the law firms, and women in public and private white-collar practices.

[Alan Childress]

Gallagher on the IP Bar, its Practices, and the Effect on Real Copyright and Trademark Law

You may not catch it from the title, but William T. Gallagher's (Golden Gate U. Law) new paper posted to SSRN is firmly about the legal profession, the bar, and the practice of IP law. Using an empirical/interviewing methodology, Gallagher explores the construction of copyright/trademark law through day-to-day practice, cease and desist letters, and the stuff that never makes it to courts. A teacher of both Professional Responsibility/lawyer regulation as well as IP law, he has spent years collecting the data for this revealing study. His abstract:

    In recent years, as Congress has created new intellectual property (IP) rights and courts have often interpreted those rights broadly, legal scholars have frequently decried the expanded scope of protection afforded IP owners in most substantive areas of IP law. According to this critique, the over-expansion of IP rights throughout the past two decades harms competition, chills free speech, and diminishes the public domain as increasingly broad areas of social life are brought within the scope of strong IP protection. While this over-expansion theory reflects an important — indeed, foundational — policy debate concerning the proper balance between IP owners’ rights and the public’s rights of access to the information, ideas, and expressions that IP protects, it is incomplete precisely because it focuses largely on what Congress or the courts do. In reality, most enforcement of IP rights takes place not in court, but in the everyday practices of IP owners and their lawyers. “Cease and desist” letters, phone calls, and negotiations with alleged infringers constitute the bulk of IP enforcement efforts in trademark and copyright practice. To be sure, these efforts take place in the “shadow” of IP law and are therefore influenced by it. But it is in these everyday practices — and not in trial or appellate courts — that most IP rights are asserted, resisted, and negotiated. Thus, if we want to know whether IP rights are over-enforced or over-extended, we need to know how, why, and to what effect these rights are exercised in daily life. To date, however, IP scholarship has focused virtually no attention on this critical arena of everyday practice. Most IP scholarship is primarily doctrinal, focusing on published appellate cases. Even the growing empirical scholarship on IP focuses largely on published or, at least, filed cases. As in every other area of civil justice, however, most IP disputes do not result in litigation, and most litigation settles well before trial. Certainly, published appellate decisions and even filed cases represent only a small percentage of IP disputes. Thus, in order to more fully understand whether IP rights affect competition, chill free speech, diminish the public domain, or impede creativity, it is necessary to explore how IP claims are made and resolved in private negotiation rather than in litigation, which is the focus of this Article. It presents findings from a qualitative empirical study of the trademark and copyright disputing process outside of court, based on original data derived from semi-structured interviews with experienced IP attorneys who advise clients on how to enforce their rights. This research is one of the first studies to examine how trademark and copyright claims are actually enforced in practice.

[Alan Childress]

Hatfield on the History of Tax Lawyer Ethics

Michael Hatfield of Texas Tech has published to SSRN his study of the tax legal profession, in a historical context: "Legal Ethics and Federal Taxes, 1945-1965:  Patriotism, Duties and Advice." Its abstract:

Legal Ethics and Federal Taxes, 1945-1965: Patriotism, Duties and Advice provides a timely historical review of legal ethics and federal taxes. Focusing on the first two decades of the modern income tax (1945-1965), the Article reviews the ethics literature of the tax bar, which was mostly written by very prominent tax lawyers (a founder of Paul, Weiss; partners at Sullivan & Cromwell, Willkie Farr, etc.), tax professors (including the dean at Harvard Law School), and government officials (including key advisors to FDR, JFK, and LBJ). This seemingly forgotten literature provides a remarkable contrast to today’s anti-tax climate, especially given that the highest marginal individual tax rate during 1945-1965 was 94%. The writers of this period emphasized the patriotic duty to support the federal government by paying taxes, describing taxes, for example, as the price to maintain capitalism (Merle Miller) and a “blessing” (Erwin Griswold). Several stressed the ethical duty of lawyers to improve their clients’ respect for the tax system (Norris Darrell, e.g.). “Ethics” for these writers was not an issue of the ABA canons but rather a more general, philosophical reflection. For example, in 1949, the tax committee of the ABA issued a report on the importance of natural law jurisprudence in tax. In 1952, the discussion at the Tax Law Review banquet (which was nominally dedicated to discussing “Ethical Problems of Tax Practitioners”) developed into a debate over whether or not Americans were more degenerate then than in the past (Edmond Cahn) or merely more self-conscious (Thomas Tarleau). But the ethics writers were also concerned with specific issues that endure to this day, such as when to disclose an arguable but uncertain tax position – some (Randolph Paul, e.g.) arguing almost any position the government was likely to question should be disclosed, others (Boris Bittker, e.g.) arguing against disclosure so long as the position was reasonable. There was wide disagreement as to whether or not tax lawyers owed a special duty to the system, but wide agreement that this theoretical debate was nearly moot given that conservative tax advice was usually not only the most ethical but the most practical. This pragmatic attitude – emphasizing that good tax practice, good tax ethics, and good tax advice tended to converge – reflected the “real world” orientation of these professionally accomplished writers, even though, by today’s standards, many of their statements seem idealistic. The salvaging of this forgotten literature is timely not only in its relevance to contemporary debates, but also its relevance to the increasing historical research of the income tax as its 100th anniversary approaches.

[Alan Childress]

Michael Cassidy Wins Fred Zacharias Award

Breaking news shared by Touro Law Center's Samuel J. Levine, announcing the second recipient of this scholarship award in our field:

The winner of the second annual Fred C. Zacharias Memorial Prize for
Scholarship in Professional Responsibility is Michael Cassidy, for Plea
Bargaining, Discovery and the Intractable Problem of Impeachment Disclosures.

The Prize will be presented at the Section Lunch of the AALS Section on
Professional Responsibility, which will take place on Friday, January 6,
2012, at 12:30 p.m., at American University Law School.

More on Prof. R. Michael Cassidy of Boston College here. His paper is on SSRN here.

A great way to remember Fred, who is missed. [Alan Childress]

Gallagher on Lawyer Roles and Ethics in IP Practice

Posted by Alan Childress

I received an interesting reprint yesterday in the mail, intersecting legal ethics and IP practice -- particularly discovery methods in the wake of Qualcomm -- using an empirical research approach and lawyer interviews. William Gallagher (law, Golden Gate U) published in John Marshall's IP law review (also on SSRN) an article entitled IP Legal Ethics in the Everyday Practice of Law: An Empirical Perspective on Patent Litigators. Its abstract:

This article presents preliminary findings from a qualitative empirical study of patent litigators. Part of a larger and ongoing project studying intellectual property lawyers in patent, trademark, and copyright enforcement and litigation actions, this article focuses on ethical decision-making by patent litigators in the pretrial discovery process. The article is based on data from in-depth, semi-structured interviews with fifty-five patent litigators and from a detailed case study of the infamous Qualcomm patent sanctions case. The article critically examines how patent litigators perceive of and respond to ethical issues that arise in the discovery process. It also analyzes the structural and cultural factors that influence ethical decision-making, as patent litigators navigate the multiple and often conflicting demands made throughout the discovery process by clients, firms, colleagues, and ethical rules. A significant finding from this study is that the threat of Qualcomm-like discovery sanctions is largely irrelevant to the everyday practice of patent litigators and has had little effect on their ethical decision-making. To-date there are few empirical studies of intellectual property lawyers or of legal ethics “in action.” This study begins to fill that gap.

Hillman on Law Firm Risk Management in an Era of Breakups and Lawyer Mobility

Posted by Jeff Lipshaw

Robert Hillman (UC Davis) has posted "Law Firm Risk Management in an Era of Breakups and Lawyer Mobility: Limitations and Opportunities" on SSRN.  Here is the abstract:

To say that law firms and lawyers are restricted by the norm of client choice does not mean they are not without options in structuring their relationships in ways that may affect their positions as opposing parties should litigation or disputes develop because of breakups and lawyer mobility. This article explores risk management opportunities with a particular emphasis on avoiding litigation or, if that is not possible, affecting the outcome of litigation. It discusses the role of the partnership agreement and limitations on law firm partnership agreements, including difficulties of negotiating and amending agreements, centralized management as an agreement substitute, past practices as agreement waivers, and challenges to enforcement of agreements. Particular attention is given to five issues that often are inadequately addressed in law firm partnership agreements; these include intellectual property rights, departure process, partner removals and dequitizations, winding up, and dispute resolution.

Metaphors, Models, and Meaning in Contract Law

Posted by Jeff Lipshaw

For those of you out in the practice world who are curious about how academic legal theory and first year contract law pedagogy might be combined with real world intuitions and experience, I've posted a new article, Metaphors, Models, and Meaning in Contract Law , on SSRN. 

The gist of it is this:  the dominant metaphor for contract in practice and the academy is "contract as model."  One upshot of this metaphor is an article of faith (among lawyers at least) about the rational linkage between what is going on before the fact in the creation of the contract, and what gets litigated after the fact.  Sometimes the metaphor is appropriate, and sometimes it is not.  I've played with my intuition and admitted casual empiricism that the contract, even in a heavily negotiated deal, is as often the "thing" that Arthur Leff conceptualized in his iconic 1964 American University Law Review article as it is a model or map of the transaction .  I've proposed an alternative metaphor of "journey" in which the objectification of an agreement in the contract (a milestone, metaphorically speaking) is often as important as the content itself.  The piece contains illustrations I use in class (see Wood v. Lucy, Lady Duff-Gordon, above, but you have to read the article to get the context), as well as a discussion of how I use the fundamentals of metaphor theory to explain hard cases in which the parties assert, and judges must choose between, competing legal "algorithms".

The abstract:

Why does there seem to be such a wide gap between the subject matter of the usual first-year contracts course and what practitioners (particularly transactional lawyers) actually experience? My claim is that it is the result of a powerful theoretical system whose hallmark is a closed linguistic system—in the coinage of one noted scholar, “an epistemic trap.” The subject matter of contract law requires dealing with legal truth not just as a coherent body of doctrine, but also correspondent in some way to actual self-legislation of the parties. I propose escaping the trap with a turn to metaphor theory. The underlying metaphor common to prevailing conceptions of contract law, and which demands some form of correspondent truth from the contract (and contract law), is “contract as model of the transaction.” I suggest alternative metaphors of categories as containers, ideas (including “the meeting of the minds”) as objects, and the transaction life cycle as a journey. The goal is to focus on the “subjective to objective” process of the transactional life cycle, and to consider the perspectives of the participants in or observers of the transactional life cycle, and the models and metaphors that shape the conceptual frames from within which those participants and observers perceive and make use of the legal doctrine.

Godsoe on Ethically Representing Children and Parents

Cynthia Godsoe (Brooklyn Law School) posted to SSRN an article that will appear in the Georgetown Journal of Legal Ethics this spring. It is All in the Family: Towards a New Representational Model for Parents and Children. Its abstract:

The presumption that parents act in their children’s interests governs both daily life and legal doctrine. This Article demonstrates that this presumption, while usually correct, is problematic when unquestioned because it masks any conflict between parents and children, and is at odds with the individualistic framework of the ethical rules governing attorneys. This harms families and puts attorneys at risk. This Article explores this representation problem in the previously largely ignored context of special education for children with disabilities. The Supreme Court, in Winkelman v. Parma City School District, recently established that parents and children each have substantive yet “intertwined” rights to a child’s appropriate education. Nonetheless, courts and attorneys continue to assume that parents speak for children, even in cases with a high risk of conflict.

To best serve families and protect attorneys, this Article proposes a novel reconception of representation in education cases. Family representation posits the family as the client, with the attorney owing duties to each member individually and as part of the group. A family representation framework brings four real-world benefits: (1) it recognizes the interconnected nature of the relationships and rights of parents and children; (2) it engages both parties in the process, particularly important for children who have previously been overlooked; (3) it is economical, increasing the number of represented parties but not the number of attorneys; and (4) it brings attorney practice into accord with ethical standards. This model has ramifications beyond the educational sphere as it could also be fruitfully applied in torts and benefits actions by a parent and child against the state or other third party. Ultimately, reconceiving the attorney’s role as representing the family while respecting the voices of each member harmonizes the competing principles of individual autonomy and family unity to the benefit of parents, children and attorneys.

Cynthia starts teaching Professional Responsibility next term! Thanks for reading us (well, Mike), Cynthia. [Alan Childress]

Webley on the Different Styles and Attitudes of UK Lawyers vs. Mediators in Divorce Disputes

Posted by Alan Childress

Lisa Webley is a Reader at the law school of Westminster and a research fellow at the University of London Institute of Advanced Legal Studies (where she also got her PhD); she was just now at Stanford attending the international conference on the legal profession (and I will try to horse-and-hound her into blogging on it). She has published her law-and-society dissertation on the different approaches solicitors versus mediators take toward divorce and custody matters. Their practical and conceptual styles are indeed different, as revealed by the grounded theory study of their ideologies, training, backgrounds, ethics, and professional messages. So finds Lisa in Adversarialism and Consensus? The Professions’ Construction of Solicitor and Family Mediator Identity and Role. Her abstract:

This study considers the messages that the Law Society of England and Wales and the UK College of Family Mediators transmit to their members about the professional approach they should adopt in divorce matters.  The study employs a grounded theory method to analyse the training, accreditation, best practice statements and codes of conduct generated by the two professional bodies.  It examines the extent to which the training, accreditation and codes of conduct of family solicitors and family mediators privilege adversarial or consensus based approaches to divorce for their clients, in the light of statements made around the time of the passage of the Family Law Bill, which suggested a dichotomy in professional approach by these two professional groups.   It considers further the nature of professional identity for each of the professional groupings, as constructed through the messages delivered by the professional bodies.

I finally tout a book on-topic to this blog! I helped Lisa publish this as part of the new Dissertation Series of ebooks which I wrote about in Publish Your Dissertation as a Digital Book. Comparative LP expert John Flood (Westminster; U of Miami Law) read that post and commented, and then told Lisa about the series (thanks John!), and she and I worked hard to get this out fast (the tables were a coding nightmare). It is available on Amazon for Kindle and its free apps (and so iPad and BlackBerrys too); on Smashwords in nine different formats (even just PDF, though a pretty one with links, and view online); is featured on the Quid Pro website; and will soon be on Apple iTunes, Barnes & Noble for Nook, and Sony ebookstore.

Agarwal & Simonson on Public Interest Lawyering and Instruction

Posted by Alan Childress

From the Harvard Program for the Legal Professon, Nisha Agarwal and Jocelyn Simonson have published to SSRN their article, Thinking Like a Public Interest Lawyer: Theory, Practice and Pedagogy, which will also be in New York University Review of Law & Social Change, vol. 34, 2010. Here is the abstract:

In educating future public interest lawyers, law schools must cultivate in students the combination of intellectual, emotional, and normative thinking required for the complex world of practice. This article presents one such method for teaching critical public interest lawyering: the integration of social theory and public interest practice introduced by the Harvard Law School Summer Theory Institute. The theory-practice method of the Institute, in which law students engage with social theories while participating in full-time summer internships with public interest organizations, demonstrates the benefits of creating a space for students to draw connections between abstract conceptions of justice and on-the-ground efforts to lawyer for social change.

This article begins by using the theories of Pierre Bourdieu to explore a dichotomy between theory and practice in public interest law that can often inhibit efforts to pursue social justice lawyering. Then, drawing upon the discussions the Summer Theory Institute’s students had about three theorists – Michel Foucault, Friedrich Hayek, and David Couzens Hoy – this article demonstrates how theoretical reflection placed in the practice setting can cultivate in law students the kind of normative thinking necessary to make them inspired, self-reflective, and critically engaged public interest lawyers and agents of social change.

Kadish & Kadish on Honoring Law By Breaking It: Bringing Back Discretion to Disobey

Posted by Alan Childress

That may be a bit of an exaggeration about the Kadish argument, since they say "rule departures" rather than "violations" or "breaking the law," but it is an intriguing argument nonetheless.  Admittedly not so much a legal ethics argument as an ethics one [on the concept of law and the philosophy of law-deviations and civil disobedience], but I felt it appropriate to blog on it here because it is part of a larger project I am working on--more on that soon--that certainly does include works on legal ethics and the legal profession.

Mortimer and Sanford Kadish first published their classic study of rule departures within law in 1973, by Stanford U. Press, and I am republishing it as a digital book with permission (and I made new covers, left). Here is the Amazon site featuring it and allowing its download. It is in the form of a Kindle book but is also fully compatible with free ereader apps on PC and laptops, Mac, iPhone, BlackBerry, and iPad. (Weirdly, Kindle books read better on the iPad than iBooks do, since their own iBooks makes you strip the linking of footnotes and other necessities of law books.)  It's my first follow-up after bringing back Warren & Brandeis, The Right to Privacy (both digital ebook, and in paper, right) last month, with blogging here.  Discretion to Disobey is  part of a series I want to do, Classics of Law & Society, so feel free to write me if you want to digitize your own classic work and believe you hold at least its digital rights (this means you, Nell Harper Lee, though Ronald Dworkin should still ask too, or for that matter anyone with a timeless book--so in fact I am working on some legal history and judicial biography works, and others that should be available for downloads.)  

The Kadish book is certainly a recognized classic:  people were arguing about it from when it first came out.  One reviewer wrote that "the paradoxical idea that a citizen or official may lawfully break the law" surely "will raise the hackles" of a positivist.  (I'd also gladly publish Hart's rejoinder, The Concept of Law 2:  Positive Vibes.)  Both citizens and government actors, the book argues, have the power and the right to deviate from law in certain contexts and yet not act illegally in a sense, because law itself contains strands of adaptations to its own departures that the authors weave into a sustained jurisprudential whole. Mortimer Kadish (1916-2010) was a much-published philosophy professor at Case Western, while his brother Sanford became dean at Berkeley's law school and remains an accomplished professor and scholar there.  This book is truly a joint product of the fields of philosophy and law.  I hope it's of interest to some of our readers (I bet Patrick S. O'Donnell has read it, and may have even assigned it to his classes).  If you have a similar classic that needs to be easily read again, or a new manuscript (including Patrick), let me know....

UPDATE:  Kadish and Kadish is now available in 8 other formats, including PDF and ePub, at Smashwords.  It is featured with reviews and its history, at quidprobooks.com, with other new ebooks.

Spring 2010 Newsletter of the AALS Section on Professional Responsibility -- Hot off the presses

Posted by Alan Childress

Thanks again to the excellent generosity of the Section on Professional Responsibility of the AALS, which generosity and excellence we have noted before, we provide to you the latest issue of the newsy Newsletter.  Download Spring_2010_PR_Newsletter.  It has lots of substantive law and rule changes, all dealing with legal ethics, as well as calls for papers and conferences in the field.  This issue includes a brief article on the judge as Facebook friend, an issue that Mike on this blog has also raised here (Florida) and here (South Carolina).

Samuel Warren and Louis Brandeis, "The Right to Privacy," goes digital, with my Foreword

Posted by Alan Childress

Admittedly 120 years too late, and not exactly on-topic to the blog, but Warren and Brandeis have now published their landmark article on the iPad!  Or any PC, or Kindle, iPhone, iTouch, BlackBerry, or Mac.  They do not do Droid. 

I wanted to post a link to the Amazon DTP version of The Right to Privacy and my Foreword and other materials in the compilation (including active TOC, linked notes, and period photos and press clips provided to me, graciously,
by Amy Gajda, who did extensive research up on SSRN on the infamous backstory). Sorry to charge for the ebook, but that is Amazon rules for non-bigtime-publishers (and I must make it a buck more on July 1). You can get my own contribution part of it free anyway, below.

Any free Amazon app for those devices, even just on the PC or a laptop, will work great to read this and their ebooks (which do include 20,000 free classics), or on Kindle. I will try to post some more old pics later this week...

From the blurb:

The most influential piece of legal scholarship in history, many scholars say, is this 1890 Harvard Law Review article by two Boston lawyers (one of whom later became a legendary Supreme Court Justice).  Warren and Brandeis created -- by cleverly weaving strands of precedent, policy, and logic --  the legal concept of privacy, and the power of legal protection for that right.  Their clear and effective prose stands the test of time, and influenced such modern notions as "inviolate personality," the law's "elasticity," and the problems of "piracy."  They resisted the label of "judicial legislation" for their proposals.  And they foresaw the threat of new technology. 

Most of all, they asserted the fundamental "right to be let alone," and its implications to modern law are profound.  Their privacy concept has grown into a constitutional law norm raising issues about abortion, drug testing, surveillance, sexual orientation, free speech, the "right to die," and medical confidentiality.  All these spinoffs trace their origins to this master work.  It is simply one of the most significant parts of the modern canon of law, politics, and sociology.

The Foreword shares not only this import and effect, but also the fascinating backstory behind the article.  Its origins are found in Warren's own prickly experiences with the press, famously after its reports on his family weddings.  One myth was recently debunked by Gajda:  it could not have been his daughter's wedding that upset him.  The newer legend is explained, including the role of The Washington Post and the emerging paparazzi.  This was no mere academic exercise to Warren and Brandeis, it turns out.  The Foreword adds a biographical summary of each author,  noting some less-known questions about Brandeis's own judicial ethics later in life (debunking another myth), as well as noting the possible tension between the privacy right and the First Amendment that Brandeis championed.

If readers here want to do a similar compilation, formatting, and Foreword to classic legal scholarship in pre-1923 U.S. books, for digital readers, ask quidprolaw@gmail.com .  You must be willing to write original work or annotations, and work from source materials not just scanned crap.  The goal is high quality ebooks, not the formatting nightmares that are out there now (even the online versions of The Right to Privacy are all full of substantive errors, including one on a Harvard site!)

[You can also, without needing an app, Download Foreword TRTP2]

The "Goat Hacking" Justification for Contract Law

Posted by Jeff Lipshaw

A contract law theorist whose work I admire greatly, Nate Oman (William & Mary, Visiting Cornell, left), has posted a new piece in the burgeoning area of "pluralistic" contract theory.  For the uninitiated, the poles of the debate over the last twenty-five years or so have been, on one hand, the "law & economics" view which sees state enforcement of private promises as justified by the enhancement of economic welfare (i.e., people are more likely to invest in transactions that move goods and services to those who value them the most if contracts are in place that restrain opportunism) and, on the other hand, the "promise principle" view that the state has an interest in upholding the moral commitment of a promise.  The problem with both views is that they either explain too much or too little about not only the justification of state involvement in private matters, but also the specific elements of doctrine themselves.  A number of theorists, including Nate, have either tried to reconcile the poles, or to propose other alternatives.

Nate's most recent contribution to the discussion is Consent to Retaliation: A Civil Recourse Theory of Contractual Liability, and the abstract follows:

In the ancient Near East, contracts were often solemnized by hacking up a goat. The ritual was in effect an enacted penalty clause: "If I breach this contract, let it be done to me as we are doing to the goat." This Article argues that we are not so far removed from our goat-hacking forbearers. Legal scholars have argued that contractual liability is best explained by the morality of promising or the need to create optimal incentives in contractual performance. In contrast, this Article argues for the simpler, rawer claim that contractual liability consists of consent to retaliation in the event of breach. In the ancient ritual with the goat, the retaliation consented to consisted of self-help violence against life and limb. The private law in effect domesticates and civilizes retaliation by replacing private warfare with civil recourse through the courts. It thus facilitates the social cooperation made possible by the ancient threats of retaliation while avoiding the danger of escalation and violence that such private violence presented. This civil recourse theory of contractual liability provides an explanation for a number remedial doctrines that have proven difficult for rival interpretations of contract law to explain, including the penalty clause doctrine, limitations on expectation damages, and the basic private law structure of contractual liability. Finally, this Article responds to some of the most powerful objections that might be made against a civil recourse theory of contractual liability.

I should add that I'm sympathetic to this view, having argued elsewhere a similar point about contracts being backup mechanisms that take effect when the social norms of a relationship break down.  If Nate and I part company, it may be that I am less persuaded that the jurisprudential justification translates into specific doctrine.  But, as Larry Solum says, download it while it's white hot.

Lipshaw on Judgment (and Metaphor)

Posted, written, directed, produced by, and starring, Jeff Lipshaw

I hope you have the point.  I have decided that the article I've been working on (February is the hardest month, isn't it?) has, sometime in the last several days, passed not only the point of minimal coherence, but is indeed ready to leave the womb, sink or swim, fend for itself.  I am hoping it takes care of me in my old age.  Seriously, folks (ta ta boom), The Venn Diagram of Business Lawyering Judgments: Toward a Theory of Practical Metadisciplinarity is up on SSRN (in the spirit of "tomorrow's research today, not completely complete, but getting there, subject to post-production), now that I've decided what to leave on the cutting room floor.  It is the basis of the last part of my book-to-be (in utero), Lawyering and the Mystery of Judgment. 

If you get the idea that metaphors have something to do with the point, you win the kewpie doll.  What I've tried to do is exploit what is my niche - bridging the real world and the academy - and it is recursive in exactly the way I tend to think of the world:  how do we make judgments that bridge or fall between disciplines?  Those are interdisciplinary judgments, but is there a skill that focuses on those kinds of judgments, meaning that we are dealing with an even higher order concept, namely metadisciplinarity?  Which academic department grants a Ph.D. in that? (The fact that TypePad has just put a dotted red line under metadisciplinarity makes me hopeful I've coined a term!)  What I have tried to do is spice the theory with many real world examples, admittedly anecdotal, but also, I think, typical.  I will look forward to comments, because I have tried to be provocative, especially with regard to the pitfalls of "thinking like a lawyer", and the education that takes us there.

The abstract follows the fold.

Here's the abstract:

The relationship of pure and mixed business and legal judgment can be modeled in a Venn diagram. The question is who is capable of making judgments in the overlap. Businesspeople are not competent to assess the legal implications, and not inclined merely to trust the decision to lawyers. Lawyers, on the other hand, are usually successors to a particular method of organizing the world, and members of a closed discipline. By nature of the very concept of a judgment, it must occur privately in a single conscious mind, no matter how the judgment is ultimately communicated, shared, or adopted by others. The implication for lawyering and legal education is that some of the old canards about leaving business judgment to the business people must fall away.

There are three sub-themes. First, there is no "collective judgment." Practical judgment does not occur in some communitarian ether, but in a mind. The closest we have come to a science of judgment is the exploration of consciousness and cognition, both of which remain tough nuts. There is still no scientific explanation of consciousness; it is subject to what Thomas Nagel referred to as the "explanatory gap." It is fair to say that if there is anything to the idea that consciousness is irreducible, judgment is next in line. Could we pour all the relevant facts and authorities into a legal computer, and have it provide us with advice such that we could not determine, in a blind test, that it came from a computer and not a human being? Indeed, an inquiry into prospective judgment overlaps traditional questions whether anything actually constrains a judge's decision. It seems intuitively correct when we take the issue of judgment out of adjudication and consider it prospectively that our judgments are neither pre-ordained by some kind of formula nor wholly random. We need to assess rule following in the non-adjudication context, and for that I turn to work in cognitive science and the law.

Second, the judgment in the overlap is interdisciplinary. Business judgment depends far more on the argument from merit, versus legal judgment, which depends far more on the argument from authority, and a particular kind of authority at that. What, then, does it means to be an expert in the overlap of the diagram? We need to define a new professional discipline: the field of metadisciplinarity. Being a metadisciplinarian takes one to a higher order skill than mere interdisciplinarity: it means being an expert in the making of interdisciplinary judgments, which in turn invokes the role of metaphor and analogy in our cognitive abilities.

Metadisciplinarity recruits such basic cognitive abilities that the task of learning it is never going to be easy. It requires that its practitioners understand that human beings are "meaning-making machines," employing what the cognitive scientists call "cognitive integration" or "blending" (of which metaphor is a prime component). Metadisciplinary lawyers will not merely understand the fact of cognitive blending, but also approach it empathetically.

Authority Arguers (Litigating Lawyers) Versus Authority Creators (Transactional Lawyers): It's Still All Outside-In

Posted by Jeff Lipshaw

Some time ago, I wrote an article, largely in reaction to an article Richard Posner had written on contract interpretation, suggesting that there was far less connection than commonly expected by lawyers between a “mutual intention of the parties” supposedly embodied in even a heavily negotiated contract and subsequent colorable disputes involving interpretation of that same contract (see The Bewitchment of Intelligence).  Having immersed myself for the last several months in scholarship (such as it is) on consciousness, judgment, and wisdom, I now realize that Bewitchment merely took on one particular manifestation of the objective, rational model that is the teaching, scholarship, and practice of American law.

I am prepared to expand the thesis.  I will defer exposition of my own articulation of the difference between arguments from authority and arguments from merit (in process) to Professor Geoffrey Samuel's (Kent, left) more sociological exposition of the same point:  the reason it is hard to take law seriously as a “science” (and, I would add, the reason the explanatory so often blurs into the normative) is that law is, and has always has been, based on an “authority paradigm,” more akin to theology than to science.  The authority paradigm is the key thing, because authority must come from somewhere: from the standpoint of mind, authority is "outside-in."  That distinguishes it from wisdom and judgment, which, from the standpoint of mind, are "inside-out." (Pardon my Kantian tendencies here, but outside-in strikes me as legislating, or heteronomous, while inside-out strikes me as self-legislating, or autonomous.)

Let me bring this back to the practice of lawyering, rather than just the theory of law.  We are in the midst of working through our curriculum on transactional skills, and the first building block is, invariably, “contract drafting.”  I realize I am treading close to heresy here, and I don’t intend to suggest that contract drafting isn’t one of the transactional lawyer’s core skills.  But it dawned on me (again) this morning, as I was reading an essay by Laura Dunham (University of St. Thomas, right) on business ethics in entrepreneurship, that even contract drafting (as a lawyering skill) fails to get at the critical difference between judgment and lawyering.  Most of what lawyers think and do (at least classically) either in the litigation or the transactional setting constitutes a category error when it comes to the exercise of judgment (in the everyday and not judicial sense).  As I argued in Objectivity and Subjectivity in Contract Law, the fundamental dividing line as between promise and contract doesn’t have to do with efficiency or morality; it has to do with objective versus subjective, or public versus private, or (perhaps?) inside-out versus outside-in. 

The paradox of law in the litigation context is that both parties are praying to the same god for victory in the name of justice.  The Europeans (like Luhmann or Derrida - at least in the latter's views on justice) expose an uncomfortable possibility:  it is not an appeal to justice; it is an appeal to authority with the patina of justice.  That’s what we teach first year lawyers:  how to make an argument - the best ones being those that satisfy the Dworkinian standard of integrity:  fit and justification (i.e., they give the best appearance of being not only just, but consistent with authority).  Contract drafters aren’t authority arguers; they are authority creators (in the sense of the private law that is the law of contracts).  There is no real connection between the contract and the later dispute (despite the arguments of Judge Posner, Professors Schwartz and Scott, and other rationalists), except in the sense that words that were written will come to constitute whatever “law” there is. 

Judgment and wisdom, on the other hand, require that we step back from the authority paradigm (and perhaps also from the self-interest paradigm).  That’s the quality that comes after first year doctrine, contract drafting, and deal skills.  It means somehow teaching the inside-out rather than the outside-in.  Now here’s the tough question:  what are the academic and professional bona fides for teaching that advanced course?