Legal Profession Blog

Is Law a Serious Discipline? And Who Are You Calling an Ignoramus?

Posted by Jeff Lipshaw

I'm sitting in the University of Michigan Law Library (by courtesy!) reading a delightful and irreverent essay on Anglo-American common law as a discipline by Peter Goodrich at Cardozo.  Here's the abstract of Intellection and Indiscipline (Journal of Law & Society):

A discipline will usually become the object of study and its relationship to other disciplines a moment of concern when its borders are precarious and its definition in dispute. Law, ‘the oldest social science’, is arguably both prior to discipline — it emerges initially and most forcefully as a practice — and without discipline, its object being potentially all human behaviour. If law is necessarily between and among disciplines, both prone to moonlighting and everywhere homeless, it will also always be in some mode of scholarly crisis. Certain conclusions follow. Law is paradoxically dependent upon other disciplines for its access to the domains that it regulates. The greater its epistemic dependency, however, the slighter its political acknowledgment of that subordination. Which allows a positive thesis: the epistemic drift of law can carry the discipline to a frank acknowledgment of the value of indiscipline both to novelty and intellection.

And here's a jewel of arcane knowledge (not the most serious point of the essay):  As Professor Goodrich notes, "The Prince or principal reformer resorted to by the scholars and humanists amongst the common lawyers was Petrus Ramus, the neo-scholastic French exponent of dialectical method as the means to schematize and so systematize any discipline whatsoever. It was Ramist logic that inspired the reform of legal method from Fraunce to Finch."  The word "ignoramus" comes from the eponymous protagonist of a satirical play by George Ruggles in 1615, Ignoramus being a pathetic English lawyer who is ignorant of Ramus.

Poulin on Criminal Conflicts of Interest: Too Close to the Prosecutor?

Posted by Alan Childress

Anne Bowen Poulin (Villanova) has posted this article to SSRN:  Conflicts of Interest in Criminal Cases: Should the Prosecution Have a Duty to Disclose?  It will be published in the American Criminal Law Review at Georgetown.  Her abstract:

This article addresses two types of conflicts of interests that arise in criminal cases: 1) when defense counsel has an employment relation to the prosecutor’s office, and 2) when defense counsel faces criminal investigation or charges. Both these situations threaten both the defendant’s representation and the actual as well as apparent fairness of the proceeding. Yet, only in extreme cases are these conflicts likely to result in a reversal of the defendant’s conviction. As a result, protection of the defendant and the fairness of the process often depends on early intervention, which allows the court to advise the defendant of the risks inherent in counsel’s situation and possibly accept a waiver from the defendant or disqualify counsel if appropriate.

If defense counsel has an employment relationship with the prosecutor’s office or if counsel faces criminal investigation or charges, the prosecution generally has ready access to the pertinent information, and neither the court nor the defendant is likely to be aware of the problem. Therefore, when a situation exists that may generate one of these two types of conflict, the prosecution must have an obligation to disclose relevant information to the court and the defendant. Imposing the obligation of disclosure on the prosecution will increase the likelihood that courts will be able to address these types of conflict early and appropriately.

Lipshaw on Leiter on Religion, and a Little More

Posted by Jeff Lipshaw

I suppose it's appropriate to conclude the Ten Days of Awe of the Jewish calendar by tying up, on the eve of Yom Kippur, a loose end I started to unravel when I was sitting here at my computer instead of participating in ritual observance on Rosh Hashanah.  As I noted, "what I find difficult about religious ritual, which is the reification of the sense of awe, wonder, and mystery of life, being, and consciousness into a set of rules.  (Hence, my appreciation instead for the music.)  That's the tension I described three years ago, between kevah - fixed prayer - and kavanah - inspiration."  I have a lot of regard for what Martha Nussbaum described as the source of the religious (and all conscience-related) impulse:  "the faculty in human beings in which they search for life's ultimate meaning."  I'm just not crazy about what my fellow humans generally do to act on that impulse.  (I also have the same kind of naive idealism about academia as a place of pure exchange of ideas, with much the same result.  But that's not new.  I had a kind of naive idealism about fiduciary obligations when I was a corporate officer and general counsel.  My conclusion is nobody is more or less insulated from human nature in the actual practice of religion, scholarship, or business.)

Some time over the last ten days, I came across Brian Leiter's published essay on the constitutional tolerance of religion by way of his more recent draft on whether religion is even entitled to moral respect.  (I agree with him that, as a matter of law, the appropriate standard is tolerance.  I also agreed not to quote or cite the draft, other than this minimal reference to its context, and with the clear indication it is a draft.  It is available publicly available on SSRN, albeit with the "don't quote or cite" request.)  The arguments depend on his already completed conceptual construct of religion with which I take issue, and I've posted an essay to that effect on SSRN.  The title is Can There Be a Religion of Reasons?  A Response to Leiter's Circular Conception of Religion, and this is the abstract:

This is a comment on a definition of religion recently proffered by Brian Leiter in support of different conclusions we ought to draw with respect to religion. His analysis is ultimately circular: the problem with religion is that it is not science. Exposing the circularity requires identifying the trick, which is that he employs an appeal to common sense to distinguish religion and science. Nevertheless, the very belief in common sense is the same as the religion Leiter attacks: it is categorical and insulated from further reasons. My argument in response has three major themes. (1) The argument based on receptiveness to reasons and evidence itself arbitrarily picks and chooses reasons and evidence. (2) It is possible to posit a religion whose categorical demands on action and requirements of foundational bedrock are minimal. (3) Religion uses reason (in the sense of concepts apart from evidence) to grapple with the source of our bedrock beliefs. It differs from other such grappling only in degree and not kind of thought; once we accept the role of concept (or reason) in such work, religious or secular, we necessarily must accord bedrock status (or categoricity) to at least one concept. Finally, I suggest that adoption of Leiter's definition has a troubling implication as to our respect for personhood.

By the way, if you are curious what to say to a Jewish person on Yom Kippur, since "happy Yom Kippur" is something of a contradiction, say "g'mar tov" which is short for the full Hebrew phrase that means "may you be sealed well." The mythology is that we are inscribed in the Book of Life for the coming year on Rosh Hashanah, and the inscription is sealed on Yom Kippur.  The actual prayer is called the Unetaneh Tokef, and it is the inspiration of Leonard Cohen's (above left) "Who By Fire."  Consistent with the kind of grappling with which I credit the religious impulse in the essay, I interpret this as "Recognize there is a distinction between what is and what ought to be, and we can't always make them match.  Let's do the best we can even when the world throws obstacles in our way."

G'mar Tov.  (UPDATE:  A good friend reminds me that a less highfalutin' greeting or wish is "fast fast" or "easy fast."  Since that rarely applies to me, I forgot!)

Robertson on Lawyers' Identity, Judgment, and Cognitive Bias

Posted by Jeff Lipshaw

Cassanda Burke Robertson (Case Western, left) has posted Judgment, Identity, and Independence on SSRN.  Here's the abstract:

Whenever a new corporate or governmental scandal erupts, onlookers ask "Where were the lawyers?" Why would attorneys not have advised their clients of the risks posed by conduct that, from an outsider's perspective, appears indefensible? When numerous red flags have gone unheeded, people often conclude that the lawyers' failure to sound the alarm must be caused by greed, incompetence, or both. A few scholars have suggested that unconscious cognitive bias may better explain such lapses in judgment, but they have not explained why particular situations are more likely than others to encourage such bias. This article seeks to fill that gap. Drawing on research from behavioral and social psychology, it suggests that lawyers' apparent lapses in judgment may be caused by cognitive biases arising from partisan kinship between lawyer and client. The article uses identity theory to distinguish particular situations in which attorney judgment is likely to be compromised, and it recommends strategies to enhance attorney independence and minimize judgment errors.

Do Attorney-Arbitrators Hand Out Less Money Than Nonattorney-Arbitrators? Do Democrats Award More Than Republicans? Empirical Study of Lawyers, Arbitrators, and Panel Dynamics

Posted by Alan Childress

Stephen Choi (NYU Law), Jill Fisch (U. Penn.), and Adam C. Pritchard (U. Mich. Law) have posted to bepress their new paper, "Attorneys as Arbitrators."  It looks interesting for the empirical fans among us (like Jeff's recent post on lawyer stereotypes, hypothesis, and testing) and the hardcore ELS types (like Bill). I like the fact that the authors used political contribution as one variable and found its party affiliation to be significant.  Keep in mind, though, that plenty of attorneys (and others) give for pragmatic and nonpolitical-leaning reasons, and often give to both sides.

And, as icing, it can be downloaded without going through SSRN!  Here is their abstract:

We study the role of attorneys as arbitrators in securities arbitration conducted by the National Association of Securities Dealers (NASD, n/k/a FINRA), using a dataset of 422 randomly selected arbitrators and their 6724 arbitration awards from 1992 to 2006. We find that arbitrators who also represent brokerage firms or brokers in other arbitrations award significantly less compensation to investor-claimants than other arbitrators. We find no significant effect for attorney-arbitrators who represent investors or both investors and brokerage firms. The relation between representing brokerage firms and arbitration awards remains significant even when we control for political outlook. We report that ideology correlates significantly with arbitration awards - arbitrators who donate money to Democratic political candidates award greater compensation than arbitrators who donate to Republican candidates.

Because the arbitration award is the product of the panel, not a single arbitrator, we also study the dynamics of panel interaction. We find that the position of chair is an important factor in assessing the arbitrator's influence, although the financial relationships of other arbitrators may also affect arbitration awards. Coalitions with the other arbitrators are also important. If the chair and another panelist possess a common attribute, the effect on the arbitration award increases.

Finally, we provide evidence that the 1998 reforms to the arbitration process - which introduced party control over the composition of panels - ameliorated, but did not eliminate, the effect that attorneys who represent brokers have on outcomes. We find no significant effect from the NASD's 2004 reforms.

Adam Pritchard also posted a piece questioning the common stereotype that Delaware law and courts create a 'race to the bottom' that entrenches and lowers quality of management.  More on that below the fold.  Oh, the new TypePad does not have a fold?  Sorry, then here is the link to Murali Jagannathan and Adam Pritchard, "Does Delaware Entrench Management?" Exciting bedtime reading for Jeff.

When Writing Multiple Choice Questions, Law Professors Should (a) Understand the Components of Good Questions, (b) Allow Justifications, (c) Read the Linked Article, or (d) All of the Above

Posted by Jeff Lipshaw

My Suffolk colleague, Janet Fisher (right), has posted  Multiple-Choice: Choosing the Best Options for More Effective and Less Frustrating Law School Testing (Vol. 37, Capital University Law Review, p. 119, 2008).  Here's the abstract:

Multiple-choice testing presents challenges and frustrations not only for the students who take the tests, but also for the doctrinal faculty who prepare and score the tests and for the academic support faculty who work with students having difficulty with multiple-choice tests. This article discusses means by which the multiple-choice testing experience in law school could be improved for both students and faculty. After a brief overview of the history of multiple-choice testing, the article describes problems that arise in connection with multiple-choice testing and the possible effects of flawed multiple-choice questions. The article then reviews basic multiple-choice item-writing guidelines and some general principles of test validity. For this, the article draws upon the work of law professor Michael Josephson and testing authority Thomas Haladyna. Finally, the article evaluates appeal and answer justification procedures that could be used to enhance multiple-choice testing.

Do I have to pay a royalty to Larry Solum if I say "highly recommended?"

DeFabritiis on Client Correspondence

Posted by Jeff Lipshaw

My colleague, Sabrina DeFabritiis (Suffolk, left), has posted Clarity, Organization: Watchwords for Client Correspondence on SSRN.  Here's the abstract:

This article focuses on the importance of clarity and organization in client correspondence by attorneys. The Massachusetts Rules of Professional Conduct mandate that attorneys keep their clients reasonably informed on the status of their case and explain matters in a manner which allows clients to make informed decision. This article focuses on tips to structuring written correspondences to achieve these goals.

While Sabrina's piece focuses on Massachusetts, the lessons are far more universal.

Henderson, Zorn & Czarnezki Reply To Baker On Whether Low Judge Salaries Dilute Talent

Posted by Alan Childress

William Henderson (Indiana--Bloomington), Christopher Zorn (Penn State, Poly Sci., shown below at right but left) and Jason Czarnezki (Vermont Law School) have published to SSRN their empirical and interesting article "Working Class Judges."  It also recently came out in 88 Boston Law Review 829.  In his usual modesty, Bill did not tell us; I found it via the SSRN emails from Brad Wendel.  But anyway,  congratulations to our coblogger.  (Not that he logs cobs or anything.)  Here is the abstract:

In recent years, a steady chorus of dignitaries has decried the low pay of federal judges and suggested that the federal judiciary is on the brink of losing its best and its brightest. The persistent nature of these claims should give us pause. Scott Baker's recent study empirically evaluates these claims by examining the relationship between judicial salaries and the work habits and voting patterns of federal appellate judges. If large pay disparities are indeed eroding the quality of the federal bench, Baker theorizes this likely results in more ideological voting, fewer dissents, longer delays in issuing opinions, and a self-selection of judges who are intent on maximizing their influence within the federal judiciary. To test these hypotheses, Baker undertook the formidable task of assembling the requisite datasets, which he then posted on the Internet for other researchers to use. Along with the ingenuity of his research design, we applaud Baker's industry and transparency. Thanks to his efforts, there is now an empirical literature surrounding the debate over federal judicial pay.

At the end of his inquiry, Baker concludes that higher judicial salaries would have virtually no effect on the performance of federal appellate judges. The purpose of this Reply is to qualify Baker's interpretation of his results, at least with regard to judges located in the "Top Five" legal markets of New York, Chicago, Los Angeles, San Francisco, and Washington, D.C. In his original analysis, Baker relies upon the average law firm partnership compensation, adjusted for years in practice and region, to estimate the forgone income - and hence opportunity costs - of each federal judge. Baker explicitly anticipated the possibility that this variable would understate the opportunity cost in large legal markets; thus, he included a Top Five variable plus an interaction term, which captures the effect of forgone earnings when a judge is located in one of the nation's five largest legal markets. Baker's discussion, however, does not formally address the significance of the interaction term, which requires some additional steps to properly interpret.

Based on our reanalysis of Baker's specifications, it appears that judges in the largest legal markets often behave differently than their smaller market counterparts. Specifically, the lower judicial salaries in Top Five markets strongly correlate with behavior Baker characterizes as "ideological" or "influence-motivated." Conversely, while lower judicial salaries in small markets correlate with longer delays in issuing opinions, the exact opposite effect describes the behavior of judges in Top Five metropolitan areas.

Our brief Reply proceeds as follows. Part I provides our reanalysis of Baker's data. Part II establishes an additional comparative context that allows us to speculate why Top Five legal markets may foster a more intense tradeoff of influence versus remuneration. Indeed, as we note, the real or perceived financial tradeoffs are so enormous - and conspicuous - in Top Five markets that federal judges may feel they have been lumped together with a large, faceless working class. We conclude by suggesting that the debate over judicial salaries is rooted in the more general problem of greater income disparity within the American legal profession.

Relis on Perceptions of the Civil Litigation Process

Posted by Jeff Lipshaw

Tamara Relis, whom I met at the 2007 Faculty Recruitment Conference, has two pieces of good news.  First, she's joining the faculty at the Touro Law School next year.  Second, she has a book coming out from Cambridge University Press entitled Perceptions in Litigation and Mediation: Lawyers, Defendants, Plaintiffs and Gendered Parties.  Here's an abstract:

The book is an analytical study exploring the internal dynamics and realities of case processing in the legal system leading up to and including mediation. In juxtaposing lawyers’ and parties’ understandings, objectives and experiences on all sides of ongoing injury and fatality cases (131 interviews, questionnaires, observations), the data shed new light on how lawyers and disputants think and speak about the meaning of their cases as well as their expectations and aims on how to resolve them. The findings additionally offer insight into how female and male attorneys practice law, and how female and male victims, plaintiffs and defendants experience legal processes.

Three recurrent themes run through the book. The first theme relates to the parallel worlds of understanding and meaning inhabited by legal actors versus lay disputants, reflecting materially divergent interpretations and functions ascribed to litigated case processing and dispute resolution. In providing a unique look into the diversity of prevalent realities, I demonstrate through lawyers’ and parties’ own discourse that both the formal and informal justice systems are not serving many of disputants’ intrinsic, often overriding, needs; and I challenge the notion that disputants and their representatives broadly understand and want the same things during case processing. As such, the parallel worlds’ findings reveal inherent problems with the core workings of the legal system. The second theme, termed lawyers’ “reconceptualization,” pertains to the role of mediation experience in transforming attorneys’ understandings of their cases and their roles within them, with extralegal considerations increasingly becoming inherent within lawyers’ thinking. The third theme relates to the diverse understandings of conflict and its resolution by males and females in professional and disputant groups

Congrats to Tamara on both scores!

Fines on Teaching Empathy as a Lawyering Skill in Ethics Classes

Posted by Alan Childress

Barbara  Glesner Fines (UMKC) has posted to SSRN her article, Teaching Empathy Through Simulation Exercises - A Guide and Sample Problem Set.  Her abstract is:

For over a decade, legal educators (particularly clinical faculty) have argued for the importance of teaching empathy as a critical component of legal education. Both the Carnegie Report and the Best Practices study have emphasized that legal education's instruction in skills - including lawyer-client relationship skills - requires greater attention. While some might argue that empathy is a skill that cannot be taught outside the context of clinical representation of clients, this simulation problem proceeds from the assumption that empathetic understanding of the client's situation is a skill that can be addressed in a variety of settings. Indeed, if empathy is left unaddressed in the classroom, legal education may further the divide of mind and heart and leave students with a message that what they learn in the classroom is an intellectual exercise of little real relevance to what they will do as an attorney.
         Professional responsibility courses are an especially appropriate classroom in which to address empathetic understanding of the client, as a key component in exploring the attorney-client relationship and the attorney's duty of communication. This role play is designed in the context of a bar admission problem. While the problem can be used to explore the substantive standards for admission to practice or the impact of law regarding disabilities on that process, the primary goal of this exercise is to explore how it feels to be a client. By placing the students in the role of a law student bar applicant - a situation that nearly every law student can imagine - the role play makes it easier for students to internalize the feelings and perspectives of the client.
        The role play includes instructions for attorney and client, documentary evidence, and a research memorandum on applicable law. Also included is an edited version of the actual case which is a basis for the problem.

Fines, shown right, also blogs at Family Law Prof Blog, including this recent post warning family law practitioners to be careful what they promise in a retainer agreement, given that a court may allow suit for breach of contract apart from legal malpractice (see also Mike's post here).

Michelson on Gender Inequality in China's Legal Profession

Posted by Alan Childress

New to SSRN is this paper by Ethan Michelson of Indiana-Bloomington's departments of sociology and East Asian studies:  "Gender Inequality in the Chinese Legal Profession."  Its abstract:

In China's urban context of labor retrenchment, women are faring poorly relative to their male counterparts. Is the same true in China's incipient, dynamic, and expanding legal profession? Findings from four sources of quantitative data suggest that gender inequality in China's private and highly market-driven legal profession is a microcosm of larger patterns of female disadvantage in China's evolving urban labor market. Although employment opportunities for women lawyers have greatly expanded quantitatively, their careers are qualitatively less successful than those of their male counterparts in terms of both income and partnership status. In the Chinese bar, women's significantly shorter career trajectories are perhaps the most important cause of their lower incomes and slimmer chances of becoming a law firm partner. Future research must identify the causes of this significant career longevity gap between men and women in the Chinese legal profession.

Our previous posts on Ethan's excellent work from inside China are here and here.

Mitch Rubenstein on the Lawyer's Worst Nightmare

Mitch Rubenstein, editor of our sister blog, Adjunct Law Prof Blog, has posted on SSRN an article published in the Northwestern U. L. Rev. Colloquy,  Lawyer's Worst Nightmare: The Story of a Lawyer and His Nurse Clients Who Were Both Criminally Charged Because the Nurses Resigned En Mass.  Here's the abstract:

Imagine that a group of foreign registered nurses approach their lawyer because they feel abused and want to quit their jobs. They signed an employment contract agreeing to remain employed for three years and are unsure of their rights. The contract that they signed also contains a $25,000 liquidated damage provision. The lawyer advised his clients that they have to right to quit, and after they quit, the lawyer and his clients find themselves at the center of a massive criminal and civil controversy. Both the lawyer and his clients are criminally charged with endangering the welfare of critically ill pediatric patients and related crimes because the nurses resigned en masse without notice. You might think that such a case could not arise in Twenty-First Century America, but in 2007 that is exactly what occurred in Suffolk County New York and resulted in a New York appellate court having to prohibit the criminal prosecution of both the nurses and their attorney. Matter of Vinluan v. Doyle, ___A.D.3d___, 2009 WL 93065 (2d. Dep't. Jan. 13, 2009).

This Essay examines this troubling case, where the court held that such a prosecution offended the Thirteenth Amendment and the attorneys First Amendment right to provide legal advice to his clients. This Essay explores the public policy issues raised by this case, whether nurses have the same right to withhold their labor as other employees, as well as certain issues which the court did not reach such as whether criminal prosecution of the nurses is preempted by the National Labor Relations Act. Additionally, this Essay explores legal issues surrounding the criminal prosecution of an attorney based on advice he may have given which the court ultimately found to be "profoundly disturbing." The Essay concludes by explaining that the liquidated damage provision, which may have sparked this entire controversy, was probably unenforceable as a penalty, another issue not reached by the court, that criminal prosecution of both the nurses and their attorney was unwarranted and that the Appellate Division decision was correctly decided.

[Jeff Lipshaw]

Beetles, Frogs, and Lawyers

Posted by Jeff Lipshaw

Several weeks ago, I was provoked (in a good way) by Usha Rodrigues' reference to Ronald Gilson's 1984 article on how transactional lawyers create value as the "reigning academic account."   I wrote a quick little essay and let it sit until this weekend when Gordon Smith reported on a clever quip from Professor Gilson about lawyers who become professors, and in the classic line:  "I resemble that remark."  I decided to update the little essay a bit and it is now on SSRN as Beetles, Frogs, and Lawyers:  The Scientific Demarcation Problem in the Gilson Theory of Value Creation.  Here's the abstract:

Recently, Ronald Gilson described a transactional lawyer turned law professor as someone who was a beetle, but became an entomologist. This is not the first non-mammalian metaphor used by an economically inclined legal academic to demarcate those who study and those who are studied. As Richard Posner so colorfully explained rational actors as they appear to economists studying them objectively: "it would not be a solecism to speak of a rational frog." In this short essay, I suggest that both say something about the prevailing view of theorizing that is entitled to privileged epistemic status in the legal academy. I assess Professor Gilson's classic 1984 article on value creation by lawyers in terms of its implicit claims to (social) scientific truth.

Higdon on Nonverbal Persuasion in Oral Argument to Judges

Or, would Governor Palin please stop shaking her head "no" when she is emphasizing a rightly-positive point about her candidacy?  Somewhat related to that query (but not an example he uses), today Michael Higdon at UNLV (a colleague of our own Nancy Rapoport, I note, and shown below right) has posted to SSRN his article, Oral Argument and Impression Management: Harnessing the Power of Nonverbal Persuasion for a Judicial Audience.  It is forthcoming in the Kansas Law Review, and has this abstract:

In essence, my article utilizes social science research on the topic of nonverbal communication in order to advance our understanding of what makes for effective oral advocacy. Currently, there are no articles that 1) give a comprehensive summary of the relevant social science research within the area of nonverbal persuasion and 2) apply that research specifically to the area of oral argument. My article attempts to fill both of these needs.

As you will see in the article, nonverbal communication goes well beyond simple hand gestures, but also encompasses how a person speaks, how a person dresses, a person's facial expressivity, and even such things as a person's posture and head position. Furthermore, social science research reveals that both these and other nonverbal cues can greatly impact the perceived credibility and persuasiveness of a speaker. Not only that, but in many instances, listeners tend to place even more reliance on what a speaker is saying nonverbally than the actual substance of the speaker's presentation. Given that attorneys should seek to maximize their persuasive potential during oral argument, knowledge of this research and these various principles is essential. Section III of my article explores this research.

Of course, what makes nonverbal persuasion somewhat different for oral advocates comes from the fact that the attorney is directing his argument not to a jury, but to a judge. As my article details, one of the ways a speaker nonverbally increases his ability to persuade is by employing nonverbal cues that enhance the speaker's perceived dominance. When appearing before a judge, however, the attorney must keep in mind that 1) it is the judge who is most dominant and 2) the judge expects nonverbal cues from the attorney that the attorney understands this hierarchy. Again using social science research, Section IV of my article explores this balancing act between dominance and submission and offers concrete advice on how oral advocates can navigate that somewhat thorny issue.

[Alan Childress]

Wilson on Prosecutorial Ethics: What If The Defendant Seems Innocent But The Boss Says Convict?

Posted by Alan Childress

Melanie Wilson (Kansas) has published in the Northwestern U Law Review's Colloquy a brief article called Finding a Happy and Ethical Medium Between a Prosecutor Who Believes the Defendant Didn't Do It and the Boss Who Says That He Did.  Here is the text of her first paragraph:

The increasing prevalence of DNA testing has proven that, at times, our criminal justice system renders wrongful convictions.  Extrapolating from such significant errors, we can infer that smaller mistakes also occur.  Because criminal prosecution is not an exact science, like DNA evidence, prosecutors can disagree about aspects of a case—whether to reward a cooperating defendant with a sentence reduction, whether to indict a defendant under a mandatory minimum statute, and even whether a defendant is guilty of a crime.  This Essay examines the tension that arises when the prosecutor handling a case disagrees with her boss about one or more of these significant issues and offers an ethical solution for resolving such disputes that will not undermine a criminal defendant’s chances of justice.

Wald on Client Communications, the Model Rules' Concept, and Making It a Dialog

Eli Wald (Denver) has posted to SSRN his article, Taking Attorney-Client Communications (and therefore Clients) Seriously.  It is also in 42 University of San Francisco Law Review 747 (2008).  Here is the abstract:

This Article argues that the communications regime orchestrated by the ABA Model Rules of Professional Conduct is intentionally designed to create a one-way street, systematically channeling information in the attorney-client relationship in lawyers' direction while often leaving clients in the dark. Furthermore, the asymmetric distribution of information in the attorney-client relationship is not in clients' best interests but rather grounded in lawyers' self-interest and in a paternalistic approach that fails to take communications, and therefore clients, seriously. Finally, taking communications, and thus clients, seriously requires adopting a new communications regime that would mandate disclosure of all material information to clients. The Article proposes a materiality-based communications regime and explores its application in several contexts.

Wald has also published on the historical development of the Jewish law firm, as noted in our prior post.  He also speaks on screening conflicts of interests, as in this Colorado CLE.

Hellman on Federal Judicial Ethics

Posted by Alan Childress

Arthur Hellman (University of Pittsburgh) -- shown right [and below left when he teaches on the west coast, with a difference explained here] -- has just re-posted to SSRN's journal of Legal Ethics & Professional Responsibility his revised and updated article (also appearing last year in Pitt's law review, vol. 69). It's called "The Regulation of Judicial Ethics in the Federal System: A Peek Behind Closed Doors."  The abstract is:

Ethical issues involving federal judges have been much in the news recently. Among other developments, the House Judiciary Committee held a hearing to consider impeaching a federal district judge; the Judicial Conference of the United States announced two major policy initiatives; and a committee chaired by Justice Stephen Breyer issued an in-depth report on the operation of the judicial misconduct statutes.

This article addresses two aspects of federal judicial ethics. The first involves conflict of interest and disqualification. Under the law, a federal judge is disqualified from hearing a case if (among other circumstances) the judge's impartiality "might reasonably be questioned," or if he or she has "a financial interest ... in a party to the proceeding." The first-quoted prohibition has generated a large body of case law. The second has proved to be a fertile ground for muckraking by investigative reporters, in part because judges can easily fail to remember or recognize that they own shares in corporations that are parties to cases on their dockets. In September 2006 the Judicial Conference of the United States directed all federal courts to institute "automatic conflict screening" using standardized hardware and software. This is a substantial step forward, but a purely internal screening program does not serve the interest in transparency.

The second set of issues involves the operation of the misconduct statutes. A 1980 statute, now codified as Chapter 16 of Title 28, creates a detailed set of procedures for handling complaints against judges and taking appropriate action in instances of judicial misconduct. The Breyer Committee found that in handling the vast bulk of complaints, the judiciary has properly implemented the 1980 Act, but that in high-visibility cases, the rate of error is "far too high." The committee's report and other recent developments point to several aspects of the system that deserve scrutiny. Primary among these is the lack of visibility; neither the availability of the process nor the outcomes of proceedings are sufficiently publicized.

Burke and McCouch on Ethics of Tax Shelter Attorney for Jenkins & Gilchrist

Posted by Alan Childress

Karen Burke and Grayson McCouch (both at U. of San Diego) recently posted to SSRN an article on the tax lawyer Paul Daugerdas, whose shelter opinions led to the Jenkens & Gilchrist firm's collapse, Cobra Strikes Back: Anatomy of a Tax Shelter.  Here is a post on it at TaxProf.  Our readers might be interested in the legal profession aspects of the article.  The abstract is below the fold.

The abstract:

Paul Daugerdas gained notoriety for himself and his erstwhile firm, Jenkens & Gilchrist, as the designer of a tax shelter that uses contingent liabilities to generate artificial tax losses on a grand scale. The basic shelter transaction is surprisingly simple. In essence, it uses offsetting options to inflate the basis of property that is distributed by a partnership and then contributed to and sold by another partnership, resulting in a large tax loss without any corresponding economic loss. In principle, this type of shelter could be replicated indefinitely and generate unlimited tax losses. Mr. Daugerdas is by no means unique. The transactions that he approved as shelter counsel on behalf of Jenkens & Gilchrist differ only in trivial details from myriad other transactions peddled by other lawyers and accountants.

Contingent-liability tax shelters are a highly risky business. Mr. Daugerdas and others like him reaped enormous rewards for themselves and their clients, but some of the tax shelters they designed for credulous and wealthy clients have backfired spectacularly. Congress and the Treasury have taken remedial action to shut down abusive tax shelters, and several courts have invoked the longstanding judicial doctrines to strike down transactions that lack economic substance and have no real business or investment purpose, despite purported compliance with the literal terms of the tax laws. The proliferation of abusive tax shelters could never have gotten off the ground without the active participation of high-priced counsel. Upon discovering that the anticipated tax benefits failed to materialize, disgruntled clients have rushed to sue the lawyers, accountants, investment advisers, and banks that created and marketed defective shelters.

This article discusses several challenges faced by Congress, the Treasury, and the courts in dealing with contingent-liability tax shelters. The article examines the role of Daugerdas and his firm in creating and marketing contingent-liability shelters, against the broader background of the tax shelter industry. The article explains the basic structure of the offsetting option transaction and its attempt to manipulate the partnership tax provisions. The article analyzes the contrasting rationales of two recent judicial decisions involving defective tax shelters, and argues in favor of applying Treasury regulations retroactively to shut down contingent-liability tax shelters.

Grose on Incorporating the Client's Story Into Contextualized Ethics Analysis

Posted by Alan Childress

Carolyn Grose (William Mitchell) has posted to SSRN's journal on Law & Soc'y:  The Legal Prof'n her new article, 'Once Upon a Time, in a Land Far, Far Away': Lawyers and Clients Telling Stories About Ethics (and Everything Else). Here is her abstract:

Framed by an analysis of two particular ethical rules and their application to specific situations, this piece uses the metaphor of storytelling to explore the lawyer's role as an effective and ethical client representative. Drawing from the experiences of two sets of clients and their lawyers, the piece proposes an approach to ethical regulation (as one component of the lawyer-client relationship) that requires the lawyer to engage in a deeply contextual analysis of the specific and particular ethical conflicts presented to him in any particular case; and work with his client to determine how to resolve those conflicts.

The first part of the article introduces the stories of these clients as the lawyers came to know them and as the ethical dilemmas unfolded. This section sets the stage for further analysis both of the Rules of Professional Conduct and of the process lawyers undertake to understand and apply those rules. The second part of the paper shifts the focus to the Model Rules of Professional Conduct themselves and tells the stories again, this time in the context of those rules. This second telling reveals that the rules that make up the system of ethical regulation are interpreted to apply to generic, abstract clients in generic, abstract situations.

Drawing on critical lawyering and narrative theory, the third part of the paper proposes an alternative approach to interpreting and resolving ethical conflicts. The article suggests that the system of regulation should be interpreted to allow room for the attorney to consider and incorporate the client's narrative context. Such an approach places the client in the center of the inquiry and requires the lawyer and client to engage actively in dialogue and problem-solving. It allows the lawyer and client together to arrive at solutions that both respond to the particular client's needs, and attend to the moral and ethical concerns the lawyer and society might have. By using a critically reflective, intentional process of inquiry around ethical (and other) concerns, the lawyer must focus on this particular client in the context of his life and his legal/non-legal needs in this particular situation. Such an inquiry results in a widening of the frame of the client's case such that what appear to be intractable and prominent ethical (and other) issues at the outset actually fade into the background as the lawyer and client together either resolve or preempt them completely.

Mikhail on Moral Intuition and Vining on Scientism versus Narrative

Posted by Jeff Lipshaw

For the two or three of you out there who actually read my posts on issues relating to law, ethics, business, and moral theory, or the far greater number who'd like to read something good, let me recommend two very different, but thematically related, pieces.

First, John Mikhail's (Georgetown, left) recent SSRN post, a draft of Moral Grammar and Intuitive Jurisprudence: A Formal Model of Unconscious Moral and Legal Knowledge (THE PSYCHOLOGY OF LEARNING AND MOTIVATION: MORAL COGNITION AND DECISION MAKING, D. Medin, L. Skitka, C. W. Bauman, D. Bartels, eds., Vol. 50, Academic Press, 2009) (HT, as usual, Larry Solum).  Professor Mikhail does both empirical and theoretical work with what is known as the Trolley Problem:  how people react to variants of a basic hypothetical in which a runaway trolley will kill either six people or one person depending on which track it follows, and the moral agent has to decide whether or how to throw a switch.  The empirical side is that he and his colleagues have interviewed thousands of people all over the world; the theoretical side is the conclusion that there is indeed a hardwired and universal moral sense.  This book chapter proposes a model for how the intuitional process is working.

I've recently pondered (and posted about the pondering) in Law's Illusion:  Scientific Jurisprudence and the Struggle with Judgment. I had already footnoted Professor Mikhail's earlier work as among the most promising of the descriptive enterprises on moral intuition; after looking at this new piece, I added the following:

John Mikhail’s work is on the cutting edge in terms of integrating moral philosopy and cognitive science.  Several observations about it are appropriate here.  First, Mikhail and his colleagues conclude that extensive empirical work bears out the hypothesis “that most individuals would be unaware of the operative principles generating their moral intuitions, and thus largely incapable of correctly describing their own thought processes.”  This is an empirical foundation of my inquiry; Mikhail’s work appears to confirm my intuitions and casual observations over a lifetime of work.  Second, while respectful of the inordinate complexity of the task of setting intuitive moral decision-making into algorithms, Mikhail suggests that “[i]n principle, a computer program could be devised that could execute these rapid, intuitive, and highly automatic operations from start to finish.”  This is consistent with Douglas Hofstadter’s conclusion in his work on the issue of consciousness.  Third, Mikhail’s model still does not answer the questions about recursiveness – the operation of judgment on own’s own judgment – with which Hofstadter wrestles.  Finally, while Mikhail is hopeful of a reductive solution (as noted, as much a matter of faith as anything, in my view), the difference between theoretically solvable but practically unsolvable complexity, on one hand, and irreducibility, on the other, may well be meaningless for my purposes.

Second, Joseph Vining's (Michigan, right) The Resilience of Law, posted with the following abstract:  "The development of "law and economics" over the last half-century has expanded and reinforced a perception among academic lawyers that law itself is a social science. During the same period social science has moved closer to the discipline of natural science and the presuppositions and methods of its thought and work. This essay explores why law is not and cannot be a social science, and why there are grounds for hope in a future for democracy grounded in the rule of law." 

This is a rumination on another theme that intrigues me, the interplay of the objective and subjective, something I explored in Models and Games and the piece in the Canadian Journal of Law and Jurisprudence that should be out any day now.  Vining draws on the narrative methodology, and observes:

Law will stay resilient because the individual at home in law is the bedrock, prior to any discussion of history or process, or presently existing system, or scientific conclusion, in fact prior to any discussion of "the individual."  Though some individual waves his wand at us again and again, we are not changed from the individuals we are into products or statistical notions.  Beyond that bedrock - our actual presence to one another - I should say there is some assurance in the fact that law, with its presuppositions and more than presupposition, its ontology, is the one thing other than food that we cannot do without.  Social scientists too, even they, cannot do without it.

And more:

Law will be tough enough in the future.  We can speculate why it has not been tougher in the past.  There are tensions within law, as there are in your and my own thought, and there always have been.  Identification of law with social science can have been an effort to escape them.  Social science and science behind it perhaps need not have pressed so.  They might just have offered themselves, for there is a constant pull toward the authoritarian, the meaningless, the automatic, away from responsibility, away from facing grief for what we ourselves do.  Work in law even has an element of the frightening in it, which must be handled in some way.  Just as there is biblical awe, dread, and fear, so too can it be positively frightening to think that what is  necessary to authenticity of any kind at any level - and necessary therefore to authority, and therefore to law - runs straight up to a transcendent dimension of the universe.  This is a problem the social scientist of our time, thinking as a social scientist, does not have.  But the lawyer does.

As Larry Solum says, both are highly recommended.  Download them while they're hot.