Legal Profession Blog

Reciprocal Discipline For Dentists

The full Massachusetts Supreme Judicial Court considered a series of  questions relating to the proposed reciprocal discipline of a dentist in light of actions taken in Rhode Island. The court remanded the matter to a single justice of the court, holding:

We hold that the board has the authority to impose reciprocal discipline in this case, and in the absence of other material issues pending before the single justice, we proceed to consider the discipline imposed by the board. The board revoked Anusavice's license to practice dentistry in Massachusetts, a level of discipline substantially greater than that imposed in Rhode Island. While in other circumstances this disparity might raise a concern, it does not do so here because the extent of the discipline was based not only the discipline imposed in Rhode Island, but also on Anusavice's history of discipline and regulatory noncompliance in Massachusetts, as well as his criminal misconduct.

The board has broad latitude in shaping appropriate sanctions in each case, and we defer to the board's expertise in making those determinations. Birudavol v. Board of Registration in Med., 448 Mass. 1031, 1033 (2007), quoting Sugarman v. Board of Registration in Med., 422 Mass. 338, 347 (1996). We review the sanction imposed for abuse of discretion. Kvitka v. Board of Registration in Med., 407 Mass. 140, 143 (1990). Here, we find no abuse of discretion. The decision was accompanied by a statement of reasons. Those reasons were supported by substantial evidence, and "the petitioner has not demonstrated any 'extraordinary ... circumstances' that would justify our interference in the board's exercise of its discretion in terms of the sanction." Kobrin v. Board of Registration in Med., 444 Mass. 837, 850 (2005), quoting Weinberg v. Board of Registration in Med., 443 Mass. 679, 687 (2005).

The case is Anusavice v. Board of Registration in Dentistry, decided July 11, 2008. (Mike Frisch)

Imputed Misconduct Justifies License Denial

An accountant who had been convicted of wire fraud arranged to be a 49% shareholder of a public accounting firm while there was a pending proceeding to revoke his license. The Missouri Supreme Court held that the Board of Accountancy properly exercised its discretion not to grant a license to the firm. It was not error to impute the prior individual misconduct to the new entity:

...the Commission further held that because the relevant conduct occurred prior to IFS's formation as a corporate entity, the Board could not consider it. This reasoning is flawed because a new firm applying for an initial permit has no history and, so, to require the Board to issue the permit, regardless of the background and character of the corporate owners, would frustrate the intent of section 326.310. Reading the statutes together, the authority of the Board to deny a permit under section 326.310 by imputing the past misconduct of the owners to the new firm is at least implicit, if not express. Kossmeyer is a convicted felon who has been found unfit to practice accountancy in the state of Missouri, and his conduct reflects no less poorly on the fitness of IFS as a public accountancy firm simply because it occurred before the entity's formation.

(Mike Frisch)

No Fiduciary Breach

The New York Court of Appeals today held that a lawsuit alleging, among other things, breach of fiduciary duty against an Orthodox rabbi by a women with whom he was alleged to have had a 3 1/2 year intimate affair failed to establish a viable cause of action. The complaint contended that the defendant had counseled the plaintiff on personal and other issues relating to her desire to marry and have children. the defendant allegedly claimed to be "as close to God as anyone could get" and "that he was, in fact 'the Messiah.' "

The court concluded that a fiduciary relationship requires de facto control and dominance. the plaintiff had "voluntarily consented to the 3 1/2 year intimate relationship with [defendant] because she subjectively believed that the 'therapy' he suggested would help her find a husband... no cause of action can be maintained for an extended voluntary sexual affair between consenting adults, even if [plaintiff] could prove that her acquiesence was obtained through lies, manipulation or other morally opprobrious conduct." (Mike Frisch)

No ADA Claim For Dishonesty Dismissal From Medical School

The Vermont Supreme Court affirmed the grant of summary judgment to the University of Vermont, rejecting a claim that the University discriminated against a medical student based on a disability. A faculty member had discovered that the fouth-year student had falsified an evaluation for a pediatric-surgery rotation. At a hearing, the student admitted the conduct and claimed it was an isolated incident. He was not dismissed but was subject to less serious sanctions.

The school later discovered two other falsified evaluations as well as a falsely altered diploma (to support a magna cum laude claim). At a second hearing, the student claimed the misconduct was caused by Tourette's Syndrome and a related obsessive-complusive behavior disorder. Expert testimony supported the contention. Nonetheless, he was dismissed from the University. He then sought treatment and petitioned for reinstatement, which was denied. He completed his studies elsewhere and sued the University for equitable relief, either the award of his degree or reinstatement.

The court here "recognize[d] that we are dealing with an academic institution about the ethical and academic standards applicable to its students." The university acted "for multiple purposes:to enforce academic standards, to protect patients being treated by students, to maintain trust between students and others, and to produce students who can go on to residencies and a profession practicing medecine." He never sought accomodation but only raised the disability issue to avoid sanction.

The court held:

   For multiple reasons, we conclude on this record that the undisputed facts show that plaintiff lacks a prima facie case, and the superior court properly dismissed the action. First, plaintiff cannot show that he met the essential qualifications for graduating from medical school, even with reasonable accommodations.  As the Dean emphasized, “[d]eception, dishonesty and perpetration of fraud are absolutely unacceptable, irrespective of cause.”  The College has the academic discretion to make honesty and personal accountability essential qualifications for its students.  See Falcone, 388 F.3d at 659.  As a matter of law, it would fundamentally alter the nature of the College if those actions by students were tolerated by the College and the student was allowed to enter the profession.  See Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791, 793 (1st Cir. 1992) (where university reached the “rationally justifiable conclusion that the available alternatives would result either in lowering academic standards or requiring substantial program alteration, the court could rule as a matter of law that the institution had met its duty”); Doe v. Attorney Discipline Bd., 78 F.3d 584, 1996 WL 78312, at *3 (6th Cir. 1996) (unpublished table decision) (in bar discipline case under Title II of the ADA, “ADA does not require that we hold Doe to a lesser standard of conduct than any other attorney, it merely precludes Doe from being denied an opportunity to practice law because of his disability.  Since Doe’s disability . . . has precluded him from satisfying the most basic ethical requirements of his profession, he is not qualified under the provisions of the ADA.”).

Further:

In essence, plaintiff seeks to wipe the slate clean and to obtain a second chance—in this case a third chance—to meet the academic and ethical requirements of the College.  He has requested as a remedy that he be given a medical degree or that he be reinstated to the fourth year medical class.  In essence, his record of misconduct would be eliminated, as if his disability was a full and complete defense to that misconduct.  The College would be required to ignore that the misconduct, however egregious, ever occurred.

      Decisions from other jurisdictions are clear, however, that the purpose of the ADA is not to give a second or third chance to one who commits misconduct.

(Mike Frisch)

Confidentiality Provisions Inapplicable

In a case involving the revocation of a nursing license, the Oregon Court of Appeals held that confidentiality provisions relating to such proceedings do not deprive the accused of an opportunity to review the files of the investigation or to cross-examine witnesses in the proceeding.

The Court held:

Given the text, context, and manifest purpose of the statutory scheme as a whole, we conclude that the legislature did not intend the requirements that the board "keep confidential" and "not disclose to the public" any information obtained in the course of its investigation of an applicant or licensee to limit the board's disclosure of that information to the applicant or licensee in the course of a contested case hearing. Rather, in light of its apparent objective, an applicant or licensee who is facing a disciplinary sanction in a contested case proceeding is not, for the purposes of that statute, a member of "the public." 

Can Law Study in China Help a U.S. or Other Foreign Lawyer Get a Job in China or Practice There?

That is the question Donald Clarke (GW Law) of Chinese Law Prof Blog has asked various sources.  He has compiled the answers and considerations in a new PDF document he links and introduces in this post.  LL.M. programs and other law study (usually in English) open to U.S. lawyers and others are considered.  [Alan Childress]

Flood on Global Implications of the UK's 2007 Professional Reforms

John Flood (Westminster, visting U. Miami Law), below right [not his peke, left] has posted to SSRN his study of the effect on (or conceptualization of) law firms, even outside England and Wales, raised by recent professional reforms there.  The article is called "Will There Be Fallout from Clementi?  The Global Repercussions for the Legal Profession after the UK Legal Services Act 2007."  We previously posted here on John's work on global law firms and his teaching ethics in the U.S.  He has posted on this very topic on his "RATS" blog, but may not see the irony that he likes pekes and calls his blog that.  He also presented it at the April Georgetown U.L.C. conference that Mike noted here.  See also John's interesting blog thoughts on visiting with a US law faculty while living at South Beach.  Here now the abstract:

The paper presents the historical arguments that led to the Clementi review of the legal profession and its culmination in the Legal Services Act 2007. There were two strands: one based on consumerism (too many complaints about lawyers' services); the other based on a sustained investigation by the competition authorities into professions' restrictive practices (anti-competitive unless proved in the public interest). These led to the abandonment of traditional forms of organization for lawyers' practices (alternative business structures) and the imposition of a new regulatory structure for the profession (oversight and frontline regulators).

In the second part of the paper I examine the trends in lawyers' practices as currently pursued and as envisaged by the Act as aligned with our conceptions of professionalism. Using two hypotheticals: Tesco Law, and Goldman Sachs Skadden, I chart a move from professionalism to deskilling and proletarianization in the legal profession, not unlike that which existed in the 19th century.

This dystopian view, which is essentially a top down conception of the legal industry, is contrasted with a more optimistic view based on the changes in the idealization of careers and life as represented by Generation Y. This is augmented by the changing nature of work, ie, post-Fordist, within organizations which in a number of ways escapes control and measurement because the distinctions between production and consumption, work and leisure allied with distributed network forms of production blur the boundaries that we have taken for granted. In contrast to the socio-economic approaches, I argue that we must examine conceptions of career, inclusion and exclusion, vocation, and community in order to understand how the professions will adapt to the postmodern condition.

Come back to the states soon, John, and congratulations on a successful year of U.S. law teaching.  See you at Law & Society Montreal?  [Alan Childress]

Griffith Univ. and Univ. of Queensland (Aus.) To Hold International Ethics Conference Mid-July 2008

"The Third International Legal Ethics Conference will be held on Australia's beautiful Gold Coast on 13-16 July 2008. ... The primary aim of the conference is to provide a forum for informed and lively debate within the various conference themes."  Detailed Information, speakers, and a call for papers are linked here.  Our prior link here to the colorful and printable conference schedule.

Notably for LPB readers:

The conference will be designed to cater for both scholars and legal practitioners, with a designated "practitioners’ day" which will include papers, presentations and discussions of particular relevance to practising lawyers.

The conference themes embrace international perspectives, and will provide delegates from Australia and abroad with opportunities to hear and share ideas and arguments that have implications for "lawyering" across jurisdictions.

[Alan Childress]

Welcome to the Lawyering Blogosphere: International Law Prof Blog

Posted by Alan Childress

The Law Professor Blogs Network, of which our LPB is a member, just added a new blog yesterday which may be of interest to followers of the legal profession:  the International Law Prof Blog.  It is "for professors who teach international law (and for those who are interested in teaching international law, or just keeping current with new issues in international legal education)." You know it is a new blog when early on the morning of its second day it already has eight items posted. One of the them, I noticed (and thanks), mentioned Tulane's summer abroad program. Here's a post on careers in international law.

The blog is coedited by Mark Wajcik (John Marshall), Cindy Buys (S. Ill.), and Michael Piel (Wash U.), with contributions by Case Western adjunct Cyndee Cherniak.  The four have a wealth of international law experience -- practice, teaching, and administrative -- and see the coverage as broadly ranging from  private and public international law and human rights to IBT, comparative law, and summer study programs.  Given their experiences (and the kind of prof who would read it, often wearing many hats at their law schools), I hope they will include teaching foreign students in the U.S. and news or ideas about such LL.M. programs, including chat about the difficult legal writing compenent of it and orientation programs.  And of course if they post on items about other legal professions, practice and licensing across borders, or other matters showing that lawyers and ethical rules vary around the world, I hope they let us know and let us link them.

For joining the uncrowded blawgworld, and for being so internationally, the blog deserves the immortal words of Lili Von Schtupp: "Velcomen, bienvenue, velcome, come on in."

Update:  While I am on the subject of international law, I noticed that Brian Leiter has reported that Tulane has hired EU- and comparative- law expert Dr. Jorg Fedtke away from University College London; Leiter describes it as "a very good appointment for Tulane."  This follows a year after renowned comparativist and award-winning teacher James Gordley joined the Tulane faculty from his chair at Berkeley.  Another velcomen is due, Jorg.

Not Too Late to Study Abroad in Greece and the Greek Isles Via Tulane Law's Summer School

Posted by Alan Childress
Although Tulane's summer school program June 22-July 11 on the beautiful and car-free Isle of Spetses is almost full, I believe there are a few spots still open.  And there are openings in either of the Rhodes programs before and after Spetses, starting June 1.  Not too late to book a trip and attend for three-week sessions in these playful and historic islands.  I noticed that the Athens airfares just came down a lot, likely filling last minute seats.  (Search Kayak.com.)  I teach "Comparative Legal Professions" in Spetses and have posted some pics on my website.  Here is the Spetses Hotel where the Spetses program takes place -- nicest people in the world.  Its restaurant (meals are included) looks out, left, on palms and sea.

If you go to the first Rhodos session, be sure to take classes from such teaching legends as Thanassi Yiannopoulos, Robert Force, Gunther Handl, and Martin Davies.  In Spetses, book my 8:00 a.m. class (there is always siesta time later) or -- if you must -- a later one taught by all-stars Mark Wessman, John Kozyris, or Anastasia Alexiou.  The view from your room's balcony?  Shown right (click to enlarge).

Macey-Dare on Restricted Entry To the English Bar (Part of the Legal Profession) by Vocational Training Requirements

Posted by Alan Childress

Rupert Macey-Dare (Oxford [St. Cross College] and the director of Oxford Informatica) has posted to SSRN his article, "'Practicing Certificate Risks' in the Market for Advocacy," as part of the series on developments at the English Bar, and its relationship with the Solicitors' profession. This paper concerns lower entry rates for Barristers (the Bar) in England and Wales.  I posted on an earlier paper from his series in this LPB post last June.  The abstract to the new paper is:

This paper considers two types of practicing certificate risk, relevant to the Bar of England and Wales, plus related sections of the Neuberger Report 2007.

The first of these risks could be called New barrister practicing certificate risk. This is the risk for a qualified applicant of never gaining the Bar practicing certificate because of restricted supply of preliminary approved pupillages. The paper argues, contrary to the Neuberger Report, that perception of this risk is much more likely to deter potential applicants from minority groups from ever training for the Bar, than any outdated perceptions of stuffiness or snobbery. The Neuberger Report acknowledges that this risk has recently risen to around 75%. Its recommended remedy is to reduce annual BVC graduate production and bring it into line with current annual approved pupillage availability. Acknowledging that a direct numerical cap on BVC numbers could infringe competition law, the Neuberger Report recommends the introduction of a raft of academic improvement measures designed to achieve this reduction in numbers by other indirect means.

The second of these risks could be called Solicitor-transfer practicing certificate risk. This is the risk to established Barristers of BVC graduates excluded from the Bar by unavailability of pupillage, subsequently transferring over to gain their practicing certificates as Solicitors, with special training and interest in advocacy. Given the relative sizes of the two professions and ratio of annual BVC graduate production to annual approved pupillages, this process could quickly lead, if left unchecked, both to a large increase in the overall number of advocates licensed to practice and to a larger number of advocates in the Solicitors than Barristers profession. The risk therefore to the Bar is that it could lose its traditional position as quasi-monopoly supplier of advocacy services in England and Wales, together with any associated monopoly profits. N.B there is no direct discussion of Solicitor-transfer practicing certificate risk in the Neuberger Report. Nevertheless, the BVC graduate reduction measures recommended by the Report are certainly consistent with addressing this risk as well.

A Bibliography of Comparative Law, Including Middle Eastern and African Sources, by Patrick O'Donnell

Posted by Alan Childress
Anyone who reads blogs knows that Patrick O'Donnell, who also teaches philosophy at Santa Barbara City College, is a prolific and insightful commenter.  Jeff's prior post on his bio is here.  Patrick is allowing us to post a bibliography he complied of comparative law sources in English, with particular attention to studies of African, Islamic, and Indian law.  These are the sources I lamented, in my entry on Lawyers, were harder to find (particularly as regards the organization and regulation of their professions).  Thanks to Patrick for offering this academic gift to our blog, and we hope some readers will find it useful. He calls it "Comparative Law: A Basic Bibliography of Books in English."  It is in Word and linked here: Download comparative_law.doc

Childress on Overview of Lawyers and the Legal Profession, in the U.S. and Comparatively

Posted by Steven Alan Childress

I have recently posted to SSRN this 5000-word summary on the legal profession.  It appeared as the entry "Lawyers," in volume 2 of David S. Clark, ed., Encyclopedia of Law and Society: American and Global Perspectives, p. 930 (Sage 2007).  The encyclopedia's information is linked here and it's shown right.  The essay's abstract is:

     This entry summarizes the definition, roles, and organization of lawyers and the legal profession, from an American and comparative perspective. Discussion includes legal education and entry into the profession, identification and counting of members, regulation of lawyers, scholarly views on the profession, and sociological issues involving women and minorities. Geographic examples include the U.S. and United Kingdom, as well as such civil law jurisdictions as Japan, France, and Germany. Given that there is no shared concept of the legal profession, cross-cultural comparisons are difficult and often erroneous, but often make political fodder. Current and classic writings on the legal profession are considered.

Educational Malpractice

Two people who had enrolled in, completed, graduated and received diplomas from a massage therapy program "were unable to pass the [Mississippi] state certification examination." They sued the college that had provided the program and "raised several causes of action centered around the prospect of 'educational malpractice.' " The circuit court denied the college's motion to compel arbitration "because [the college] participated in the underlying litgation." The Mississippi Supreme Court reversed and remanded, finding no waiver and directing the court below to "resolve whether the arbitration language at issue is enforceable."

Any thoughts on the viability of such a claim by a graduated student who fails a certification exam? (Mike Frisch)

An Academic's Blog to Keep an Eye On, With Some Posts on the Teaching of Legal Ethics in the US and UK: Welcome to the Colonies, John Flood

Posted by Alan Childress

John Flood, a professor of law and sociology in the UK and Germany, is a leading figure in the Law and Society Association and a prodigious writer on law firms and the legal profession worldwide.  His recent work on the globalization of firms is becoming part of the basic canon of reading on the profession and its institutions internationally.  Some of his writings are readily linked here (click on Publications).

This year, John is visiting at the University of Miami, lucky them (and lucky for him, the city has good cigars).  And lucky for us, he is currently blogging his experiences at a US law school, with interesting contrasts to legal education in the UK.  Here is his blog:  Random Academic Thoughts (RATS).  I was particularly interested in his post (see Feb. 2 here) on the difference between how legal ethics is taught in the US versus the UK, and we in US law schools (surprisingly) come off looking pretty good by comparison.

I also enjoyed these observations on giving a paper to a law faculty at lunch, which should be considered by those who will do a job talk in seeking employment as a law prof.
 

Should Lawyers Be Able to Publish Confidence-Ridden (or Guilt-Ridden) Memoirs?

Over at the Australian Professional Liability Blog, barrister Stephen Warne asks that question, and relates the example of a criminal defense attorney, John Marsden, who felt the need to unload his views on (and details about) a notorious rapist-murderer client.  "Criminal lawyers have to live with secrets which bear down heavily on them. Perhaps it is not surprising that Marsden made the disclosure. But where was the reportage that this was a serious transgression? I am not speaking of condemnation, but rather an acknowledgment that this is not as it should be."  Warne then makes an analogy to the Britney Spears-Dr. Phil situation.  [Alan Childress]

Regulation Of Doctors

The Missouri Supreme Court issued an interesting opinion in a case where a medical doctor had sought injunctive relief from the suspension of his hospital privileges. The court held that a hospital is obligated to comply with its by-laws, but that there is no judicial review of hospital staffing decisions:

"Finally, and despite this Court's holding, it must be emphasized that the purpose of the regulation is to implement a system of medical staff peer review, rather than judicial oversight, and it is clear that final authority to make staffing decisions is securely vested in the hospital's governing body with advice from the medical staff. This is so because the notion underlying the internal governance structure required by the regulatory scheme is that medical professionals are best qualified to police themselves. 19 CSR 30-20.021(2)(C)12 ("The medical staff as a body or through committee shall review and evaluate the quality of clinical practice of the medical staff in the hospital in accordance with the medical staff's peer review function and performance improvement plan and activities."). This Court, then, will not impose judicial review on the merits of a hospital's staffing decisions, but will act only to ensure substantial compliance with the hospital's bylaws. In this case, a cause of action in equity will lie for that purpose, but the matter of substantial compliance is a factual dispute that can only be determined on remand."

(MIke Frisch)

Looking for Meaning in Cambridge on Thanksgiving Morning

Posted by Jeff Lipshaw

I wondered this Thanksgiving morning whether there is a blog where the pharmacists who staff the 24 hour CVS in Porter Square (where I filled a prescription), or the baristas who open the Mass. Ave. Starbucks at 6:00 a.m. (where I got some coffee), or the people who work at Kohl's and will be at their stations at 4:30 a.m. tomorrow morning, or the people who drive the T trains all day on the holidays can bitch and moan about their lot in life.  I happened to be reading Paul Gowder's blog post over at Law and Letters about the travails of being an exploited young lawyer, and thought I'd note a couple things.

1.  The "corporate serf" thing or the big firm/do-gooder dichotomy for graduates of the elite schools is just plain wrong.  Thirty years ago, I made a life style decision NOT to go to work at a law firm in New York, opting instead for less money and more lifestyle in Detroit.  That option still exists.

2.  With all the ink spilled about the likely fate of the vast majority of law students, why do they keep going to law school?  Maybe the ones who don't see themselves as victims just don't write about it.

3.  There's an article in the New York Times this morning about the perks that the big law firms offer to their associates in the competitive market for talent.  The list that follows is taken verbatim from the article:  candied apples on everyone's desk from the "happiness committee," milkshakes from Potbelly Sandwich Works, concierge services (pick up theater and sports tickets, dry cleaning, car repair, etc.), top off bonuses, sabbaticals, mortgage guarantees, subsidies for buying hybrid cars, on-site tailoring, personal issues coach and psychotherapists, wine parties (tuna tartare, baby lamb chops), dinner delivered from the Palm Restaurant (on a silver tray), yoga classes, nap rooms, child care, and emergency nanny services.

I return to my thoughts from yesterday about futility.  Very few people in the world are lucky enough to find meaning for their lives in their work.  If you are looking for meaning in your life, and doing your job as a lawyer has as much meaning to you as filling an order for a quad soy latte with extra foam, then you either have to look for meaning elsewhere, or deal with the same cognitive gap of futility in squeezing meaning out of something that is not meaningful.  But lawyers at least have a chance.

When my daughter was born over twenty-three years ago, as we were still basking in the miracle of having created this baby, I remarked to the obstetrician in Ann Arbor (who was about to leave for a post-doc at Duke) how amazing it must be to see babies born every day.  His response was interesting.  He said that the physical act of giving birth had, to him, become routine; the magic and the meaning was in the connection with the people who were his patients.

Practicing law probably falls somewhere between making espressos and delivering babies, but the point is that there's no guarantee that work will make our lives seem important to us, and we need to deal with that either by changing the work or finding another place for meaning.

Happy Thanksgiving!

Tevye's Question, the Myth of the Horizontal Organization (Again), Interdisciplinary Work, and Rob Kar's Great Idea

Posted by Jeff Lipshaw

Having just returned from the Midwestern Law and Economics Association conference, and having this morning read Rob Kar's great first post on PrawfsBlawg (what is he going to do for a follow up to that?), I was reminded again of the fundamental question Tevye the Dairyman, the protagonist of The Fiddler on the Roof, raised about interdisciplinary studies.  Tevye, in advising his daughter about the problems of inter-marriage, says "a fish could marry a bird, but where would they live?"

The myth of horizontal organization is that you can keep a business organization dynamic and growing merely by agglomerating value-creating specialties. But if that's the case, it's like fish and birds, and who sees the places where neither of them live? Either everybody is responsible for the gaps between specialties (which means nobody is responsible) or nobody is responsible.

My talk at MLEA dealt in the broadest sense of trying to use algorithmic economic models to map linguistic or moral models.  That is, can you draw legal policy conclusions by trying to cast what the parties mean in a contract into the equations of welfare economics so as to resolve disputes about contract interpretation in an economically efficient way?  While I'd say about 40% of my time on this over the last couple weeks has been devoted to refining the point I was trying to make, the other 60% was devoted to what is essentially translation.  My first attempts, thoughtfully critiqued by colleagues Eric Blumenson and Andy Perlman, were largely cast in terms of the jargon of philosophy of language and cognitive science, and I thought we made great strides in bringing the ideas to a common denominator of relatively plain English (albeit plain English with words I made up).  Nevertheless, I have reason to believe I was not entirely successful (nor unsuccessful) in communicating with the audience. 

On the flip side, there were portions of the conference - mostly those with complex equations - as to which I might as well as been have been listening to a talk in French.  I would have understood enough of the syntax and the occasional words or English cognates to be able to say, with about this level of specificity:  "they are talking, I think, about wine, and either about its price or the tannin levels."

Which brings me back to the subject of Rob Kar's post, about which I have great passion.  He's responding to the response by Brian Leiter and Michael Weisberg to the recent convergence of law and evolutionary biology, which they criticized.  Now, again, we have a translation issue, but I read the Leiter/Weisman critique as saying evolutionary biology has yet to show it is capable of shedding light on the "non-plasticity" of behaviors, such that they might be the subject of legal policy.  I interpret non-plasticity as the behavior being fixed, or rigid, or hard-wired, or universal in a particular circumstance, as shown biologically, such that we might have confidence that the generalization in a legal rule is neither under-inclusive or over-inclusive.  I think Rob agrees with that (as do I), but his broader point goes back to how fish and birds, or sub-specialties, might learn to talk to each other, much less live together.

The point is the myth of the horizontal organization.  A new discipline that fits in between the cracks of the old ones needs to adopt its own rigorous standards, but they won't be the standards of any of the contributing disciplines.  I particularly took to heart Rob's inclusion of the philosophy of science and an analogy to meta-ethical thinking in the mix of disciplines that might inform this venture.   Particularly as to the latter, without a good dose of thinking about thinking, the project will never be more than the sum of its parts.

Kritzer on 'Not Lawyering Up' Due to Income and Kind of Case: Some Counterintuitive Empirical Results In the US and Five Other Legal Cultures

Posted by Alan Childress

Herbert Kritzer (Wm. Mitchell) has posted to SSRN's LAW & SOC.: LEGAL PROF. journal his paper, "To Lawyer, or Not to Lawyer, Is That the Question?" (August 2007).  Here is Bert's abstract:

A central aspect of much of the debate over access to justice is the cost of legal services. The presumption of most participants in the debate is that individuals of limited or modest means do not obtain legal assistance because they cannot afford the cost of that assistance. The question I consider in this paper is whether income is a major factor in the decision to obtain the assistance of a qualified legal professional. Drawing upon data from five different countries (the United States, England and Wales, Canada, Australia, and Japan), I examine the relationship between income and using a legal professional. The results are remarkably consistent across the five countries: income has relatively little relationship with the decision to use a legal professional to deal with a dispute or other legal need. The decision to use a lawyer appears to be much more a function of the nature of the dispute. Even those who could afford to retain a lawyer frequently make the decision to forego that assistance. The analysis suggests that those considering access to justice issues need to grapple with the more general issues of how those with legal needs, regardless of the resources they have available, evaluate the costs and benefits of hiring a lawyer.

Encyclopedia Entry on Lawyers and Comparative Legal Professions Is Now Out in PDF

Posted by Alan Childress

Here is a link to download my 5000-word entry on "Lawyers" which appears in volume two of the fresh-out Encyclopedia of Law and Society:  American and Global Perspectives, edited by David Clark at Willamette and published by Sage: Download lawyers_entry.pdf

Macey-Dare on Joining the Bar of England and Wales Today: A Proposal

Posted by Alan Childress

Rupert Macey-Dare (Oxford [St. Cross College]) has posted to SSRN his article, "'New Certificates of Eligibility,' Training and Entry to the Practicing Bar of England and Wales."  His abstract is:

The current system of training and entry to the practicing Bar of England and Wales shows serious imbalances, as discussed in a previous paper on the Economics of Pupillage. Eight Bar Vocational Course (BVC) providers produce around 1000 successful graduates per year over and above the number of available pupillages and annual new tenancies. These students are typically Called to the Bar as non-practicing Barristers but subsequently excluded from any professional legal work as Barristers, for want of an unfunded 1st 6 month pupillage, whose provision is in turn prevented by the Bar's Minimum Pupillage Funding Regulation (MPFR). One laissez faire solution advocated by the Society of Legal Scholars is to leave the current system in place and to allow market forces to restore equilibrium. Another solution advocated by the Bar Council is for Call to the Bar to be deferred until after the completion of pupillage. These two proposals are analysed in a previous paper on the Economics of Deferral of Call.

A third new proposal outlined below is for equilibrium in training and entry to the Bar to be achieved using a New Certificate of Eligibility (NCE) system, combined with No Deferral of Call and strong relaxation or abolition of MPFR. Such a system would have fundamental advantages over other proposals. Firstly, effective control over entry to the Bar would be restored to the Inns of Court. Secondly, the door to the Bar would be opened or closed before students had incurred major BVC expenses. Thirdly, the NCE system would allow effective indirect control by the Bar over the number of BVC providers. Fourthly, every successful BVC student would be expected to qualify as a practicing Barrister at the independent or employed Bar. Fifthly, effective competition for new tenancies would be restored, raising the quality of new tenants and the size and competitiveness of the practicing Bar and social welfare. Sixthly, any discriminatory and deterrent effects on students from disadvantaged background would be reduced thus improving the composition of the Bar over time. Sixthly, the size of the Bar, its national and global influence and ability to compete in the market for legal services would continue to grow.

The abstract on the previous Pupillage paper referenced above appears after the jump.

Not all that related to bar entry, nonetheless see also John Steele's post and link yesterday at Legal Ethics Forum on broader and controversial reforms proposed in the UK about oversight and regulation of the legal profession.

Economics of Pupillage

Abstract:     
This paper reviews the economics of pupillage, which is the final mandatory vocational training stage for practicing barristers in England and Wales. First recent trends in data are examined for Bar Vocational Course (BVC) passes, annual pupillages and new tenancies and shown to be significantly out of balance. Major factors behind these imbalances are the eightfold increase in number of BVC providers in the 1990s, the new Bar Council rule making pupillages mandatory for the employed Bar after 2001 and most importantly the imposition by the Bar Council of the Minimum Pupillage Funding Requirement (MPFR) in 2002. Using a simple theoretical model it is shown how relatively low MPFR levels can significantly reduce the number and viability of pupillages offered by the Bar, working through a powerful "pupillage multiplier effect". Additionally, MPFR can have dramatic effects on the composition of new recruits to the Bar, disproportionately discriminating against riskier and poorer students and poorer sections of the Bar including the criminal and employed Bars. An examination of recent survey data appears to support the theoretical predictions, showing the annual chance of gaining pupillage to be twice as high for white as for ethnic minority applicants. The proportional contribution of MPFR funding to a student's overall training costs is then examined and shown to be typically less than 10% for students who benefit while preventing an extra 50% of potential pupillages for students who do not. The welfare costs of MPFR are considered and the social cost of leaving MPFR in place for 10 years estimated at £1.4 billion and rising annually for about 20 years thereafter. Finally MPFR is evaluated from the notional perspective of an anti-competitive measure designed to protect existing practicing barristers and found to be optimal within the group of such measures considered.

Bernstein on Teaching Transnational Law and Practice the Right Way

Posted by Alan Childress

Anita Bernstein (New York Law School and Emory) has posted to SSRN her essay, "On Nourishing the Curriculum with a Transnational Law Lagniappe."  Here is the abstract:

Transnational law remains in fashion among those who revise the curricula of U.S. law schools. Supplementing traditional domestic materials with studies of international, transnational, and comparative law is indeed a solution. But what is the problem? Pedagogical reform is an experiment, and no experiment can succeed without a plan followed by observation. Much of what passes for transnational legal education (especially in brochures and on websites) lacks seriousness. It is what denizens of New Orleans call a “lagniappe” -- that is, a lightweight frill, devoid of intentionality and perceived consequences. The article acknowledges the appeal of a lagniappe, and also offers suggestions for curricular planners who seek to give their students heartier transnational fare.

The South Shall Rise Again!

South Carolina recently entered an order reinstating the law license of one Robert E. Lee. There is no discussion of the underlying misconduct, which presumably did not involve armed insurrection against the United States. (Mike Frisch)

More on Similarities Between Programming Language and the Language of Law

Posted by Jeff Lipshaw

James Grimmelmann (NYLS) has posted a sequel over at PrawfsBlawg to his earlier post on the similarities and differences between programming language and the language of law.  There is a lot to chew on, and I agree and disagree in part.

1. Both disciplines do, as James notes, invoke issues of language.  Moreover, both invoke a translation from putatively less precise words and sentences to those designed to accomplish certain ends.

2. James recognizes the limits of the parallel, but I think those limits are deeper than show up in the post.  The closest analog (no pun intended) to programming language is not the discourse of a courtroom, but the construction of a contract or a code (think Internal Revenue Code or Securities Act of 1933 and its regulations).  The parallel is that both lawyers and programmers seek to map their symbols onto a discrete reality, and seek to have the program operate to accomplish the intended result.  Both have the possibility of internal and external bugs.  I have written (unfortunately) complex contracts with the equivalent of inescapable feedback loops.  I have also written drafts of contracts that worked internally, but failed fully to map the intended deal.  I am sure the same can be said of legislation.  I know both flaws can occur in programming.

3.  Here are a bunch of problems with the parallel in no particular order:

- There is no equivalent in programming language of a perlocutionary act - that is, a sentence that imparts meaning to the recipient beyond the illocutionary act.

- There is no equivalent in programming language to the issue of "family resemblances" ("shew the children a game, etc." in Wittgenstein).  Ambiguity and inconsistency is a hallmark of language itself, not just of law.

- Programming language is a wholly deductive formal system.  There is no mystery, if we have premises A, B, and C, due to the rigid rules of inference, what the conclusion will be.  Wittgenstein also showed that language invoked inductive rule-following, in which there is a leap to the conclusion that is not determinate by language alone.  That is to say that our language is based on mutually understood bedrock concepts that infuse the words with meaning, rather than the other way around.

- Programming language is not the language of compromise or agreement.  That is to say, the human beings who desire the program may disagree as to what the program was intended to accomplish, but the program itself can only serve one master.  Legal language, on the other hand, involves speech acts (indeed, performatives) intended to accomplish the expression of a mutual intention.  The combination of the inherent imprecision of language (the fact of family resemblances between words and meanings), the role of rule-following, and exigencies of human desire, I have contended, are what give rise to ex post opportunism in hard cases.  Programs, like logic, cannot be opportunistic; they just are what they are.

Fontana on Comparing Prosecutors' Independence Worldwide

Posted by Alan Childress
My GW colleague David Fontana has published this editorial in the National Law Journal on the U.S. Attorneys controversy and how the U.S. versions of politicized prosecutors, beyond this controversy, make other countries scratch their heads.   It is called "APPOINTING PROSECUTORS: Make it less political."  Examples from the U.S. and abroad, he argues, point to the balance we need to find between independence and accountability.

UPDATE:  David is publishing an article tomorrow in The New Republic online, and it is called, "Reevaluating Hamdan v. Rumsfeld: Pyrrhic Victory." More below the fold.

David writes:

[I]t seems that Hamdan has not been the corrective it appeared to be at first blush. Last week, the Bush administration announced that it is planning to limit even further the ability of Guantánamo detainees to interact with their lawyers--precisely the types of limitations on rights that many thought Hamdan had started us down the path to avoiding. In reality, Hamdan is looking less like a grand promise to liberals and more like a grand disappointment.

The reason is that Hamdan was, fundamentally, a decision about the separation of powers--about what the executive branch can and cannot do without congressional approval. The Court decided that the military commissions the president had convened were improper not because they violated the liberties enjoyed by Hamdan or other individuals, but because the Bush administration had not first asked Congress for permission to convene them. Since September 11, the Court has largely avoided taking a stand on issues of individual rights, and Hamdan, in which rights concerns were secondary anyway, represented no change from this pattern.

As a result, Hamdan left the door open for the erosion of those rights. . . .

Are Australian Lawyers Disproportionately Depressed?

A California blog called Legal Pad (part of Law.com) reports and links a news story from Australia on high rates of depression, and self-medication, in the legal profession.  The blog post is called, Lawyer:  It's Australian For 'Depressed,' Mate.  [Alan Childress]

Sokol on Globalizing Law Firms: The Research and an Agenda

Posted by Alan Childress

D. Daniel Sokol (Wisc.--Law) has posted to SSRN, "Globalization of Law Firms: A Survey of the Literature and a Research Agenda for Further Study" (March 2007). It is forthcoming in the Indiana Journal of Global Legal Studies. His abstract is:

The international expansion of law firms plays a critical role in understanding the business of law and the nature of globalization. This article responds to two articles on law firm expansion in the Indiana University - Bloomington Law School symposium on the Globalization of the Legal Profession. The article utilizes management studies' theoretical work on internationalization and applies it to law firm expansion to explain law firm strategic decision-making. The author creates a six part taxonomy for types of law firm expansion and provides a snapshot of the increasing U.S./U.K. dominance of capital markets, corporate and mergers and acquisitions legal work around the world. Finally, the article proposes an interdisciplinary research agenda that incorporates law, economics, sociology, economic geography, and management studies to better understand law firm expansion.

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

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