Legal Profession Blog

Law Professor Free Agency and "School-Specific" Capital

[posted by Bill Henderson, cross-posted to ELS Blog]

[Update: Paul Caron (Cincinnati), Michael Madison (Pittsburgh Law), Jeff Lipshaw (Suffolk), Jim Chen (Louisville) have picked up on the analysis in the below post.  There seems to be some misunderstanding on my point of "long-term contracts."  In retrospect, I should have said "long-term commitments" (i.e., extra-legal and perhaps not committed to writing) to avoid what I think is an unproductive analysis of run-of-the-mill employment and commercial contracts. 

I am talking about this:  Academic X says, "I will stay here X number of years and ignore outside offers if you provide me with the resources to execute the following institutional plan [e.g., labor-intensive but high-yield teaching, public service, useful scholarship that will be noticed and solve a real world problem, etc.]."  Law School Y says, "I love this idea.  If you are right, it will grow our institution.  Because you have committed to building it here, School Y will fund it."  Because both Academic X and Law School Y have aligned personal and institutional agendas, their cooperation and commitment grows the institutional pie; both are made better off. Moreover, it becomes magnetic for other scholars and funders who share the substantive vision. 

So we are talking about communitarian norms here.  This type of approach is easy in small groups, which is what law faculty are.  Firm-specific capital in law firms is harder to grow/maintain because (a) they have gotten larger, (b) covenants not to compete are prohibited, and (c) there are liquidity constraints imposed by the ban on non-lawyer ownership.  On the other hand, law firms work harder at it because they increasingly operate in a competitive national marketplace--firm-specific capital can be huge competitive advantage. Law schools, in contrast, are not subject to the same market pressures--the most elite have huge endowments and donors who want to give more to be associated with the elite brands.  Thus, in the legal academy, the free agent ethos is damn near ubiquitous.

No need to be abstract about all this.  I lay out a highly plausible counteractive approach in this comment.]

Several bloggers have noted Clayton Gillette's recent article, Law School Faculty as Free Agents, 17 J. Contemp. Leg. Issues 213 (2008).  See, e.g., Paul Caron, Larry Ribstein, Al Brophy, and Paul Secunda.  Gillette's essay provides the type of straight thinking needed to move the Moneyball-Moneylaw debate into a mode of institutional analysis that can produce actual results.   I will briefly lay out Gillette's analysis and then extend it to a concept I call "school-specific" capital--an analog to firm-specific capital.

Law Professor Free Agency

In a nutshell, here is Gillette's argument.  The lateral market for law professors is primarily based upon scholarship, which is an observable, coveted good.  Teaching and service, to be sure, are relevant goods, but they are hard to measure.   Further, faculty make hiring decisions; when they land a high profile scholar, they share equally in the school's reputational gain (albeit these gains are largely limited to opinions of other professors).  Yet, if new colleagues shirk committee work or are disengaged and uninspiring teachers, the costs borne by individual faculty members are negligible or non-existent. Hence scholarship becomes the focus of lateral hiring.  Clayton observes,

In 30 years of teaching, service as vice dean, and membership on appointments committees, I don’t believe I have ever heard a discussion of a candidate’s qualifications that included serious consideration of institutional service, except insofar as it related to scholarship. ... 

[H]iring schools tend to invest little in discovering teaching quality. The hiring decision is typically made after one or two faculty members at the hiring school attend one or two of the visitor’s classes, and that is done through a process (e.g., informing the visitor when faculty members will attend, and allowing the visitor to choose that time) that diminishes the likelihood that those classes will be representative. ... The result is that, as opposed to the meticulous, highly tailored criticism to which a candidate’s scholarship will be subjected, a candidate’s teaching will be evaluated largely to determine whether it is “good enough.” (pp. 228-29)

Gillette's key insight is that the lateral market in legal academia, unlike baseball (a crucial point), does not force the decision-makers [faculty] to internalize the benefits and costs of free agent activity:  Some costs potentially get externalized onto the students, alumni and law school administrators.   When  scholarship opens so many doors, Gillette suggests, it is easy to see how a more robust lateral market can skew institutional incentives and detract from overall educational quality.

To my mind, Gillette sets forth a very coherent and plausible analysis. [I suspect a lot of people will quibble with it, however, believing that their own lateral experience (or aspiration) reflects a more optimal outcome at the institutional level.  Listeners interested in the merits of this debate should weigh the critic's potential bias.]   It is an open question whether lateral mobility is really on the rise. At Indiana Law, we are building a law faculty universe database that covers 80 years of AALS schools.  See "Is Lateral Movement on the Rise? A Precise Answer is on the Way," ELS Blog (Dec. 21, 2006).  We see a lot of lateral movement in the 30s, 40s, 50s, 60s, and 70s. Eventually we will answer to the nagging empirical question of whether lateral movement is truly on the rise.

But one thing I can say with confidence--information published on the Internet (Leiter Faculty News and Concurring Opinions) has increased the perception of heightened movement.  And perception is all that is necessary to change behavior and institutional norms--possibly in the wrong direction.

"School-Specific" Capital

Gillette actually understates his argument.  Specifically, the proliferation of a free agency ethos not only undercut educational quality, it inhibits the cooperative, highly committed, selfless environments need to create truly exceptional institutions.   One of the major implications of more professor mobility is the diminution of "school-specific" capital--i.e., desirable law school attributes, such as innovative curriculum, public service reputation, alumni good will, that remains largely intact when a professor leaves.   So more free agency suggests fewer law schools that transform good human capital into great human capital.  On this score, the "best" law schools can, in fact, be pretty mediocre.   (I believe there is a way out of this box, which I will address below.)

More after the jump. ...

Law schools with high levels of school-specific capital can be wonderful places to work.   Conversely, schools that have squandered their school-specific capital in the single-minded pursuit of scholarship can be spiritually depleting.   This was the experience of Julius Getman (Texas Law).  In this book, In the Company of Scholars (1992), Getman reflects upon his annual ritual in the 1960s of attending the AALS annual meeting in the hopes of generating a lateral offer. Eventually he moved from Indiana to Stanford to Yale, with visits at Cornell and Chicago along the way.  But in the end, he was largely disillusioned with the professional satisfactions of being at the top of the hierarchy.  Academics at elite institutions were often insecure, elitist, focused on personal agendas, and uninterested in solving real world problems.  (This may be true at all institutions, suggests Getman, but only more so at the very top of the food chain.)

Drawing upon his experience, Getman observes:

People who become professors are rarely indifferent to the title and status that comes with the role.  It would be difficult to overstate the role of hierarchy in academic life.  Its power is manifest at every point, its impact felt on every issue. ...

The desire for status--a higher place in the academic hierarchy--shapes both personal and institutional goals and decisions. It can have a positive impact in fueling effort, but it can be destructive, as well, interfering with effective teaching and scholarship [here Getman refers to grand theorizing rather than a study of reality] and leading institutions and professors away from useful or enjoyable endeavors toward those thought to be more prestigious.  (pp. 252-53)

I suspect a lot of law professors aspire to work at institutions that are committed to being "effective", "useful" and "enjoyable" from the perspective of all stakeholders--that is school-specific capital.  But most of our discourse does not reflect a understanding of how such institutions are created.  Most of us want to believe the most prestigious schools are such places; that way we don't have to do much original thinking.

As Gillette's analysis suggests, building and/or maintaining an effective, useful, and enjoyable institution requires a critical mass of scholars who are willing behave in ways that may undercut their currency in the lateral market--e.g., creating a new law school program, teaching a labor-intensive skills-based course, and attending alumni and student mixers rather than writing another law review article.  When colleagues leave for "better" schools, momentum toward firm-specific capital is undermined.  I know a few schools take pride in their "feeder" status; yet, I have gradually concluded that this line of thinking as an unproductive rationalization.  When the faculty is churning too much, there is no continuity or buy-on for time horizons that are needed for truly ambitious institution building. Success is equated with exit.

Solutions

My analysis of school-specific capital is influenced by my study of law firms.  One of the key features of a law firm with firm-specific capital is that it eventually creates a bigger pie, creating financial and/or psychic benefits that makes virtually all partners better off. Law firms with the right structural incentives foster a culture of teamwork and cooperation that achieves better and more cost-effective results for clients, thus binding clients to the firms.  As law firms become larger,  it becomes harder (but not impossible) to build and maintain firm-specific capital.  Two significant hindrances to firm-specific capital are (a) the unenforceability of lawyer non-compete contracts, and (b) the ban on non-lawyer investment, which means that expensive long-term investments in human and physical capital have to be paid for either through debt or retained (and taxable!) earnings.   Thus, long-term planning in firms can--and I would argue, often does--unravel when impatient partners lateral to other firms. 

Law schools, fortunately, do not suffer from either constraint. Thus, one way to deal with the corrosive influence of the free agent ethos is the use of long-term contracts.  Specifically, individual faculty members (or groups of faculty members) agree to forgo any lateral offer in exchange for the time and resources to build programs and curriculum that produce large institutional payoffs.   Ideally, these will be ventures in which scholarship, teaching, and service become coextensive.   The larger the success, the more magnetic the culture, the more devoted the faculty, students, and alumni.   In turn, the money flows back into the institution because donors realize that something truly substantive is going on.    Then even more ambitious school-specific capital can be built. 

In contrast, law schools with hallowed reputations can raise money because donors like to be associated with prestigious institutions. But that is not a viable model that most schools can follow.  Moreover, it does not provide a useful market test that funnels money into initiatives that produce long term value.  Most tier 1 law schools tout that they have become "better" when they hire highly prolific lateral scholars--but in reality, these are multi-million commitments that guarantee little more than course coverage and the accolades of professors.  There is also very little empirical evidence that such a strategy can produce a meaningful reputation change that redounds to students and alumni.   

To my mind, this common pattern reflects very shallow analysis.  What is the plan for school-specific capital?

Model Law Firm Rejection Letter, and a Classic Practical Joke

Posted by Alan Childress

Beyond our previous posts here and here on [true] rejection letters from law firms, consider this model response letter published in '05 by Harvard Law Record:

Dear  Ms./Mr. My Firm is Too Good For You:

Thank you very much for your recent letter explaining that, despite the fact I am a wonderful person and will likely win the Nobel Prize for Law someday, you were not able to offer me a callback interview and/or a position as a Summer Associate. I regret to inform you that I am unable to accept your refusal to offer me a position as a Summer Associate/callback interview.

This year I have received an unusually large number of rejection letters, making it impossible for me to accept them all. Despite your outstanding experience in rejecting applicants, your refusal does not meet my needs at this time.

Therefore, I shall initiate employment with your firm in May of 2006.  Best of luck in rejecting future candidates.

Sincerely,

Harvard Law Student

Students at other schools have posted their favorite rejection letters they actually received for law jobs.  See Barely Legal's here, a commenter elsewhere here, and a whole site devoted to this topic at rejectionletters[dot]net.  One firm "won" a contest for its letter, here.  A mass email rejection of all named candidates (duly listed in the TO: field) is the subject of an Above The Law post last August.  >>> After the jump, read about a nice practical joke at UNC involving rejection letters.

This lawhaha legal humor site does, despite that name, have a great story about a practical joke two roomies played on a third at UNC:

They started intercepting his mail at home; specifically, his law firm rejection letters. They would steam open the letters and add "personal" handwritten notes from the interviewer at the end.
     Things like:
     "You may want to consider getting a better haircut."
     "You had a weak handshake."
     "You need to sit up straight and not cross your legs."
     "Don't look me straight in the eyes. That makes me nervous"
     "Need to look interviewers straight in the eye." 
     "You should use better deodorant."
     "Were you hitting on me?" 
     Etc., etc. The best part was that the other two guys also put personal notes on their rejection letters so that the roommate thought it was a normal, common practice.

Some Thoughts on the Bi-Modal Distribution from a Former Partner and Retainer of Partners

Posted by Jeff Lipshaw

Coming up for air after working on some other stuff, I finally had a chance to digest Bill Henderson's post on bi-modal distribution of starting associate pay.  I have some visceral reactions to the data, as well as some "the sky is not falling" thoughts about how things will play out.  This is all casual empiricism and seat of the pants theorizing, so take it for what it's worth.

1.  Bill's post doesn't talk much about industry consolidation, but there's no doubt that has substantially impacted the law business since I started at a big Detroit firm in 1979.  At that time, there was a big premium to working in a New York law firm - as I recall, as much as $10,000 a year.  This will sound quaint and somehow Great Depression-ish, but my offer letter in the fall of 1978 from Dykema promised a starting salary of $22,000, and I am pretty sure an offer from Cravath at the time would have been in the low $30,000s.  The gold standard of pay at the time was not as a lawyer, but as a consultant at The Bain Company, which was mainly a place for the JD-MBAs.  (I remember this because the starting pay was $44,000, exactly double my offer, but the word was you worked three times as hard.)  What Detroit (Dykema), Milwaukee (Foley & Lardner), Pittsburgh (Reed Smith), St. Louis (Bryan Cave), as exemplars, offered, even then, was a trade-off of life style for dollars:  billable hour goals in the 1700-1900 range, versus 2200-2800, lower cost of living, accessible suburbs, greater assurance of partnership (ratios then were 1:1 in the smaller cities, with the 4:1 or 5:1 leverage even then in New York.)

What seems clear to me is that the midwestern model indeed did not work, and the continued admission of partners created what one of my late partners used to rail about at partner admission meetings:  the creation of negative leverage by admitting so many people as equity partners.  The solution was growth, but organic growth opportunities are cyclical with the business cycles, and consolidation growth is the alternative.  And that's what we've seen.  DLA Piper may be the best example, as a decent firm out of Baltimore turned itself into a global powerhouse over the course of a few years (my late friend Jeff Liss being a major player in that strategy).  Dykema just swallowed up a medium-sized firm in Chicago.

My theory is there's less to distinguish the Am Law 200 now, and hence, less to distinguish in terms of non-monetary compensation, hence the trend to bi-modal distribution.

2.  I want to suggest the banking consolidation model as a prediction of the way the law industry will go.  Banks, like law firms, are natural consolidators.  It's largely a service business, the services are fairly homogeneous, and consolidation offers huge cost synergy opportunities.  But what happened with all the banks turning into Citis or Chases or Keys or National Citys is that market opportunities sprang up for local service oriented banks.  The "private bank" phenomenon is a response to that.  I used to listen to radio ads for a locally-owned bank in the Detroit area, Franklin Bank, that made this the focal point of its value proposition.  (I'm hearing something similar this summer here in northern Michigan from local pharmacies, particularly those that do compounding, as a reaction to the CVS-Walgreen's-Rite Aid-Walmart consolidation.)

As smart and ambitious lawyers get tired of the bureaucracy of the mega-firms (and more importantly, like David Boies, having fruitful and remunerative new business killed by a conflict!), my prediction is we will see a cycle of boutique firms that return to something like the market distinction of the late 1970s.  I can reveal here a not-very-hidden secret:  GCs of big companies know that much of what they purchase in legal services is fungible, and they can get quality work in Albuquerque or Nashville or Birmingham, Alabama or Jackson, Mississippi.

My faith in the corrective power of markets is not quite as ardent as my friend and about-to-be co-author Larry Ribstein (Ribstein & Lipshaw, Unincorporated Business Associations, 4th ed., to be available for the 2009-10 school year, get it while it's hot!), but I think that's where we are going (see Larry's observations on this business acting more like other capitalist businesses).  Like Larry, however, it's the debt that bothers me, and I second his historical observations on that score.

New Blog From a Hiring Partner Offers Great Tips From the Inside

Posted by Alan Childress

Enter the blogger named Hiring Partner.  The semi-mysterious guy (or is he a guy? -- actually seems like a composite, to me, of a hiring partner and the firm's recruitment coordinator, but I don't mind) started to blog Friday, at Hiring Partner's Office, and it is already interesting.  He sits at the other side of the summer associates' (and later 2L interviewees') worldview.  "I am the hiring partner at an office of an AM LAW 200 law firm.  I oversee on campus recruiting at targeted law schools for our office and local candidates for other firm offices.  I also manage our summer associate program."  He is the decider.

Why blog?  Mainly it's "the millenials (sp?). I keep hearing it is a generational thing.  I thought it would be useful to have a blog where law students and others can learn about things that -- despite their great grades and stellar pedigrees -- can nevertheless disrupt your getting an offer at the firm of your choice. You would be amazed at some of the things that have been occurring." 

On the 'amazed' front, consider his top ten things that annoy your hiring partner, compiled after a poll of hiring partner friends.  (I had no idea they formed a clique.)   For example, advice at a social function held at some partner's house:

Be charming and pleasant.  Be respectful.  DO NOT take off your flip flops (btw, don't wear flip flops!) and put your bare feet on the partner's couch/chair, etc -- YES, I saw this one happen myself.  YOU ARE NOT AT HOME.

And a later post asks summer associates to assess where they are, substantively, not just socially.  Finish strong.

What Do Law Firms Want?

Posted by Jeff Lipshaw

There's some commentary on Northwestern's new two-year program from Brian Leiter here, Bill Henderson here, and some skepticism from Brian Leiter about Bill's view.  If I may put it in a nutshell, the Leiter argument says Northwestern can't really claim to compete with the mega-elites like Chicago simply by running a gimmicked-up, business school-like program that focuses on anything other churning out the smartest of the smart.  This was part of the response to Bill:

One thing that Professor Henderson's Panglossian assessment loses sight of is that the law is an intellectual profession, in which certain kinds of high-order analytical and argumentative skills go a long, long way. This is why, for example, really successful litigation partners at top firms tend to be quite smart; some may also be good at "teamwork," and various B-School gimmickry, etc., but plenty aren't. But they can think, and argue, and analyze, and write, which is, I would have thought, what good law schools teach to and model for their students.

The crux of the argument is that "think, argue, analyze, and write" ("TAAW") skills are both necessary and sufficient for a successful lawyer at an elite firm, to the exclusion of other social skills. There's some seat of the pants empiricism going on here about what (a) leading or elite law firms are; (b) what leading or elite firms do; (c) what it means to be successful and with what kind of attributes; and (d) whether firms actually look to granular distinctions between schools like Chicago and Northwestern, or Harvard and BU, or other examples of "mega-elite" versus "super-elite" versus "elite" in deciding about the individuals they will hire. I don't know that my anecdotes can beat up your anecdotes, but I've been a big firm litigation partner, a big firm corporate partner, a general counsel who hires big firms, and a law professor. Let me suggest some parts of the quoted passage that are problematic.

(a) Even at the mega-firms, there are very few lawyers whose practice is so restricted as to do nothing but things requiring ONLY TAAW skills. I suppose if one's practice involved no more than briefing and arguing appellate cases with no need for assistance other than a few brilliant but browbeat-able associates (and possibly no need for clients), we could argue TAAW skills indeed are both necessary and sufficient. (I won't bother with the argument that TAAW is not necessary - even at the elite schools, students in the bottom quartile are looked upon with some suspicion, both for intellectual and other somewhat Darwinian reasons, so I'm assuming every lawyer hired by an NLJ 250 firm has TAAW skills.)  Most big firms have an appellate litigation group, but it would be relatively small.  Suffice it to say that elite firm appellate litigation groups are not, by a long shot, going to soak up a full year's worth of graduates from the top 20 US News law schools.

(b) Litigation practice at an elite firm by and large requires TAAW skills as a necessary condition, but it is rarely sufficient. Even elite firm lawyers make arguments to judges (trial and appellate) who (horrors!) graduated from 3d and 4th tier schools. An ability to come down to a less lofty level is not only an intellectual skill, but a social skill. It means you actually care about being understood by somebody else, and have the social sense to perceive that fiddling with your Phi Beta Kappa key (literally and figuratively) in front of the judge who worked her way at night through Urban Center Law School is not the best way to go. (I'd even be careful with that stereotype.  One of the smartest people - in terms of pure analytical horsepower - I've ever met is my former partner and now United States District Judge (E.D. Mich.) Nancy G. Edmunds, who became a lawyer as a second career, and was the editor-in-chief of the Wayne Law Review back in 1977 or so.)

(c) Trial lawyers (and elite firms do trial work) make arguments to lay people. Jury research (as well as lore) suggests that juries react emotionally as much or more than intellectually.

(d) Not all practice, and not even all litigation practice, is intellectual and argumentative. 90% of all the cases litigated by big firms settle. Settlement is NOT a matter of arguing and writing, and while it involves analysis and thinking, it is of a different kind - more on the scale of emotional quotient than IQ. TAAW skills here are again necessary but not sufficient.

(e) I have hired dozens of high-powered lawyers. Their TAAW skills were my instruments. I liked hiring smart lawyers and, for me, TAAW skills, or at least everything but the "argumentative," were necessary conditions.  (Indeed, I confess that I had a reputation in the practice as something of an elite school elitist). But nothing drives a general counsel crazier than her own counsel who can't seem to stop using his TAAW skills to make his own client's life miserable, like not acceding to the business needs of the client when it impacts upon the purity of the legal argument being made by the TAAW-driven lawyer. I could recount dozens of instances where lawyers' intellect (and particularly seeing a non-TAAW situation as one calling for TAAW skills) got in the way of good results. Not to mention lawyers who thought their TAAW skills were so non-fungible as to be able to ignore our instructions on getting bills in on time, or failing to accommodate our public company accounting rules in doing fee forecasts, and being prompt with their responses to auditors' inquiries.

(f) There's some discussion someplace in the comments about hiring Sitzfleisch, which I interpret to mean warm bodies.  That is an interesting comment because, in the context of the present discussion, it had to do with elite firms hiring not-so-smart people to do routine work.  Ironically, in my day in a non-New York big law firm, it was the really smart but socially challenged nerd who was the Sitzfleisch!  You'd put him (usually him) back somewhere in the library, have him churn out great memos and briefs, but never, under any condition, let him interact with a client.

(g) Not even those of us with an elitist bent would hire individual lawyers on a rankings algorithm. Schools perform a rough filtering function, and that's about it. I can't even imagine a hiring committee saying something like "well, they are exactly equal but Mary went to Chicago and Joe went to Northwestern, so let's hire Mary." I'm going to suggest for the vast bulk of NLJ 250 hiring, the top twenty schools or so in US News are completely fungible, and barring some cataclysmic change, will always be. (Even the US News "lawyer/judge" assessments are of programs, not students, and those assessments, I suspect, are as influenced by the prior US News ranking as the peer assessments.) Moreover, digging deep into the US News 3d and 4th tier, firms, and even elite ones, regularly take students from those programs. I'm happy to say that my best securities law students from Suffolk are going to Ropes & Gray, Wilmer Hale, and Goodwin Procter.

The only causal connection I can see in the argument is that if somehow there's a cataclysmic change in the peer assessments of schools like Northwestern that makes a quantum change in the coordination aspect of US News and the like, entering students might think twice. Or firms might cut back on the schools they visit for purposes of hiring. (By the way, my recollection is that Georgetown leads the pack nationwide in terms of law firms who interview on campus.) But my guess is that these are all at best attenuated causal chains.  Here, as elsewhere (as all seem to agree), the life of the law is not logic but experience.

New Blog on Career Development In Law Features Bar Exam Tips + Ideas For Summer Job Prep

Posted by Alan Childress

The one-month anniversary has arrived for the LPB blog devoted to hiring and law jobs:  the Career & Professional Development Blog. Its main editors are CDO professionals Susan Gainen at Minnesota and Mina Jones Jefferson at Cincinnati, aided by a wealth of contributing editors from schools all over, including my colleague at Tulane, Carlos Davila-Caballero.  The anniversary present for a month is a copy of that colorful parachute book, which should come out in a pop-up version.

Recent essential posts at C&PD Blog include 12 very good (and not necessarily obvious) tips for taking bar exams, such as rent a nearby hotel room, don't fret but don't discuss, and don't get banned (true!) for a ringing cellphone.  The most non-obvious one, buried in #12, is to Drink Wine.  Other useful posts:

(1) eight things one can do over the summer to prep for job hunts [including creating that 'elevator speech' of which Jeff wrote here, plus 'scrubbing' one's e-persona and odd vocabulary like right now],

(2) six myths of job hunting, and

(3) functional and aggressive ideas for using email to network.

Don't be literal.  The speech should be about you, not the elevator.  (Unless you're President of the Harvard Law Review, in which case BigLaw partner will enthusiastically follow your cue about the fascinating subject of elevators ... or "lifts" as they call them in other common law countries, ha ha ha.)

Say It With Conviction, Plus Ethics Updates From Maine

Posted by Alan Childress

It is standard advice in legal writing and advocacy to avoid wishy-washies like "I think" or "I believe." *  That's also good advice when prepping one's speaking skills to be used in the job search and interview process (a related point was recently made by Susan Gainen of U. Minnesota, here, in tip #5).  And it's an even more crucial tip in some professional contexts.

Sometimes to avoid conviction, one must assert matters with conviction.  I was reminded of the above advice when reading a headline/blurb on the website of Maine's state bar: 

AUGUSTA—Vassalboro man sentenced to 15 years in prison for attempted murder and burning down his sister’s home, says ‘I feel that I'm not guilty.’ 

I appreciate his honesty, if it was merely a sense he had.  I saw this while lurking on Mainebar.org trying to find a job listing for interested readers: the NOBC site says that "Maine Seeks Assistant Bar Counsel," but I could not access the NOBC link without registering, and I could not find a job listing on the Maine bar website. I also could not find one at the Maine bar overseers site.  Anyway, there may be a job in Augusta for someone interested in enforcing legal ethics.

Finally, the overseer site announces, "The Maine Task Force on Ethics 2000 has completed its Report and Recommendations on revisions to Maine Rules of Professional Conduct," and has this link to the proposals with comparisons to the existing rules.

___________

* Advice so basic I could not find it while perusing the last 20 posts at Ray Ward's the (new) legal writer.  But I did find the world's hardest vocabulary test and Ray's throw-down challenge to his writing readers to take a shot.  I give Jeff Lipshaw five minutes before he tries it.  Ray also reminds us, in this recent post, that "invective is rarely persuasive" in legal practice -- much like the point on civility and 'truth' that Jeff raised yesterday about academic discourse.

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]

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.

Sovereign Immunity Defeats Suit

An Assistant Attorney General in Utah suffered from post-traumatic stress disorder in the wake of the unexpected death of her daughter-in-law during childbirth. She claimed that the AG's office "actively discouraged her from coming back to work by placing numerous impediments in the way of her return" after a leave of absence. She  sued under the Family Medical Leave Act.

The Utah Supreme Court affirmed the decision of the district court to dismiss. The U.S. Supreme Court has held that the family-care provisions of the act "were intended to protect women from gender-based discrimination in the workplace" but did not resolve whether self-care (at issue here) was abrogated by sovereign immunity. The court held that post-traumatic stress is gender neutral and that the state is thus immune from suit. (Mike Frisch)

Candor In Employment Process

An attorney who had failed to disclose that a prior employment was in her spouse's law office when applying for a position with a federal agency was suspended for 90 days by the Maryland Court of Appeals. The spouse provided a glowing reference and a competing employment offer. As a result, the attorney received a job offer at a higher starting salary than would have otherwise been given. The attorney did disclose the relationship on other documents "completed for purposes unrelated to [the attorney's] actual hire..."

When the non-disclosure was discovered, the agency did not take disciplinary action, but referred the matter for a bar investigation. However, the lawyer is no longer employed at the agency. The court held that "deceit can be based not only on overt misrepresentation but on concealment of material facts." The "concealment...impeded the ability of the [agency] to question and evaluate the bona fides of what was proferred as a competing offer." (Mike Frisch)

Summer Job?

I was sitting in the examination room at the MedSport Clinic in Ann Arbor with my son, and he objected to my reading People.  He handed me instead a magazine with the enticing title of Successful Farming (it was that or Teen Vogue).  I thought the classifieds had some interesting entries.  One was for "After Dinner Speaker", guaranteeing "overall wit and wisdom."  I thought I could do that.

There was also this:

Wanted JD Combine Operators, and Kenworth Truck Drivers for 2007 harvest.  May to November.  Willing to train.  Grove Harvesting.  [phone numbers].

I'm assuming JD equals John Deere, but I thought it was cool anyway.  (When I showed it to my son, he said "Soylent Green is lawyers!")

ADDENDUM:  One other thing.  I have typical male-pattern blindness (ask my wife), but in some circumstances I can get hyper-observant.  There was a "pain guide" on the wall by which you were supposed to estimate pain level.  Zero pain was signified by a full grin Smiley Face.  At full bore pain of ten, the Smiley Face was in sheer torture, its mouth shaping a scream and tears running down its yellow visage.  But the neutral Smiley Face was at about six, and even at two, which was "moderate pain," the Smiley Face still had a half-grin.  I thought there was something wrong with a chart that had the Smiley Face smiling at any pain.

[Jeff Lipshaw]

Public Service Announcement: Moving

Chances are that boxes were not included in the estimate.  Ask your mover if there are used boxes you can get for free.  In any event, buy wholesale from the mover and not retail at a self-storage facility.  The big wardrobe boxes were almost $16 at the storage facility where I have kept stuff for a couple years; the moving company didn't have any used, but the new ones were only $7.50.

Also, chances are that you have a moving allowance and not an all-expenses paid deal.  I had one of the latter once - de rigeur in the corporate world.  If you have ever watched the movers pack, it's amazing how much paper and how many boxes they can pull out of the truck.  Doing it yourself (and, say, packing the fragiles in towels or clothing or whatever) saves a lot of money and is safer.

You cannot move a propane tank.  I wonder if there is a business in being a clearinghouse for the exchange of gas grill propane tanks for moving professors.  There must be somebody moving to Indy who needs a 3/4 full tank, and somebody who is leaving one behind in Boston.

[Jeff Lipshaw]

Landers on Diversity Hiring in Boston Law Firms

Posted by Alan Childress

Renee Landers (Suffolk--Law), right, has posted to SSRN her article, "Pluc Ca Change, Plus C'est La Meme Chose: The Representation of People of Color (and Women) in Boston Law Firms."  It is also in 50 Boston  Bar Journal 15 (Nov./Dec. 2006), and her abstract is:

In this short article the author analyzes the reasons why increased representation of people of color  and women among law school graduates has not been matched by proportional increases in the representation of women and people of color in the ranks of large law firm partners in Boston and nationally. The article attributes this lack of progress to the factors identified in the recent report of the ABA Commission on Women on the situation of women of color in law firms and to other deeply imbedded structural and economic practices of firms, such as the highly leveraged structures and the ever rising demand for billable hours. Pipeline issues may further impede progress of lawyers of color.

The article concludes by challenging law firms to realize the investment they have made in diversity programs and in recruiting and training associates by examining assumptions about law firm cultures and practices that erect barriers to the achievement of women and people of color.

Update:  while perusing the Suffolk website, I came across this announcement of new hiring coups, featuring our own Jeff Lipshaw.  Oddly, it does not mention either his available vacation rental home in partial Michigan, or even the nearby bigger house one can rent as a better deal especially when subsidized by Jeff and Alene.  But the school otherwise seems proud to have snagged him.

Merit Promotions In Illinois

Congratulations to Jerry Larkin on his appointment as Administrator of the Illinois Registration and Disciplinary Commission("ARDC"). Jim Grogan was named Deputy Bar Counsel. These two longtime bar prosecutors will continue the fine work of the ARDC. I had the privilege of working closely with both Jerry and Jim during my association with the National Organization of Bar Counsel. (Mike Frisch)

HALT Internships in DC: Application Process + Promises No Photocopy Work

Well, actually, the work promises to be very substantive but not entirely Xerox-free:  "Minimal grunt work! ...You won't make copies for anyone but yourself."  The attorney-watchdog and law-reform group HALT has a revolving internship program, for college and grad students.  It's in its Washington, D.C. headquarters on K Street.  This link explains the advantages (including "Food!" and nearby Metro) and application process. 

We have posted here and here on some of HALT's important work, including their letter grades for states' lawyer disciplinary processes.  Michigan gets a C, unsurprisingly--though even then that mark is based on Incomplete "promptness" information due to the state's failure to report such stats to the ABA, and it appears the score would be lower if its actual MPH were considered.  Anyway, I like the fact that the group's name does not appear to be an acronym for anything.

[Alan Childress]

Porter on Vaulting the Maternal Wall in Law Firms and Law Jobs

Posted by Alan Childress

Nicole Porter (St. Louis Univ.--Law) has posted to SSRN her essay, "Re-Defining Superwoman: An Essay on Overcoming the Maternal Wall in the Legal Workplace."  It is also published in 13 Duke Journal of Gender Law & Policy 55 (2006).  Its abstract:

In this Essay, I discuss the work/life balance challenges facing women lawyers who are mothers. Despite these challenges, I believe that mother-attorneys can successfully manage a career and a family. In reaching this conclusion, I attempt to dispel the myth that mother-attorneys need to be “Superwoman” in order to succeed in this profession. The essay first discusses the obstacles women face - from stereotypical views of their competence (both in the workplace and at home), to the difficulty of maintaining a successful and meaningful law practice while working a reduced-hours schedule, to managing the guilt that inevitably accompanies the fact that it is impossible to be everything to everyone, all at once.

While I examine the many possible legal and structural solutions to the problem of the “maternal wall,” I ultimately conclude that major change is unlikely to occur in the near future. Accordingly, in an effort to adopt an optimistic view of being a mother-attorney, I conclude this essay with my advice on changing what is in women's capacity to change immediately - their own actions and attitudes. In my opinion, the key to being successful is to focus on the goals and expectations that matter to you - rather than the goals perceived to be set by society. I do not advocate mediocrity; quite the contrary, I suggest women strive to do the highest quality work possible while focusing on the aspects of work and home that really matter to you, your family and your career. Feeling guilty that you cannot be both “mother of the year” and “superstar attorney” at the same time is a fruitless waste of energy, and will ultimately keep women from being both happy and successful as attorneys who have the joy of also being mothers.

Michigan State Bar Seeks Executive Director

The State Bar of Michigan has posted this job announcement for a new Executive Director, to oversee the bar organization, presumably in Lansing and governing both pieces of the state.   Deadline:  February 15.  [Alan Childress]

WSJ Reports, "White House Lawyers Up"

That from the WSJ Law Blog's Peter Lattman, here.  Not a really monumental hiring 'moment,' I assume, at the halfway mark of the administration's current term.  But the headline gives me the opportunity to congratulate GW-grad, Lovettsville co-resident, former Marine, and all around good-guy Chris Oprison for his new position as Associate Counsel to the President.  If I get a parking ticket near the White House, or have a relative in Armenia needing a visa...?   [Alan Childress]

Moving Laterally, Out-House to In-House

Julie Goldberg, right, a recruiter from Korn/Ferry, has a post over at Law.com on what it takes for an in-house law department to recruit lawyers away from law firms, particularly given the escalation in salaries at big firms in large financial centers.

I agree with most of it - though there is a certain irony to reading about the attractiveness to lawyers of precisely the stock-based compensation that academic corporate lawyers are wont to debate - but one paragraph caught my eye as being wrong:

Although in-house lawyers put in long hours, their schedules have one big advantage over those of lawyers working in firms -- predictability. Do not underestimate the appeal of knowing that weekend and vacation plans will not be ruined. Work/life balance is now openly acknowledged as a factor in employment decisions, and top-notch lawyers demand time for life outside the office.

I don't know which corporation Ms. Goldberg is thinking about.  I'm pretty sure that if you counted up all the hours I would have billed, had I been billing them, in the first year after I left the law firm to go in-house, it would have been somewhere in the 2,700 hour range (compared to my high water mark, as I recall, in the law firm, of about 1,950).  That year also included something like eleven trips to Germany in ten months negotiating a joint venture, one of which was on about four hours' notice in the middle of a vacation - on a Tuesday morning, I was sitting by a beach in northern Michigan, and at 1:00 p.m. on Wednesday, I was in a conference room in Munich.

The great difference, to me at least, was the primacy of the result versus the primacy of the clock.  I know there are lawyers who can generate passion around what they do for others in the big firm context, but I couldn't.  The billable hour clock was always ticking in the background.  The 2,700 hours were fulfilling in a way the law firm hours never managed to achieve, and became something like the sense of time when you are fully engrossed in something other than watching the clock.

[Jeff Lipshaw]

Washington State Bar Seeks Executive Director

The Washington State Bar Association posted a  job announcement for a new Executive Director, to oversee the bar organization, in Seattle.
Deadline:  December 1.                   [Alan Childress]

Texas Center for Legal Ethics Seeks Executive Director

The non-profit Texas Center for Legal Ethics and Professionalism posted this announcement for an Executive Director to run its office (in Austin).  "The Executive Director is responsible for the professional, administrative, and financial work...and to develop new programming opportunities for education and training in the areas of legal ethics, professionalism, and grievance avoidance."  Complete job description here from the state bar site.  Deadline: Dec. 15.   [Alan Childress]

Tracking the Diversity Talk/Actions of the Profession and Especially Law Firms

There is a blog, named Law Firm Diversity:  A Rational Discussion, that follows diversity in law firms, even specific named ones, as well as the issue of diversity of race and gender in the profession generally.  For example, a post links this article from the Boston Herald on whether what law firms say about diverse hiring and promotion matches what they do--and how minority job applicants should research and detect that.  And a series of posts from November 9 link specifically to stories on Indianapolis's Ice Miller, the head of NY's Weil Gotshal, and the University of Michigan's first response to the state's constitutional amendment on affirmative action.  It seems to be an updated source to track the reality of such programs in the profession and particularly in law firms beyond their public relations.  Although one may not necessarily agree with the political premises of the blog, it does seem to be a useful resource for such links and it helpfully follows the firms' public pronouncements about diversity. 

UPDATE:  The site Feminist Law Professors by South Carolina law prof Ann Bartow is a similarly useful blog resource to follow events and especially theory related to the gender diversity of the profession.  Here is a link to its subcategory on "the legal profession." [Posted by Alan Childress]

Are the Low Numbers of Female Supreme Court Law Clerks a Statistical Blip? (Or: 'Let's Ask Justice Thomas to Check')

Posted by Alan Childress

David Kaye (Ariz. State, Law) and Joseph Gastwirth (GW, Arts & Sci. [Stats Dept.]) have just posted on SSRN Law & Soc'y: Legal Prof., their new article, "Where Have All the Women Gone? 'Random Variation' in the Supreme Court Clerkship Lottery." Only 7 of 37 of this year's Supreme Court law clerks are women, a drop nearing 50%, leading to a popular-media outcry.  Justices Breyer and Souter have publicly defended the low numbers as the product of "random variation in the applicant pool," but apparently did not convince many onlookers, some of whom assert "insidious discrimination" in the drop.

The authors test the claim using their experience with statistics (David Kaye, for instance, is one of the most respected statisticians in the law school world and coauthor of the book Prove It With Figures; and Gastwirth edited Statistical Science in the Courtroom).  They conclude that the numbers are not improbable and within an expected range, given the applicant pool.  [Elsewhere they have reported, similarly, that this year's drop is not "statistically significant," adding "that for all the raised eyebrows, the numbers are not so dramatic as to establish that this year's decline is anything other than the 'random variation' asserted by Souter and Breyer."]  But this relatively clean bill of health only works, they note in the SSRN article, court-wide.  Some individual Justices have numbers so low that it is hard to explain them by chance or fluctuations.

In any event, all the statistics-crunching and the conclusion, they point out, depend to some extent upon the foundational truth of public assertions about who applies and particularly the claim that women are underrepresented in that source pool.  The authors do not claim, of course, that the numbers may be chance when compared to the larger population of women law students or even students with particular credentials.  That was not their investigation.  And they ackowledge that their job was hampered by working from public statements rather than disclosed real data about the applicant pool.  They call for public disclosure of information on applications and hiring.

The full abstract is below the fold.  Also find my take on the matter, especially the problem of using the 'pool' as the reason for this year's dip, or generally for such inquiries.

I would add (and the authors are no doubt aware) that even if the Court's public statement about the available applicants happens to be true, that pool is not randomly created.  It is not "neutral" itself, to explain how a drop in numbers might well be neutral.  Particular feeder judges, inflexible credential requirements, repeat-player recommenders, and all sorts of other non-random variables initially create the pool.  Earlier I argued (as to clerks' influencing decision-making) that "it must be kept in mind that the hiring of the clerks is not a random and independent act--their ideologies are often taken into account both directly and through their references, feeder judges, and mentors."  The same may be said for their diversity in terms of gender and race.  Pointing to a blip in the source pool does not really explain the intuitively low hiring rate, particularly when the non-randomness of the pool (beyond even the hiring criteria) is controlled to a significant extent by the Justices' actions and traditions themselves.

If the Justices are not going to look for hiring factors other than those 'tried and true,' or find new feeder judges--or else at least impress upon their current sources the importance of their being more diverse in hiring--then all the statistical 'neutrality' of the Scotus hires for matching the "available pool" (or more accurately, the study suggests, for falling within an expected range in that pool, if only at the shallow end) is wholly meaningless.  The Court can do better, and should. 

The authors, of course, do not deny this.  But the conclusion of possibly neutral numbers (and especially their more supportive conclusion as reported elsewhere) is only as good as the randomness of the source pool. That reserve is unarguably filtered through all sorts of sieves that the Justices might not accept from other institutions.

Certainly unarguable is the authors' call for public disclosure of data on which fuller examination can be made.  I doubt the Court will do this anytime soon, since the Justices could say they don't answer to federal law since they are federal law.  Or they could say nothing.  But they did not say nothing or tell us to mind our business; instead they publicly proclaimed this a product of statistically blippery and asked us to trust them without (as far as I know) having either: (a) consulted a trained statistician, (b) consulted a court employee who has experience heading an office for years whose main job was to compile and crunch hiring numbers and claims of mere blips--hey, that's Clarence Thomas!, or (c) provided the audience with source data to verify it. 

The Justices really have a duty to give such information, in my mind, now that some of them have come out in public to claim this is neutral and not an issue--once they have effectively referred to the "available pool" as an explanation.  Fine, let's see that pool.  And even if the source pool is down this year and so is itself not very diverse, the Court should be scrambling to find a cooler pool.  [Alan Childress]

The full abstract is:

In the world of American law, a Supreme Court clerkship is a position desired by many but attained by few. Considering the career trajectory of many clerks, perhaps it is not surprising that the New York Times would give front page coverage to some disturbing facts about this year's clerks -- only seven out of the 37 -- a mere 19 percent -- are women. This outcome, moreover, represents a shocking 50 percent drop from preceding years. Yet, two Justices portrayed this year's percentage as the result of “random variation,” a claim that strikes many observers as incredible.

This essay applies standard statistical reasoning to answer two questions -- what do the numbers prove, and how strongly do they prove it? We show that this year's decline in women is not at all improbable. Likewise, if the percentage of women applying for these clerkships is in the range of what one Justice suggested, then the small proportion of women is about what one would expect.

The situation seems different, however, when one examines statistics on each Justice. Some Justices hire considerably fewer women than would be expected by chance, while others hire somewhat more. There are many possible explanations for this pattern. We marshal data to assess the plausibility of some of them, but in the end, the available records do not allow a definitive conclusion. To assure public confidence in the Justices' assurances of gender neutrality, we recommend that the Court make statistics on the characteristics of those who apply for and receive clerkships publicly available.