Saturday, March 13, 2010
Posted by Jeff Lipshaw
My article on financial bubbles and earthquakes, The Epistemology of the Financial Crisis, is due out any moment in the Southern California Interdisciplinary Law Journal. In it, I suggest there are parallels between the science of earthquakes and the science of financial booms and busts and the epistemological crises that I claim ensued when the workings of the world managed to burst the bubble of faith in predictive sciences with respect to each of them. What interested me as a lawyer in particular, as discussed in the piece, is the lawyerly equation of causation with blame. I had a friendly debate a few weeks ago with one of my faculty colleagues who said she did assess this last bubble correctly before it burst. I have no doubt she's right, but proving it's anything more than luck is far more difficult because of the counter-factuality problem - otherwise known as 20-20 hindsight - in historical causation.
It turns out I'm not the only person who has a dual interest in bubbles and earthquakes. The Wall Street Journal has an article this morning about Professor Didier Sornette, the director of the Financial Crisis Observatory at the Swiss Federal Institute of Technology in Zurich. As a geophysics professor at UCLA, he has studied earthquakes, which he concludes are more difficult to predict than anything else. As a professor of finance, he tries to predict market bubbles, having now made several predictions and locked them away in encrypted files.
Once again, the counter-factuality problem raises its ugly head. Even if it turns out he's right, it won't prove much. Sporadic evidence confirming a theory doesn't carry much weight, even if we accord a lot of weight to theories (like quantum mechanics) that haven't been falsified, but have been confirmed in thousands of experiments and applications. Nor will being wrong, I suspect, damage his career, the case in point being Ed Yardeni, who made his name for several years predicting the collapse of the world because of the Y2K problem.
Friday, March 5, 2010
The Maine Supreme Court has again denied Husson University's request for permission to allow its future Juris Doctor graduates to sit for the bar examination. The court found that the renewed request detailed "a program largely identical to that proposed in its [denied] 2007 submisions." The court had conducted a hearing and received statements from a variety of groups including its Board of Bar Examiners.
The renewed request had sought the court's "preliminary approval of a blueprint of its proposed law school program" rather than blanket approval for its graduates. The court expressed concern that the University has apparently decided not to apply for ABA accreditation and has not yet begun operations:
Like any other nascent law school, and in the absence of any other existing accrediting body, Husson may apply to the ABA for provisional accreditation after it has been in operation for one year...It could then demonstrate its compliance with all the other ABA standards while the ABA is reviewing its position on the issue of tenure. If, at the conclusion of the evaluative processes, Husson has met all of the other criteria, and the ABA decides not to change its standards on tenure, Husson must then decide whether to revisit its own policy on tenure.
Husson's faculty had voted to eradicate the faculty tenure system more than 15 years ago. (Mike Frisch)
Thursday, February 18, 2010
The New Jersey Appellate Division has held that an agreement between an attorney and three defendants (two individuals and a corporation) that the attorney would not represent parties in litigation adverse to the defendants was void.
The agreement was entered into while the attorney was negotiating with defendants on behalf of clients and also was tied to a provision by which the defendants waived conflict of interest claims against the attorney. The attorney had previously provided legal services to an entity in which some of the defendants were principals.
The attorney then sought a court determination that the agreement violated New Jersey RPC 5.6(b)(restriction on right to practice) in order to bring suit against a corporation owned by the individual defendants.
The court here held the agreement void as a violation of public policy and refused to enforce it on grounds of equitable estoppel. The ethical provision exists for the benefit of the public and "that purpose would be thwarted if equitable estoppel principles allowed the [agreement] to stand." (Mike Frisch)
Saturday, February 6, 2010
This is your political ad on drugs. Any questions?
It gets even more bizarre at the end.
By the way, Jeff, that breed of sheep on the pedestal at about 22 seconds into it is a Suffolk.
Sunday, January 31, 2010
Posted by Alan Childress
And send cease and desist letters to Mom & Pop tshirt shops who for years have been selling clothing asking that two-word question? Why, the NFL of course. And the timing seems to be now because the Saints are in the Superbowl -- no one in the Front Office (wherever the NFL is) seemed to care when the team was just losers.
Never mind that the Who Dat phrase was actually invented for other local teams like St. Augustine High School and later borrowed for the Saints by fans. And used in 1983 as associated with the Saints in a copyrighted recording, by players and Aaron Neville, who apparently are not getting any tshirt royalties out of all this (nor the Marx Brothers, who used the two words in a movie, borrowing from vaudeville). And that the "Saints" name as a football team was used by lots of local high schools, including my son's St. Martin's Episcopal School, long before the NFL ever thought to place an awful franchise in the city. Who stole from whom?
The NFL is targeting designs without the Saints or NFL logo or name on them -- just
anything associated with the Saints and that two-word phrase. (Espn image right, from an AP photo.) And in this specific case that other emblem is simply the fleur de lis.
The fleur de lis? THE FLEUR DE LIS? The NFL makes claim to the FLEUR DE LIS? That has been around as a symbol for New Orleans since, oh, like 1713??? Or for that matter the flags of Quebec, Nova Scotia, Louisville, Detroit, St. Louis, Baton Rouge, and Lafayette! And Bosnia. And a city in Finland called Liljendal (ironically named since our Governor Bobby Jindal is now being asked to sue the NFL over this lily, the official state symbol). And the Boy Scouts.
I hope that relatives of Jean-Baptiste Le Moyne, Sieur de Bienville send a cease and desist letter to the NFL. I just hate it when my neighbor borrows the antique family-heirloom lawnmower and then files an injunction to claim it was his all along.
Wednesday, January 27, 2010
Posted by Alan Childress
The New Orleans Saints are going to the Superbowl on February 7. Jury trial is scheduled for February 1. It is basically the irresistible force versus the utterly movable object. As my colleague Tania Tetlow wrote in sending this to us, "A wise decision from a local judge."The judge ordered today:
The Court takes judicial notice that Saintsmania permeates the City of New Orleans. Many prospective jurors for the Parish of Orleans, several attorneys involved in this litigation and Court personnel plan on traveling to the promised land -- the Superbowl in Miami, Florida. The Court recognizes that this pilgrimage enhances the chances of the Who Dat Nation to acquire the long sought after Holy Grail -- the Vince Lombardi trophy.With that, the jury trial scheduled for February 1 was re-set for February 9 (in pdf here: Download Order_Trial_Continued_Saints_to_Superbowl). And my son's school sent me a similar email canceling school on Monday, February 8. All this in the middle of Carnival!
Posted by Alan Childress
And a commenter at the Huffington Post worries that the upgraded version will be named the Max iPad.
But seriously it is not a Kindle killer -- I am a big fan of the Kindles and tout their advantages and tips elsewhere -- as long as the Apple pad uses backlit LCD, has relatively short battery life, and iBooks cost $15.
Thursday, January 21, 2010
The New Jersey Supreme Court upheld a trial court decision finding that parties to a discrimination case did not reach a settlement through a mediator. The court lifted a bar "placed on public interest attorneys and defendants from simultaneously negotiating merits and attorneys fees in Consumer Fraud Act cases." Such negotiations are now allowed. The defendants in such matters may not insist upon fee waivers or dictate to plaintiffs and their counsel concerning the fee division between lawyer and client. The court concludes that a defendant "has no legitimate interest in how the plaintiff and attorney divvy up the settlement." The court adopted the approach suggested by Justice Brennan in his dissent in Evans v. Jeff D.
Justice Albin authored the opinion for a unanimous court. (Mike Frisch)
Friday, January 15, 2010
An attorney was retained by a surviving spouse on her own behalf and on behalf of her two children to prosecute a wrongful death action. The complaint was not timely served and the case was dismissed. The client hired new counsel to sue for legal malpractice and that case was dismissed on statute of limitations grounds.
The Nebraska Supreme Court held that the claims of the children were not time-barred, as the statute was tolled until they reach the age of majority. The court held that the privity requirement is not absolute in a legal malpractice action. Rather, the attorney had an independent duty to the children. (Mike Frisch)
Thursday, January 14, 2010
The District of Columbia Court of Appeals affirmed the grant of summary judgment against an attorney-plaintiff who had challenged an act adopted by the City Council that made it unlawful for professionals (including lawyers) to solicit business within 21 days of a motor vehicle accident "with the intent to seek benefits under a contract of insurance or to assert a claim against an insured, a governmental entity, or an insurer on behalf of any person arising out of the accident." The court rejected the attorney's First Amendment challenge to the provision, applying the analysis of the U.S. Supreme Court's precedents. The court in particular relied on Florida Bar v. Went For It.
The court noted that the act contains several exemptions from the 21 day ban, including immediate solicitation of legal business through the mail. The court also noted that there was evidence that victims are inundated with solitications in the wake of an accident. The court also rejected the contention that the act interfered with its authority to regulate the practice of law. (Mike Frisch)
Monday, January 11, 2010
Friday, January 8, 2010
The dismissal of claims brought against a law firm was ordered by the New York Appellate Division for the First Judicial Department:
This case involves professional services surrounding the design and implementation of a tax driven, sophisticated, individual private pension plan costing millions of dollars. The parties had various professionals in the form of accountants and lawyers representing them. Plaintiff describes himself, not as a member of the consuming public, but as a sophisticated entity, to wit: "a commodities trader on the New York Mercantile Exchange" who "operated [his] business as a sole proprietor." Therefore, this transaction was "not the modest' type of transaction the statute was primarily intended to reach" (id. [internal citations omitted]). Plaintiff also recognizes that "the target market of the Pendulum Plan' was for businesses, (such as mine) with a stable cash flow and minimal number of ancillary employees" rather than the consuming public in general.
Moreover, as plaintiff admits in his affidavit, it was not the form of the Pendulum Plan in general that ran afoul of IRS regulations, but rather the operation of plaintiff's particular plan that used life insurance as a tax shelter "in amounts that greatly exceeded both IRS imposed limits and the terms of the plan document prepared by Bryan Cave and approved by the IRS." As it was the operation of plaintiff's particular plan that caused the problems with the IRS, this is essentially a private dispute among the parties relating to advice that plaintiff received and his particular plan structure, rather than conduct affecting the consuming public at large.
The court found that claims of unjust enrichment, legal malpractice and negligence were not established:
The allegations do not support the claims for unjust enrichment against Bryan Cave and Smith and Hartstein. Whatever benefits they may have received were too attenuated from the conduct alleged and from their relationships with plaintiff. The claim is also not viable as against Bankers, and Thornhill as Banker's agent, because the express terms of plaintiff's valid insurance contracts govern Bankers' obligations to plaintiff.
The motion court should have dismissed the legal malpractice claims against Bryan Cave and Smith because no attorney-client relationship existed in 2002. The motion court was correct that the tax opinion letter was insufficient to support an attorney- client relationship, considering the letter stated it was for ECI solely and contained disclaimers cautioning readers to procure tax advice tailored to their specific plan. The motion court was also correct that the limited power of attorney was insufficient to show an attorney-client relationship as that document could also have authorized nonattorneys to act on behalf of plaintiff. The limited power of attorney only authorized Bryan Cave to represent "Robert A. Dennenberg, a Sole Proprietorship Defined Benefit Pension Plan" before the IRS and only for "Form 5307," which was the application submitted to the IRS for it to determine whether to approve the Plan. Plaintiff does not contend that Bryan Cave was negligent in submitting the Form 5307.
However, the motion court improperly relied on plaintiff's entirely conclusory allegations that plaintiff retained the services of Bryan Cave in 2001 to support the legal malpractice claim. Plaintiff points to no communications with Bryan Cave for legal advice about implementation of the Plan. Plaintiff offers no objective facts or actions to show the existence of an attorney-client relationship or the parties' mutual agreement that Bryan Cave would perform ongoing legal services for plaintiff.
In a last ditch attempt to hold Bryan Cave responsible, plaintiff claims Bryan Cave was negligent in defending him during his 2004 audit before the IRS, until October 25, 2005 when plaintiff retained new counsel. However, plaintiff points to no damage relating to Bryan Cave's alleged negligence during the audit period. Rather, according to plaintiff's allegations, all of plaintiff's injury stems from the implementation of the Plan, not from any actions the attorneys took during the audit period. Accordingly, the court should have dismissed the cause of action for legal malpractice. (citations and headers omitted)
Saturday, January 2, 2010
Monday, December 21, 2009
Friday, December 18, 2009
Posted by Jeff Lipshaw
I was an Avatar skeptic, but having read the reviews this morning and watched the trailer (available through the link), I'm going to see it. What about avatar lawyers? As part of my business lawyering judgment project, and I've been surveying the literature on artificial intelligence and the law. Could a computer (or an avatar lawyer) ever make a difficult judgment? I want quickly to summarize the field (over-simply, no doubt) and make one central observation. I think the answer to that question is "yes," but it's probably not the kind of "yes" that makes us comfortable. [See Update below on my incorrect use of Avatar Lawyer. If it makes you feel better, think "Robo-Lawyer."
First, let me pose a prototypical problem at the magnitude of difficulty (or complexity) I want to address (this is an excerpt from an in-process piece):
A small manufacturing firm makes plastic electrical connectors. It sells five million of them a year to the automotive industry at a price of fifty cents a unit. The firm's gross revenues are thus $2.5 million. The form purchase order from the automobile manufacturer provides that the supplier is responsible for all losses, including consequential damages, arising from any defect. If the connectors turned out to be defective, their replacement would require two hours of time from a service mechanics (roughly $100). The automobile manufacturer refuses to modify the form warranty provision. Should the firm sell the connectors?
Note the number of business and legal issues this hypothetical presents. It requires a lawyer (human or avatar) to understand the default rules under Section 2-207 of the Uniform Commercial Code, the negotiated alternatives to that statute, to predict possible legal outcomes and weigh the legal risks against a business opportunity with a known payoff, taking into account risk averseness and cognitive biases.
We now need to sort through different kinds of reasoning and their amenability to being replicable in a computer (our avatar lawyer). There's a certain aspect to this that is purely deductive, and capable of being programmed, even by a dolt like me. When I've taught UCC 2-207, I've used a flow chart to chart the deductive system it incorporates. From a given set of assumptions, using another set of rules of inference, the program tells you whether you have a contract and on what specific terms. (See flow chart left.) Embedded within the flow chart, however, are questions the answers to which are "yes" or "no", but the reasoning to which involves something other than deduction. For example, the deductive system requires an assessment at Step 8 whether the terms in the expression of acceptance are "different from" or "additional to" those in the offer. That assessment is not deductive. It may be analogical - we look at other instances of terms being different or additional and decide whether our case is closer to the ones in which the answer was "yes" than to ones in which the answer was "no." Or we could say, perhaps, that the assessment is inductive. Here we are going to look at all the past cases interpreting "different from" and derive a general rule that distinguishes "yes" cases from "no" cases. (Kant referred to this, by the way, as "reflective judgment." I will get to why it's a judgment in a moment.) The other piece of the inductive process would be to take the rule thus derived and determine whether our case falls within the rule. (That's what Kant referred to as "determinant judgment.") We see the principle of "garbage in - garbage out" at work here; if the analogical or inductive reasoning along the way is poor, the deductive process of the flow chart isn't going to be very helpful.
More below the fold.
Thursday, November 19, 2009
Posted by Alan Childress
Rating law schools by the number of "SuperLawyers" as alum is not a ranking of any kind. It is flat wrong for anyone to treat this seriously. It is a publicity stunt by a commercial enterprise. Surely law school deans will have the good sense and ethical mettle to ignore this charade.
Well, no. In addition to actually addressing the "ranking," the dean at Northwestern has gone so far as to rewrite its [non]methodology to suit his school's purported image, combining it with the top 14 by USNews and adjusting for class size. Story here, with a twist: the writer's editorial view that essentially all's fair in war and rankings. Well, no -- again.
As John Steele has written on several occasions, how can we teach ethics to law students if we are not acting ethically as regards to ratings and reputation? Actually he said it better: "I think that law schools are teaching by example that cooking the books is what lawyers do."
Update: combining the top 50 of USNews with the metric of number of alum over age 45 who have attended at least two Jazzfests, Tulane is the #1 law school in the country!
Update 2: Brian Leiter on the specious methodology used by SuperLawyers Inc.
Update 3: Jeff Lipshaw on the hoax here.
Update 4: our prior post on Attorney Man and lawyer portrayals in comics.
An applicant for admission to the New York Bar sought an order vacating the denial or reargument. The Appellate Division for the Third Judicial Department denied the relief, concluding that the procedures regulating the admissions process were satisfied and that the (anonymous) applicant had not established the character and general fitness for admission.
This appears to involve an application that we had previously discussed, where the applicant had accumulated student loans since 1983 and now owes approximately $480,000, including interest: "His recalcitrance in dealing with the lenders has been and continues to be incompatible with a lawyer's duties and responsibilities as a member of the Bar." (Mike Frisch)
Monday, November 16, 2009
Posted by Alan Childress
Like cloning and karaoke. And now the invention of the Laptop Steering Wheel Desk. Amazon has it on sale at a great price, though one that may not internalize all the societal costs of the product. No worries!... It warns you: "For safety reasons, never use this product while driving." Most of the reviews are positive, like:
I loved my Laptop Steering Wheel Desk so much I got one for my 90yr old mother. She is an avid crossword puzzle fan and now she can work on them while she is driving back and forth from bingo at the senior center. One cautionary note be careful of those jerks that stop at yellow lights, my poor mother rear ended one and the airbag drove the desk back into her stomach which ruptured her spleen, well after a short down time I'm glad to say she is back on the road and cranking out those NY Times crosswords once again. Thanks Laptop Steering Wheel Desk you have made my mothers life more complete.
A commenter did not like the review above, saying, "Your mother should be paying attention to the road instead of her crossword puzzles. Those puzzles can wait, not her life or someone else's on the road." Maybe the commenter is right, but really tomato, tomahto. It's all just a normative opinion.
But one reviewer gave it five stars: "This has been a total lifesaver. It allows me to prop my sheet music against the wheel, allowing me to play the guitar with both hands while driving." To which a different commenter replies: "I think you and your guitar are a threat to the safety of others on the road."
My son hates it when I say that a certain intersection or product is an accident waiting to happen. (Hey I teach torts.) And so I now say that it is a mishap anticipating its own occurrence, just to annoy him.
Just in time for Christmas! Maybe I will get that for everyone instead of the GR8 TaT2 Maker. That's a "home tattoo parlor" for those of you who do not speak fluent license plate yet. For ages 6-12 (somehow outgrown by, and inapt for, the teens).
Hat Tip to discourse.net.
Saturday, November 14, 2009
Does Popular Intellectualism Overlap With Academic Dilettantism? And What Does It Imply for the Future of Teaching Lawyers?
Posted by Jeff Lipshaw
I'm stealing some thunder because we get our Sunday supplements to the New York Times on Saturday morning, so I can't presently link to the online version of the Book Review (do your best with the link I've given you). The cover review is Steven Pinker (left) on Malcolm Gladwell's (right) new book, What the Dog Saw, which is an anthology of his New Yorker articles. It's interesting because Pinker is an academic with some reputation as a public (or popular) intellectual; Gladwell is a journalist who popularizes otherwise arcane academic or intellectual topics, particularly in mathematics, statistics, and the social sciences. (Maybe they are bonded by their views on hair.)
Pinker's primary critique of Gladwell is simply that when he gets very far below the surface, he also gets it wrong. There's some pretty good logic to this: if the non-expert misses the point of what the expert is saying about the particular problem, the non-expert is likely to propose a solution to the problem that is either wrong or naive. One example Pinker points out is Gladwell's treatment of the predictive value of certain data for success in professions like teaching. I liked the way Pinker put the point on a subject I've thought and written about a lot: the extent to which all judgments come down to a irreducible leap from what is known to what is not. I think that's Gladwell's "blink" moment as well. But Pinker rightly observes that does not mean that you give up on data or expertise. Says Pinker, "[G]iven the technology you have, there is an optimal threshold for a decision, which depends on the relative costs of missing a target and issuing a false alarm." There's still great mystery in the science and philosophy of that instance of decision, but the right answer is not to consign all decision-making to a dartboard. Gladwell seems to be suggesting you throw the predictive data out because it might be wrong ("teaching ought to be open to anyone with a pulse and a college degree"). [Ed. note: smart ass remark about current state of many faculties deleted.]
If you don't read the Editor's "Up Front," at page 4, however, you'll miss Pinker's equally well-taken critique of academic expertise. He observes that academic experts (I would offer "often" but not "always") lack perspective. "They suffer from 'the curse of knowledge': the inability to imagine what it's like not to know something that they know. That makes them underestimate the sophistication of readers and write in motherese rather than explaining concepts from the ground up." (Motherese, I just learned, is an academic term for the way parents talk to children, including heightened pitch, exaggerated intonation, and increased repetition of words and clauses. The best example I can remember offhand of witnessing misplaced motherese is when during his opening statement, a pompous opposing trial lawyer, explaining the problem with an industrial boiler, said (and I quote), "for you ladies on the jury, think of the boiler as a teapot.")
I think there are two interesting implications here, one about academic interdisciplinarity, on which I posted a week ago, and one on the future of law schools, which is presently a hot topic, having been addressed by Gerding, Ribstein, Gerding again, and others. As to the first, the Pinker-Gladwell exchange suggests a continuum with polar extremes of narrow and deep academic specialization, at one end, and broad and shallow familiarity, at the other. Both Pinker and Gladwell move toward the center of the continuum, albeit, I'd argue, from the opposite poles (Pinker trying to explain language and thought from an academic standpoint; Gladwell trying to do the same from a popular standpoint). I think there's another place in the continuum, and that's where there's an attempt at intermediation between one narrow but deep academic specialty and another, in the hope or expectation that there is useful intellectual grist somewhere in the middle. For example, I go back to Goedel's Proof. Is it no more than a spectacular advance in symbolic logic, or does it have explanatory power in epistemology? David Chalmers's view is that consciousness is an inherent part of the physical universe, down to particles (I'm not sure if that's fair, but it's close). Roger Penrose thinks there's an explanation of consciousness somewhere in quantum theory. And we haven't even gotten to the subject of "law and . . . "! Louis Menand's comment once again comes to mind: "The academic profession in some areas is not reproducing itself so much as cloning itself. If it were easier and cheaper to get in and out of the doctoral motel, the disciplines would have a chance to get oxygenated by people who are much less invested in their paradigms."
As to law schools training lawyers, and particularly for those of us thinking about how to educate transactional lawyers (not to mention jump-starting the development of wise judgment abilities for all lawyers), Larry Ribstein's comments strike at this same issue. What does Larry hold up as the current state of affairs? Pretty fairly, in my mind, that law schools teach "how to litigate and give individualized advice." (Compare what business school teaches.) So how do you teach a business lawyer? Larry's on to something: "a convergence of legal education with technology and business training;" "use disciplines such as history, psychology and economics to get potentially profitable insights into contracts and litigation;" "learn to speak the languages of the other disciplines in their firms, and these other disciplines will have to learn some law." Joe Tomain at Cincinnati offers a CLE program to Ohio lawyers in "law and leadership" that draws on works in the humanities and history (e.g., Plato's Republic, Sophocles's Antigone; The Prince by Machiavelli); every time I mention something like that to the managing partner of a law firm, he or she immediately responds enthusiastically.
But, to quote the Ghostbusters, who ya gonna call to teach this stuff? It has to be somebody working that line between Pinker and Gladwell - not talking in motherese, but also not shying away from dipping into other disciplines in which he or she is not "narrow but deep."
Thursday, October 1, 2009
The New York Appellate Division for the Third Judicial Department has denied the admission application of a person who passed the bar exam in 2005. According to the court, the applicant had "engaged in a pattern of inappropriate and offensive behavior at work and in law school [not described in the opinion] extending from 1990 until recently." The applicant also exhibited a lack of candor in the New Jersey admissions process, where admission was withheld for a year pending evidence of "personal reform and current good character."
The court here allowed renewal of the character and fitness inquiry after a year. Unfortunately, the absence of any description of the conduct at issue gives little guidance to future applicants. (Mike Frisch)