Friday, November 15, 2013
Konefsky and Sullivan on Placing the Big Changes to Legal Practice and Legal Education into a Broader Context of the Profession
Alfred Konefsky (SUNY University at Buffalo, Law) and Barry Sullivan (Loyola-Chicago, Law) have posted to SSRN their fascinating paper, "In This, the Winter of Our Discontent: Legal Practice, Legal Education, and the Culture of Distrust." It will be published in Buffalo Law Review. Its abstract:
This essay seeks to situate the challenges facing legal education within the broader context of professional culture — a context that seems to us to have been neglected in the present debates. In a sense, the “market reformers” have been swept up, consciously or not, in a wider movement that elevates markets over other forms of social analysis and therefore asserts and takes for granted what is in fact deeply contested. More specifically, they have pushed to the side the public-serving dimension of the lawyer’s role because it allegedly conflicts with the psychology of classical economic liberalism. Our aim, then, is to restore the concept of the public domain to a discussion now dominated by mere considerations of costs and a belief in the inevitable triumph of a narrowed sense of professional culture. Before we can begin to reform the infrastructures of legal education, we need to identify the function of the legal profession in a democratic society and the role that a legal education might play in preparing men and women for service in a profession so conceived. In that sense, cost is not an independent variable, and any judgment about the cost-effectiveness of legal education necessarily depends on a decision concerning the purposes to be served by a legal education.
In Part I, we discuss, in a general way, some of the changes that have occurred in society, the profession, and legal education in the past 40 years or so. We are particularly interested in the growing tendency to re-conceptualize many social phenomena in market terms and the effects of this trend on legal education and the practice of law. In Part II, we continue our discussion of those themes, as they relate to the current debate over the future of legal education, by considering the analyses of Thomas D. Morgan and Brian Z. Tamanaha, both of whom approach the problem from the vantage point of economic analysis. Notwithstanding the similarities in their methodologies, their respective prescriptions point in somewhat different directions. We suggest that a broader view is necessary and that the work of these commentators and others suffers from a failure to give sufficient attention to the public dimension and significance of the legal profession. In Part III, we endeavor to reframe the problem in a way that may be useful in developing a forward-looking approach to accomplishing the reforms that are necessary.
Definitely worth a read, especially for its taking the costs meme from Tamanaha's Failing Law Schools and others to a different level. [Alan Childress]
November 15, 2013 in Abstracts Highlights - Academic Articles on the Legal Profession, Law & Society | Permalink | Comments (0) | TrackBack (0)
Tuesday, November 5, 2013
Thursday, October 17, 2013
A commercial landlord and the building's managers may be liable for invasion of privacy after installing surveillance cameras in the men's and women's bathrooms of a building, according to a decision of the New Jersey Appellate Division.
The defendants had gone to the video in response to vandalism, and claimed that privacy was not invaded because the toilet stalls were not surveilled.
The court concluded that "a rational jury could reject defendants' claim and find in favor of plaintiffs' factual contention that the scope of the surveillance included the toilet stalls."
The court held that the case was erroneously resolved by summary judgment in favor of the defendants as to invasion of privacy but affirmed the dismissal of infliction of emotional distress claims. (Mike Frisch)
Thursday, October 10, 2013
The New York Court of Appeals has held that the tort claims of a probationer who contends that a drug testing company falsely reported a positive test for drug use survive the company's motion to dismiss.
The court majority found that public policy favors a cause of action because
...the release of a false positive report will have profound, potentially life-altering consequences for a test subject. In particular, here, plaintiff faced the loss of freedom associated with serving an extended period of probation. The laboratory is also in the best position to prevent false positive results. Under the circumstances, we find that [the laboratory] had a duty to the test subject to perform his drug test in keeping with relevant professional standards and that the existence of its contract with the County does not immunize defendant laboratory.
Not according to the dissent
The law of defamation provides a remedy for people who claim that they have been falsely reported as testing positive for drugs. The remedy is subject to strict limits, as it should be. There is no good reason to invent a new tort.
Tuesday, September 24, 2013
A limited liability corporation that owns an Alququerque art filmhouse had its criminal conviction for an ordinance violation arising from a film festival ("Pornotopia") that showed at least one adult film reversed by the New Mexico Supreme Court.
The court concluded that a weekend of pornographic films does not make the theatre an "adult amusement establishment" any more than serving martinis on a single weekend makes a bar a "Martini Bar." The court quotes a Wisconsin case for this proposition.
The governing legal principle:
One weekend of erotic films per year does not an adult theatre make.
Tuesday, August 27, 2013
The New Jersey Appellate Division has held that "the sender of a text message can potentially be liable if an accident is caused by texting, but only if the sender knew or had special reason to know that the recipient would view the text while driving and thus be distracted."
The court affirmed the grant of summary judgment against the plaintiff but disagreed with the trial court's reasoning that the sender has no legal duty to someone injured by the driver's negligence.
The defendant sender testified that she sends 100 or more texts a day: "I'm a young teenager. That's what we do."
Claims against the young driver were settled.
The accident occured shortly after the driver had left the YMCA and caused both of the victims to suffer horrific injuries. (Mike Frisch)
Monday, August 26, 2013
Dinovitzer, Garth & Sterling Question (Empirically) Current Meme of Buyers' Remorse in Going to Law School
New at SSRN is Buyers' Remorse? An Empirical Assessment of the Desirability of a Legal Career by acclaimed law-and-society scholars Ronit Dinovitzer (Toronto), Bryant Garth (now at UC Irvine, in addition to ABF and Southwestern), and Joyce Sterling (Denver). Their abstract:
The literature attacking the value of legal education relies as a rule on the idea that individuals attend non-elite law schools because of optimism bias -- thinking they will get the lucrative corporate jobs deemed necessary to pay off educational debt. They presumably would then get buyers' remorse when their optimism proves unjustified. Drawing on the first two waves of the only longitudinal data on lawyer careers, the After the J.D. Study, the authors examine whether those who began their careers in the year 2000 -- with substantial debt even if not as high as today's graduates -- showed evidence of buyers' remorse about their decision to get a law degree. The evidence indicates that law graduates beyond the most elite were able to pay down their debt at the same rate or better than most elite law graduates. In addition, after seven years of practice the great majority of these lawyers were still satisfied with their decision to become lawyers. In fact, there is no statistically significant difference in reported satisfaction with the decision to become a lawyer when we compare graduates from the higher and lower ranked law schools. And while there is some suggestion that lawyers who reported still owing more than $100,000 after seven years of practice were either ambivalent or dissatisfied with their decision to invest in a legal career, multivariate models show that percent of debt remaining seven-eight years into one's career has no significant relationship with career satisfaction. Thus, in contrast to the dominant story, most respondents irrespective of debt are extremely or moderately satisfied with their decision to become a lawyer. There is no indication in our data that these law graduates feel they made a mistake by choosing to go to law school. The data also show that those most likely to favor eliminating the third year of law school were elite law graduates and attorneys in large corporate law firms -- again a contrast to the dominant story.
Check it out. [Alan Childress]
August 26, 2013 in Abstracts Highlights - Academic Articles on the Legal Profession, Law & Society | Permalink | Comments (0) | TrackBack (0)
Wednesday, June 12, 2013
A non-attorney may file a claim on behalf of a business entity in probate court without running afoul of unauthorized practice restrictions, according to an opinion issued today by the South Carolina Supreme Court.
The process for an allowance of claim merely requires the filing of a single page standard form that can be found on a court web page. The form requires an attestation that the claim is valid, timely and unpaid.
None of these activities require the professional judgment of an attorney or entail specialized legal knowledge and ability.
Bravo. (Mike Frisch)
Monday, June 10, 2013
The Vermont Supeme Court has affirmed the termination of parental rights of a father who had claimed that his attorney was ineffective and conflicted.
The court summarized the claim
At the beginning of the hearing, father told the court that he was receiving ineffective assistance of counsel. Father argued that his lawyer had failed to pursue various strategies recommended by father to investigate and prepare for the trial, projected that she would not introduce or object to important evidence at trial, and said she would not advocate aggressively for him in the trial because she had been a foster parent and was thus sympathetic to DCF [the Department for Children and Families].
The court explained that it could not assess father’s lawyer’s effectiveness at trial until after the hearing, but did invite counsel to address father’s concerns regarding her preparedness. Father’s lawyer explained that she would, in the hearing, be raising many of the points identified by father, and that she had assessed and made decisions about the appropriateness of various issues raised by father based on her knowledge of the law. She indicated that she was prepared for trial.
The attorney denied being a foster parent and stated she had adopted a child. She had no current relationship with DCF.
The trial court found there was no conflict and the hearing went forward.
We discern no conflict of interest that precluded father’s attorney from representing him. Rule 1.7 deals with a lawyer’s obligation to avoid concurrent conflicts of interest, including not representing a client when there is a “significant risk” that the representation is “materially limited . . . by a personal interest of the lawyer.” V.R.Pr.C. 1.7(a)(2). The comments to the rules explain that such personal interest conflicts may include a lawyer’s business or employment interest with an opponent’s client or law firm, a lawyer’s financial interest in an opponent, or a lawyer’s personal connection to other lawyers in the action. Here, there is simply no conflict. Father’s attorney had no personal interest in the outcome of the case that prevented her from providing father with adequate representation. Counsel had not represented DCF in the past and had no current or past relationship to DCF beyond counsel’s adoption five years previously of a child who had been in DCF custody. This created no inherent bias that would prevent counsel from adequately representing father.
Justice Dooley concurred, stating that he has not decided that ineffective assistance claims should be allowed in termination of parental rights cases. (Mike Frisch)
Friday, May 3, 2013
The Delaware Supreme Court has affirmed a conviction for Murder by Abuse or Neglect in the First Degree of a defendant in connection with the death of his infant daughter.
The issue on appeal was the admission of a YouTube video posted by the defendant prior to the crime as he "participated in a radio contest by filming himself performing a stunt."
The defendant titled the video "when idiots try to win a contest."
The court here found that the trial court properly admitted the video to counter evidence that the defendant was suicidal. The probative value outweighed the prejudice. (Mike Frisch)
Monday, February 11, 2013
The New Hampshire Supreme Court has affirmed a conviction for negligent homicide committed by a driver who struck a pedestrian.
The defendant failed to yield to the pedestrian in a marked crosswalk.
The court rejected the argument that "using a cellular telephone while driving does not constitute the requisite wrongful or blameworthy conduct to establish the culpable mental state for criminal negligence..."
Rather, the court concluded that the evidence establishing carelessness was sufficient to sustain the conviction.
The court also rejected the suggestion that court had committed error by admitting the defendant's cell phone records for the period of over one-half hour prior to the impact.
The Boston Glode reported that the Supreme Court argument was held at a high school. (Mike Frisch)
Tuesday, January 22, 2013
The New Jersey Supreme Court has reversed the conviction of a middle school librarian on aggravated sexual assault and endangering the welfare of a child charges because of exculpatory evidence that was not known by either prosecutor or defense counsel at the time of the criminal trial.
The court held that newly discovered evidence "severely undercut" the credibility of one of the child accusers.
The child was followed by an adult at all times and was considered a "pathological liar." An informal gag order by the (now deceased) school principal had impaired the ability of the defense to discover these critical facts.
The court noted that the case did not involve either prosecutorial misconduct or ineffective assistance of counsel but concluded that
...even though a defendant is generally barred from presented a claim on [post-conviction review] that has been previously litigated or that could have been raised at trial or on direct appeal, the rules do not require the Court to acquiesce to a miscarriage of justice.
Sunday, October 14, 2012
In response to a question certified from federal district court, the Utah Supreme Court has held that a deceased husband who donated sperm to his wife prior to his death is not considered as the father of the resulting child for social security benefits purposes.
The sperm was donated because the husband was ungoing cancer treatments that rendered him sterile. The child was not conceived until after he had died from his cancer.
The court concluded that the signed agreement to donate the sperm did not establish the donor's consent to be treated as a father. (Mike Frisch)
Sunday, October 7, 2012
The Nevada Supreme Court has affirmed the dismissal of criminal charges brought against a jail inmate who was found concealing a cell phone in his jail cell.
The defendant was charged under a statute that prohibits possesssion of an item that can be used for escape. The court concluded that "it would be virtually impossible to use a cell phone to forcibly break out of, or physically flee from, a jail cell." (Mike Frisch)
Sunday, September 30, 2012
A recent decision of the Kentucky Supreme Court turned on the interpretation of the phrase "living in adultery" in determing the disposition of an estate.
The phrase comes from the Statute of Westminster (1285) as adopted by Kentucky in 1796 and most recently codified in 1942.
The deceased was killed in a work-related accident. The only significant asset of his estate was the workers' compensation claim.
At the time of his death, he had been married for four months. His wife (the claimant here) sought a civil protection order and had filed for divorce. They were living apart.
The proofs at trial established that she had engaged in sexual intercourse the night before her husband died.
The trial court found that the single act established that the wife was "living in adultery" and awarded the estate to the deceased's mother.
Both the Court of Appeals and the Supreme Court disagreed, holding that the wife's single act did not constitute "living in adultery."
There are two dissents. Justice Cunningham stated the issue as whether the estate should go to the deceased "loving, nurturing mother" or the "adulterous and absent wife" and said: "Let's be sensible." The dissenters would hold that the marriage was clearly over.
The majority and dissents also disagree over the significance of the wife's post-widow continuing relationship with the person she had slept with on the night before her husband's death.
The majority found that the widow could no longer engage in adultery after her husband's death. The evidence thus was irrelevant. The dissenters would consider the evidence as proof that the marriage was over. (Mike Frisch)
Friday, August 10, 2012
In a revealing and candid essay, and review of the sparse literature on mental illness among law professors, Gregory Duhl (Law, Wm. Mitchell) includes a narrative from the "outsider" experience of his own issues with borderline personality disorder. Among many interesting aspects is his contention that his success is in some senses because of his illness and not despite it--and in that way criticizes some aspects of the pathbreaking book by Louiville's James Jones, A Hidden Madness. Duhl's article is new on SSRN and is entitled "Over the Borderline — A Review of Margaret Price’s Mad at School: Rhetorics of Mental Disability in Academic Life." His abstract:
This essay is about “madness” in higher education. In Mad at School: Rhetorics of Mental Disability in Academic Life, Professor Price analyzes the rhetoric and discourse surrounding mental disabilities in academia. In this essay, I place Price’s work in a legal context, suggesting why the Americans with Disabilities Act fails those with mental illness and why reform is needed to protect them. My own narrative as a law professor with Borderline Personality Disorder frames my critique. Narratives of mental illness are important because they help connect those who are often stigmatized and isolated due to mental illness and provide a framework for them to overcome barriers limiting their equal participation in academic life.
Thursday, June 7, 2012
The service issue involved a rafting guide who lived a "transient" lifestyle. In response to a summons left at his parent's house in West Virginia, he filed an affidavit claiming not to live there but rather on a boat docked in East Greenwich, Rhode Island. The plaintiffs responded that the self-serving affidavit failed to establish that service was defective.
The court agreed with the plaintiff, noting that the defendant guide claimed the parent's house as his residence on multiple forms filed with the West Virginia motor vehicle authorities.
In an unrelated matter, the New York Appellate Division for the Third Judicial Department affirmed dismissal of an estate's wrongful death action against New York State in a matter in which a visitor to Taughannock Falls State Park had walked past warning signs and was killed by falling rocks.
The incident that led to the litigation can be best understood through this photograph and story at NY Falls.com. (Mike Frisch)
Wednesday, June 6, 2012
The New Jersey Appellate Division has reversed a domestic violence conviction of a defendant who had assaulted another person while on a "birthright" trip to Israel.
The defendant had not known the victim prior to the trip. They "hung out" together on the evening in question at a bar with others and danced together. The "atrocious assault" took place later that evening in the victim's room. The defendant was convicted in Jersalem District Court.
The court here held that the interaction between the victim and defendant may have been a "date" but that they were not in a dating relationship, which is an element of the offense. (Mike Frisch)
Friday, May 18, 2012
The Maryland Court of Appeals has ruled that the courts of the state have authority to adjudicate a petition for a divorce in same-sex marriages. The parties involved were married in California.
The court described the approach of the Maryland Legislature to same-sex marriage as akin to a patient that in its "lay diagnosis" is suffering from a "multiple personality disorder." (Mike Frisch)
Tuesday, May 8, 2012
The New York Court of Appeals has declined to extend the Wieder exception to the doctrine of at-will employment and affirmed the grant of summary judgment to a defendant hedge fund company and its president, who had fired its chief compliance officer.
The plaintiff had claimed he was fired for reporting misconduct.
The Wieder exception involved an attorney who had been fired from his law firm for reporting unethical conduct.
Chief Judge Lippman dissented:
In the wake of the devastation caused by fraudulent financial schemes - such as the Madoff ponzi operation, infamous for many reasons including the length of time during which it continued undetected - the courts can ill afford to turn a blind eye to the potential for abuses that may be committed by unscupulous financial services companies in violation of the public trust and law. In the absence of conscientious efforts by those insiders entrusted to report such abuses of investors, such behavior can run rampant until a third part outside the company discovers it and takes action. The message that will be taken from the majority's decision is self-evident: if compliance officers (and other similarly situated) wish to keep their jobs, they should keep their heads down and ignore good-faith suspicions or evidence they may have that their employers have engaged in illegal and unethical behavior, even where such violations could cause or have caused staggering losses to their employer's clients. The majority's conclusion that an investment advisor like Peconic has every right to fire its compliance officer, simply for doing his job, flies into the face of what we have learned from the Madoff debacle, runs counter to the letter and spirit of the Court's precedent, and facilitates the perpetration of frauds on the public.