February 16, 2011
Robert Rosen on Lawyers' Roles--In-House and Outside Counsel--in Advising Corporations
Posted by Alan Childress
As promised in a comment, here is more information on a new addition to the publishing project, and quite germane to the blog topic (!): Rob Rosen's (law, Miami) book, Lawyers in Corporate Decision-Making. Today out in hardcover and last month in paperback (allows 'Look Inside'), Kindle, Nook, Sony, and on the iPad via iTunes and K/N apps. This was originally his dissertation in sociology at Berkeley, and had been cited a lot and passed around in manuscript before. It is updated with his new Preface and new Foreword by Sung Hui Kim (law, UCLA) noted below, and a revised chapter two and other additions. Mainly it is the classic study people know and quote. He triangulated interviews with corporate counsel, outside law firms, and the corporate client, on many different legal representations, and got the whole picture of the disparate roles played in corporate advising. Lawyers often perceived it differently from clients. One chapter autopsies four representational failures. Interesting. Rosen also relates all this to theory and practice about "who is the client" and what should be the role of lawyer here: passive, proactive, advising beyond the legal consequences? It is cited a lot, too, for its taxonomy of corporate advising roles. So it is now generally out and not just in Xerox. Rob worked hard to get its substance and presentation just right, and even in library-quality hardback; we hope you'll like it.
"Rosen’s study of in house counsel is a deft, subtle dissection of a complex world where nothing is as it quite seems. In interviewing in house counsel, outside counsel, and clients, Rosen captures, in a Rashomon-like way, the moral character of lawyers’ work–their choices, their pitches, their claims by which they justify what they do. We see inside the professional black box.”
– John Flood, Professor of Law and Sociology, University of Westminster, London
“Widely regarded by experts in the field as a pioneering work in the sociology of the legal profession and a foundational piece in the slowly emerging canon of empirical research on inside counsel…. Not limited to rich, thick description, the study also normatively challenges the legal profession’s ideology of moral ‘independence.’ …With the long-awaited publication of this manuscript, corporate lawyers will have something to guide them.”
– Prof. Sung Hui Kim, UCLA School of Law, from the new Foreword
Also was blogged about at Froomkin's Discourse.net (terming it a cult classic), Business Law Prof Blog, the Advanced Legal Studies@Westminster Blog and Random Academic Thoughts (Flood calling it wonderful), and others (and finally, me!). Libraries can order it through Baker & Taylor, Ingram, Amazon, etc. UPDATE: I forgot to mention that (and thank) Jeff and Nancy and others gave some great blurbs for this you can see below the fold.......below the fold. Also, here is my publisher webpage for the book.
from page i:
“In Lawyers in Corporate Decision-Making, Robert Rosen takes us inside large law firms to explore how corporate lawyers advise their clients and how that advice can go wrong. The case studies he describes—including four situations in which the legal advice failed—show how important it is for lawyers to frame the clients’ needs appropriately. Rosen’s ability to weave together the importance of organizational hierarchy, coordination of responsibility, thoroughness of communication, and business acumen makes this book a ‘must-read’ for lawyers and law students alike.”
— Nancy B. Rapoport
Gordon Silver Professor of Law,
William S. Boyd School of Law, UNLV, and
Coauthor of Enron and Other Corporate Fiascos
“Rob Rosen’s book captures the personal and organizational complexity of the effective in-house counsel’s experience. As a former GC of two large industrial businesses, I know how right he is when he disdains the simple either/or characterizations of inside lawyers as counselors, cops, and entrepreneurs. Inside lawyers (with few exceptions) are the only ones in a position to operate in the Venn diagram overlap between pure business and pure legal decisions; the best ones operate with equal credibility on business and law. ‘No’ is rare, but when an inside lawyer who knows the business speaks, people listen.”
— Jeffrey Lipshaw
Associate Professor, Suffolk University Law School
July 30, 2010
Becoming a Law Professor: A Candidate's Guide
Posted by Jeff Lipshaw
Several years ago, I published a little essay about making the leap into tenure-track legal academia well after the time in which most long-standing faculty members would have expected one's theoretical and scholarly synapses to have burned away. Simultaneously, Brannon Denning (Cumberland, left) and Marcia McCormick (St. Louis, right) were preparing a book manuscript on what it would take to become a law professor "the hard way," i.e., if you didn't have the usual elite law school-law review editor-Court of Appeals clerkship pedigree. Brannon and Marcia invited me to join their project and it quickly turned into an all-purpose guide for aspiring law professors, accumulating much of the wisdom and lore that you can find in various places on the web.
Thanks primarily to Brannon's perseverance, we got the interest of ABA Book Publishing, and Becoming a Law Professor: A Candidate's Guide will hit the streets in just a few weeks. Rick Paszkiet, our editor at the ABA, has graciously allowed us to post the Table of Contents and the introductory chapter on SSRN.
Here's the abstract from SSRN:
This is the Table of Contents and the Introduction to a forthcoming book from the American Bar Association. The authors provide detailed advice and resources for aspiring law professors, including a description of the categories of law faculty (and what they do), possible paths to careers in the legal academy, and "how to" guides for filling out the AALS's Faculty Appointments Register, interviewing at the Faculty Recruitment Conference (the "meat market"), issues for non-traditional candidates, dealing with callbacks and job offers, and getting ready for the first semester on the job.
We have had a nice response from the pre-publication readers, and Larry Solum has contributed an insightful forward, which he has posted separately on SSRN: The New Realities of the Legal Academy. Here's Larry's abstract:
This short paper is the Foreword to Brannon P. Denning, Marcia L. McCormick, and Jeffrey M. Lipshaw, Becoming a Law Professor: A Candidate's Guide, American Bar Association, Forthcoming.
One of the great virtues of Denning, McCormick and Lipshaw’s guide is that it reflects the changing nature and new realities of the legal academy. Not so many years ago, entry into the elite legal academy was mostly a function of two things—credentials and connections. The ideal candidate graduated near the top of the class at a top-five law school, held an important editorial position on law review, clerked for a Supreme Court Justice, and practiced for a few years at an elite firm or government agency in New York or Washington. Credentials like these almost guaranteed a job at a very respectable law school, but the very best jobs went to those with connections—the few who were held in high esteem by the elite network of very successful legal academics and their friends in the bar and on the bench. The not-so-elite legal academy operated by a similar set of rules. Regional law schools were populated by a mix of graduates from elite schools and the top graduates of local schools, clerks of respected local judges, and alumni of elite law firms in the neighborhood. In what we now call the “bad old days,” it was very difficult indeed for someone to become a law professor without glowing credentials and the right connections.
But times have changed. When the Association of American Law School’s created the annual Faculty Recruitment Conference (or FRC) and the associated Faculty Appointments Register (or FAR), the landscape of the legal academy was forever changed. The change was slow in coming. For many years, candidates were selected for interviews at the FRC on the basis of the same old credentials and connections, but at some point (many would say the early 1980s), the rules of the game began to change. In baseball, a similar change is associated with Billy Beane, the manager of the Oakland Athletics, who defied conventional wisdom and built winning teams despite severe financial constraints by relying on statistically reliable predictors of success. The corresponding insight in the legal academy (developed by hiring committees at several law schools) was that the best predictor of success as a legal scholar was a record of publication. It turns out that law school grades, law review offices, and clerkships are at best very rough indicators of scholarly success. But those who successfully publish high quality legal scholarship are likely to continue to do so.
This foreword explores the implications of the new realities of the legal academy for candidates seeking to become law professors.
Take a peek at the SSRN teasers and look for the book!
June 09, 2010
Agarwal & Simonson on Public Interest Lawyering and Instruction
Posted by Alan Childress
From the Harvard Program for the Legal Professon, Nisha Agarwal and Jocelyn Simonson have published to SSRN their article, Thinking Like a Public Interest Lawyer: Theory, Practice and Pedagogy, which will also be in New York University Review of Law & Social Change, vol. 34, 2010. Here is the abstract:
In educating future public interest lawyers, law schools must cultivate in students the combination of intellectual, emotional, and normative thinking required for the complex world of practice. This article presents one such method for teaching critical public interest lawyering: the integration of social theory and public interest practice introduced by the Harvard Law School Summer Theory Institute. The theory-practice method of the Institute, in which law students engage with social theories while participating in full-time summer internships with public interest organizations, demonstrates the benefits of creating a space for students to draw connections between abstract conceptions of justice and on-the-ground efforts to lawyer for social change.
This article begins by using the theories of Pierre Bourdieu to explore a dichotomy between theory and practice in public interest law that can often inhibit efforts to pursue social justice lawyering. Then, drawing upon the discussions the Summer Theory Institute’s students had about three theorists – Michel Foucault, Friedrich Hayek, and David Couzens Hoy – this article demonstrates how theoretical reflection placed in the practice setting can cultivate in law students the kind of normative thinking necessary to make them inspired, self-reflective, and critically engaged public interest lawyers and agents of social change.
April 30, 2010
Update on Bill Threatening La. Student Clinics: SALT Weighs In
Posted by Alan Childress
[The Society of American Law Teachers has a list of past presidents and board members that reads like a who's who of the law prof world. A letter sent to Dean Griffin of Tulane today, by its presidents, Profs. Raquel Aldana and Steven Bender, reads in its body as follows --ed.]
Since 1974, the Society of American Law Teachers (SALT) has been an independent organization of law teachers, deans, law librarians, and legal education professionals working to make the profession more inclusive, to enhance the quality of legal education, and to extend the power of legal representation to under-represented individuals and communities. We write to you on behalf of SALT to express SALT’s opposition to SB 549, which undermines academic freedom and interferes with an essential public service provided by the clinical programs at the four Louisiana law schools. SB 549 threatens to prevent law school clinics from meeting their professional obligation to expand access to justice for their clients by seriously limiting the types of representation they can undertake.
SALT is particularly concerned with Section 2 of SB 549. Section 2 of the bill prohibits law clinics from filing any action against a government agency or filing a suit for monetary damages against any individual or business. It also prohibits law clinics from raising challenges to the Louisiana constitution.
These prohibitions would eliminate law student representation of clients in most civil law actions. Should this bill become law, future Louisiana lawyers would suffer from the lack of litigation skills training necessary to the effective practice of law, and clients would suffer from not having access to lawyers to take their cases through the justice system using the most relevant legal theories available. Legal representation without the ability to pursue applicable claims does not constitute meaningful representation for either the students trying to learn or the clients which they serve.
Furthermore, our system of checks and balances, a necessary component of good government, values the ability of lawyers to challenge governmental action – this right is protected in the federal and Louisiana constitutions and statutes. Law clinic clients should be guaranteed the same constitutional and statutory rights as everyone else in Louisiana. . . .
The importance of the ethical principle at the heart of the legal profession, the duty to represent those who otherwise would not have access to justice, is a core value that students are taught in the classroom, but often experience and internalize only in their representation of clients in a clinic. ...
[The rest of the letter, a powerful one, follows in full by pdf: Download SALT Letter]
April 29, 2010
Joint Report Recommends Changes to Legal Education for Practice and CLE Training
Posted by Alan Childress
From a press release this morning:
The summit examined the entire spectrum of lawyer training and development, and recommended ways in which all constituencies within the profession can improve their cooperation toward the goal of a competent bar. ALI-ABA and ACLEA have now released the Final Report containing recommendations that emerged from the summit. [or: Download Finalreport] Among the final recommendations are:
-- Develop model core practice competencies keyed to each level of a lawyer’s professional career.
-- Design and share transitional training programs in legal practice skills starting in law school and continuing through at least the first two years of practice.
-- Consider reformulating bar examinations to include phased examination, linked in part to attainment of legal practice skills, with some parts as early as in the law school years.
-- Accredit in-house continuing legal education programming similarly to that produced by other CLE providers.-- Develop appropriate accreditation standards for all varieties of distance learning CLE.
-- Expand law school and CLE programming to prepare and encourage law students and lawyers to represent underserved communities.
February 11, 2010
Lipshaw on Judgment (and Metaphor)
Posted, written, directed, produced by, and starring, Jeff Lipshaw
I hope you have the point. I have decided that the article I've been working on (February is the hardest month, isn't it?) has, sometime in the last several days, passed not only the point of minimal coherence, but is indeed ready to leave the womb, sink or swim, fend for itself. I am hoping it takes care of me in my old age. Seriously, folks (ta ta boom), The Venn Diagram of Business Lawyering Judgments: Toward a Theory of Practical Metadisciplinarity is up on SSRN (in the spirit of "tomorrow's research today, not completely complete, but getting there, subject to post-production), now that I've decided what to leave on the cutting room floor. It is the basis of the last part of my book-to-be (in utero), Lawyering and the Mystery of Judgment.
If you get the idea that metaphors have something to do with the point, you win the kewpie doll. What I've tried to do is exploit what is my niche - bridging the real world and the academy - and it is recursive in exactly the way I tend to think of the world: how do we make judgments that bridge or fall between disciplines? Those are interdisciplinary judgments, but is there a skill that focuses on those kinds of judgments, meaning that we are dealing with an even higher order concept, namely metadisciplinarity? Which academic department grants a Ph.D. in that? (The fact that TypePad has just put a dotted red line under metadisciplinarity makes me hopeful I've coined a term!) What I have tried to do is spice the theory with many real world examples, admittedly anecdotal, but also, I think, typical. I will look forward to comments, because I have tried to be provocative, especially with regard to the pitfalls of "thinking like a lawyer", and the education that takes us there.
The abstract follows the fold.
Here's the abstract:
The relationship of pure and mixed business and legal judgment can be modeled in a Venn diagram. The question is who is capable of making judgments in the overlap. Businesspeople are not competent to assess the legal implications, and not inclined merely to trust the decision to lawyers. Lawyers, on the other hand, are usually successors to a particular method of organizing the world, and members of a closed discipline. By nature of the very concept of a judgment, it must occur privately in a single conscious mind, no matter how the judgment is ultimately communicated, shared, or adopted by others. The implication for lawyering and legal education is that some of the old canards about leaving business judgment to the business people must fall away.
There are three sub-themes. First, there is no "collective judgment." Practical judgment does not occur in some communitarian ether, but in a mind. The closest we have come to a science of judgment is the exploration of consciousness and cognition, both of which remain tough nuts. There is still no scientific explanation of consciousness; it is subject to what Thomas Nagel referred to as the "explanatory gap." It is fair to say that if there is anything to the idea that consciousness is irreducible, judgment is next in line. Could we pour all the relevant facts and authorities into a legal computer, and have it provide us with advice such that we could not determine, in a blind test, that it came from a computer and not a human being? Indeed, an inquiry into prospective judgment overlaps traditional questions whether anything actually constrains a judge's decision. It seems intuitively correct when we take the issue of judgment out of adjudication and consider it prospectively that our judgments are neither pre-ordained by some kind of formula nor wholly random. We need to assess rule following in the non-adjudication context, and for that I turn to work in cognitive science and the law.
Second, the judgment in the overlap is interdisciplinary. Business judgment depends far more on the argument from merit, versus legal judgment, which depends far more on the argument from authority, and a particular kind of authority at that. What, then, does it means to be an expert in the overlap of the diagram? We need to define a new professional discipline: the field of metadisciplinarity. Being a metadisciplinarian takes one to a higher order skill than mere interdisciplinarity: it means being an expert in the making of interdisciplinary judgments, which in turn invokes the role of metaphor and analogy in our cognitive abilities.
Metadisciplinarity recruits such basic cognitive abilities that the task of learning it is never going to be easy. It requires that its practitioners understand that human beings are "meaning-making machines," employing what the cognitive scientists call "cognitive integration" or "blending" (of which metaphor is a prime component). Metadisciplinary lawyers will not merely understand the fact of cognitive blending, but also approach it empathetically.
February 11, 2010 in Abstracts Highlights - Academic Articles on the Legal Profession, Comparative Professions, General Counsel, Law & Business, Law & Society, Lipshaw, Straddling the Fence, The Practice | Permalink | Comments (0) | TrackBack
December 11, 2009
Authority Arguers (Litigating Lawyers) Versus Authority Creators (Transactional Lawyers): It's Still All Outside-In
Posted by Jeff Lipshaw
Some time ago, I wrote an article, largely in reaction to an article Richard Posner had written on contract interpretation, suggesting that there was far less connection than commonly expected by lawyers between a “mutual intention of the parties” supposedly embodied in even a heavily negotiated contract and subsequent colorable disputes involving interpretation of that same contract (see The Bewitchment of Intelligence). Having immersed myself for the last several months in scholarship (such as it is) on consciousness, judgment, and wisdom, I now realize that Bewitchment merely took on one particular manifestation of the objective, rational model that is the teaching, scholarship, and practice of American law.
I am prepared to expand the thesis. I will defer exposition of my own articulation of the difference between arguments from authority and arguments from merit (in process) to Professor Geoffrey Samuel's (Kent, left) more sociological exposition of the same point: the reason it is hard to take law seriously as a “science” (and, I would add, the reason the explanatory so often blurs into the normative) is that law is, and has always has been, based on an “authority paradigm,” more akin to theology than to science. The authority paradigm is the key thing, because authority must come from somewhere: from the standpoint of mind, authority is "outside-in." That distinguishes it from wisdom and judgment, which, from the standpoint of mind, are "inside-out." (Pardon my Kantian tendencies here, but outside-in strikes me as legislating, or heteronomous, while inside-out strikes me as self-legislating, or autonomous.)
Let me bring this back to the practice of lawyering, rather than just the theory of law. We are in the midst of working through our curriculum on transactional skills, and the first building block is, invariably, “contract drafting.” I realize I am treading close to heresy here, and I don’t intend to suggest that contract drafting isn’t one of the transactional lawyer’s core skills. But it dawned on me (again) this morning, as I was reading an essay by Laura Dunham (University of St. Thomas, right) on business ethics in entrepreneurship, that even contract drafting (as a lawyering skill) fails to get at the critical difference between judgment and lawyering. Most of what lawyers think and do (at least classically) either in the litigation or the transactional setting constitutes a category error when it comes to the exercise of judgment (in the everyday and not judicial sense). As I argued in Objectivity and Subjectivity in Contract Law, the fundamental dividing line as between promise and contract doesn’t have to do with efficiency or morality; it has to do with objective versus subjective, or public versus private, or (perhaps?) inside-out versus outside-in.
The paradox of law in the litigation context is that both parties are praying to the same god for victory in the name of justice. The Europeans (like Luhmann or Derrida - at least in the latter's views on justice) expose an uncomfortable possibility: it is not an appeal to justice; it is an appeal to authority with the patina of justice. That’s what we teach first year lawyers: how to make an argument - the best ones being those that satisfy the Dworkinian standard of integrity: fit and justification (i.e., they give the best appearance of being not only just, but consistent with authority). Contract drafters aren’t authority arguers; they are authority creators (in the sense of the private law that is the law of contracts). There is no real connection between the contract and the later dispute (despite the arguments of Judge Posner, Professors Schwartz and Scott, and other rationalists), except in the sense that words that were written will come to constitute whatever “law” there is.
Judgment and wisdom, on the other hand, require that we step back from the authority paradigm (and perhaps also from the self-interest paradigm). That’s the quality that comes after first year doctrine, contract drafting, and deal skills. It means somehow teaching the inside-out rather than the outside-in. Now here’s the tough question: what are the academic and professional bona fides for teaching that advanced course?
December 11, 2009 in Abstracts Highlights - Academic Articles on the Legal Profession, Comparative Professions, Law & Society, Straddling the Fence, The Practice | Permalink | Comments (1) | TrackBack
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."
October 07, 2009
Too Good A Pro Se Prison Lawyer
Posted by Alan Childress
This blurb from the Fifth Circuit Civil News daily update shows that sometimes you punish yourself by being too good, but I bet the inmate wears the opinion as something of a badge of honor, especially if he eventually actually wins on his religious freedom claim. I just wish it were published so more people could see the logic. But my thanks, still, to Robert McKnight of the Civil News for bringing it to light.
The U.S. Court of Appeals for the Fifth Circuit did not publish any non-habeas civil decisions on Monday, October 5. It released this notable unpublished decision: McAlister v. Livingston, No. 08-20297 (5th Cir. Oct. 6, 2009) (King, Davis and Benavides) (per curiam; unpublished): The district court denied inmate McAlister's request for appointment of counsel in his civil rights lawsuit against Texas prison officials. The lawsuit alleged religious discrimination against Wiccan inmates in violation of the First Amendment, the Religious Land Use and Institutionalized Persons Act, and the Equal Protection Clause. Holding: Affirmed with respect to the denial of appointment of counsel. The district court did not provide reasons for the denial, but the basis was clear enough for affirmance: "The record, 997 pages long, contains numerous pleadings, briefs, and motions that McAlister has drafted and affidavits he has gathered from various individuals. These documents are all relevant and on-point.... McAlister has sufficiently investigated his case, and his presentation of his claims and the relevant legal issues to both the district court and to this court for review has been adequate." No other factors weighed in favor of appointment of counsel. And, indeed, the Court vacated and remanded with respect to the First Amendment and RLUIPA claims. (Appeal from S.D. Tex. Case No. H-05-3228. [Link to PDF.])
That may be the 'obvious' reason for denying appointed counsel: he was too good. It certainly flies in the face of the obvious counterground: my general principle that one does not needlessly piss off the group leader of the Wiccans.
If I may reminisce, it reminds me of a case I worked on while clerking for the Fifth Circuit just after the split with the Eleventh (we got custody of the Texas inmates, while they got to raise all the loons in Florida). Some warden decided that too many clever inmates were claiming to be Jews to get the kosher food. Maybe it was less Alpoesque, I do not know. But I do know this: the warden instituted an earnesty-sifting process by hiring a local rabbi (in rural East Texas, must have been a lonely guy back then) to "test" prisoners on their Jewishness. I know that sounds like a setup for some bad ethnic stereotype jokes (or an even worse moile joke), but it is not. (If they claim to be Presbyterian, I would offer them a ham sandwich made with Miracle Whip and see if they gag, thus denying their innate Presbyterishness. Or just play Art Garfunkel's solo album and see if their eyes dialate.) As I recall, the Fifth Circuit struck down the testing procedure rather handily. The principle seemed to be that anyone could become Jewish if they wanted to be.
Merton's unintended consequences of social actions tells me that the predictable next step for the warden would be to make the kosher food kosher but inedible, or at least equally inedible if he wanted to avoid another pro se complaint.
August 06, 2009
Advice on Engineering One's Career - Law Professor Edition
Posted by Jeff Lipshaw
For the last month, I've been guest-blogging over at PrawfsBlawg, which I think has a slightly different demographic than we have over here. What follows is a cross-post (in large part) of a comment I made over there to some thoughtful remarks from Paul Horwitz on how early-career law professors ought to manage their ambitions in authorship, the coin of the realm, as it were, for professors. Paul's comments are constructive and measured, as he considers the possibility of writing to a golden mean somewhere between the too-ambitious and therefore unsuccessful "grand theory of everything" (i.e., the philosophy of "audace, toujour audace", and writing too small, which might brand you as a practitioner or "small thinker." My comment to that post follows here after the fold, because I think there are generalizations that apply to any career, as well as some commentary on the present measures of success in the legal academy.
As someone of whom it has been said he sometimes needed to be tamed, I certainly concur in the idea of "toujour audace," (although I have to admit the only other time I can recall anybody using that phrase was George C. Scott as Patton). I think there are at least three conceptual issues when dealing with authorship as a matter of early legal academic careerism.
1. I don't think the "audace" problem is really one of a grand theory of everything. The issue is really that the "golden mean" for a young practitioner turned scholar sans Ph.D. (i.e., the not-as-ubiquitous but still prevalent mode of entry) is a narrow target indeed. Aim too low and it's a CLE piece. Aim too high and it's a naive stab at inter-disciplinarity (not so much a grand theory of everything, but a misplaced cross-theory). The sweet spot is a doctrinal piece that tends to theory, but good theory that isn't embarrassing if read by an full-fledged expert in that theory. All I can say is I just came in from playing golf, and that's the equivalent of threading a shot through a narrow gap in the trees. (Theory: hiring a Ph.D./J.D. either widens the target or reduces the likelihood of the hiree missing the shot. Given where the "law and ..." academy sits nowadays, it's no wonder that Ph.D. hiring is increasing.)
2. Real ground-breaking innovation in thought is a lot like real ground-breaking innovation in anything. It's serendipitous and mysterious. It involves all the complexities and subtleties of the advance of knowledge in any scientific or humanities (or business) community, which is that it's a social process as well as a logical or inductive process. The line between a stupid idea and a ground-breaking idea, when looked at ex ante versus ex post, is pretty fine, and doesn't always have to do with the merits of the idea as much as who endorses it and sells it. Nobody who makes a living submitting non-blind articles along with their CVs to student editors of law reviews will doubt the importance of heuristics. Is somebody who advances a new and weird idea in the face of this a naive fool or an idealistic hero? I don't know.
3. As everybody knows, I attended my son's white coat ceremony at Michigan last week. There's no doubt, for better or worse, that elite schools act as filters. When the students introduced themselves, the names of their undergrad schools were overwhelming Michigan, Stanford, Harvard, Northwestern, Princeton, Cornell, Berkeley, Washington, Notre Dame. Occasionally there was a William Jewell College or a Grand Valley State, but it was very much an elite (or elitist) gathering. (I don't pass judgment on this or the schools at any level, except to say that it's probably the case that I got good grades and scores and school admissions in the usual "prestige" paradigm when I thought like my teachers, and my students get good grades when they think like me.) Nevertheless, one of the messages to the entering class of Michigan med students was that some of them are going to be in the middle of the class and some at the bottom. That is, no matter how select the group, somebody's going to be mediocre. The hard truth for entering law professors is the same. Despite the fact that most all were superstars at the previous level, once again, there will be a sorting out (fairly or unfairly as the case may be) with some superstars, some flame-outs, and a lot of people doing middling work that is sufficient as the basis for a career, but probably forgotten not long after it's written.
I just subscribed to the Journal of Applied Philosophy, and read an essay by the great Kant scholar Onora O'Neill, in which she discussed the difficulty, philosophically speaking, of applied ethics and practical judgment, of which this is a subset. The problem is that we know we can't reduce judgments to algorithms that ensure success, but we're also pretty sure, intuitively, that there are non-specific principles that underlie good judgments. She calls reflective equilibrium the best halfway house yet proposed. I'm more convinced that we can adopt heuristics that minimize the likelihood of failure, sort of like the bromide that you never ask a question in cross-examination to which you don't know the answer. That will ensure you don't make a terrible mistake, but it also eliminates the inspirational success. It seems to me that there will be a continuum on a polarity between careerism and intellectual idealism, and all sorts of factors, including personality, life circumstances, social abilities, etc. will affect where each individual ends up. It seems to me that a happy life is working on what you can control, and either (a) putting the randomness of the world out of mind or (b) taking a lot of Xanax.
June 04, 2009
Florida Bar Section May File Amicus Brief
The Florida Supreme Court has held that the Family Law Section of the Florida Bar may file an amicus brief on a matter of interest to the section. The ruling came in a lawsuit initiated to enjoin the brief. The court noted that membership in the section is voluntary and that permitting the brief thus does not violate the First Amendment rights of bar members. The suit was filed by two bar members and a public interest law firm.
A dissent would not grant the injunctive relief sought but would hold that the Bar had failed to comply with its policies regarding amicus briefs:
The Florida Bar's Standing Board Policy...provides that sections of the Bar may not submit an amicus brief in pending litigation if the issue involved "carries the potential of deep philosophical or emotional division among a substantial segment of the membership of the bar." The issue of homosexual adoption is undeniably divisive. The Florida Bar does not argue otherwise. The majority opinion does not hold otherwise.
April 18, 2009
Over at John Flood's RATs blog site -- he is a British law-and-society prof who occasionally does stateside duty teaching legal ethics in U.S. law schools -- John posts the wonderful cartoon below, debates a commenter over whether the joke in it is utopic or dystopic, and reminds readers of an oldie but goodie lawyer joke, the one about
A classic. Previously, I offered four bad lightbulb-replacement jokes for law professors.
January 29, 2009
Does Law School Destroy Your Sense of Humor?
Posted by Alan Childress
And if the product of law school is humorless people, is that caused by the education, or are humorless people drawn to enroll in the first place? That's after years of people telling them they should go to law school, which was said sarcastically, but they did not get the sarcasm because they are humorless. I do not know, but I hope Bill Henderson launches a multivariate longitudinal study of the phenomenon. Maybe there is grant money available from Pfizer or whoever makes the anti-restless-leg drug.
I think it is pretty clear that legal education at least alters the sense of humor palpably, similar to how Duncan Kennedy's classic 1982 crit thinkpiece, Law School and the Reproduction of Hierarchy, argued that an ostensibly neutral education is a cover for an intensely person-altering political and social indoctrination. Maybe med school does the same thing to someone's funny bone--I would never get through the day with a straight face saying "infarction" and "acute angina." But that only proves I am 14; last week,I kept giggling at an exam answer's reference to a "federal fee-shitting statute" even though I know it's just a typo. And for sure law school destroys the ability to say "statue" without thinking twice.
Lawyers have our own sense of humor, which isn't funny to "laypeople" (heh heh) and objectively isn't funny. The punch line of several of my conversations is "Well, yeah, res ipsa loquitur!" A student lamented to me just last week that she could not get through a lawyer's helping her move in his pickup without enduring several attempts to call himself a "lodestar." That kind of thing. You know, unaware unfunny. I told her to get used to it--you will be this way soon enough. (Sort of like pod people.)
We also don't laugh at some things lay people find very funny. I got an email today from a non-lawyer all mocking us because of some list going around of stupid questions lawyers ask in court. The rest of the viral email is below the fold, but here are the sort:
ATTORNEY: Were you present when your picture was taken?
WITNESS: Are you shittin' me?
ATTORNEY: How was your first marriage terminated?
WITNESS: By death.
ATTORNEY: And by whose death was it terminated?
WITNESS: Now whose death do you suppose terminated it?
Because the guy who forwarded this to me asked "Where do these things come from?," and I humorlessly took that as non-rhetorical, I wrote this reply, really:
Half of them come from my teaching in evidence class, to get something in the record even though it seems obvious and a necessary inference from the prior statement. While inartfully stated, many of these make sense to me. Some things (like death) are an element of a crime or tort and must be proved in the record by a statement of the witness, not the lawyer, or else it won't hold up on appeal. Even a picture cannot be admitted into evidence without a witness "authenticating" it, for example by stating that he was there when it was made (and by the next question, recognizes it). Other questions are worded so as to not sound leading, when really they are, so as to avoid an objection that it is leading. And some may just be designed to elicit a snear that makes the jury like the witness less.
So that is my reply to this viral email. (I have reacted humorlessly before to those emails about stupid tort suits; most of them are urban myths.) I get the joke, but I also get what the lawyer was trying to do.
The full email is:
These are from a book called Disorder in the American Courts, and are things people actually said in court, word for word, taken down and now published by court reporters who had the torment of staying calm while these exchanges were actually taking place.
ATTORNEY: Are you sexually active?
WITNESS: No, I just lie there.
ATTORNEY: What gear were you in at the moment of the impact?
WITNESS: Gucci sweats and Reeboks.
ATTORNEY: This myasthenia gravis, does it affect your memory at all?
ATTORNEY: And in what ways does it affect your memory?
WITNESS: I forget.
ATTORNEY: You forget? Can you give us an example of something you forgot?
ATTORNEY: What was the first thing your husband said to you that morning?
WITNESS: He said, 'Where am I, Cathy?'
ATTORNEY: And why did that upset you?
WITNESS: My name is Susan!
ATTORNEY: Do you know if your daughter has ever been involved in voodoo?
WITNESS: We both do.
WITNESS: We do.
ATTORNEY: You do?
WITNESS: Yes, voodoo.
ATTORNEY: Now doctor, isn't it true that when a person dies in his sleep, he doesn't know about it until the next morning?
WITNESS: Did you actually pass the bar exam?
ATTORNEY: The youngest son, the twenty-year-old, how old is he?
WITNESS: Uh, he's twenty.
ATTORNEY: Were you present when your picture was taken?
WITNESS: Are you shittin' me?
ATTORNEY: So the date of conception (of the baby) was August 8th?
ATTORNEY: And what were you doing at that time?
WITNESS: Uh.... I was gettin' laid!
ATTORNEY: She had three children, right?
ATTORNEY: How many were boys?
ATTORNEY: Were there any girls?
WITNESS: Are you shittin' me? Your Honour, I think I need a different attorney. Can I get a new attorney?
ATTORNEY: How was your first marriage terminated?
WITNESS: By death.
ATTORNEY: And by whose death was it terminated?
WITNESS: Now whose death do you suppose terminated it?
ATTORNEY: Can you describe the individual?
WITNESS: He was about medium height and had a beard.
ATTORNEY: Was this a male or a female?
ATTORNEY: Is your appearance here this morning pursuant to a deposition notice which I sent to your attorney?
WITNESS: No, this is how I dress when I go to work.
ATTORNEY: Doctor, how many of your autopsies have you performed on dead people?
WITNESS: All my autopsies are performed on dead people. Would you like to rephrase that?
ATTORNEY: ALL your responses MUST be oral, OK? What school did you go to?
ATTORNEY: Do you recall the time that you examined the body?
WITNESS: The autopsy started around 8:30 p.m.
ATTORNEY: And Mr. Denton was dead at the time?
WITNESS: No, he was sitting on the table wondering why I was doing an autopsy on him!
ATTORNEY: Are you qualified to give a urine sample?
WITNESS: Huh....are you qualified to ask that question?
And the best for last:
ATTORNEY: Doctor, before you performed the autopsy, did you check for a pulse?
ATTORNEY: Did you check for blood pressure?
ATTORNEY: Did you check for breathing?
ATTORNEY: So, then it is possible that the patient was alive when you began the autopsy?
ATTORNEY: How can you be so sure, Doctor?
WITNESS: Because his brain was sitting on my desk in a jar.
ATTORNEY: I see, but could the patient have still been alive, nevertheless?
Yes, it is possible that he could have been alive and practicing
...and then it ends with the obligatory salutation which has replaced Sincerely or good-bye:
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November 02, 2008
Quest For Bar Exam Data Continues
The November 2008 edition of the California Bar Journal reports that UCLA Professor Richard Sander has filed suit in his quest for information concerning bar examination passing/failing demographics:
Professor Richard Sander has taken his quest for bar exam data to San Francis-co superior court following denial by the California Supreme Court to hear his case.
Lawyers for Sander, an economist and law professor at UCLA, filed suit Oct. 3, seeking State Bar records for use in evaluating law school admission policies. Sander, who has published reports concluding that affirmative action hurts minority law school students, seeks data about bar exam takers on race, college and law school grades, LSAT scores and exam results. He withdrew an earlier request to retrieve gender information.
The suit argues that the records are public and that bar concerns about students’ privacy have been addressed.
State Bar President Holly Fujie said the State Bar stands by its earlier decision to reject Sander’s request. “After careful review of the new petition, the bar sees no reason to change its position that the scope of the release signed by applicants does not give the bar legal grounds for providing the requested information to Professor Sander,” Fujie said. “The bar has no legal right to release this information to him.”
September 17, 2008
I Have Won The El Gordo Lottery Sweepstake
Posted by Alan Childress
Such a good day for me. First, my habitual wearing of baggy and underwear-revealing pant ensembles is held to be constitutionally protected. The fashion trend is, of course, called layering. Sort of an odd moment in the last decade to suddenly locate a copy of the Constitution, but hey I will take it.
Then I am told (by the email) that I won several euros, which equals a plethora of dollars, from the poorly named but generous EL GORDO SPANISH SWEEPSTAKE LOTTERY COMPANY S. A. Is someone saying I "won the el gordo lottery" just a polite euphemism for telling me I am fat, or is this for real? I remember times when I was rejected by law firms even though I never applied to them -- so winning this may be like that, in reverse. On the off-chance it is for real, I plan to storm into the dean's office today and quit. Time to put on my best MC Hammer outfit, with layers, for that showdown. Although I like my job, I am not one of those lottery winners--often with really bad jobs--who immediately announce they would not quit their job. Then why were you playing the lottery, idiot?
In other good news, I solved the mystery of those awful push polls conducted against John McCain in South Carolina during the 2000 primaries: it turns out that phone listeners were really just asked about McCain as the father of the blackberry. Now it makes sense and was not so surreal. Though one senator yesterday rightly noted that, if McCain had indeed invented the BlackBerry, that'd be reason enough to grade him down. I personally oppose all BlackBerry users--they click it right in front of you at meetings while you are talking, as if it is a TV remote control and you are getting muted, or your channel changed. Right after quitting my job, I would like to tell off the inventor of that device, as well as the Bluetooth guy that makes me unable to tell anymore who is (1) talking to me, (2) talking to their stockbroker, or (3) just schizophrenic. I used to take comfort in making such conversational distinctions. Now I feel stupid when I catch myself answering someone who was not asking me a question or greeting me, even though they were looking right at me when they said it. I wonder if they are thinking I am El Gordo. I prefer to be called El Guapo.
August 05, 2008
Lost in Translation
Upon hearing the sad news that McDonald's is altering its Dollar Menu, a decision that may affect me more than gas costs, I did recall my favorite billboard for the U.S. icon, this outside the Australian town of Yass. Yass is near Canberra, says this site.
Second-place sign after the jump.
July 16, 2008
The Definition of Chutzpah or I've-Seen-It-All-Now: Being On Both Sides of Appeal. Cal Court Calls It A Disregard of Duties "Without Precedent."
Posted by Alan Childress
If it were a Hollywood script, I would laugh at its utter incredibility: only Hollywood would unblinkingly make an attorney have a litigation interest in both sides of the appeal (and treat it as clever lawyering). But it happened, yes in California, and the court there called it a disregard of a client's fiduciary duties that is "without precedent." It certainly is, to my knowledge, and it as twistedly brilliant and stunningly nervy as it is stupid and in the "what were they thinking?" box. [Thanks to appellate attorney Greg May for letting us know and pointing us to his (detailed and excellent) post on The California Blog of Appeal.] My simplified but accurate version is this, re attorney Anthony Pagkas:
Civil defendant-client loses suit due to default judgment from Lawyer's alleged lack of diligence. Client then sues Lawyer for malpractice and also appeals the default. Lawyer then buys out the plaintiff's interest on appeal (gets an assignment of the interest from the prior plaintiff, for some "undisclosed consideration"). That's right: buys into the other side of the appeal and, now represented as a litigant by another attorney in his firm, owns the default judgment if it is upheld. On the other side from his barely-former client, in the appeal!
Brilliant: if Lawyer loses "his" appeal, then there are no malpractice damages and no causation. If he wins, he collects a $730,000 default judgment from the former client.
Stupid: this requires Lawyer to move the appeals court to substitute him as "respondent" in his former client's appeal.
Sort of predictable: ”Finding that the proposed substitution violates multiple rules of Professional Conduct as well as the Business and Professions Code, we will deny the motion.” Well, yeah. The court's stated astonishment to follow in explaining the denial and imposing sanctions is quoted by May, and its full opinion here as well, issued yesterday. Suffice it to say that "if the substitution were allowed, it is conceivable that Pagkas could prevail in both the malpractice action and in this appeal, leaving him with huge windfall at the expense of his former client. Pagkas’s disregard for his ongoing fiduciary duties to his former client in favor of his own personal gain is without precedent." (Footnote omitted.)
How did Lawyer ever think he would get away with this? The sanctions are merely $5260, but I am sure there is more to come. The case is Styles v. Mumbert, civil H029767 (6th Dist. July 15, 2008).
UPDATE: Not entirely without precedent, it has since occurred to me.
July 06, 2008
Oh To Be Pro Se: Still The Champ In Frank and Unprofessional Pleading?
Posted by Alan Childress
The Texas court pleading going around the internet that raises the "dumbass defense" against a plaintiff and calls him a "f---ing idiot" [without dashes] has been been revealed to be a fake by Ray Ward and his astute commenters at the new legal writer blog. That leaves, Ray says in a comment, the 2006 notice of appeal of one George Swinyer, Jr. as "the champ in use of salty language in a court pleading." Next week is its two-year anniversary and it has not been knocked off its block yet, has it? (George Swinyer, Sr. must be so proud.)
Here it is in its stark and handwritten glory, and it is not professional, but give it this: it was sent to the right court. Lots of real lawyers intuitively file the notice of appeal in the court of appeal (wrongly), or otherwise mess up the timing of it which may result in a huge malpractice lawsuit (or just a lawsuit that, luckily to the attorney, leads to a finding of no causation because the appeal would have been lost on the merits anyway). I am not suggesting, however, that this one go into your forms-and-exemplar file.
Maybe the author of this notice of appeal is more ideally suited, personality wise, to become a pro se transactional attorney. (At least that way, Swinyer would not have -- ahem -- "perfected an appeal" ... that was destined to be pretty much summarily remanded by the appeals court, and found "not in good faith" by the same district judge, as reported by Legal Juice blog with details about the underlying lawsuit and the obligatory use of "donut" to insult a prison guard.)
This certainly beats out for utter frankness and ethical candor the midwestern appellate attorney who asked for argument to be rescheduled on the grounds that his wife was making him take a 350-mile bicycle tour in Oregon, even though "Counsel assures this panel that Oral Argument would be more enjoyable than the aforementioned bike trip."
May 15, 2008
On The McDonald Spit
A dispute between two attorneys who co-owned vacation property as tenants-in-common at a place on the McDonald Spit worked its way to a decision from the Alaska Supreme Court. The attorneys did not have a written agreement concerning their respective ownership rights. One of the partners wanted to build a guest cabin in a particular place "below the bluff." The other disagreed and felt the location was an unsafe place to build. He was proven correct when that cabin was destroyed. Thereafter, one partner built and used his own cabin while the other took over an existing cabin. The litigation was over the concept of "owelty" after the parties had partitioned their respective interests in the property and were unable to resolve their disagreement through mediation. (Mike Frisch)
May 03, 2008
Required Recent Reading for Law Dean Candidates and Search Committees
Posted by Alan Childress
Jeff posted last week (here) on the frequent but surmountable "divide" between practice and theory in law school, or more precisely between practitioners and theoreticians within the larger law school world. The mission of legal education has to serve several larger constituencies, and they all matter. His post really serves, if you think about it, as sort of an open letter to law deans and dean search committees. It's worth a read by academics who don't want to dirty "their" institution with law practice and practioners, and by practitioners and the real-life communities of a law school who may think egghead intellectuals miss the point of a "real" law school qua professional training facility.
That theme is given an applied context in this new post by Michael Froomkin of the University of Miami--applied because these questions and concerns are not merely academic to those who, right now, need a new dean to take a really good law school and its faculty to the next level. His view is entitled, Why A Practitioner Dean Sounds Like A Better Idea Than It Usually Is. Although I don't agree with everything he says, it too should be required reading for dean candidates, search committees, and supportive alum. It certainly explains well to those in the larger community what they are just not getting about the insides of a law school--the herding cat thing--when they so easily assume that good managers in the real world will translate to ivory towers like ours. Law schools "are hard to administer — much harder, I’d think than a court (at the end of the day, there’s always a bailiff…), and very different from a law firm."