Legal Profession Blog

Memo to Will Shortz

The answer to 66-Across in the July 6, 2008 Sunday New York Times Crossword Puzzle ("What the H?") is wrong.  You are excused, however, because this is a common misconception.

[Jeff Lipshaw]

Suit Dismissed

The United States Court of Appeals for the First Circuit affirmed a district court decision holding that a suit by a 2000 graduate of Southern New England School of Law against the school and two deans could not survive summary judgment. The graduate was not permitted to sit for the New Jersey bar examination because the school was not accredited when he graduated. The suit alleged that the school deans had made false statements to him about the prospects for accreditation, fraud and violation of a consumer protection statute. The court held that any reliance on the statements of the deans regarding accreditation prospects was unreasonable. One dean's "history of making inaccurate predictions rendered any reliance on his statements unreasonable."  A second dean's statements were "at best, a lukewarm endorsement of the school's likelihood of attaining accreditation..."

Thanks to Sean Harrington for sending this case to us. (Mike Frisch)

Litigation or Transactional Law Career: Some Advice to Law Students

Posted by Jeff Lipshaw

A reader who is interning in a NYC corporate law firm, and about to enter law school, saw my earlier post alluding to the creative possibilities in transactional work, and sought advice about choosing between transactional work and litigation work.  I'm happy to share some thoughts.

1.  Mostly I will be talking about big firm practice, but I should issue a disclaimer.  There's big firm practice, and there's mega-firm practice.  The reason it's important to make the distinction is because I'm looking backwards at a career in which many of the fulfilling aspects came later, after I did my time in the trenches (both in litigation and corporate).  So there is a substantial period of learning how to chop the wood before a new lawyer gets to build, much less design, the house.  My perception is that period is shorter in big firms outside of the financial centers.  You will probably take on more responsibility more quickly at a big firm in Detroit than Chicago, in St. Louis than Los Angeles, in Salt Lake City than New York.   [UPDATE:  See comment below on how this differs between transactional and litigation.]

2.  Law school, at least the way it's mostly taught, does not tell you much about the way the transactional practice works.  That's because of the case method.  Cases are always about litigation.  (Interestingly, business schools teach transactions in the case method, but they are cases in doing business, rather than litigating about it.)  Even contracts class, as usually taught, is something of a bait-and-switch.  Don't blow it off, because you'll need it for the bar exam, but there's not a lot of contract law that comes to the fore in transactional practice.  I often say, and am probably not far off, that the practice of contracts is 90% interpretation, and 10% all other (offer and acceptance, consideration, duress, mistake), and the teaching of contracts is 90% all other, and 10% interpretation.  Litigation tends to involve the LAW a lot more.  The number of occasions for going to the library and doing extensive research on a legal issue is far greater in litigation, and when you do research an issue on the transactional side, it rarely turns into work product in the way a brief springs out of the cases.  You might do corporate research, for example, on whether a transaction involves substantially all of the assets of a corporation, and hence require shareholder approval, but that will tell you how to structure the deal, not be the basis for an argument.

3.  Are you a win-lose kind of person or a win-win kind of person?  Great trial lawyers are sublimated warriors.  Winning a trial or decimating a witness in cross-examination is the thrill of conquest and vanquishing.  If you are not that kind of person, it can wear on you.  Personally, I realized ten years into a litigation career, (a) I wanted to be liked (if not loved) too much to be a conqueror, (b) dealing with the opponents' conception of the truth (opening up the other side's brief and reading it, for example) was frustrating and hard on my blood pressure, and (c) as I discuss below, once you get beyond the adrenaline rush that causes your eyeballs to pop out of your head (some people like that), the way trials work in cases that big firms do can be kind of . . . boring.

On the flip side, negotiating transactions is also "adversarial" in a way, and a lot of it is about winning points.  Just like a litigator can't win without good facts and good witnesses, a transactional lawyer can't make points without exogenous business leverage.  For example, even in a "friendly" business combination involving public companies, there are a series of points negotiated between the acquirer and the target that have to do with how tied up the deal is.  The task for the sellers is to maintain some wiggle room for future leverage, and the task for buyers is to make it as difficult as possible for the target's board of directors, short of violating their fiduciary duties, to get out of the deal if a better one comes along.  But that's all less a matter of the lawyer's skill than the leverage the client has or lacks.  (See the Bear Stearns - J.P. Morgan deal for an example of this.)

The bane of a transactional lawyer's existence, though, is an adversary who seems more intent on winning "lawyer points" than getting the deal done.  One aspect of creativity in deal lawyering, it seems to me, is knowing when to hold 'em and when to fold 'em - how to concede the points you don't need, or trade them for the ones you do.  Negotiating with a lawyer who, like a litigator, needs to conquer or vanquish, is tiresome.

One of my late ex-colleagues and dear friends told me that he found the give-and-take of negotiated deals tiresome in just that way, and that's why he "stuck to raising money in the public capital markets."

4.  The first part of a career, whether in litigation or corporate, is a combination of doing the grunt work and learning professional techniques.  Doing the grunt work, well, sucks.  Learning the professional techniques, whether it's second-chairing a deposition, or attending the negotiation of the acquisition agreement, is a lot of fun, as long as you like to learn.  Being creative with those techniques is something that comes later.  Two examples.  Litigation.  An old saw of cross-examination is that you never ask a question for which you don't know the answer.  That pretty much guarantees that you won't make a mistake.  But great cross-examiners violate that rule all the time, because they know what questions to ask in which they either don't care what the answer is, or have a plan for whatever comes out.   Corporate.  Things like the shareholders' rights plan (the poison pill) are invented by creative lawyers.  But generally that's by lawyers with cycles of learning in the transactions.

Moreover, technique in itself can get old.  It's the context then that supplies the interest.  I'll give two non-legal professional examples.  When my daughter was born 24 years ago, I was (obviously) blown away by the experience.  I said something to the OB about how thrilling it must be to deliver new babies.  He said the physical aspect of it lost its wonder after a while, and the thrill came from dealing with the parents.  Or to take a counter example, dentistry.  I don't know how much professional satisfaction comes from doing fillings and crowns once you've mastered the technique.  I do understand dentists have high suicide rates, compared to other professions, for whatever reasons. 

Similarly, mere technique in high-powered litigation or corporate work can get old.  As I've said, I didn't like litigation.  We had a ten week trial in Cheyenne, Wyoming in 1986, litigating a whole set of complex contractual issues between a coal supplier and a utility.  In the midst of what ought to be the most exciting time for a corporate litigator, I realized I was bored.  I knew what every already deposed witness was going to say, and what the cross-examination would be.  In corporate work, it got to the point that I negotiated the key business points of the deal, but was bored stiff by the lawyers' wrangling over the environmental representation or the interstices of the definition of the "knowledge" standard for representations that hinged on it.

5. (UPDATED)  Get good mentoring on this.  I don't take anything away from law professors (I am one, after all), but note that the experience (as opposed to mere knowledge or analysis) of mature practice occurs well after most professors have left practice to go into the academy.  Indeed, at the 2-4 year level, which is pretty common, you are still moving from grunt work to learning technique.  Obviously, thoughtful professors will have observed what senior lawyers do, and can be intelligent and insightful, but they haven't necessarily experienced what it's like to be a senior lawyer in practice.   Many of those senior lawyers - corporate and litigation - have real passion for their jobs, and it pays to listen to them talk about why.  Or talk to adjunct professors.  One of my most rewarding classes was a mock litigation course taught by Charles Marson, who had been the Executive Director of the northern California ACLU.

As with many decisions in life, there's no silver bullet, or algorithm, or pat answer.  You just pays your money and takes your chances!

No Admission for Graduate Of Unaccredited Law School

The Nebraska Supreme Court held today that a graduate of a law school not approved by the ABA may not seek admission without examination. The applicant had attended Western State University College of Law. and had satified Nebraska's MPRE requirement. He had passed the bar and been admitted in Georgia in 1992. He is a member in good standing of the Georgia Bar. He moved to Nebraska in 2006 to be near to his ill parents.

Western State is now accredited. The court permits waivers for graduates of foreign law schools. However,

there is a criical distinction between graduates of foreign law schools and graduates of nonaccredited U.S. law schools. The ABA does not evaluate foreign law schools for accreditation; thus, there is no way for citizens of foreign countries to attend an ABA-accredited school in their own country.

The court declined to adopt the suggestion that it evaluate credentials of such applicants on a case-by-case basis. The requirement that a domestic graduate attend an ABA-accredited institution is non-waivable. (Mike Frisch)

The Summer Before Law School?

Posted by Alan Childress

I think hard work (preferably non-law) and/or travel are the best preparation for starting law school, for opposite reasons.  Hard work so that being back in school will be fun, will feel like a reminder that it's not the real world (sometimes for the better).  Or travel because it may be the last time for a while. Either way, come to law school fresh and grateful for the opportunity.

Elsewhere, and with more substance and literary value, there is advice from several good sources:

--student A and student B posting on the great-titled law student advice blog, Wish I Would Have Known.

--suggested summer reading lists from law schools at Appalachian and Hofstra, as well as U Conn's Anne Dailey.  Tulane's own Susan Krinsky has an extensive and thoughtful reading list that she has put together for admitted and prospective students to choose from:  Download List2008.pdf.

--a few tips posted on Amazon.com, now that it is working again.

--advice from the student-editors of Three Years of Hell and the Legally Numb blogs, surprisingly useful despite their names.

--serious advice from The J.D. Project, Inc. in this post.

--a student at Widener gives this advice on its admissions site.

--an "older guy" offers advice at nontradlaw blog.

--Eugene Volokh and lots of commenters here spoke to the reading list issue in 2007, and even more VC commenters added their book ideas here. (Our recent post related to To Kill A Mockingbird is here.)

--a response to Volokh, from the feminist perspective, by Ms. JD and her commenters.  It includes doing nothing or getting a tan.

Me, I worked in a movie theater selling tickets, and for a papermill company counting beavers.  The latter involved some travel.  And I got tanned.

International Law Students Ass'n Elects New President

As reported by the new (and affiliated) International Law Prof Blog (per Mark Wojcik), hearty congratulations are in order for Wash U law professor Leila Sadat (who is also a Tulane law grad), shown left.  She will be the next president of the International Law Students Association.  ILSA is the group responsible for, among other activities, running the Jessup moot court competitions.  It will also hold an extensive conference (for students and others) on Oct. 2-4, 2008, at Vermont Law School, "Understanding Genocide."

If tradition means anything, Wojcik hints, Sadat will soon be appearing on The Daily Show with Jon Stewart.  Also, Wojcik notes, Sadat will be the first woman to hold the position at ILSA.

My school, Tulane, has also been well represented by the student-officers of ILSA.  The current student president, for example, is our own Robert Magouirk.  Congratulations, all. 

[Alan Childress]

Petition Denied

The Supreme Judicial Court of Maine has denied the petition of Husson College School of Law (which has not yet opened its doors) for permission to have its graduates sit for the Maine bar examination. While recognizing the need for an institution that would assist in serving the legal needs of central and northern Maine, the court concluded that the lack of accreditation of the new school required denial of the petition. Accreditation cannot be addressed until the law school is in operation. (Mike Frisch)

New Free Podcast Series "Transitioning from One-L to Summer Legal Work"

Posted by Jeff Lipshaw

Law students, it's time to clean up, put on the suits, and go to work.  And Suffolk University Law School's acclaimed legal research and writing program now has just the iPod content you need for those commutes into the office. 

Called "Transitioning from One-L to Summer Legal Work," this iTunes-available series contains 19 podcasts, each by a different legal writing professor from around the country, and all available free of charge.  Each podcast offers another piece of "real world" advice, like how to interact with support staff, send an e-mail to a partner, use LexisNexis in a cost-effective way and behave at a firm social event.  The series is available on Suffolk Law's iTunes U site.

The podcast series is the brainchild of Suffolk Professors Gabriel Teninbaum (left) and Kathleen Elliott Vinson (right, the director of Suffolk's Legal Practice Skills program, and who introduces the series via video).  Suffolk's Dean Fred Aman not only provides an introductory podcast, but in his second life as an accomplished jazz drummer, he provides the musical background you hear in each segment of the series.  (Fred took the sticks for one number at Suffolk's student black-tie end of year celebration, the Barristers' Ball, and it was sublime!)

For this series, even I'd put up with a little earspill.

Welcome to the Lawyering Blogosphere: International Law Prof Blog

Posted by Alan Childress

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

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

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

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

Classroom Internet Access and the "5 Whys"

Posted by Jeff Lipshaw

I considered giving this post an Onion-like title, something to the effect of "UNIVERSITY OF CHICAGO LAW SCHOOL PROPOSES LEAD DOME OVER HYDE PARK; DEAN LEVMORE DERIDES CITY-WIDE WIRELESS HOT SPOT AS 'ANTI-INTELLECTUAL.'"   But Legal Profession Blog is a serious blog (the ABA Journal's blog regularly uses Mike Frisch's posts as source material!)  So I'll try a moderately serious response.

As has been noted in the blogosphere over the last day or so, Chicago has decided to shut off wireless internet access to its classrooms. Ian Ayres applauds this move; Calvin Massey is skeptical.  I tend to side with Calvin for the reasons he gives over at The Faculty Lounge, but I want to expand.

As Calvin notes, if the teaching is sub-par, students will find different ways of checking out.  I have done the New York Times crossword regularly going nigh on thirty years, and it all started in the back row of the classrooms at Stanford Law School, courtesy of the Stanford Daily's syndicated use of the puzzle.  I won't say which classes, but, trust me, there were some whose combination of turgid text and stultifying pedagogy earned my ennui many times over.

Insulating the classroom from the current iteration of technology is a piece of chewing gum in a crumbling dike.  It's only a matter of time until there is universally available city-wide wireless access (I think Boston has been talking about it.)  At which point, the construction of the lead dome will be necessary to avoid surfing unless the solution is indeed to start us on the road back to quill pens and inkwells by banning laptops in the classroom.

It seems to me that schools ought to be at least as forward-thinking as manufacturing companies in avoiding the quick fix in favor of getting at the root cause.  In modern Japanese-developed lean manufacturing (kai-zen or continuous improvement), one principle used in analyzing the cause of defects is the "five whys":  you don't truly get to the root cause of a problem unless you ask why, get an answer, and then ask why about the answer five times.  Using the five whys here would tell us, I think, that we haven't solved the surfing problem by constructing a technology shield.

Wait a minute.  Five whys.  Gosh, that sounds almost . . . Socratic!

AALS Section on Professional Responsibility: Spring 08 Newsletter

Through the good offices of it general editor, Randy Lee at Widener, and many others in the AALS Section on Professional Responsibility, here is their highly useful, newly printed section newsletter for spr. 2008: Download AALS-News.Spring2008.pdf .  It includes case law and scholarship summaries, ethics rule changes in various states, section and school announcements, a message from the chair, and future symposia.  Our blog and other fans of the section cannot thank them enough for letting us post it here.  [Alan Childress]

New Edition Book of ABA's Model Rules Is Announced

In an email sent around today, the American Bar Association announced its publication of the 2008 Edition of the Model Rules of Professional Conduct, with the MR Comments included, for $19.95 (or $14.95 for section members, and also discounted for student members). 

It is the "centennial edition" because: "On August 27, 1908, at a meeting in Seattle, Washington, the American Bar Association adopted the Canons of Professional Ethics, the first set of model standards of ethical conduct for lawyers nationwide." 

I am assigning this one for my "The Legal Profession" ethics class in the fall (with a full casebook too, of course, that also discusses many of the pre-2002 MR and also the Model Code), because it is quite cheap for the students and has most of what I intend to use from a rules supplement anyway. 

[Alan Childress]

More Controversial Faculty Decisions at Berkeley Nee Boalt Hall School of Law

Posted by Alan Childress

This blog would not be the first one to note the controversial name-change campaign at U.C. Berkeley's Law School.  I got my first alum mail with just Berkeley Law on it last week -- Boalt no more.  I wonder if the PR firm they paid tons of money to will in turn pay the creators of L.A. Law, so obviously their inspiration.  If not, there will be north-south California controversy yet again.  In any event, I just cannot see many of my former teachers there doing the Venus Butterfly.

Nor would this blog be the first to welcome the school's new faculty addition really listed on its website (left), a fellow named "Test Dummy."  (Stories here, here, and here.) He is shown right in what is no doubt the world's worst set of law faculty photos. Dude, buy a suit.

But let me please be the first (I think) to call for Dr. Dummy's detenurization and firing (sort of like the take-the-badge-and-gun cliche of every bad cop movie).  Now. I for one do not abide the inhumane legal position he took supporting the tragic Mercedes Benz quality control experiment of 2004.  More of his fellow testers were kneecapped in that run of tests than in 30 years of intentional crashes. And don't get me started on his previous memos advising that it would be just dandy to (1) drive other testers around in a Smart Car, left, and (2) have Billy Joel and Toonces be the drivers for the 2001 test series.  (Those two drivers intersect, coincidentally, at this fan site.)  But I am sure Leiter and others will find a way to absolve Dummy for all his bad lawyering.

Actually the addition of Dr. Test Dummy to the Berkeley faculty was just following the tradition at that hallowed institution, akin to slices at Blondie's Pizza and used books at Moe's.  Long ago, the inventor of the crash test dummy, Samuel Alderson, attended Berkeley for his PhD.  Also following a tradition of sorts there, he went ABD for about 60 years.  Me, just eight.  There is something mystic in that pizza.

UPDATE (5/15/08):  Crash test dummies in the Smart Car prove me wrong (above, #1) by performing well in videoed crash tests.

The Future of the Legal Academy - Some Thoughts

Posted by Jeff Lipshaw

A recent blog post by Josh Wright on the future of law and economics has prompted responses from Larry Ribstein and Larry Solum.  In a nutshell, Wright discusses the relationship between the basic skills underlying expertise in law versus expertise in economics, and, in particular, the increasing sophistication and inaccessibility of the the economic modeling and econometric work as L&E comes to be dominated by economists rather than lawyers.  Ribstein makes a case for why there's still a place for "informal" L&E scholars (but who need to work, as Larry does, with professional economists in making technical economic claims), and Solum sees it as a springboard to a discussion about the future of the "law and ..." legal academy.

Larry Solum's view got me thinking.  He poses three possible paths.  One is a continuation of the present "law and . . . " interdisciplinarity.  Two is what he called "multi-disciplinarity," essentially the transformation of academic law into a discipline studied by those who have the equivalent of a Ph.D. in law (and thus broad-based training in all the different ways law might be approached, akin to having a Ph.D. in philosophy or political science) and not merely the professional J.D. degree.  Three is a return to the trade school model in which those aspiring to interdisciplinarity migrate to other departments or retire.

I propose the following thought experiment, just to help us refocus a little.  Imagine the professors in engineering schools found it far more interesting to focus their own research on theoretical physics.  The theoretical physicists could speak to each other in their language, but it would be largely incomprehensible to the engineering professors who didn't do theory, and completely incomprehensible to engineering students who just wanted to become engineers.  My trafficking with L&E people who go heavy on the E is that the analogy to string theory or dark matter and their empirical non-falsification is pretty apt.

Following Larry Solum's train of thought, those engineering professors would start to migrate to joint then full appointments in the physics departments.  But the engineering school's raison d'etre is to train engineers, not to do fundamental research in theoretical physics.

It wouldn't be an issue, really, if there were a sub-component of the engineering faculty who wanted to do highly specialized theory as long as the theorists could articulate some reason why the benefactors of the engineering school (largely its professional alumni) should continue to subsidize that activity. The problem arises when those funding the cash cow (which law schools are, but not because they produce lots of scholars!) look up and say:  "what the hell am I supporting?"

Which makes Larry Solum's third alternative very, very plausible, and not inconsistent with the second.  Legal scholarship is absorbed into a Ph.D. degreed academic multi-discipline that frees its adherents from the need to connect with the practice, and the training of lawyers who practice goes back to lawyers.

But does that kill the golden-egg laying goose?

The trick is allowing either alternative one or alternative two to proceed, but not to the point that teaching practicing lawyers returns to a trade school model.

But that's where the leadership comes in.   Because the goose that gives the golden egg consists of those tuition and support dollars.  So the job of academic leadership in model #2 is to articulate to the profession why the law needs pure scholars (to hearken to my roots, perhaps why even poor Jewish communities were willing to subsidize the rabbi qua scholar), and to articulate why, in return, the academy needs to be actively grateful to, and embrace, its practice-oriented benefactors.

Ironically, it seems to me that the thoughtful profession hungers for a dose of perspective, which it seems to me comes from philosophers (in the broadest sense of the word - recognizing that economics embraces a philosophical world view - no coincidence that Smith, Mill, Bentham, and Marx were cross-disciplinary!)  We had a conversation here last week with Joe Tomain about what he does in his law and humanities seminars for judges and for the profession - using Great Books and great readings to help lawyers recharge their intellectual and emotional batteries.  Why aren't we instilling that in law school, and continuing that relationship for the length of a career?  Not every practitioner will want it, but many will!

Concluding Remarks to My Agency, Partnership, & LLC Class

Posted by Jeff Lipshaw

If you are about to teach the last class of a semester, and you've spent a total of 2,100 minutes (in a three credit class) or 2,800 minutes (in a four credit class), you may give some thought to what you say in the last five minutes or so.  Not everybody is so inclined.  I can imagine saying "and that wraps up res judicata," closing the book, and walking out.  But that would mean giving up the chance to float some choice platitudes, and floating choice platitudes is why "I'm up here in the booth."

Here, for what it's worth, are today's closing platitudes to the students in Agency, Partnership, & LLC.  And, no, you are not responsible for this on the exam:

I was a litigator for the first ten years of my career before I turned to transactional and corporate work.

Litigation is an incredibly structured way to live out your career.

This is in terms of (a) cases having a beginning, middle, and end in a certain repeating pattern, (b) the docket controlling your life, and (c) your relationship as a lawyer to the rules of advocacy, whether of argumentation or procedure.

People come into your world, and it’s easy to believe that the world is one constituted primarily by law, and norms set by law.  But: 

    - Try to explain hearsay to a normal person.
    - Try to explain the technique of being a deposition witness to a normal person.

Moreover, it is a world in which, all things considered, you exercise a moderate amount of control.  Indeed, my sense of being in control was so developed that I came truly to hate two particular aspects of the litigation process - (1) doing direct examination of my own witnesses where I couldn't lead, and therefore had to rely on the witness, and (2) listening to the other lawyer's cross-examination of my witness (although the borderline unethical tactic of speaking objections during depositions gives some control to those willing to employ it).

Transactional practice is an interesting challenge, and particularly in this area of unincorporated associations, because of the relationship between the default rules and how the world works.

    - First, rather than others being on your legal turf, you are a lawyer out on the business turf.

    - Second, you are obliged to be a master of a web of doctrine.  You must know what the implications are if the default rules of agency, partnership, corporate law, or LLCs apply.

    - Third, you have the freedom, if you have the confidence and the ability, to change almost everything, by crafting a new set of rules.

    - And finally, to be more than a lawyer’s lawyer, you need to understand that it’s a world not necessarily primarily constituted by law:

        - That because the law, or a contract, or a partnership agreement, entitles you to a right or benefit, doesn’t necessarily mean that you or your client are obliged to seize the right or benefit.

        - Indeed, one of my theories is that the willingness to have a legal right, but nevertheless to see it as either tradable or waivable, or simply to let it pass, is the grease that makes relationships, even economic ones, work.

    I thus think of the great business lawyers as simultaneously being professional experts, creative artists, and moral and social philosophers.

    I hope you have gotten some sense of that here.

Sisyphus Concludes the Semester

Posted by Jeff Lipshaw

There is a regular sequence of wholly free moments in academic life, and those moments are far less common in the practice - perhaps upon changing jobs, or closing a really big deal, or settling a really big case.  Finishing up my last bit of class prep reminded me of this famous reflection on the absurd effort to find meaning and even happiness in an absurd world:

"[O]ne sees merely the whole effort of a body straining to raise the huge stone, to roll it and push it up a slope a hundred times over; one sees the face screwed up, the cheek tight against the stone, the shoulder bracing the clay-covered mass, the foot wedging it, the fresh start with arms outstretched, the wholly human security of two earth-clotted hands.  At the very end of his long effort measured by skyless space and time without depth, the purpose is achieved.  Then Sisyphus watches the stone rush down in a few moments toward that lower world whence he will have to push it up again toward the summit.  He goes back down to the plain.

"It is during that return, that pause, that Sisyphus interests me.  A face that toils so close to stones is already stone itself!  I see that man going back down with heavy yet measured step toward the torment of which he will never know the end.  That hour like a breathing-space which returns as surely as his suffering, that is the hour of consciousness.  At each of those moments when he leaves the heights and gradually sinks toward the lairs of the gods, he is superior to his fate.  He is stronger than his rock."

                                                                         Albert Camus, "The Myth of Sisyphus" (tr. Justin O'Brien, 1983)

New Edition Soon Out of Morgan & Rotunda's Problems Casebook

Foundation Press has just announced the availability come July, in time for Fall 2008 classes, of the newest edition of the classic problems-oriented ethics coursebook,

Professional Responsibility, Problems and Materials,

by Thomas Morgan (GW) and Ronald Rotunda (Geo. Mason). 

Says West, "The Tenth Edition continues the tradition that has made it a leader in its field using problems to provide an overview of lawyers' professional responsibility."

The SSRN Law Academic Career Enhancement Journal: A Proposal

Posted by Jeff Lipshaw

As noted earlier, Paul Secunda has a new piece posted on SSRN (see below - he's in 9th place right now, but moving quickly up the charts), a light-hearted look at the lateral market for law professor, and how to succeed therein.  David Zaring and Gordon Smith over at Conglomerate noted the "success" some of these pieces have in terms of SSRN downloads, and I was curious how much navel-gazing and career-directed stuff actually shows up on SSRN.  In a move that demonstrates much of my problem as an empiricist, I went to the SSRN "Top Papers" listing, clicked on the "All-Time" ranking, and proceeded to make my way through page after page, noting where I thought candidates appeared.  Unfortunately, at about page 18 (having looked at 1,800 titles), I got bored.

So my top ten "career-enhancement" paper ranking (as measured by SSRN all-time downloads) comes with the following caveats:  (a) I arbitrarily decided what fit in the category; (b) I stopped my more rigorous method at papers with about 1,300 downloads; (c) I included papers I recalled seeing before below the 1,300 level, and (d) I included one paper by Mark West at Michigan not because it fell within the career-enhancing category, but I thought it was whimsical.  The far and away leader is Thom Brooks (pictured above left) of the Newcastle Law School.  Here goes:

1.   Thom Brooks (Newcastle), The Post-Graduate's Guide to Getting Published (2003)

2.   Thom Brooks (Newcastle), Publishing Advice for Graduate Students (2008)

3.   Mark  West (Michigan), Legal Determinants of World Cup Success (2002)

4.   Erik Jensen (Case Western Reserve), Law School Attire:  A Call for a Uniform Uniform Code (2007)

5.   Jeffrey Lipshaw (Suffolk), Memo to Lawyers:  How Not to "Retire and Teach" (2007)

6.   Sara K. Stadler (Emory), The Bulls and Bears of Law Teaching (2006)

7.   Brannon P. Denning (Cumberland) and Miriam A. Cherry (McGeorge), The Five Stages of Law Review Submission (2005)

8.   Franklin G. Snyder (Texas Wesleyan), Late Night Thoughts on Blogging While Reading Duncan Kennedy's 'Legal Education and the Reproduction of Hierarchy' in an Arkansas Motel Room (2006)

9.   Paul M. Secunda (Mississippi-Marquette), Tales of a Law School Lateral Nothing (2008)

If I have left you out in my haste (or boredom), let me know.

Secunda on the Lateral Market for Law Professors

Posted by Jeff Lipshaw

Paul Secunda (left), who is moving from Mississippi to Marquette, has posted Tales of a Law Professor Lateral Nothing on SSRN. This is a combined narrative and "how-to" on moving from school to school once you have already climbed the ivy-covered walls and deposited yourself in legal academia.

You know, when you consider it, "lateral" as the descriptor doesn't make much sense.  Personally, I think "Upwardly Mobile Market" would be better.  Or the most accurate would be the "Wannabe Upwardly Mobile Market Except When I Can't Stand It Here So Much I'll Take Anything or They're Offering Me a Chair and a Lot of Money to Move the Other Way Market." 

My view on looking for jobs is that one should do it less frequently than one has colonoscopies.  Anyway, here's Paul's abstract:

This Essay seeks to uncover the mysterious world of the law professor lateral hiring market, which has become increasingly important in the last number of years as law schools seek to build their reputations in this U.S. News & World Report world through the hiring of prominent faculty members.

Although the advice and guidance given in this essay are sometimes written with tongue firmly in cheek, I do attempt to accomplish two important objectives here. First, there has been scarcely anything written about the lateral hiring market for law professors, as opposed to the cottage industry that has been devoted to the entry-level law professor hiring market. This essay methodically takes the lateral-to-be professor through every step of the lateral process from the first-person perspective of one who has been on the market for three years and successfully lateraled this past year.

Second, and perhaps more importantly, I want to contribute to the process of bringing back to legal academic writing the form of the first-person narrative. Like my colleague, David Case, I believe that, "the narrative voice is an important, and perhaps underutilized, tool in deconstructing the arbitrary processes of the legal academic hiring market." See David Case, The Pedagogical Don Quixote de la Mississippi, 33 U. Mem. L. Rev. 529, 530 n.2 (2003).

More Meaningless Super Awards

Posted by Jeff Lipshaw

Following up on my searing expose of the meaninglessness of "Super Awards," and those who alternatively (a) care about them because they think they signify achievement, or (b) care about them because they think anybody else thinks they signify achievement, it occurred to me that I have also received the award shown at left, albeit for managing to show up at the synagogue every Sunday night in the fall of 1999 for my offering to high school students on "Faith and Reason."  I offer up this final definitive word on Super Awards, which really brings to the subject all the dignity and respect it deserves:

Wizard:  Why, anybody can have a brain. That's a very mediocre commodity. Every pusillanimous creature that crawls on the earth, or slinks through slimy seas has a brain! Back where I come from we have universities - seats of great learning - where men go to become great thinkers. And when they come out, they think deep thoughts, and with no more brains than you have. But - they have one thing you haven't got - a diploma!  Therefore, by virtue of the authority vested in me by the Universita Committeeatum E Pluribus Unum, I hereby confer upon you the honorary degree of Th.D.

Scarecrow: Th.D?

Wizard: Yeah - that - that's Dr. of Thinkology .

Scarecrow: The sum of the square roots of any two sides of an isosceles triangle is equal to the square root of the remaining side. Oh, joy! Rapture! I've got a brain! How can I ever thank you enough?

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

Posted by Alan Childress

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

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

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

Summary Judgment Improper In Title IX Suit

The Court of Appeals Division I of the State of Washington held that the superior court had erred in granting summary judgment on behalf of the University of Washington in a Title IX suit brought by a student assistant equipment manager of the school's football team. The plaintiff had reported an allegation of rape against a prominent member of the team (who is now an NFL player). The suit "alleges that the actions of UW officials following the report of the rape, deprived [the plaintiff] of her right to be free from sex discrimination in educational programs..." The court found sufficient evidence to have the claim submitted to a jury:

"it must be kept in mind that [plaintiff] seeks damages resulting only from the university's own actions. The concern in [an earlier case], that a single act of inappropriate elementary school mischief might result in liability to a public school, is not present here. [Plaintiff] did not have to be raped twice before the university was required to appropriately respond to her requests for remediation and assistance. In the Title IX context, there is no 'one free rape.' "

                                          

(Mike Frisch)

Entry Level and Lateral Law Faculty Hiring

If there's anybody out there who reads our blog but not Larry Solum's Legal Theory Blog or the new Faculty Lounge Blog, be advised that Larry Solum is collecting entry level hiring data, and Dan Filler is collecting lateral hiring data.

[Jeff Lipshaw]

Herding Cats, "Give Me Liberty or Give Me Death," & Other Apt Comparisons Between Law Firm Partnerships and Faculties

En route to something else, I came across this quote from the San Francisco Business Times (back in 2002):

"Law firms are not organized so much to promote efficiency as to prevent tyranny," says Peter Newton, senior consultant for Hildebrandt International, which advises law firms. "There's a tremendous fear in law firms about anyone having authority."

Q.E.D. 

* For video starring a host of law firm executive partners and deans relating their experiences managing their institutions, click here.

[Jeff Lipshaw]

Visiting Professorship at Case Western in Professional Responsibility

Case Western Reserve University School of Law in Cleveland, Ohio anticipates hiring one or two visiting professors to teach Professional Responsibility and other subjects during the Fall or Spring semester of the 2008-09 academic year.  Interested persons should contact Sharona Hoffman, Senior Associate Dean for Academic Affairs, Professor of Law, Professor of Bioethics, and Co-Director, Law-Medicine Center, Case Western Reserve University School of Law, 11075 East Blvd., Cleveland, OH 44106, (216) 368-3860.

[Jeff Lipshaw]

1Ls: Bouncing back from less than stellar grades

Posted by Alan Childress

In law schools, it's that time of year when many students are (understandably) concerned about their first set of law grades, and professors are beginning the educational process of deconstructing all this for curious students.  The truism that it is a marathon and not a sprint may be cold comfort, yet it is true (hence a truism).  Here is a good post on the subject from a law student at the Frugal Law Student weblog, and a somewhat painful endorsement of that advice from The Shark, a cal law blog.

Note to Jeff: I Assume a Lawyer With Your Years of Experience Knew to Negotiate A Similar Deal to Be Lured to Teach in the Pricey Boston Legal and Housing Market

Posted by Alan Childress

The ABA Journal's online story has a headline that says:  NYU Law Pays $4.2M for New Prof’s Condo.  Back in the day, I had trouble getting some prospective law schools to validate my parking.  Hmm.

The Tax Prof story, citing Above the Law and also quoting the NYTImes, is here.

The "Interdisciplinarity in Non-Elite Law Schools" Debate

Posted by Jeff Lipshaw (cross-posted at Concurring Opinions)

I mentioned to Dan Solove at Concurring Opinions (in praise of his post) that I am giving a talk to the Suffolk Business Law Association with the title "How to Be a Great Business Lawyer Even if You Majored in Philosophy," and he invited me back for an encore post.   The connection here is that "law" and "philosophy" are in the same sentence, so it must have something to do with interdisciplinarity in the legal academy, which has, by virtue of Brian Tamanaha's post, become a matter of widespread discussion in the blogosphere.  I'm not going to try to link up to all or even most of them - Dan did it recently, and, as I mentioned to Larry Solum in an e-mail yesterday on one's ability to predict, his "post" on the subject ten, and maybe even two, years ago would have been an unread essay in the Journal of Legal Education; today it is read by thousands of people within hours of his writing it.

I feel like I ought to say something on this issue not because I was in practice for so long, but because of what I was doing in practice for so long, which was managing, as much as doing, legal work, and hiring lawyers.  Hiring lawyers, both those who will work in-house, and firms to do work at varying levels of sophistication, is an endeavor at  the polar extreme from most of what lawyers learn and do.  You can use all sorts of rules of thumb (for the practitioner audience) or heuristics (for the professorial audience), but making a commitment to a person by which one entrusts the myriad judgment of a deal or a case or a business has more judgment and less analysis than almost anything one studies in theory or doctrine in law school (and it's part of my thesis for the talk). 

Having said that, I agree with another blogo-pundit that Brian has intertwined two issues - the fate of non-elite law schools and their graduates, on one hand, and the rising (and, from a practice standpoint, arguably irrelevant) inter- or multi-disciplinarity of the law school professoriat.  Here, for what it's worth, are four observations:

1.  There's something to be said for the Luhmann-Teubner theory of social systems in law - that is that law is a closed system that has points of interconnection with the rest of society, but is "autopoietic" in that it self-generates its own principles, standards, processes, results, etc.  I would posit that legal academia is autopoietic even within law.  To put it more bluntly, practicing lawyers don't care what the law professors are thinking or writing about, as long as the professors are churning out law grads with the basic doctrinal training (that training that Larry Solum aptly says fits like a glove).  Or to put it another way, Larry Solum and I are almost the same age, so his essay describing what it was like to be a legal academic from the late 70s until now is fascinating; I was a hard-nosed practitioner over the same period, had no concept or even awareness whatsoever of anything Larry described, and, trust me, was absolutely no worse for the wear as a lawyer!

2.  With everything that can or should be done to improve legal pedagogy, in fact, you do learn a lot in law school about the law.  It's a sad statement that the worst irrelevancy offender is the course I have taught - contracts - because rarely do you ever litigate or worry about the issues taught - offer and acceptance, consideration, etc.  But even having said that, there's something about the history, tradition, thinking process, whatever, of the closed system that one does learn.  And I can testify that some or all of the following courses I took in law school were not a waste of time when I got into practice (and I'm sure there were others I can't recall offhand):  torts, civil procedure, constitutional law, property, trusts and estates, securities regulation, tax, evidence, real estate transactions, business associations.

3.  I'd be careful about painting the non-elite school with too broad a proletarian brush.  I don't know if my school, Suffolk, turns out policy-oriented lawyers on a national scale, but I do think we have a significant relationship with state and local government in Massachusetts, and a role to play in that arena.  On the subject of the cost-benefit, and without minimizing the plight of today's young lawyers saddled with debt, it's hard to believe the market won't sort this one out.  If there's no real or perceived return on the degree, are students really that gullible that they would incur $100,000 of debt just because law schools would like the revenue?  I'm familiar enough with the behavioral economics of this (over-optimism, etc.), and this is awfully rational choice of me, but if you amortize $100,000 of debt over a forty-year career, the debt service is $5,000 a year.  So you only have to improve your earning capacity by that much a year to make it a rational decision.  Right? 

4. The history Larry Solum traces of the trade school/professional school/social science model is fascinating and rich and deserves more attention than I will give it here.  Personally, I think Larry is onto something with the Ph.D. in law, because the fact of the J.D. as terminal degree for academics and practitioners has two effects:  (1) it fosters the practice-academy divide because academics feel an even greater need to close their system to highlight their differences from mere practitioners, and (2) it is something less than "real" scholars in sister disciplines would expect.  Larry mentions political science as an area to which one might compare this dilemma; I think there are even more:  business administration, public administration, medicine, dentistry, journalism, to name a few.  At least looking at those areas would tell us how much of legal academic angst is unique to legal academia.

The More Things Stay The Same, Or At Least The Talk About It Does

Posted by Alan Childress

AALS panels decrying falling ethics, noting the under-representation of minorities as law students, wondering whether legal ethics can be taught, and suggesting the simple need for more disbarments.  The AALS Conference in New York City a few weeks ago?  No, some interesting AALS panels in L.A. in 1964, according to a Time story of the time, How to Improve the Legal Profession.  The only noticeable differences are the weather in the convention, references to the canons and not the model code, and the term used for minorities -- though as usual there is some talk about the issue but the blame is casually placed elsewhere [it's the law firms = it's USN&WR] and no solution is offered. Here it is:

The weather was balmy and bright in Los Angeles, but a fog of gloom sometimes seemed to invade the Association of American Law Schools convention held there last week. Amid the many speeches and panel discussions, two somber questions recurred several times: Is the legal profession in the U.S. gettin