Saturday, April 27, 2013

Why to Believe in Others

Below is 1972 video of Viktor Frankel, a renowned psychologist and author best known for his book, Man's Search for Meaning.   Frankel's greatest accomplishment was becoming an unflinching realist and idealist -- a person who simultaneously sees what is and what could be.   To my mind, it would be impossible to get both concepts into proper focus without reading Frankel's book, which I found to be one of the most emotionally jarring and difficult, yet necessary and valuable, experiences of my life. If you are wondering how this could be, read the book.

In the rare footage below, Frankel explains how we harm the world by not hoping for and expecting the very best in others.  

I think the point Frankel makes here has special significance for educators. [posted by Bill Henderson]

April 27, 2013 in Current events, Video interviews | Permalink | Comments (3)

Friday, April 26, 2013

Is Law School Reform Going to Come Top Down or Bottom Up?

Earlier this week, I participated in the ABA Taskforce on the Future of Legal Education (see NLJ coverage here). Ordinarily when I am part of a deliberative meeting of a regulatory or accrediting body, I don't write about it, as it would be a breach of decorum and chill a candid exchange of views, at least prospectively.  But this event was different -- it was webcast live and internet archived, and thus a public meeting. See ABA website.

These programs are laudable and, from an institutional perspective, necessary.  But will an ABA taskforce, or AALS, LSAC, or some other industry group taskforce produce substantial change?  History suggests that the answer is no and that, instead, meaningful change will come from the bottom up rather than the top down.  Change will occur at the bottom from either the desire to survive or the opportunity to do something great.  Other similarly situated institutions that feel less urgency or inspiration will eventually perish.  It is just that simple

The accreditation system we have created is an anchronism.  But if we think the ABA Standards are holding back the forces of innovation in legal education, we are kidding ourselves. Any law school or law professor who wants a better way can have one -- we are all like Dorothy and her red slippers in the Wizard of Oz: we have had the power all along.

To illustrate this point, I am going to share some personal history that I rarely discuss among my academic colleagues because, well, it would never come up in the course of ordinary conversation. Before I went to law school at age 35, I was a firefighter-paramedic for nine years.  For the last five, I served as our Local's union president.  To this day, I proudly pay union days so I can stay retired-active.  

When I look at the ABA Accreditation Standards, I am reminded of Ohio Revised Code 4117, which is the state's collective bargaining law for public employees.  For police and fire, unlike teachers, we had binding interest arbitration for collective bargaining.  What does this mean?  Basically, if we were unhappy with the offer made by the city -- and we always were -- we took our case to a state-mandated arbitrator, compared our wages and working conditions to firefighters who were getting a better deal (the city would do the opposite), and we got a decent wage & benefits increase, every time.  It was not if we would get a raise, but how much.  The teachers, in contrast, had to go on strike.  The effect of this law was not lost on me. My sister was a teacher in an adjacent city, and over time I made a lot more than her.  

This law was in place because those who came before me organized themselves into an interest group, lobbied, and got a favorable law put on the books to benefit them.  My fire chief, Joe Sweeney, was one of those elders -- he would point to the union charter posted in the hallway to remind me that he was one of original signatories.  By forming a union and working for over ten years to pass 4117, Joe and others ended the era of "collective begging." The resulting union wages enabled him to raise six kids and enjoy a decent pension.  And in exchange for that, Chief Sweeney, when he was a captain and later as a chief, demanded, absolutely demanded, that we comport ourselves as public servants.   

In truth, the public-private deal struck by 4117 only advanced the public interest when we had guys like Joe Sweeney who lived and breathed a sense of fairness.  Joe, just through how he led this life, kept several dozen firefighters honest and focused.  As the old guard retired, and our pay kept getting ratcheted up, it became harder to educate the new guys about how this great job came to be.  Many believed they "earned" their positions through merit because, after all, they rose to the top of a competitive hiring process.  So, through the way we behaved, the public interest case for 4117 was made marginally weaker.

I see the the same dilemma when I review the ABA Accreditation standards.  For example, take a look a Standard 405, which pertains to "Professional Environment."  

(a) A law school shall establish and maintain conditions adequate to attract and retain a competent faculty.

(b) A law school shall have an established and announced policy with respect to academic freedom and tenure ... 

(c) A law school shall afford to full-time clinical faculty members a form of security of position reasonably similar to tenure ... 

(d) A law school shall afford legal writing teachers such security of position and other rights and privileges of faculty membership ...

These provisions were the result of the same type of collective action that produced 4117.  And their purpose, just like 4117, is to lock-in privilege.  We academics can offer a plausible justification for this privilege -- for example, without 405(b), writing this essay could cost me my job.  But the fact is we need to justify that privilege through our behavior; otherwise, just like now, we become vulnerable.

At the behest of the ABA Task Force, the formal rules governing legal education may or may not change.  But that is largely irrelevant to what the public, including prospective students, perceive as the value of legal education. And that value is, in the aggregate, quite low.

Reform in legal education is not a light switch.  It is mindset that affects how we spend our time and who we spend it with. If we want reform, well, let's work on it and actually get something done that will inspire others. Eventually it will take hold and take off, with or without changes to the ABA governing standards.

[posted by Bill Henderson]

April 26, 2013 in Current events, New and Noteworthy | Permalink | Comments (3)

Alternative Litigation Funding and the "Ick" Factor

Posted by Michele DeStefano

Last week I was at a conference at DePaul University on Tort Law and Social Policy: A Brave New World: The Changing Face of Litigation and the Law Firm Finance.

Brave new world
The conference was centered on Alternative Litigation Funding [ALF] - also known as Third Party Litigation Funding or Financing, Third Party Funding or Financing.

ALF is when parties, unrelated to a lawsuit, provide funds to a claim holder to help fund the party’s pursuit of a potential or pending lawsuit and there is no recourse if the claim holder loses. Arguably, ALF has been around (in some form or another) for years in the United States - in the form of non-recourse loans, transfer of claims in bankruptcy proceedings, transfer of patent law claims, and contingency fees.

In the past few years, ALF has received more and more popular press and begun to attract the attention of more and more law professors like Anthony Sebok, Vicky Waye, Susan Lord Martin, and Maya Steinitz to name a few. When I first began writing about and consulting on the industry, many law professors did not know it was allowed in more than 50% of U.S. States - let alone that it existed. (This was true as recent as in 2011 when I presented an article that used ALF as an example of the importance of non-lawyer influence on lawyers). The recent attention ALF has received has heightened awareness of the existence of ALF in the U.S. but also the importance of the debate about whether and how it should be allowed and regulated.

At the DePaul conference, experts in the industry, along with experts in tort law reform, approached the debate in different ways.

Instead of evaluating ALF from a traditional, formalist view (cranking through the ethics rules to see if there is a violation), Nora Freeman Engstrom took a functionalist perspective to see how ALF will affect the tort marketplace.

Michael Abramowicz conducted a neoclassical and economic market analysis about how rational parties would or ought to act.

Keith Hylton developed a simple economic model to analyze the welfare implications of third party funding of legal claims.

Charles M. Silver compared ALF to insurance arguing that both serve similar purposes and that many of the objections made against ALF are similar to that made against liability insurance and therefore ALF should not be abandoned.

I took a more operational approach analyzing how litigation funding interacts with our legal system and doctrines of confidentiality like the attorney-client privilege, work product doctrine, and their doctrinal derogations (e.g., the NDA) (Click here to see my slide presentation).

Abraham Wickelgren analyzed whether admitting consumer financing agreements to the court and making it part of the case record would improve the quality of litigation and/or decrease the interest rates by third party lenders to plaintiffs.

W. Bradley Wendel took a different approach altogether. He explored an undercurrent in the opposition to ALF that he described as the “ick” factor.(Many of you might have been introduced to the the “ick” factor in a Friends episode in the 90s).  Here the "ick" factor is "justice for sale."

Essentially, Wendel made the point that historically there is a distaste (and/or distrust) of the commodification of any aspect of litigation and that this distaste of commodification drives some of the opposition to ALF.   Although Wendel points out that ick-factor objections shouldn't be taken seriously, they continue to be made.   See the comments made by representatives of the Chamber of Commerce (here) and the American Tort Reform Association (here) and a recent article in Forbes (here).  Press on cases like the one involving Burford and Chevron contribute as well. (Ironically, this article came out the last day of the conference).

Although most (if not all) of the presenters were proponents of ALF in some form, most acknowledged and attempted to address the legitimate concerns and arguments against third party funding. Some proposed regulation; others proposed doctrinal revisions.

But as to Wendel’s identified “ick” factor, however, a solution to that force is yet to be found.  Perhaps the next group of scholars to meet at a litigation funding conference will tackle that one.

April 26, 2013 | Permalink | Comments (1)