November 9, 2007
Simon on the Market for Bad Legal Advice
William Simon (Columbia Law) recently posted an article critiquing academic expert opinions in aggregate litigation (h/t: Leiter). The litigation he discusses is an employment discrimination case, but his point has relevance for mass torts. The paper is available on SSRN here and the abstract follows.
Clients demand bad legal advice when legal advice can favorably influence third-party conduct or attitudes even when it is wrong. Lawyers supply bad legal advice most readily when they are substantially immunized from accountability to the people it is intended to influence. Both demand and supply conditions for a flourishing market are in place in several quarters of the legal system. The resulting practices, however, are in tension with basic professional and academic values. I demonstrate these tensions through critiques of the work of academic professional responsibility consultants in such matters as Enron, Lincoln Savings & Loan, and a heretofore undiscussed aggregate litigation settlement. I also suggest reforms to reduce the incentives and pressures for bad advice that now prevail.
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