Legal Profession Blog

Metaphors, Models, and Meaning in Contract Law

Posted by Jeff Lipshaw

For those of you out in the practice world who are curious about how academic legal theory and first year contract law pedagogy might be combined with real world intuitions and experience, I've posted a new article, Metaphors, Models, and Meaning in Contract Law , on SSRN. 

The gist of it is this:  the dominant metaphor for contract in practice and the academy is "contract as model."  One upshot of this metaphor is an article of faith (among lawyers at least) about the rational linkage between what is going on before the fact in the creation of the contract, and what gets litigated after the fact.  Sometimes the metaphor is appropriate, and sometimes it is not.  I've played with my intuition and admitted casual empiricism that the contract, even in a heavily negotiated deal, is as often the "thing" that Arthur Leff conceptualized in his iconic 1964 American University Law Review article as it is a model or map of the transaction .  I've proposed an alternative metaphor of "journey" in which the objectification of an agreement in the contract (a milestone, metaphorically speaking) is often as important as the content itself.  The piece contains illustrations I use in class (see Wood v. Lucy, Lady Duff-Gordon, above, but you have to read the article to get the context), as well as a discussion of how I use the fundamentals of metaphor theory to explain hard cases in which the parties assert, and judges must choose between, competing legal "algorithms".

The abstract:

Why does there seem to be such a wide gap between the subject matter of the usual first-year contracts course and what practitioners (particularly transactional lawyers) actually experience? My claim is that it is the result of a powerful theoretical system whose hallmark is a closed linguistic system—in the coinage of one noted scholar, “an epistemic trap.” The subject matter of contract law requires dealing with legal truth not just as a coherent body of doctrine, but also correspondent in some way to actual self-legislation of the parties. I propose escaping the trap with a turn to metaphor theory. The underlying metaphor common to prevailing conceptions of contract law, and which demands some form of correspondent truth from the contract (and contract law), is “contract as model of the transaction.” I suggest alternative metaphors of categories as containers, ideas (including “the meeting of the minds”) as objects, and the transaction life cycle as a journey. The goal is to focus on the “subjective to objective” process of the transactional life cycle, and to consider the perspectives of the participants in or observers of the transactional life cycle, and the models and metaphors that shape the conceptual frames from within which those participants and observers perceive and make use of the legal doctrine.

Godsoe on Ethically Representing Children and Parents

Cynthia Godsoe (Brooklyn Law School) posted to SSRN an article that will appear in the Georgetown Journal of Legal Ethics this spring. It is All in the Family: Towards a New Representational Model for Parents and Children. Its abstract:

The presumption that parents act in their children’s interests governs both daily life and legal doctrine. This Article demonstrates that this presumption, while usually correct, is problematic when unquestioned because it masks any conflict between parents and children, and is at odds with the individualistic framework of the ethical rules governing attorneys. This harms families and puts attorneys at risk. This Article explores this representation problem in the previously largely ignored context of special education for children with disabilities. The Supreme Court, in Winkelman v. Parma City School District, recently established that parents and children each have substantive yet “intertwined” rights to a child’s appropriate education. Nonetheless, courts and attorneys continue to assume that parents speak for children, even in cases with a high risk of conflict.

To best serve families and protect attorneys, this Article proposes a novel reconception of representation in education cases. Family representation posits the family as the client, with the attorney owing duties to each member individually and as part of the group. A family representation framework brings four real-world benefits: (1) it recognizes the interconnected nature of the relationships and rights of parents and children; (2) it engages both parties in the process, particularly important for children who have previously been overlooked; (3) it is economical, increasing the number of represented parties but not the number of attorneys; and (4) it brings attorney practice into accord with ethical standards. This model has ramifications beyond the educational sphere as it could also be fruitfully applied in torts and benefits actions by a parent and child against the state or other third party. Ultimately, reconceiving the attorney’s role as representing the family while respecting the voices of each member harmonizes the competing principles of individual autonomy and family unity to the benefit of parents, children and attorneys.

Cynthia starts teaching Professional Responsibility next term! Thanks for reading us (well, Mike), Cynthia. [Alan Childress]

Webley on the Different Styles and Attitudes of UK Lawyers vs. Mediators in Divorce Disputes

Posted by Alan Childress

Lisa Webley is a Reader at the law school of Westminster and a research fellow at the University of London Institute of Advanced Legal Studies (where she also got her PhD); she was just now at Stanford attending the international conference on the legal profession (and I will try to horse-and-hound her into blogging on it). She has published her law-and-society dissertation on the different approaches solicitors versus mediators take toward divorce and custody matters. Their practical and conceptual styles are indeed different, as revealed by the grounded theory study of their ideologies, training, backgrounds, ethics, and professional messages. So finds Lisa in Adversarialism and Consensus? The Professions’ Construction of Solicitor and Family Mediator Identity and Role. Her abstract:

This study considers the messages that the Law Society of England and Wales and the UK College of Family Mediators transmit to their members about the professional approach they should adopt in divorce matters.  The study employs a grounded theory method to analyse the training, accreditation, best practice statements and codes of conduct generated by the two professional bodies.  It examines the extent to which the training, accreditation and codes of conduct of family solicitors and family mediators privilege adversarial or consensus based approaches to divorce for their clients, in the light of statements made around the time of the passage of the Family Law Bill, which suggested a dichotomy in professional approach by these two professional groups.   It considers further the nature of professional identity for each of the professional groupings, as constructed through the messages delivered by the professional bodies.

I finally tout a book on-topic to this blog! I helped Lisa publish this as part of the new Dissertation Series of ebooks which I wrote about in Publish Your Dissertation as a Digital Book. Comparative LP expert John Flood (Westminster; U of Miami Law) read that post and commented, and then told Lisa about the series (thanks John!), and she and I worked hard to get this out fast (the tables were a coding nightmare). It is available on Amazon for Kindle and its free apps (and so iPad and BlackBerrys too); on Smashwords in nine different formats (even just PDF, though a pretty one with links, and view online); is featured on the Quid Pro website; and will soon be on Apple iTunes, Barnes & Noble for Nook, and Sony ebookstore.

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.

Kadish & Kadish on Honoring Law By Breaking It: Bringing Back Discretion to Disobey

Posted by Alan Childress

That may be a bit of an exaggeration about the Kadish argument, since they say "rule departures" rather than "violations" or "breaking the law," but it is an intriguing argument nonetheless.  Admittedly not so much a legal ethics argument as an ethics one [on the concept of law and the philosophy of law-deviations and civil disobedience], but I felt it appropriate to blog on it here because it is part of a larger project I am working on--more on that soon--that certainly does include works on legal ethics and the legal profession.

Mortimer and Sanford Kadish first published their classic study of rule departures within law in 1973, by Stanford U. Press, and I am republishing it as a digital book with permission (and I made new covers, left). Here is the Amazon site featuring it and allowing its download. It is in the form of a Kindle book but is also fully compatible with free ereader apps on PC and laptops, Mac, iPhone, BlackBerry, and iPad. (Weirdly, Kindle books read better on the iPad than iBooks do, since their own iBooks makes you strip the linking of footnotes and other necessities of law books.)  It's my first follow-up after bringing back Warren & Brandeis, The Right to Privacy (both digital ebook, and in paper, right) last month, with blogging here.  Discretion to Disobey is  part of a series I want to do, Classics of Law & Society, so feel free to write me if you want to digitize your own classic work and believe you hold at least its digital rights (this means you, Nell Harper Lee, though Ronald Dworkin should still ask too, or for that matter anyone with a timeless book--so in fact I am working on some legal history and judicial biography works, and others that should be available for downloads.)  

The Kadish book is certainly a recognized classic:  people were arguing about it from when it first came out.  One reviewer wrote that "the paradoxical idea that a citizen or official may lawfully break the law" surely "will raise the hackles" of a positivist.  (I'd also gladly publish Hart's rejoinder, The Concept of Law 2:  Positive Vibes.)  Both citizens and government actors, the book argues, have the power and the right to deviate from law in certain contexts and yet not act illegally in a sense, because law itself contains strands of adaptations to its own departures that the authors weave into a sustained jurisprudential whole. Mortimer Kadish (1916-2010) was a much-published philosophy professor at Case Western, while his brother Sanford became dean at Berkeley's law school and remains an accomplished professor and scholar there.  This book is truly a joint product of the fields of philosophy and law.  I hope it's of interest to some of our readers (I bet Patrick S. O'Donnell has read it, and may have even assigned it to his classes).  If you have a similar classic that needs to be easily read again, or a new manuscript (including Patrick), let me know....

UPDATE:  Kadish and Kadish is now available in 8 other formats, including PDF and ePub, at Smashwords.  It is featured with reviews and its history, at quidprobooks.com, with other new ebooks.

Spring 2010 Newsletter of the AALS Section on Professional Responsibility -- Hot off the presses

Posted by Alan Childress

Thanks again to the excellent generosity of the Section on Professional Responsibility of the AALS, which generosity and excellence we have noted before, we provide to you the latest issue of the newsy Newsletter.  Download Spring_2010_PR_Newsletter.  It has lots of substantive law and rule changes, all dealing with legal ethics, as well as calls for papers and conferences in the field.  This issue includes a brief article on the judge as Facebook friend, an issue that Mike on this blog has also raised here (Florida) and here (South Carolina).

Samuel Warren and Louis Brandeis, "The Right to Privacy," goes digital, with my Foreword

Posted by Alan Childress

Admittedly 120 years too late, and not exactly on-topic to the blog, but Warren and Brandeis have now published their landmark article on the iPad!  Or any PC, or Kindle, iPhone, iTouch, BlackBerry, or Mac.  They do not do Droid. 

I wanted to post a link to the Amazon DTP version of The Right to Privacy and my Foreword and other materials in the compilation (including active TOC, linked notes, and period photos and press clips provided to me, graciously,
by Amy Gajda, who did extensive research up on SSRN on the infamous backstory). Sorry to charge for the ebook, but that is Amazon rules for non-bigtime-publishers (and I must make it a buck more on July 1). You can get my own contribution part of it free anyway, below.

Any free Amazon app for those devices, even just on the PC or a laptop, will work great to read this and their ebooks (which do include 20,000 free classics), or on Kindle. I will try to post some more old pics later this week...

From the blurb:

The most influential piece of legal scholarship in history, many scholars say, is this 1890 Harvard Law Review article by two Boston lawyers (one of whom later became a legendary Supreme Court Justice).  Warren and Brandeis created -- by cleverly weaving strands of precedent, policy, and logic --  the legal concept of privacy, and the power of legal protection for that right.  Their clear and effective prose stands the test of time, and influenced such modern notions as "inviolate personality," the law's "elasticity," and the problems of "piracy."  They resisted the label of "judicial legislation" for their proposals.  And they foresaw the threat of new technology. 

Most of all, they asserted the fundamental "right to be let alone," and its implications to modern law are profound.  Their privacy concept has grown into a constitutional law norm raising issues about abortion, drug testing, surveillance, sexual orientation, free speech, the "right to die," and medical confidentiality.  All these spinoffs trace their origins to this master work.  It is simply one of the most significant parts of the modern canon of law, politics, and sociology.

The Foreword shares not only this import and effect, but also the fascinating backstory behind the article.  Its origins are found in Warren's own prickly experiences with the press, famously after its reports on his family weddings.  One myth was recently debunked by Gajda:  it could not have been his daughter's wedding that upset him.  The newer legend is explained, including the role of The Washington Post and the emerging paparazzi.  This was no mere academic exercise to Warren and Brandeis, it turns out.  The Foreword adds a biographical summary of each author,  noting some less-known questions about Brandeis's own judicial ethics later in life (debunking another myth), as well as noting the possible tension between the privacy right and the First Amendment that Brandeis championed.

If readers here want to do a similar compilation, formatting, and Foreword to classic legal scholarship in pre-1923 U.S. books, for digital readers, ask [email protected] .  You must be willing to write original work or annotations, and work from source materials not just scanned crap.  The goal is high quality ebooks, not the formatting nightmares that are out there now (even the online versions of The Right to Privacy are all full of substantive errors, including one on a Harvard site!)

[You can also, without needing an app, Download Foreword TRTP2]

The "Goat Hacking" Justification for Contract Law

Posted by Jeff Lipshaw

A contract law theorist whose work I admire greatly, Nate Oman (William & Mary, Visiting Cornell, left), has posted a new piece in the burgeoning area of "pluralistic" contract theory.  For the uninitiated, the poles of the debate over the last twenty-five years or so have been, on one hand, the "law & economics" view which sees state enforcement of private promises as justified by the enhancement of economic welfare (i.e., people are more likely to invest in transactions that move goods and services to those who value them the most if contracts are in place that restrain opportunism) and, on the other hand, the "promise principle" view that the state has an interest in upholding the moral commitment of a promise.  The problem with both views is that they either explain too much or too little about not only the justification of state involvement in private matters, but also the specific elements of doctrine themselves.  A number of theorists, including Nate, have either tried to reconcile the poles, or to propose other alternatives.

Nate's most recent contribution to the discussion is Consent to Retaliation: A Civil Recourse Theory of Contractual Liability, and the abstract follows:

In the ancient Near East, contracts were often solemnized by hacking up a goat. The ritual was in effect an enacted penalty clause: "If I breach this contract, let it be done to me as we are doing to the goat." This Article argues that we are not so far removed from our goat-hacking forbearers. Legal scholars have argued that contractual liability is best explained by the morality of promising or the need to create optimal incentives in contractual performance. In contrast, this Article argues for the simpler, rawer claim that contractual liability consists of consent to retaliation in the event of breach. In the ancient ritual with the goat, the retaliation consented to consisted of self-help violence against life and limb. The private law in effect domesticates and civilizes retaliation by replacing private warfare with civil recourse through the courts. It thus facilitates the social cooperation made possible by the ancient threats of retaliation while avoiding the danger of escalation and violence that such private violence presented. This civil recourse theory of contractual liability provides an explanation for a number remedial doctrines that have proven difficult for rival interpretations of contract law to explain, including the penalty clause doctrine, limitations on expectation damages, and the basic private law structure of contractual liability. Finally, this Article responds to some of the most powerful objections that might be made against a civil recourse theory of contractual liability.

I should add that I'm sympathetic to this view, having argued elsewhere a similar point about contracts being backup mechanisms that take effect when the social norms of a relationship break down.  If Nate and I part company, it may be that I am less persuaded that the jurisprudential justification translates into specific doctrine.  But, as Larry Solum says, download it while it's white hot.

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.

Continue reading

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?

Is Law a Serious Discipline? And Who Are You Calling an Ignoramus?

Posted by Jeff Lipshaw

I'm sitting in the University of Michigan Law Library (by courtesy!) reading a delightful and irreverent essay on Anglo-American common law as a discipline by Peter Goodrich at Cardozo.  Here's the abstract of Intellection and Indiscipline (Journal of Law & Society):

A discipline will usually become the object of study and its relationship to other disciplines a moment of concern when its borders are precarious and its definition in dispute. Law, ‘the oldest social science’, is arguably both prior to discipline — it emerges initially and most forcefully as a practice — and without discipline, its object being potentially all human behaviour. If law is necessarily between and among disciplines, both prone to moonlighting and everywhere homeless, it will also always be in some mode of scholarly crisis. Certain conclusions follow. Law is paradoxically dependent upon other disciplines for its access to the domains that it regulates. The greater its epistemic dependency, however, the slighter its political acknowledgment of that subordination. Which allows a positive thesis: the epistemic drift of law can carry the discipline to a frank acknowledgment of the value of indiscipline both to novelty and intellection.

And here's a jewel of arcane knowledge (not the most serious point of the essay):  As Professor Goodrich notes, "The Prince or principal reformer resorted to by the scholars and humanists amongst the common lawyers was Petrus Ramus, the neo-scholastic French exponent of dialectical method as the means to schematize and so systematize any discipline whatsoever. It was Ramist logic that inspired the reform of legal method from Fraunce to Finch."  The word "ignoramus" comes from the eponymous protagonist of a satirical play by George Ruggles in 1615, Ignoramus being a pathetic English lawyer who is ignorant of Ramus.

Poulin on Criminal Conflicts of Interest: Too Close to the Prosecutor?

Posted by Alan Childress

Anne Bowen Poulin (Villanova) has posted this article to SSRN:  Conflicts of Interest in Criminal Cases: Should the Prosecution Have a Duty to Disclose?  It will be published in the American Criminal Law Review at Georgetown.  Her abstract:

This article addresses two types of conflicts of interests that arise in criminal cases: 1) when defense counsel has an employment relation to the prosecutor’s office, and 2) when defense counsel faces criminal investigation or charges. Both these situations threaten both the defendant’s representation and the actual as well as apparent fairness of the proceeding. Yet, only in extreme cases are these conflicts likely to result in a reversal of the defendant’s conviction. As a result, protection of the defendant and the fairness of the process often depends on early intervention, which allows the court to advise the defendant of the risks inherent in counsel’s situation and possibly accept a waiver from the defendant or disqualify counsel if appropriate.

If defense counsel has an employment relationship with the prosecutor’s office or if counsel faces criminal investigation or charges, the prosecution generally has ready access to the pertinent information, and neither the court nor the defendant is likely to be aware of the problem. Therefore, when a situation exists that may generate one of these two types of conflict, the prosecution must have an obligation to disclose relevant information to the court and the defendant. Imposing the obligation of disclosure on the prosecution will increase the likelihood that courts will be able to address these types of conflict early and appropriately.

Lipshaw on Leiter on Religion, and a Little More

Posted by Jeff Lipshaw

I suppose it's appropriate to conclude the Ten Days of Awe of the Jewish calendar by tying up, on the eve of Yom Kippur, a loose end I started to unravel when I was sitting here at my computer instead of participating in ritual observance on Rosh Hashanah.  As I noted, "what I find difficult about religious ritual, which is the reification of the sense of awe, wonder, and mystery of life, being, and consciousness into a set of rules.  (Hence, my appreciation instead for the music.)  That's the tension I described three years ago, between kevah - fixed prayer - and kavanah - inspiration."  I have a lot of regard for what Martha Nussbaum described as the source of the religious (and all conscience-related) impulse:  "the faculty in human beings in which they search for life's ultimate meaning."  I'm just not crazy about what my fellow humans generally do to act on that impulse.  (I also have the same kind of naive idealism about academia as a place of pure exchange of ideas, with much the same result.  But that's not new.  I had a kind of naive idealism about fiduciary obligations when I was a corporate officer and general counsel.  My conclusion is nobody is more or less insulated from human nature in the actual practice of religion, scholarship, or business.)

Some time over the last ten days, I came across Brian Leiter's published essay on the constitutional tolerance of religion by way of his more recent draft on whether religion is even entitled to moral respect.  (I agree with him that, as a matter of law, the appropriate standard is tolerance.  I also agreed not to quote or cite the draft, other than this minimal reference to its context, and with the clear indication it is a draft.  It is available publicly available on SSRN, albeit with the "don't quote or cite" request.)  The arguments depend on his already completed conceptual construct of religion with which I take issue, and I've posted an essay to that effect on SSRN.  The title is Can There Be a Religion of Reasons?  A Response to Leiter's Circular Conception of Religion, and this is the abstract:

This is a comment on a definition of religion recently proffered by Brian Leiter in support of different conclusions we ought to draw with respect to religion. His analysis is ultimately circular: the problem with religion is that it is not science. Exposing the circularity requires identifying the trick, which is that he employs an appeal to common sense to distinguish religion and science. Nevertheless, the very belief in common sense is the same as the religion Leiter attacks: it is categorical and insulated from further reasons. My argument in response has three major themes. (1) The argument based on receptiveness to reasons and evidence itself arbitrarily picks and chooses reasons and evidence. (2) It is possible to posit a religion whose categorical demands on action and requirements of foundational bedrock are minimal. (3) Religion uses reason (in the sense of concepts apart from evidence) to grapple with the source of our bedrock beliefs. It differs from other such grappling only in degree and not kind of thought; once we accept the role of concept (or reason) in such work, religious or secular, we necessarily must accord bedrock status (or categoricity) to at least one concept. Finally, I suggest that adoption of Leiter's definition has a troubling implication as to our respect for personhood.

By the way, if you are curious what to say to a Jewish person on Yom Kippur, since "happy Yom Kippur" is something of a contradiction, say "g'mar tov" which is short for the full Hebrew phrase that means "may you be sealed well." The mythology is that we are inscribed in the Book of Life for the coming year on Rosh Hashanah, and the inscription is sealed on Yom Kippur.  The actual prayer is called the Unetaneh Tokef, and it is the inspiration of Leonard Cohen's (above left) "Who By Fire."  Consistent with the kind of grappling with which I credit the religious impulse in the essay, I interpret this as "Recognize there is a distinction between what is and what ought to be, and we can't always make them match.  Let's do the best we can even when the world throws obstacles in our way."

G'mar Tov.  (UPDATE:  A good friend reminds me that a less highfalutin' greeting or wish is "fast fast" or "easy fast."  Since that rarely applies to me, I forgot!)

Robertson on Lawyers' Identity, Judgment, and Cognitive Bias

Posted by Jeff Lipshaw

Cassanda Burke Robertson (Case Western, left) has posted Judgment, Identity, and Independence on SSRN.  Here's the abstract:

Whenever a new corporate or governmental scandal erupts, onlookers ask "Where were the lawyers?" Why would attorneys not have advised their clients of the risks posed by conduct that, from an outsider's perspective, appears indefensible? When numerous red flags have gone unheeded, people often conclude that the lawyers' failure to sound the alarm must be caused by greed, incompetence, or both. A few scholars have suggested that unconscious cognitive bias may better explain such lapses in judgment, but they have not explained why particular situations are more likely than others to encourage such bias. This article seeks to fill that gap. Drawing on research from behavioral and social psychology, it suggests that lawyers' apparent lapses in judgment may be caused by cognitive biases arising from partisan kinship between lawyer and client. The article uses identity theory to distinguish particular situations in which attorney judgment is likely to be compromised, and it recommends strategies to enhance attorney independence and minimize judgment errors.

Do Attorney-Arbitrators Hand Out Less Money Than Nonattorney-Arbitrators? Do Democrats Award More Than Republicans? Empirical Study of Lawyers, Arbitrators, and Panel Dynamics

Posted by Alan Childress

Stephen Choi (NYU Law), Jill Fisch (U. Penn.), and Adam C. Pritchard (U. Mich. Law) have posted to bepress their new paper, "Attorneys as Arbitrators."  It looks interesting for the empirical fans among us (like Jeff's recent post on lawyer stereotypes, hypothesis, and testing) and the hardcore ELS types (like Bill). I like the fact that the authors used political contribution as one variable and found its party affiliation to be significant.  Keep in mind, though, that plenty of attorneys (and others) give for pragmatic and nonpolitical-leaning reasons, and often give to both sides.

And, as icing, it can be downloaded without going through SSRN!  Here is their abstract:

We study the role of attorneys as arbitrators in securities arbitration conducted by the National Association of Securities Dealers (NASD, n/k/a FINRA), using a dataset of 422 randomly selected arbitrators and their 6724 arbitration awards from 1992 to 2006. We find that arbitrators who also represent brokerage firms or brokers in other arbitrations award significantly less compensation to investor-claimants than other arbitrators. We find no significant effect for attorney-arbitrators who represent investors or both investors and brokerage firms. The relation between representing brokerage firms and arbitration awards remains significant even when we control for political outlook. We report that ideology correlates significantly with arbitration awards - arbitrators who donate money to Democratic political candidates award greater compensation than arbitrators who donate to Republican candidates.

Because the arbitration award is the product of the panel, not a single arbitrator, we also study the dynamics of panel interaction. We find that the position of chair is an important factor in assessing the arbitrator's influence, although the financial relationships of other arbitrators may also affect arbitration awards. Coalitions with the other arbitrators are also important. If the chair and another panelist possess a common attribute, the effect on the arbitration award increases.

Finally, we provide evidence that the 1998 reforms to the arbitration process - which introduced party control over the composition of panels - ameliorated, but did not eliminate, the effect that attorneys who represent brokers have on outcomes. We find no significant effect from the NASD's 2004 reforms.

Adam Pritchard also posted a piece questioning the common stereotype that Delaware law and courts create a 'race to the bottom' that entrenches and lowers quality of management.  More on that below the fold.  Oh, the new TypePad does not have a fold?  Sorry, then here is the link to Murali Jagannathan and Adam Pritchard, "Does Delaware Entrench Management?" Exciting bedtime reading for Jeff.

When Writing Multiple Choice Questions, Law Professors Should (a) Understand the Components of Good Questions, (b) Allow Justifications, (c) Read the Linked Article, or (d) All of the Above

Posted by Jeff Lipshaw

My Suffolk colleague, Janet Fisher (right), has posted  Multiple-Choice: Choosing the Best Options for More Effective and Less Frustrating Law School Testing (Vol. 37, Capital University Law Review, p. 119, 2008).  Here's the abstract:

Multiple-choice testing presents challenges and frustrations not only for the students who take the tests, but also for the doctrinal faculty who prepare and score the tests and for the academic support faculty who work with students having difficulty with multiple-choice tests. This article discusses means by which the multiple-choice testing experience in law school could be improved for both students and faculty. After a brief overview of the history of multiple-choice testing, the article describes problems that arise in connection with multiple-choice testing and the possible effects of flawed multiple-choice questions. The article then reviews basic multiple-choice item-writing guidelines and some general principles of test validity. For this, the article draws upon the work of law professor Michael Josephson and testing authority Thomas Haladyna. Finally, the article evaluates appeal and answer justification procedures that could be used to enhance multiple-choice testing.

Do I have to pay a royalty to Larry Solum if I say "highly recommended?"

DeFabritiis on Client Correspondence

Posted by Jeff Lipshaw

My colleague, Sabrina DeFabritiis (Suffolk, left), has posted Clarity, Organization: Watchwords for Client Correspondence on SSRN.  Here's the abstract:

This article focuses on the importance of clarity and organization in client correspondence by attorneys. The Massachusetts Rules of Professional Conduct mandate that attorneys keep their clients reasonably informed on the status of their case and explain matters in a manner which allows clients to make informed decision. This article focuses on tips to structuring written correspondences to achieve these goals.

While Sabrina's piece focuses on Massachusetts, the lessons are far more universal.

Henderson, Zorn & Czarnezki Reply To Baker On Whether Low Judge Salaries Dilute Talent

Posted by Alan Childress

William Henderson (Indiana--Bloomington), Christopher Zorn (Penn State, Poly Sci., shown below at right but left) and Jason Czarnezki (Vermont Law School) have published to SSRN their empirical and interesting article "Working Class Judges."  It also recently came out in 88 Boston Law Review 829.  In his usual modesty, Bill did not tell us; I found it via the SSRN emails from Brad Wendel.  But anyway,  congratulations to our coblogger.  (Not that he logs cobs or anything.)  Here is the abstract:

In recent years, a steady chorus of dignitaries has decried the low pay of federal judges and suggested that the federal judiciary is on the brink of losing its best and its brightest. The persistent nature of these claims should give us pause. Scott Baker's recent study empirically evaluates these claims by examining the relationship between judicial salaries and the work habits and voting patterns of federal appellate judges. If large pay disparities are indeed eroding the quality of the federal bench, Baker theorizes this likely results in more ideological voting, fewer dissents, longer delays in issuing opinions, and a self-selection of judges who are intent on maximizing their influence within the federal judiciary. To test these hypotheses, Baker undertook the formidable task of assembling the requisite datasets, which he then posted on the Internet for other researchers to use. Along with the ingenuity of his research design, we applaud Baker's industry and transparency. Thanks to his efforts, there is now an empirical literature surrounding the debate over federal judicial pay.

At the end of his inquiry, Baker concludes that higher judicial salaries would have virtually no effect on the performance of federal appellate judges. The purpose of this Reply is to qualify Baker's interpretation of his results, at least with regard to judges located in the "Top Five" legal markets of New York, Chicago, Los Angeles, San Francisco, and Washington, D.C. In his original analysis, Baker relies upon the average law firm partnership compensation, adjusted for years in practice and region, to estimate the forgone income - and hence opportunity costs - of each federal judge. Baker explicitly anticipated the possibility that this variable would understate the opportunity cost in large legal markets; thus, he included a Top Five variable plus an interaction term, which captures the effect of forgone earnings when a judge is located in one of the nation's five largest legal markets. Baker's discussion, however, does not formally address the significance of the interaction term, which requires some additional steps to properly interpret.

Based on our reanalysis of Baker's specifications, it appears that judges in the largest legal markets often behave differently than their smaller market counterparts. Specifically, the lower judicial salaries in Top Five markets strongly correlate with behavior Baker characterizes as "ideological" or "influence-motivated." Conversely, while lower judicial salaries in small markets correlate with longer delays in issuing opinions, the exact opposite effect describes the behavior of judges in Top Five metropolitan areas.

Our brief Reply proceeds as follows. Part I provides our reanalysis of Baker's data. Part II establishes an additional comparative context that allows us to speculate why Top Five legal markets may foster a more intense tradeoff of influence versus remuneration. Indeed, as we note, the real or perceived financial tradeoffs are so enormous - and conspicuous - in Top Five markets that federal judges may feel they have been lumped together with a large, faceless working class. We conclude by suggesting that the debate over judicial salaries is rooted in the more general problem of greater income disparity within the American legal profession.

Relis on Perceptions of the Civil Litigation Process

Posted by Jeff Lipshaw

Tamara Relis, whom I met at the 2007 Faculty Recruitment Conference, has two pieces of good news.  First, she's joining the faculty at the Touro Law School next year.  Second, she has a book coming out from Cambridge University Press entitled Perceptions in Litigation and Mediation: Lawyers, Defendants, Plaintiffs and Gendered Parties.  Here's an abstract:

The book is an analytical study exploring the internal dynamics and realities of case processing in the legal system leading up to and including mediation. In juxtaposing lawyers’ and parties’ understandings, objectives and experiences on all sides of ongoing injury and fatality cases (131 interviews, questionnaires, observations), the data shed new light on how lawyers and disputants think and speak about the meaning of their cases as well as their expectations and aims on how to resolve them. The findings additionally offer insight into how female and male attorneys practice law, and how female and male victims, plaintiffs and defendants experience legal processes.

Three recurrent themes run through the book. The first theme relates to the parallel worlds of understanding and meaning inhabited by legal actors versus lay disputants, reflecting materially divergent interpretations and functions ascribed to litigated case processing and dispute resolution. In providing a unique look into the diversity of prevalent realities, I demonstrate through lawyers’ and parties’ own discourse that both the formal and informal justice systems are not serving many of disputants’ intrinsic, often overriding, needs; and I challenge the notion that disputants and their representatives broadly understand and want the same things during case processing. As such, the parallel worlds’ findings reveal inherent problems with the core workings of the legal system. The second theme, termed lawyers’ “reconceptualization,” pertains to the role of mediation experience in transforming attorneys’ understandings of their cases and their roles within them, with extralegal considerations increasingly becoming inherent within lawyers’ thinking. The third theme relates to the diverse understandings of conflict and its resolution by males and females in professional and disputant groups

Congrats to Tamara on both scores!

Fines on Teaching Empathy as a Lawyering Skill in Ethics Classes

Posted by Alan Childress

Barbara  Glesner Fines (UMKC) has posted to SSRN her article, Teaching Empathy Through Simulation Exercises - A Guide and Sample Problem Set.  Her abstract is:

For over a decade, legal educators (particularly clinical faculty) have argued for the importance of teaching empathy as a critical component of legal education. Both the Carnegie Report and the Best Practices study have emphasized that legal education's instruction in skills - including lawyer-client relationship skills - requires greater attention. While some might argue that empathy is a skill that cannot be taught outside the context of clinical representation of clients, this simulation problem proceeds from the assumption that empathetic understanding of the client's situation is a skill that can be addressed in a variety of settings. Indeed, if empathy is left unaddressed in the classroom, legal education may further the divide of mind and heart and leave students with a message that what they learn in the classroom is an intellectual exercise of little real relevance to what they will do as an attorney.
         Professional responsibility courses are an especially appropriate classroom in which to address empathetic understanding of the client, as a key component in exploring the attorney-client relationship and the attorney's duty of communication. This role play is designed in the context of a bar admission problem. While the problem can be used to explore the substantive standards for admission to practice or the impact of law regarding disabilities on that process, the primary goal of this exercise is to explore how it feels to be a client. By placing the students in the role of a law student bar applicant - a situation that nearly every law student can imagine - the role play makes it easier for students to internalize the feelings and perspectives of the client.
        The role play includes instructions for attorney and client, documentary evidence, and a research memorandum on applicable law. Also included is an edited version of the actual case which is a basis for the problem.

Fines, shown right, also blogs at Family Law Prof Blog, including this recent post warning family law practitioners to be careful what they promise in a retainer agreement, given that a court may allow suit for breach of contract apart from legal malpractice (see also Mike's post here).