Legal Profession Blog

Michael Clayton: The Only Thing That Could Be More Unrealistic Than Its Portrayal of Bipolar Mania is If I Suggested that I Bear Any Resemblance to George Clooney (although I look a little like Tilda Swinton by the end of a 100 minute class)

Posted by Jeff Lipshaw

Alan has challenged me to address his speculations.

I didn't want to see Michael Clayton, even though I heard it was good.  I have never seen Erin Brockovitch or A Civil Action.  Yes, it's true that I was the general counsel of a large chemical company, and that's no doubt the reason.  I have steadfastly refused to sit through any so-called "entertainment" in which I (or someone like me) is the villain ever since my daughter Arielle (now a grad student in theater at Columbia) was in the 8th grade, and wrote, produced, directed, and starred in a play called Lily's Life. This was the touching story of a girl with cystic fibrosis, in which the incomparably evil character was the FATHER, played by Arielle herself, since she had just fired the boy actor she had originally cast.  I can still remember, when his utter venality came out, everybody in the audience turned around and stared at me with "you son-of-a-bitch" in their eyes.  (What's worse is that Lily's Life played for years after on the local access channel of the Birmingham, Michigan school district.)

But Matt, my son, was home, and in a moment of father-son bonding, I agreed to watch Michael Clayton with him.

It was a good movie.  But I have low standards, namely whether I fall asleep or not.  Others, as Alan points out, have better points about the technical legal issues than I.  Two things jumped out at me.  (1) I thought Tilda Swinton's portrayal of the angst and distinction between the private moments of preparation and the public performance were accurate in an atmospheric sort of way, and (2) I have had experience dealing with people who are in manic stages of bipolar disorder, and there's no way that Tom Wilkinson went from being naked at a deposition (including running around in the parking lot) and screaming "I am Shiva, the Goddess of Death" to getting on an airplane and making it back to New York where he is together enough to buy fourteen loaves of bread.  In real life, even if he makes it to the airport, he's locked up before he goes through security.

Deer Hunter Redux: Was He Licking His Lips Like Roger Clemens While Splaining to Park Ranger?

I still cannot get that Deer Hunter bar discipline case out of my head.  I was not satiated by adding bad pun comments after Mike's post.

How bad a lawyer do you have to be that you cannot talk your way -- legitimately -- out of an investigation into this?  He must have changed his story four times, or licked his lips constantly while he and Boo Boo recounted the tale to Ranger Smith. 

I can just see Jon Lovitz in the role of the lying lawyer:  "the license belongs to my wife, eh, Morgan Fairchild, yeah that's the ticket."

It says something about our society that the lawyer could be in big trouble, and possibly not be a lawyer anymore, for abetting the shooting of a deer -- while the Vice President is still the Vice President after shooting a lawyer.  Hmm.

[Alan Childress]

Should Lawyers Be Able to Publish Confidence-Ridden (or Guilt-Ridden) Memoirs?

Over at the Australian Professional Liability Blog, barrister Stephen Warne asks that question, and relates the example of a criminal defense attorney, John Marsden, who felt the need to unload his views on (and details about) a notorious rapist-murderer client.  "Criminal lawyers have to live with secrets which bear down heavily on them. Perhaps it is not surprising that Marsden made the disclosure. But where was the reportage that this was a serious transgression? I am not speaking of condemnation, but rather an acknowledgment that this is not as it should be."  Warne then makes an analogy to the Britney Spears-Dr. Phil situation.  [Alan Childress]

Occupational Hazard: Making Sense Out of Stupid Courtroom Questions

Posted by Alan Childress

I like lawyer jokes as much as the next guy, as long as the next guy telling them is not John McCain.  With all the great lawyer jokes on the internet (including this site, and posts here and here on our blog), he has to pick the old lawyer:catfish analogy?  And tell it with the most wooden timing possible?  I much preferred his really funny and inappropriate Alzheimer's joke in 1999 (that gave him authenticity, said  The Guardian), one that he was later forced to apologize for:  the great thing about it is that you get to hide your own Easter eggs.  I am not sure I want to live in a country where lawyering is more darkly ironic than dementia.

But lawyer jokes are so popular because there is no real union to stand up to them.  It is not like we can tell stupid client jokes and people will laugh, though in fact we all have lots of stupid clients and witnesses who could be the subject of much funpoking.  There is no large audience for that, especially if the general public identifies with clients and witnesses and thinks they are not so stupid.

Which is why I was not as amused as everyone else at the Super Bowl party when one of my brothers whipped out something he printed off the internet, full of "stupid lawyer questions" heard in courtroom situations.  His print-out seemed to be much the same as this site I found later.  I was surprised at the level of reaction that everyone else was showing.  They thought these were really funny.  And anytime a new person would join the party, Dad would read the same ones over again, then the new guy would really laugh too.  Confounding.

I should have just laughed along, but instead I fell victim to an occupational hazard:  the need to explain how several of the questions the lawyers had asked, though inartfully framed, were necessary to establish for the record -- out of the witness's mouth and not just by assumption or lawyer argument -- a fact that is an essential element of a claim or defense (like a death for a homicide case).  OK, I admit I actually said "or affirmative defense" to sound more legalistic and mystifying, hoping my credibility would stop the hilarity in its tracks.  It did not, but it did redirect the hilarity.  The net result is that the object of their derision was no longer those pitiable (and, I insist, careful and detail-driven) lawyers quoted in the print-out.  Instead now I was the object of universal group ridicule.

Last fall, two of the professional librarians at our school came to a faculty meeting and delivered their report on a candidate for the head librarian's position.  Every time they spoke, the rest of the faculty had to ask them to speak up.  Even after, they still spoke in such hushed tones that few of us could hear them.  Like calling a golf match, I guess:  that is the occupational hazard of librarians. 

So if you are a lawyer, learn my lesson and resist the occupational hazard of trying to justify to laypersons the meaning of legal rules and actors.  Just agree that the law is an ass, and you will be fine.  If you are, worse, a law professor, here are my lightbulb jokes for this profession, which will only make sense to the academic types.

Year's Most Ridiculeable Warning Labels Announced: But Does Any Top the Classic "Once used rectally, the thermometer should not be used orally"?

Posted by Alan Childress
Pedantics tell me that you cannot feel nauseous, just nauseated.  If so, then the word ridiculous makes no sense, or at least should mean that it describes a person who ridicules a lot.  That would be me.  Something that receives much ridicule, thus, should be ridiculated or at least potentially ridiculeable.

I enjoy ridiculatious warning labels, and last year I posted in detail on several years' worth of winners.  Here is an update story from the Associated Press:  the same Michigan tort reform center has announced a winner for 2007 for a label on a tractor:  "Danger:  Avoid Death."  I have seen tractors, and people using them in bizarre ways (live--not just Joaquin Phoenix as Johnny Cash, or Kevin Bacon in Footloose), so I actually think that one is appropriate.  The second place goes to an iron-on transfer patch: "Do not iron while wearing shirt."  [The center's official site announcing the tractor winner is here.]

The 'bridge out' sign above is, I presume, a fake.  I got it from this funny sign site (which includes many real ones, like the one I call "res ipsa loquitur," shown right), thanks to a student in my Torts class.

I still prefer the warning labels that won in years past, worth considering their origins:

• warning on electric drill for carpenters cautions: “This product not intended for use as a dental drill.”
• cartridge for a laser printer warns, “Do not eat toner.”
• digital thermometer: "Once used rectally, the thermometer should not be used orally."

A Great Movie Line I Never Really Appreciated

Posted by Jeff Lipshaw

Colleague Andy Perlman has posted over at Legal Ethics Forum on his rationalizations, I mean reasons, for not wearing a tie when he is teaching, and the most persuasive one reminded me of a movie line that had me laughing out loud a few days ago.  (I sat in on his class last Friday to learn pedagogy at the feet of a master, and it was a brilliantly conceived and executed class, even if Andy had the beginnings of the flu.  But, indeed, he had no tie.)

The movie is Wonder Boys, one of my favorites.  Michael Douglas plays Grady Tripp, an English professor in Pittsburgh (1) who won the PEN Award for his first novel many years ago and has never published again; (2) whose wife walked out on him that morning; (3) who is having an affair with the chancellor (Frances McDormand) whose husband is the chair of the English Department, and (4) whose strange student James Leer (Tobey Maguire) has just shot the chancellor's dog in the upstairs hallway of her house while the faculty is gathered downstairs.

Grady and James are now in the car trying to figure out what to do with the dead dog.

James:  Professor Tripp, can I ask you a question?

Grady:  Yes, James.

James:  What are we gonna do with  -  it?   

Grady:  I don't know.  I'm still trying to figure out how to tell the chancellor that I murdered her husband's dog.

James: You?

Grady:  Trust me, James. When the family pet's been assassinated, the owner does not want to hear that one of her students was the trigger man.

James:  Does she want to hear it was one of her professors?   

Grady: [Pause.]  I've got tenure.   

Starstruck on Tremont Street

Posted by Jeff Lipshaw

Just several yards from my cocoon-like office here in Suite 250 of the Suffolk University Law School, grips and gaffers are preparing one of our classrooms as a set for Bachelor No. 2, a movie starring Kate Hudson, Dane Cook, and Alec Baldwin.  (Recall that our library was featured in The Departed.)  It's not too glamorous yet, just lots of lights and wires and the grips and gaffers.  I'm hanging out in the hallway, seeing if my resemblance to Owen Fiss can get me discovered.  Son James, however, is coming in later this afternoon, and as you can see from the photo on the left, he bears a remarkable resemblance to a popular young actor.  Could it be so long Stanford, hello Hollywood?

And just the other day, I happened to notice that my property and real estate transaction prof from nigh on thirty years ago, Paul Goldstein, had written a novel "Errors and Omissions" that had the featured spot in the window of the Suffolk Bookstore.  I'm too cheap to buy a book written by somebody I know, so we ordered it from the library.  I read the first chapter last night, and something in me kept resisting the idea that it's actually pretty good.  I'm just hoping there's no graphic sex scenes.  Not from a guy who taught us fee simple absolute.  (By the way, the customer comments on Amazon read a lot like my teaching evaluations:  some love it, some despise it, and a couple think he has promise but isn't there yet.)

Hilyerd on Lawyers' Portrayals and Roles in Classic Comic Books

Posted by Alan Childress

William Hilyerd (Univ. of Louisville), shown right, has posted to SSRN his article, "Hi Superman, I'm a Lawyer: A Guide to Attorneys (& Other Legal Professionals) Portrayed in American Comic Books: 1910-2007."   This article is recommended for the comic-and-lawyer-loving Ray Diamond at Tulane.  Ray originally put us onto the Attorney Man comic book.  Here is the abstract of Hilyerd's new article:

Since comic books were first introduced in the 1930s, they have provided entertainment for children and adults alike. Most American males (and a significant portion of American females) have read comic books at some point in their lives, most when they were in grade school. In addition to providing young adults with their first glimpse of costumed heroes, comic books have also provided these same young adults with their first look at the legal profession. From the earliest days of comic books and strips through the present, attorneys have been prominently featured in American comic books.

The article begins with a discussion of the history of illustrated artwork and how that artwork evolved first into newspaper comic strips then into comic books. Next, comic strip and comic book attorneys from the early part of the 20th Century are identified and discussed. The introduction of Superman touched off the Golden Age of comic books. Part four discusses attorney characters which appeared during this Golden Age (1938-1946) and provides some background information on many of these characters. Part five discusses the decline of the reputation of comic books during the 1940s and 1950s and socio/legal attacks on comic books during the period.

By the middle of the 1950s, comic book publishers switched back to superheroes from the horror and suspense books. The switch back to superheroes brought with it a new crop of attorneys. Part six of the article identifies all of the recurring attorneys who appeared during this resurgence of interest in comic books, known as the Silver Age (1956-1969). Part seven provides discusses all of the attorney characters who appeared from 1970 through 1985. Part eight finishes the history of attorneys in comic books by identifying all of the attorneys who have had recurring roles in comic books since 1985.

The GC's Client from Hell

Posted by Jeff Lipshaw (cross-posted at PrawfsBlawg)

Yesterday I offered up some views on the Whole Foods/Wild Oats merger, particularly the Whole Foods CEO's ill-advised e-mails to board members.  It turns out the hypothetical conversation I posited would never have occurred.  It has now come to light that this guy is the client from hell.

Now I should note that I love Whole Foods.  I would have to, to pay the premium one pays there, particularly when the low fat ice cream selection stinks as badly as it does.  And I should also say that a general counsel calling his or her CEO a "client" is an undue formalism that would probably portend a disastrous relationship were the GC actually to see it merely as "lawyer-client" as opposed to "don-consigliori" or "friend-friend."  But I digress.

Oh my god.  He was on the freaking Yahoo chatboard.  Under a pseudonym it would take most of the  Yahoo chatboard psychos about ninety seconds to figure out.  (N.B.: the Yahoo chatboard is to publicly traded stocks what lawschooldiscussion.com is to law school admissions.) I once was the general counsel to a CEO with hyper-sensitivity to what was said on the board, and more than once I threw myself bodily across his computer keyboard to stop him from going online to respond to comments about him or the company.  Not only do you have the obvious securities disclosure issues; not only do you have the "gold medal in the Olympic ten meter stupid embarrassment" event; but you also have the issue whether the company has endorsed the chatboard as an authorized outlet for company discussion, thus, at least in theory, making the company liable for the various defamations of its executives and their families that occur on a daily basis.

Oy vey.

The latest on Elizabeth Edwards and Ann Coulter

Posted by Nancy Rapoport.

I've done a post on my blog regarding what I think that professors can learn from Elizabeth Edwards's confrontation of Ann Coulter on Hardball (see my post here), and it strikes me that today's WSJ law blog about Coulter raises an interesting question about her behavior as a (non-practicing) lawyer.  Hmmm.

Lawyers in Film - Case Studies in Courage as Free Will or Determinism.

Posted by Jeff Lipshaw

Steve Lubet (Northwestern, left so as not to be confused with Ben Kingsley as Gandhi, below right) sent a note around asking about law and lawyers in film, and I don't mean to steal his thunder.  I just want to thank him for stirring the thought.  My own conception of what a lawyer did was formed not by the film version, or even by seeing the play, but by reading the script of Inherit the Wind when I was in grade school.  I happened by coincidence to catch two movies over the last couple days about law and lawyers, and each of them gave me chills again.  The second was Gandhi, which I turned on this morning here at my son's apartment in Ann Arbor (part of my one day "Adventures in Putrid," which is a whole 'nother story).  More on that below.

The first was A Man for All Seasons, about Sir Thomas More's fight (to the death) over principle with Henry VIII, which happened to be playing on Turner Classic Movies when I saw Steve's e-mail.  It is a film version of Robert Bolt's play, and won the Academy Award for Best Picture in 1966, as did Paul Scofield, who played More.  More was first and foremost a lawyer, and the plot turns not only on a subtle point of law (not whether he opposes Henry's divorce, but whether there is any evidence of his opposition), but on the place law resides within a world of other forces - in this case, the king's perception of More's implicit but unstated opposition and its effect on the hegemony over the church he seeks to obtain.  I am still thinking about the balance of adherence to principle and pragmatism.  More dies in the cause of adherence to a principle, yet early on tells his wife Lady Alice (Wendy Hiller), pointing to his neck, "this is not the stuff of which martyrs are made."  I think the story is powerful because the principle is so abstract (at least if you are not a Catholic), and thus makes us focus on the adherence in the face of power, as opposed to the principle itself.

In a key scene (left), Henry (Robert Shaw) alternately cajoles and berates More, as friend and Lord Chancellor, for the ironic reason that the king wants More's commitment, not just his acquiescence or compliance.  As I watched, I thought about my own experience with CEOs, and the times I felt compelled to hold my ground in the face of a similar tsunami of will, charisma, power, and consequence.   How easy to comply!  Why do we resist?  Is every instance of resistance justified?  How do you tell when to hold and when to yield?  What constitutes merely feeding the "all lawyers say is 'no'" canard?

You don't have to watch much of the three plus hours of Gandhi to see most of the lawyer stuff (there is a trial in which Trevor Howard plays a judge later in the movie); it is at the beginning when he is actually practicing law, and figuring out how to oppose unjust laws (like the required fingerprinting of all Indians) in South Africa.  Gandhi says from the stage in a rally against the law "I too am willing to die in that cause, but there is no cause for which I am willing to kill." 

Kant said that the test whether there existed free will in the world was to consider the person who is faced with the choice from a king or prince, on one hand, to die or, on the other, to kill an another innocent person.  He concludes that the fact we can even ponder the choice, much less decide in favor of the former, demonstrates the existence of will over mere deterministic cause-and-effect.  This is, of course, not a matter of empirical or deductive proof, but of intuition, and if you hold (per a subtle determinist like Hofstadter) that all intuition or appearance of will is an illusion, then we don't get very far.  I'd suggest that the illusion might as well be real but that's a whole 'nother story as well.

Where in the law school curriculum do our students get a sense of this real world test?  When does a struggling solo practitioner gather the courage to turn aside a matter she knows is vexatious, even though it will put food on the table?  When does a general counsel finally elevate principle over loyalty and blow the whistle?

Angelina Jolie, Her "Bone-Headed Overzealous Lawyer" and Aviram on Lawyers' Perspectives

Posted by Jeff Lipshaw

It's not often we get to link up Angelina Jolie with a piece of legal scholarship, but when the opportunity arises, we jump on it.

The New York Times reports this morning a contretemps over an agreement Angelina wanted reporters to sign before interviewing her at the premiere of her new movie, A Mighty Heart, about Daniel and Mariane Pearl.  The agreement would have forbade reporters from asking her about her personal relationships, and would have required that "the interview . . . not be used in a manner that is disparaging, demeaning or derogatory to Ms. Jolie."  Angelina's lawyer, Robert Offer, tried to take the blame, saying he was responsible for the statement, and calling himself a "bone-headed, overzealous lawyer."

This is a theme I've harped on.  It's no surprise that legal academia has a strongly reductionist bias, because the nature of thinking with a legal mental model is self-contained and reductionist.  That's a casually empirical, but nevertheless strongly held view, on my part, but I was interested to see some real empirical work on this subject on SSRN recently.  Hadar Aviram (Hastings, Tel Aviv, right) has posted Trapped in the Law:  Legal Actors' Attitudes Toward Legal Practice as a Solution for Social Problems.  Here is the abstract:

Courtroom dynamics literature has studied the interactions within the 'courtroom workgroup' - prosecutors, defense attorneys and judges, attributing legal practices in the courtroom to the effects of power struggles and professional interest conflicts between the actors. This paper reintroduces into the picture the important factor of formal law and legal indoctrination, claiming that much of the actors' opinions and behaviors can be attributed to their inability to introduce external perceptions of the problems they address into the legal framework within which they operate. The paper is based on 40 in-depth interviews with prosecutors, defense attorneys and ex-judges in the Israeli military justice system about cases involving disobedience to military service - desertion, unauthorized absences and conscientious objection. The interviews reveal the overpowering effect of legal indoctrination on the perception of these problems and their solutions. Almost all interviewees use the doctrinal legal categorization as the main definition of the problems they deal with, despite their understanding of the political and socio-economic dimensions of the problems. Their policy suggestions are equally limited. Almost all interviewees perceive a tension between their perception and the broader, social definitions of the problem, and have different ways of resolving it: loyalism, bureaucratic thinking, idealism, cynicism and limited innovation. The findings shed light on the impact of legal communications and disciplinary discourse on individual perceptions, and support the usage of discursive theory - focusing on Luhmann and Teubner's autopoiesis - as a strong explanation of professional behavior and interaction, even at the individual level.

Gold Medal in the Stupid Olympics

My son-in-law, Simon Pride, passes along this article from CFO.com about a county treasurer here in Michigan somewhere who (a) embezzled $1.2 million, and then (b) thought the place to invest it was in one of those Nigerian e-mail schemes.

My guess is that he needed money badly, and just $1.2 million wasn't enough for all the Cialis, Viagra, pornography, and hot stocks he was buying on the internet.  Probably also went long in Hormel because they make all that Spam everybody's talking about.

[Jeff Lipshaw]

Grimmelmann on Pragmatics and Theory in Law and Programming

Posted by Jeff Lipshaw

James Grimmelmann (NYLS, right) has some interesting thoughts over at PrawfsBlawg on the similarities between theory and pragmatics for computer programmers and lawyers.

Close readers of this blog will know that I have been thinking about mathematics and law recently.  I agree with Carolyn Elefant's comment about the gray areas that exist in the product of lawyers' work (versus programmers' work), but I think it goes deeper than that.

Perhaps the main difference between mathematics, logic, and programming, on one hand, and what lawyers do, on the other, is the difference between provability and empirical truth, and beyond that, normativity.  There is no normativity in logic - we build from axioms and rules of inference, often in almost indecipherable complexity.  A theorem in logic or mathematics isn't good or bad, it just is or is not.

Programming is interesting because of the human interface.  The program will do exactly what the axioms and rules of inference within the program make it do; the frustration comes when what it does is not what we want.  A program can be bad, but not because of the logic.  It can be more or less complex, take up more or less CPU capacity, or take longer to run, but that is normative because of something that exists outside of the logic of the system - a human who is impatient, or has decided that fewer lines of code are "better."

Here's the irony, at least to me.  Theory is less important in programming because normativity plays such a small role in what a programmer does.  Theory is important in law because we need to continue to test the result of our exercises in pragmatics against something else - ethics or morality or something - and that something pulls theory far closer to the surface of what we do every day.  Conversely, we can make a pragmatic justification for pure theory in mathematics or science because it is a bottomless well the pragmatic use of which may come some time in the future.  Is there really any analog in "pure theory" of law (with apologies to Hans Kelsen)?  Can our "research" as legal academics lead to a previously undiscovered normative "light bulb" going on? 

Very interesting.

Things aren't looking great for Ave Maria these days....

Posted by Nancy Rapoport

I'm cross-posting a version of this at MoneyLaw (What's going on at Ave Maria Law?).  Jeff & Alan pointed me to this story:  Crisis at Ave Maria Law.  That post certainly looks awful for folks at that school, and my only caution here is that people on the outside of this controversy remember that they won't ever know the real story.  It's all too easy to take sides, but only those inside the school have first-hand knowledge.  (Even then, I doubt that any one person has complete knowledge of what's happening there.  Deans don't know the whole story of anything; nor does the faculty.  People know what they've seen and heard, but people also filter things through their own experiences.)

I'll never be able to put myself in the places of the UHLC faculty and staff members during that last year that I was dean.  I wish I could, but I can't.  Nor can any of them experience what that year was like for me, even though there are plenty of good-hearted people at UHLC who empathized with me.  I'm certainly too far removed from the life of law students to pretend to imagine what those last few months of the 2005-06 academic year were like for them.

If folks want to weigh in on the generalities of the issues raised by the Ave Maria post above, that's one thing, and that's completely appropriate.  But I just want to caution you that weighing in on specifics--unless you have first-hand knowledge--probably won't do much for anyone.  If you want to get a feel for what it was like to have complete strangers weigh in on UHLC's issues last year, see my blog, under "Preview of some Managing By Ambush material" (on the right-hand side of the blog).

Sorry, Jeff--I've got the contest all sewn up already.

It's day 1 of our move.  Cats are locked in the bathroom downstairs, w/a picture of cats on the door and a "please don't open the door--cats inside" sign on the door.  I tell the movers not to open the door, the cats are our life, yadda, yadda, yadda.  I run an errand and, when I come back, I find that "someone" has let the cats out of the bathroom.  The garage door was open, and I spent an hour worrying that the cats had not just escaped inside the house but had actually made a break for it outside (and they're INDOOR cats).  An hour and a half after I came back home, we found Grace and Shadow.  At the risk of embarrassing myself worldwide, I have photographic evidence of what happened when I put Grace back into the downstairs bathroom. 

Beat that, Jeff!

Posted by a very sore Nancy Rapoport.

The NYT's Misapprehension of the Role of Law Firms in M&A Deals: Law Firms Don't Talk to Boards, Lawyers Do

Posted by Jeff Lipshaw

I was bemused by the shallow analysis in the "Dealbook" column by Andrew Ross Sorkin (right) in the New York Times business section this morning ("When Conflicts Arise, Lawyers May Be a Source").

It's not completely clear, but I think the point of this column is to suggest another reason why the well-publicized alleged conflicts of investment bankers firms (i.e. representing multiple parties; wanting M&A fees; simultaneously doing M&A work while doing "buy-hold-sell" analysis) should also be imputed to the Wall Street law firms with big M&A practices.

Here's Mr. Sorkin's hypothesis (I think).  A public company agrees to a private equity buyout arranged by an investment banker like Merrill Lynch or Citigroup.  The board meets over a period of time, in accord with its duties under Van Gorkom, Revlon, Unocal, and the myriad of Delaware cases that defines the board's obligation in connection with the sale of the company.  There are lengthy presentations by the company's management and the investment bankers.  The lawyers expound at length on the fiduciary obligations of the board, but it's all a show because they are going to say that it's okay to go forward with the deal.  Nobody on the company side, including the board members who continue to serve in the "post-Enron" "post-Sarbanes" environment, or the general counsel, really does any thinking at all, being content to be able to say that because they relied on the advice of their advisors, everything is copacetic.   And the lawyers from Wachtell, or Skadden, or Weil, or whomever, are saying go ahead because the big investment banking firms are their clients as well (in other transactions as to which there is no conflict under the PR rules, or as to which, by and large, there has been disclosure even if there is no technical conflict) and the investment banking firms want the lawyers to approve the deal.

Hooey.  I'm not saying that well-advised board can't make mistakes.  I also know almost nothing about the specifics of the Zell-Tribune deal that sparked the column.  I do know that one of the toughest calls for lawyers and boards is the issue of proving that the board maximized shareholder value in a Revlon situation (where the company is or will be in play) when the bid in front of you appears to be pre-emptive, and may even be conditioned on a "no-shop" agreement with some kind of fiduciary "out" if another bidder appears after announcement of the deal.  In the vernacular, you have a bird (and a quite tasty one, at that) in the hand, and sometimes the law looks like you have to let the bird go in order to prove that it's tasty (actually, the analogy at this point is backwards because you are letting the bird go to see if another bird thinks your hand is tasty, but what the hell, reporters don't need precision, so why should I?).

The one thing that I feel pretty sure about is that there wasn't a single mindless automaton sitting in the Tribune board meeting digesting all the information.  I know from my own experience as a public company general counsel that, in the midst of the consideration of a public company deal, I was on the phone almost endlessly, not with some noumenal entity like WeilSkaddenKirklandSidleyWachtell, but with a real human being with a name, whom, if I thought for one second had an interest other than complete, total, experienced, knowledgeable, nuanced, wise, loyal, cautious but realistic advice to the board (and the shareholders), I would have fired in a heartbeat.

As far as I can tell, there isn't a single fact cited in this column to suggest any GC would do otherwise.  Of course, no reporter has ever witnessed a vigorous board debate, so it can't have happened.

Anonymity, Chatboards, and the Imus Defense

Posted by Jeff Lipshaw

Both of my blogging partners here at LPB have offered up views on the Boalt-Hastings situation.  I don't feel qualified to comment on the likelihood vel non of an applicant's passing character and fitness muster.  I do, on the other hand, have a moderately strong feeling about the anonymous trash-talking culture on chat boards generally, particularly in light of the comment from one reader (who, I should note, had the courage to sign his name to his comment).

There is an equivalent to Xoxo in the corporate world, and it is every public company's Yahoo! Message Board.  The Yahoo! message boards were, I assume, originally meant to be places where investors or traders could talk about the stock. They quickly morphed into virtual water coolers or, worse, bathroom stall walls, where you might find the occasional bit of investment talk (more likely, ignorant day trading garbage when it was anything), but more likely some combination of current disgruntled employees and former disgruntled employees, with a strong flavor of juvenile (almost always male) locker room idiocy.  It was no-holds-barred, and I used to advise our most senior management that it pretty much came with the territory.  But every so often you would get just awful misogynistic or homophobic or anti-whatever directed at people within the organization whose pay grades just couldn't possibly include taking that kind of abuse.

And the sine qua non, in my view, was the anonymity.  Moreover, if anybody objected, on line or otherwise, the response from knuckleheads on the message board (anonymous, of course) would be that nothing could be defamatory, because, as the commenter observed below for Xoxo, nobody would take seriously anything written on a message board.  That, of course, is something like a cross between puffery and the Imus defense - first, it can't be serious because nobody would ever read that forum looking for the truth and, second, we are equal opportunity "phobes" and so nothing we say really matters notwithstanding its impact on others.  Moreover, there really isn't a way to create deterrence because no rational senior executive is going to waste the shareholders' money pursuing an anonymous knucklehead (and simply stirring the publicity pot to boot), and no abused employee wants to endure the continued pain.  (It's interesting as well to read the message board squawking when the rumors start that the company is tracing the postings back to company computers - as though it were Big Brother violating an inalienable right to "express oneself.")

Advice to law students:  anonymity is a neat way to avoid accountability.  But as a lawyer (and a law student), you are accountable just about 24/7.  It goes with the privilege.   

McGowan and Wendel on the Torture Memos

Posted by Jeff Lipshaw

I have been remiss in not linking to a "dialogue" between two of my favorite thinkers (and people), Brad Wendel (in this corner) and David McGowan (in that corner) over at Legal Ethics Forum.  I put the "dialogue" in quotes because Brad posted a note some weeks back on whether the Minnesota Law School could consider the "competence" of Robert Delahunty (who was being considered for a visiting professorship) in connection with the infamous "torture memoranda."  David has responded that there is in fact a colorable issue of interpretation of the Geneva Convention as to which any view of competence must be agnostic.  He suggests there is a problem of a self-referential loop in defining competence by what lawyers do, and, I think, accuses Brad of moving from the "is" of description - most lawyers would object to this - to the "ought" of a normative view - the majority is correct.   But Brad hasn't responded, so there really hasn't been much dialogue.

I was particularly intrigued by these paragraphs of David's post:

2.  Brad recognizes that this theory has to incorporate a theory of interpretation. One cannot tell evasion from avoidance, or from a good-faith conclusion that a law does not apply, without knowing how laws are supposed to be read.  He thinks the text of a rule often does not answer questions, particularly in “hard” cases. Thus, interpretation must aim at “recovering the spirit, purpose, or normative background underlying a set of textual rules, not merely the meaning that the textual expression of these norms might plausibly bear.” Toward this end, interpretation is dynamic and necessarily requires reference to “an interpretive community of lawyers, judges, and scholars that is constituted by fidelity to law as a cooperative social enterprise.”

3. Brad’s theory plays favorites among interpretive methods.  He rejects the view that interpretation is, almost by definition, a search for the intention of an author.  He rejects more grammatical notions such as “original public meaning originalism.” Both these theories see interpretation as having a fixed reference point; they reject the dynamic interpretation he posits as an element of competence.  They reject the notion that meaning comes from an interpretive community, at least insofar as that idea means more than some sort of “public meaning.”

4.    Brad justifies his theory on the ground that it promotes settlement, which is good.  But why should settlement be better promoted by a dynamic theory than one with a fixed reference point, such as some flavor of originalism? Even if, as sometimes will be the case, no original meaning can be found it does not follow that it is incompetent to try, especially when trying might force change to go through recognized procedures rather than (unsettling) judicial ukases. (To be clear, I am not an originalist; my use of it here is to make a point about Brad’s theory, not to defend it as such (I am a legal-process purposivist).)

I will throw in another perspective.  The "debate," as David has framed it, is over the criteria by which we can determine that a lawyer's interpretation (in advocacy) of a text is competent.  I have just started into John Searle's Speech Acts, and his initial discussion is to fend off a particular criticism of concepts (in Searle's case, analyticity of propositions and synonymy of words; here the equivalent would be competence of interpretation):  the critics contend that these are not helpful because we cannot establish good criteria for classifying borderline cases (here it would be between competent and incompetent).  The interesting paradox Searle observes is that we are able to accept or reject criteria only when we have a pre-supposed notion of the concept they are supposed to illustrate, meaning that - what? - we already have some knowledge about the concept before we begin to use language to define it.

The concept at issue is the one Brad mentions:  "the objection is that a lawyer who simply acquiesces in a client's demand, where the client has no legal basis for its proposed course of action, is failing to carry out the fundamental professional obligation of providing competent, independent, candid legal advice and to refuse to assist the client in an illegal course of action."  We can only view a particular interpretation of a text (whether a "dynamic" interpretation or one from a "fixed reference point") as borderline competent if we have a notion of competence that precedes this particular debate.  I think David is arguing (and I'm sympathetic to it) that we have a concept of competence that precedes any attempt to define it by criteria of interpretive methods.

When this is over, who between these legal ethics heavyweights will still be standing?

UPDATE:  Now the battle has been joined!  See Brad's response:  Wendel on McGowan on Wendel on Delahunty.  The thrilla in Manila!

Peeps are one thing, but nothing beats the Rice U. T.W.I.N.K.I.E.S. experiments!

Posted by Nancy Rapoport.

Alan and I are on the same page when it comes to Peeps (and probably to our own peeps, as well).  On my blog, I've also included a post on experiments on Peeps and on Twinkies--the latter done by students at my beloved Rice University.  Little did I know that there's a whole subculture on Peeps Dioramas, including examples here, here, and here.  I'm sure that there's a law review article about all this somehow....