Legal Profession Blog

Lipshaw's book on legal reasoning--and beyond--is now published

We are pleased to announce good news about our founding co-editor Jeff Lipshaw: Routledge has just published his book Beyond Legal Reasoning: A Critique of Pure Lawyering. It takes on the cramped view of lawyering and legal argumentation that is traditionally taught in law school, especially in 1L classes. The publisher writes:

This book offers an avenue for getting beyond (or unlearning) merely how to think like a lawyer. It combines legal theory, philosophy of knowledge, and doctrine with an appreciation of real-life judgment calls that multi-disciplinary lawyers are called upon to make. The book will be of great interest to scholars of legal education, legal language and reasoning as well as professors who teach both doctrine and thinking and writing skills in the first year law school curriculum; and for anyone who is interested in seeking a perspective on ‘thinking like a lawyer’ beyond the litigation arena.

Keep an eye on his SSRN author page, as he will soon post the Preface as an excerpt. And from the press's bio page, we learn that his middle name is Marc. Congrats, Jeff! [Alan Childress]

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.

The blue squiggly line, Part 2

Posted by Alan Childress

Recalling Jeff's recent run-in with the endless do-loop of the blue squiggly line of apparent grammar correction from Office 2007....  TEST:

What is wrong with this sentence?

The Court may one day face the question of why a homosexual couple, professing deep mutual affection and willing to assume the requisite legal obligations, should be denied the pleasure, the legitimacy, or even the tax benefits of being married.

According to the omniscient and highly political blue squiggly line from Microsoft, it is the lack of an S in the verb couple.

One little letter changes a lot of what I think the author intended, though maybe he was just crass and clueless enough to wonder indeed why homosexuals couple.  Reminds me a little of the one misplaced comma that changes meaning:  "Call me, Ishmael."  In any event, I hope the Court faces that question soon.

My "Dean Speech" on the Future of the Legal Academy

Posted by Jeff Lipshaw

The always insightful and interesting Howard Wasserman (FIU, left) provoked a discussion over at PrawfsBlawg on "student centered" teaching that, in the comment thread, turned into that ancient debate about all those theorist law professors at odds with their practical minded students.  I posted a comment, responding to "Vladimir" and "BL1Y", that I thought was worth re-posting here.  I think, as a long time practitioner AND law professor (me) interested in highfalutin' theory (that is, given my odd background, I think I could teach a jurisprudence class, a trial skills class, and a transactional skills class), I have some credibility on both sides of the issue.

How the legal academy came to its present configuration wasn't the result of some logical exercise, but a matter of historical happenstance. That's not uncommon. Most intractable social and political realities arise that way (see Northern Ireland or Israel-Palestine). The reality now is that you are both correct in your fundamental observations: there IS a gap between what most law students want (unless they go to Yale) out of their educations, and what most law professors want out of their careers. It may well be that something like the financial crisis of the last couple years, and the shrinking of big law firms engenders a complete restructuring of the legal academy into a Ph.D. like "department of jurisprudential studies" with its place in the College of Arts and Sciences, and more trade school like professional schools, but I doubt it for two reasons that undercut both polar positions.

1. Law professors can't merely be theorists and have their gravy train survive. What allows so many law professors to engage in theory is the fact that their students who have little such interest fund the theoretical pursuit. First, law schools are notorious cash cows. When is the last time you heard of anyone organized a proprietary or for-profit sociology department? The cost of providing the education, unlike in the hard sciences or med schools, is relatively low compared to the market price of the tuition. Second, it's the salaries in private law firms that by and large set the benchmark for law professor salaries. Even if you take a pay cut to move into academia from the big law firm that is the typical immediate pre-professor job, you aren't getting paid like an assistant professor in the English department.

2. Law students don't REALLY want to be trained in the legal equivalent of the barber college or truck driver school. While law students may get frustrated with the theory often foisted upon them by their professors, the present paradigm in the academy (and, honestly, this preceded the influence of US News, because the elite schools in US News were the elite schools when Bob Morse was still wearing short pants), they show over and over again that they are significantly influenced by the brand of the law school, regardless of the specifics of the pedagogical program. And the brand, as the institution of the legal academy has developed, has a lot to do with all that theoretical stuff law professors are churning into law review articles. I'm not arguing that is good or bad (although I wouldn't be a law professor just to teach; it's the theory that floats my boat after all those years of practice); it's just the reality. Seriously, tell me that a rational student, faced with the choice of Stanford or UCLA, with all those practice-challenged theorists, or an excellent "skills-focused" third or fourth tier school, and no significant difference in tuition (see point 1) (and maybe not even then, but that's an interesting econometric question), wouldn't choose Stanford or UCLA?

My "dean speech" (that nobody has asked me to give) is that this is an intractable polarity that the profession is simply going to have to manage by way of leadership that provokes empathetic perspective at both poles. The poles aren't coherent, and there is no rule of nature that says they have to exist, much less coexist. But they can, just like lots of polarities, continue to coexist. Faculties simply have to make concessions to the concerns and needs of students or their gravy train is going to disappear; students and alumni are going to have to acknowledge the driving forces of academic prestige and advancement, or they are going to lose that patina (and brand, and earning power) that comes with a law degree other than from ITT Tech, DeVry (which owns a med school on the island of Dominica, "a lush, classically Caribbean environment"), or the University of Phoenix, all of which would be perfectly capable of offering what BL1Y wants (InfiLaw already does).

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.

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Welcome to the Blogosphere: Michigan State Bar Blog

Posted by Alan Childress

Just opened and already clever, the blog of the state bar of Michigan offers "comment, news and issues of interest to Michigan lawyers" plus really to many of us not so blessed.   Why blog when you cannot legally take positions except on core legal profession matters?  Well,

[W]ho better to compile a daily quick summary of news and observations on issues of immediate interest to Michigan lawyers than an organization that has a close and constant view of both the national picture and local and specialty bars in Michigan, as well as of the work of the Michigan Supreme Court, legislature, and governor’s office?

One of the first posts, Score One for the Maize and Blue, describes an exchange in the U.S. Supreme Court that actually must touch about five of Jeff Lipshaw's sweet spots:  the oral argument...

...piqued the interest of the lexophiles on the Court when he described a Justice Kennedy hypothetical as a valid issue for future cases but “entirely orthogonal to the issue at hand.”

Roberts: “I’m sorry. Entirely what?... What was that adjective? I liked that?"

Scalia: “I think we should use that in the opinion…or the dissent.”

Of course, we in Michigan all know that orthogonal means “at right angles,” having walked across the orthogon on campus many times.

My own sweet spot is hit when imagining C.J. Roberts saying the above in the droll southern voice of Fred Gwynne:  Say what?  The two what?  Did you say yoots? 

Fred was actually a Harvard grad playing a Yale grad.

Lend to Family...Really?: A Critique of Some Weird Financial Advice and an Aristotelian Lesson

Posted by Jeff Lipshaw

Somebody had ripped my gym's Time, the one with Glenn Beck on the cover, to shreds, so I was reduced to reading the October 2009 edition of Money or this month's edition of Club Management.  I went with the Money, and read an article (pp. 25-27) that made me wonder what kind of financial planners and economists they are hiring over there.  Also, since I've been giving financial advice in the blogosphere anyway, why stop now?

The article says that lending to relatives could be a sweet deal.  Son can only get a 9% interest on a $100,000 home equity loan (for you finance rookies, that's one secured by a second mortgage on your house).  Dad has some money just sitting there earning 1% or 2% in a money market account or savings account.  So he lends $100,000 to Son at 6% and everybody is happy.

Wait a minute.  Now, in fairness, the author lists several cautions, but misses the most important ones.  I often criticize welfare economics consequentialism that goes to one extreme in assuming that every perception or value or duty held by an individual is ultimately a matter of utility (read some of the early Posner on rational actor sex and love), even if the measure is somewhat difficult.  That is, in that view, people don't engage in charity out of altruism; they do it because they get some kind of material, psychic, or other benefit from it.  This odd financial advice from Money (of all people!) goes to the other extreme, and fails to put ANY cost into the equation for the effect of love, harmony, conflict avoidance, divorce, mental anguish, public embarrassment, or the like when you lend a lot of money to a relative, and it's not getting paid back.

For example, nowhere does it discuss getting security for the loan.  The bank was willing to lend at 9% AND TOSS SONNY OUT OF HIS HOUSE IF HE DIDN'T REPAY!  Dad is lending at 6% on an unsecured basis?  Or even if he takes a second mortgage, is he really going to foreclose and evict his grandkids?  And we haven't done anything yet to put a cost on the tension you can cut with a ham carving knife (unless it's Honey Baked Spiral Sliced) at Christmas or the matzoh kugel ladle at Passover when Son and the spouse and kids went to Disneyworld the week before and said, "oh, we'll pay you at the end of the summer."

The point is that there are costs that are hard to measure, and so Dad's real cost here isn't $100,000 and his real return isn't 6%.  It's something a lot more than $100,000, and that reduces his effective yield on the money substantially.  It's NOT a sweet economic deal for Dad unless none of that peace, love, and family harmony stuff means anything to him.  I say this as a child who borrowed from parents, and as a parent who stands prepared to help out his children:  if you think of that loan as anything other than a contingent gift, you are smoking the drapes.

You know what?  I don't think the truth about whether those intangible can be reduced to money lies at either extreme - it's probably somewhere in the middle.  Aristotle* would be proud of me, I think.

* That's Larry Solum's Aristotle, not Larry Solum.

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!)

Liturgy, Heresy, and Rawls: A Yom Kippur Meditation

Posted by Jeff Lipshaw (practicing without a license).

I'm not in synagogue.  I have come to the point in my life where I pick and choose my spots.   Last night, the Touro Synagogue in New Orleans had a substantial attendance for the Kol Nidre services, and the voice of Cantor Seth Warner was appropriately spectacular.  I attend at least one service each High Holy Day if for no other reason than to hear my favorite piece of liturgical music, the Max Janowski setting of Avinu Malkeinu.  (This is the long version - beginning with "Avinu Malkeinu, sh'ma koleinu," available on CD with Jan Peerce doing the honors, and is not to be confused with my second favorite piece of liturgical music, the setting of the last piece of the prayer "Avinu Malkeinu, khaneinu v'neinu," a lovely version of which is available on the Western Winds recording of The Birthday of the World, Part II:  Yom Kippur, narrated, in goosebump-raising manner, by Leonard Nimoy.)  When I bought the Jan Peerce CD several years ago, I was astounded to learn that the Max Janowski piece was written in the 20th century, by the man who served as the music director of K.A.M. Isaiah  Israel Congregation of Hyde Park, Illinois from 1938 until his death in 1991.  Yet it is, at least in all the synagogues and temples I've attended, a cantorial canon, notwithstanding its relatively recent composition.

This is a public confession (if I were really clever I would do it as an acrostic in the style of the ashamnu prayer) of a life-long discomfort with the concept of worship.  As is obvious to anyone who has slogged his or her way through one of my pieces (in the words of Scott Turow in One L on the subject of reading cases, it's like stirring concrete with one's eyelashes), I can find elements of Kabbalistic mysticism everywhere, including contract law.  But the ultimate conception of God in the Kabbalah is actually a recognition that the minute God is reduced to a human conception, it can't be God.  The best language can do is the Hebrew Ein Sof -- there is no end.  Getting in touch with that sense is called kavanah.  The great Jewish scholar and philosopher Abraham Joshua Heschel wrote a lovely book called Man's Quest for God, in which he tries to reconcile the goal of kavanah with the far less inspiring aspect of worship known as kevah, or fixed prayer.  (Though kavanah and kevah are polarities, if you just wait for kavanah, instead of working at it in kevah, you probably won't get kavanah either.)  I can hit my moments of kavanah, but not in the talking section of the sanctuary (more common in Conservative and Orthodox services), and certainly not with the male-centered anthropomorphic reductions of Ein Sof that constitute the liturgy.  But if I don't think Adonai ("My Lord") for the unspeakable tetragrammaton name of God, and consider the unreducible emanations of mystery in the world (like the emotional zenith provoked by Max Janowski's juxtaposition of notes and chords), I can at least get a sense of it.

More of this random mumbling below the fold.

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Double Entendre Headlines

I'm blogging up a storm here, and the fact that the first hurricane since we moved to Boston is on the way, I can blog about a storm.  There are rip tide warnings out for the Cape Cod, Martha's Vineyard, and Nantucket beaches.  Plus there are stories in the paper here about New England as presidential summer hangout (the Obamas are on their way to the Vineyard, and the Clintons were there earlier this summer).

But first, a digression.  A number of years ago, our daughter had a boyfriend named Max, who was an aspiring theatrical director in New York.  We also have a dog named Max who isn't always well-behaved.  One day, my wife called me at work and said "Max got into the New York Times."  I said, "Is that about Max the human and a good thing, or about Max the dog and a bad thing?"

Given the first paragraph, I had a similar reaction to a hypothetical headline "Bill Spares Martha's Vineyard," (the actual one this morning was "Bill Spares Bermuda").  I leave you, dear reader, to figure out the double entendre.  [Jeff Lipshaw]

Thinking About the Financial Crisis - It's Scary When We Don't Know What We Don't Know

Posted by Jeff Lipshaw

At the end of April, I attended a fascinating day-long symposium organized by fellow blogger Dave Hoffman and two of his colleagues at Temple, Jonathan Lipson and Peter Huang, on issues of complexity arising in the current financial crisis. One of the questions that kept occurring to me was the context of the complexity issue - what exactly were we trying to fix, if anything?  My analogy was this:  if law is a "science," and something about the financial crisis (whether complexity or something else) reflects a disease, then what is the relationship between what we know about the disease and the regulatory medicine we would want to prescribe?  I liken financial boom-and-bust to bipolar disorder - is there a regulatory equivalent of lithium that we are assured will tamp down the peaks and valleys?  And even if there is, do we want to prescribe it?  Maybe we like the booms enough to bear the busts!  There's a good chance Tchaikovsky and Van Gogh were bipolar - would we have their art if they had been medicated?

Anyway, when I get to thinking, I usually get to writing (particularly when ensconsed in our Michigan house). This seemed like grist for the mill on one piece of a longer work on the difficulties in forward-looking judgment, namely, the difference between looking backward and assessing causation as a matter of attributing blame, and understanding what is going on as a descriptive matter sufficient to make a good forward-looking decision in real time under conditions of significant uncertainty.  The result is The Epistemology of the Financial Crisis:  Complexity, Causation, Law, and Judgment, which I've just posted on SSRN.  (I apologize for the use of the word "epistemology" but I like it.)  Here is the abstract:

The focus on complexity as a problem of the financial meltdown of 2008-09 suggests that crisis is in part epistemological: we now know enough about financial and economic systems to be threatened by their complexity, but not enough to relieve our fears and anxieties about them. What marks the current crisis is anxiety that the financial world has evolved to the point that there are hidden structures, like concentrated "too big to fail" institutions and mechanisms, or like credit default swaps, that have widespread and adverse downsides. I propose an analogy between medicine and law in the sense of "regulatory technology." If bubbles are the disease, then the analogy is to bipolar syndrome - exuberance, or even a little hypomania is okay on the upswing, but true mania is bad, as is the resulting swing to depression. Good regulation, then, would be something like lithium, which keeps us on an even keel. The question is really whether we understand the forces well enough to regulate them. Regulation is a function of prediction; prediction is a function of observed regularity; observed regularities invoke the problem of causation; causation raises the issue whether the process being analyzed is reducible. Complexity in itself relative; what seemed inordinately complex to ordinary people, much less deep thinkers, in 1787 or 1887 might not seem at all complex to us now. What we are dealing with instead is a crisis of confidence in those who purport to be experts in what we cannot fathom merely through common sense. The conundrum, of course, is that if it takes an expert to see the problem caused by complexity, how are we, possessing merely common sense, supposed to do anything but rely on their judgment? The epistemological crisis arises from our own judgments to rely on, believe in, trust, or have faith in, that judgment.

Congratulations

Congrats and further best wishes to Jeff and Alene Lipshaw, who are now celebrating their 30th wedding anniversary (?!!) in Santorini, Greece.  I know they are having a good time.  And we are happy for them!  [Alan Childress]

UPDATE:  Thanks, Alan - this is this year's alternative to the Law & Society confab in Denver.  Damn!  And who's the dorky guy with the beautiful woman?  [Jeff Lipshaw]

El Dorado, the Cusp, and Cost-Benefit Analysis

Posted by Jeff Lipshaw

Several times over the years I've quoted Robert Louis Stevenson:  "to travel hopefully is a better thing than to arrive."  I decided to find the source of the quote, and it is in the essay "El Dorado," the sixth in a book called Virginibus Puerique, published by Scribner in 1904, and now in the public domain.  As is often the case, it turns out the entire quote and, indeed, the entire essay, is rewarding.

The essay is a meditation on the irony or paradox of our pursuits: "we all shoot at the moon with ineffectual arrows," knowing that the goals we attain are not really the end, even though we work toward them as if they were. 

A strange picture we make on our way to our chimaeras, ceaselessly marching, grudging ourselves the time for rest; indefatigable, adventurous pioneers. It is true that we shall never reach the goal; it is even more than probable that there is no such place; and if we lived for centuries and were endowed with the powers of a god, we should find ourselves not much nearer what we wanted at the end. O toiling hands of mortals! O unwearied feet, travelling ye know not whither! Soon, soon, it seems to you, you must come forth on some conspicuous hilltop, and but a little way further, against the setting sun, descry the spires of El Dorado. Little do ye know your own blessedness; for to travel hopefully is a better thing than to arrive, and the true success is to labour.

Yesterday we had the pleasure here at Suffolk of listening to Doug Kysar (Yale, right) speak elegantly about the book he has under contract with Yale University Press, Regulating from Nowhere: Environmental Law and the Search for Objectivity.  It's a critique of the predominant cost-benefit approach to environmental regulation, not so much to propose an alternative solution, but instead to suggest that there is a seed of brute explanation in the quest for social scientific objectivity.  While there's much food for thought for the environmentalists, there's also something here for jurisprudes.  It struck me that Doug is another "philosopher of the cusp," struggling to say that for all that social science (including welfare economics) aspires to objectivity, there's something missing.  As I said a few days ago, we who are sufficiently empiricists (in the philosophical, not the methodological, sense) acknowledge that all we are ever going to "know" is what we can observe and measure and record, and recoil at human claims to knowledge of the supernatural.   Yet we feel, as Charles Taylor says, "a sense of unease at the world of unbelief: some sense that something big, something important has been left out, some level of profound desire has been ignored, some greater reality outside us has been closed off."  

I've been studying Michael Moore's new book, Causation and Responsibility, and thinking about the strange picture we do indeed make to our chimaeras.  Whether it's the universal moral grammar of John Mikhail, the evolutionary determinism of Joshua Greene, the naturalized jurisprudence of Brian Leiter, the strange anti-metaphysical metaphysics of Dworkin's claim to have divined objective moral truths, I'm skeptical of any claim (or apparent claim) to arrival.  The problem with "naturalist" or "empiricist" or "consequentialist" responses to deontology is that, to my mind, they aim at a straw person.  I'm not prepared to speak for God, don't know if there is a God, am skeptical if there is a God that it's anthropomorphic.  So I'm not suggesting that some ethereal or spiritual brute explanation substitute for scientific or otherwise rigorous inquiry.  Neither, however, do I accept what I read as Leiter's "burden of proof" argument; that naturalism is the only acceptable approach to what's real and the onus on demonstrating otherwise is on whomever is a non-naturalist.  In the face of the continuing evidence that we have paradox in the world - the inexplicability of consciousness (is it reducible or not?), problems of recursiveness and infinite regress, the limits to self-contained mathematical systems, and others - it seems to me just as much a matter of faith that science will solve the problems as that those appearing most intractable will ever be solved. As Doug pointed out, consequentialism in the extreme (say, wholly utilitarian approaches to the value of life) leads to absurdity (lots of wealth but no living people to spend it).  Yet on the other end of the philosophical spectrum, so do extreme exercises in reason (called dogmatism or fanaticism).

We on the cusp sense intuitively that microeconomics gets a lot right; yet we read a passage from Derrida or Robert Cover, and while recoiling from complete indeterminacy or skepticism or post-modernism, nevertheless understand there's something big that science or economics leaves out.  (This leaves us unlikely ever to appear on Hardball or The Situation Room, and quaking at the mere prospect of being interviewed by Stephen Colbert.)  We just shy away from soundbites like Moore's "In truth, I find libertarian metaphysics to border on the unintelligible. . . .  The will as uncaused causer is a very strange idea.  How can there be an event that cause other events yet is itself not subject to causal influences by earlier events?"  (p. 272)   (So much for Kant!)  Well, that's the mystery!  We don't know if our sense of free will is shaped environmentally or as a matter of evolutionary adaptiveness.  Without rejecting that there can be objectivity, we're just skeptical that claims to objectivity about ourselves (whether micro- or macro-) aren't one more conspicuous hilltop on the way to an unattainable El Dorado. 

It's hard to write in the legal academy and not have some prescription at the end (see Schlag), but Doug Kysar's was, it seemed to me, appropriately humble.  It simply asks that we focus more on traveling hopefully than operating on the illusion we've arrived.

Law Dog and Other Curiosities

Posted by Jeff Lipshaw

Max the Law Dog and I went for a walk today.  Here's Max just after marking the Harvard Law School. I  believe his comment was "nice shrubs."

Just before we got to the Law School, we passed by the inspiration for Peter Jackson's conception of Sauron's Dark Tower, Barad-dur, in the evil land of Mordor.   Compare Memorial Hall (right) to the model used in making the movie (below left). 

Well, they sort of look the same. 

And finally, to complete the photo gallery, we have James Lipshaw, working hard at proofreading the Teacher's Guide to Ribstein & Lipshaw, 4th Edition (appropriating the office of Professor Carter Bishop).

My apologies to any of you who tuned in to hear about something significant.

Coming to Terms with a Dorky Name

Posted by Jeff Linden Tree

It's not easy having a dorky name.  I mean, there's no way that Lipshaw fits on the back of a sports jersey.  I feel better today, however, even though it came at the expense of being mocked by my son, who told me he had already told me this. 

Where do all the "Lip" names come from?  Lipson, Lipski, Lipciowa, Lipsey, Lipschitz, Lipstein, Lipinski.  It turns out that "lipa" is Slavic for linden or lime tree, and is the root of all of these related surnames and place names, like Leipzig and historic town of Liebeschitz in Bohemia (now the Czech Republic).

I feel better now.   But I still envy Mike Madison.

Happy New Year!

Posted by Jeff Lipshaw

Over at Volokh Conspiracy, they are having a grand debate on whether Happy Holidays should or should not replace Merry Christmas.  One of the reasons I like Christmas going by is that we can all agree on Happy New Year!

From the Lipshaws, Happy New Year!  Thanks for your readership in 2008, and all the best in 2009 (it's gotta be a lot better than this past year)!

Beetles, Frogs, and Lawyers

Posted by Jeff Lipshaw

Several weeks ago, I was provoked (in a good way) by Usha Rodrigues' reference to Ronald Gilson's 1984 article on how transactional lawyers create value as the "reigning academic account."   I wrote a quick little essay and let it sit until this weekend when Gordon Smith reported on a clever quip from Professor Gilson about lawyers who become professors, and in the classic line:  "I resemble that remark."  I decided to update the little essay a bit and it is now on SSRN as Beetles, Frogs, and Lawyers:  The Scientific Demarcation Problem in the Gilson Theory of Value Creation.  Here's the abstract:

Recently, Ronald Gilson described a transactional lawyer turned law professor as someone who was a beetle, but became an entomologist. This is not the first non-mammalian metaphor used by an economically inclined legal academic to demarcate those who study and those who are studied. As Richard Posner so colorfully explained rational actors as they appear to economists studying them objectively: "it would not be a solecism to speak of a rational frog." In this short essay, I suggest that both say something about the prevailing view of theorizing that is entitled to privileged epistemic status in the legal academy. I assess Professor Gilson's classic 1984 article on value creation by lawyers in terms of its implicit claims to (social) scientific truth.

Massive Voting Problems in Cambridge, Mass.

Posted by Alan Childress

Blog post, updating regularly, here on how registration lists in Cambridge were incomplete and many voters were forced to vote "provisionally."  I already thought Cambridge was the heart of communism so this may be some indication of that.  Jeff reports that he and Alene voted without a hitch but the woman in front of them was unhappily redirected to the provisional pile.

In Louisiana, I received a text message last night on my cell phone telling me that due to long lines expected today, obama voters must wait till Wednesday to vote.

And seeing CNN right now, they just cannot get their heads around race (or past it).  They are interviewing black person after black person about voting for Obama.  It is as if a white person could not identify with him or see the historical moment.   The white voters are certainly not being interviewed about how they "feel" about this.  (It reminds me that during the convention the TV cameras always caught black delegates' reactions and ignored white ones, whenever black speakers spoke, as if Obama was the candidate for one demographic of the party.  Was it Chris Rock who said the cameras do that during Oscar telecasts?)   I honestly believe that most Americans, Democrat or Republican, are fairer and more mature about race than many in the media are, if only because keeping the racial-divide story going is such good entertainment for ratings purposes.  Why ask a white person (or a black one, for that matter) if they prefer Obama's tax policy or McCain's stance on Iraq?  Not a real story in their eyes.  Too boring.  Really it is appalling that many in the media just cannot see a vote for either McCain or Obama as about anything other than race.  I had hoped we'd gotten past that in the primaries, but apparently not.  Maybe someday, and maybe starting tomorrow.

Rankings, Accounting, and Gaming

Posted by Jeff Lipshaw

Fresh off the front page Wall Street Journal article this morning, friends Larry Ribstein and Nancy Rapoport nail the analogy between law deans gaming the USNWR rankings and accountants massaging the numbers to meet the quarterly estimates, so permit me a moment of "I told you so" when I see this quote:

As for the charge of “gaming” the system, Phillip Closius, former Toledo dean, who successfully used the part-time strategy to improve the school’s ranking, says:

U.S. News is not a moral code, it's a set of seriously flawed rules of a magazine, and I follow the rules...without hiding anything.

My discussion of the resemblance between models like USNWR rankings, and games like football or chess is posted on SSRN and will be coming out in this volume of the Cleveland State Law Review.  The piece is Models and Games:  The Difference Between Explanation and Understanding for Lawyers and Ethicists.  Here is the abstract.  Enjoy.

There is value for lawyers in thinking about constructs of rules as games, on one hand, or models, on the other. Games are real in a way models are not. Games have thingness - an independent reality - and they can be played. Models have aboutness - they map onto something else that is real for the sake of simplification and explanation. But models and games are not as dichotomous as the preceding claim makes them out to be. Sometimes models look just like games, and sometimes games can serve as models. Because models look like games, we may come to believe they are real - that the models have thingness rather than aboutness. People are prone to think some of the models they deal in all the time are real, like games, and perhaps even more real than the reality the models are supposed to represent. When that happens unreflectively in business, ethical and legal problems can ensue.

There is also a relationship between games and models as a way of thinking, and the position of the thinker as modeler, game creator, or game player. To engage in any of those acts is to use the legally trained mind to make sense of what is going on, and to act on it. But there are different ways of making sense, either by explaining or understanding, and it is not common in legal education to undertake the exercise of thinking about thinking, or theorizing about theory. I explore the consequence of confusing games and models in two contexts, financial accounting and contract interpretation, and consider the possibility of co-optation from models into games and vice versa. I conclude that practicing lawyers (or law professors) need to think about thinking itself or face the possibility of being misled by precisely the same context facing their clients. In short, lawyers need to be pragmatic ontologists.

Some Thoughts on the Bi-Modal Distribution from a Former Partner and Retainer of Partners

Posted by Jeff Lipshaw

Coming up for air after working on some other stuff, I finally had a chance to digest Bill Henderson's post on bi-modal distribution of starting associate pay.  I have some visceral reactions to the data, as well as some "the sky is not falling" thoughts about how things will play out.  This is all casual empiricism and seat of the pants theorizing, so take it for what it's worth.

1.  Bill's post doesn't talk much about industry consolidation, but there's no doubt that has substantially impacted the law business since I started at a big Detroit firm in 1979.  At that time, there was a big premium to working in a New York law firm - as I recall, as much as $10,000 a year.  This will sound quaint and somehow Great Depression-ish, but my offer letter in the fall of 1978 from Dykema promised a starting salary of $22,000, and I am pretty sure an offer from Cravath at the time would have been in the low $30,000s.  The gold standard of pay at the time was not as a lawyer, but as a consultant at The Bain Company, which was mainly a place for the JD-MBAs.  (I remember this because the starting pay was $44,000, exactly double my offer, but the word was you worked three times as hard.)  What Detroit (Dykema), Milwaukee (Foley & Lardner), Pittsburgh (Reed Smith), St. Louis (Bryan Cave), as exemplars, offered, even then, was a trade-off of life style for dollars:  billable hour goals in the 1700-1900 range, versus 2200-2800, lower cost of living, accessible suburbs, greater assurance of partnership (ratios then were 1:1 in the smaller cities, with the 4:1 or 5:1 leverage even then in New York.)

What seems clear to me is that the midwestern model indeed did not work, and the continued admission of partners created what one of my late partners used to rail about at partner admission meetings:  the creation of negative leverage by admitting so many people as equity partners.  The solution was growth, but organic growth opportunities are cyclical with the business cycles, and consolidation growth is the alternative.  And that's what we've seen.  DLA Piper may be the best example, as a decent firm out of Baltimore turned itself into a global powerhouse over the course of a few years (my late friend Jeff Liss being a major player in that strategy).  Dykema just swallowed up a medium-sized firm in Chicago.

My theory is there's less to distinguish the Am Law 200 now, and hence, less to distinguish in terms of non-monetary compensation, hence the trend to bi-modal distribution.

2.  I want to suggest the banking consolidation model as a prediction of the way the law industry will go.  Banks, like law firms, are natural consolidators.  It's largely a service business, the services are fairly homogeneous, and consolidation offers huge cost synergy opportunities.  But what happened with all the banks turning into Citis or Chases or Keys or National Citys is that market opportunities sprang up for local service oriented banks.  The "private bank" phenomenon is a response to that.  I used to listen to radio ads for a locally-owned bank in the Detroit area, Franklin Bank, that made this the focal point of its value proposition.  (I'm hearing something similar this summer here in northern Michigan from local pharmacies, particularly those that do compounding, as a reaction to the CVS-Walgreen's-Rite Aid-Walmart consolidation.)

As smart and ambitious lawyers get tired of the bureaucracy of the mega-firms (and more importantly, like David Boies, having fruitful and remunerative new business killed by a conflict!), my prediction is we will see a cycle of boutique firms that return to something like the market distinction of the late 1970s.  I can reveal here a not-very-hidden secret:  GCs of big companies know that much of what they purchase in legal services is fungible, and they can get quality work in Albuquerque or Nashville or Birmingham, Alabama or Jackson, Mississippi.

My faith in the corrective power of markets is not quite as ardent as my friend and about-to-be co-author Larry Ribstein (Ribstein & Lipshaw, Unincorporated Business Associations, 4th ed., to be available for the 2009-10 school year, get it while it's hot!), but I think that's where we are going (see Larry's observations on this business acting more like other capitalist businesses).  Like Larry, however, it's the debt that bothers me, and I second his historical observations on that score.