Archive for the ‘Law Practice’ Category

Lawyers: Don’t Trade on Inside Information!

posted by Lawrence Cunningham

In my corporations classes, I urge my students planning a career in corporate and securities law to resist the ubiquitous opportunities and occasional temptations to trade on the basis of material non-public information. I offer in terrorum encouragement by emphasizing that all trades are tracked and that enforcement authorities periodically review them for unusual patterns. Those are traced back to professional advisors, including law firms, having been involved in related deals. It is not difficult for authorities to catch these violations.

Along with dozens of others apparently caught up in the ongoing insider trading scandal at Galleon, today, an associate at the prestigious firm, Ropes & Gray, is alleged to have violated securities laws by using confidential information obtained from clients to profit in securities trades. Lawyers, as fiduciaries, who obtain material information through client representation, violate their fiduciary obligations and hence federal securities laws when they trade on it.  See United States v. O’Hagan, 541 U.S. 642 (1997).

Over at the Wall Street Journal blog, Ashby Jones is asking how common insider trading is among lawyers. This is obviously a difficult empirical question. I can add, however, that (a) in the four years that I practiced law at Cravath, Swaine & Moore, one of my fellow-associates engaged in this activity (with his brother) and authorities prosecuted him (in 1995) for it and (b) during the two years before that when I was a paralegal at Skadden, Arps, one of the associates for whom I worked did so (with his sister) and he was likewise caught (in 1990). 

In addition, the famous case embracing the so-called misappropriation theory of insider trading, United States v. O’Hagan, 541 U.S. 642 (1997), involved a lawyer—a partner at Dorsey & Whitney, representing Grand Met in its acquisition of Pillsbury, who generated nearly $4 million in unlawful trading gains from the knowledge.

I repeat to my students, past and present, and all lawyers: do not do this!

  November 5, 2009 at 3:50 pm   Posted in: Current Events, Law Practice, Legal Ethics, Securities Regulation   Print This Post   2 Comments

Shame on the Brits!

posted by Nate Oman

By temperament, I am not a particularly passionate person. Every so often, however, the world throws up an event of such mindless horror that even phlegmatic me is roused to ire. Chris Lund points out such a horror in this post over at Prawfs. All I can say is, “What the hell are their Lordships thinking over at the new Supreme Court of the United Kingdom?” Shame! Shame on you! Read the rest of this post »

  October 22, 2009 at 7:50 am   Posted in: History of Law, International & Comparative Law, Jurisprudence, Just for Fun, Law Practice, Politics, Weird   Print This Post   2 Comments

A Civil Procedure Curriculum Challenge

posted by Spencer Waller

I read with great interest Jon Siegel’s recent post on curricular reform and the thirty or so comments it generated. I don’t really disagree with his main point that law school is mostly about “acquiring the ability to acquire skills and knowledge.” But at the same time, I don’t spend that much time on personal jurisdiction and Erie in my civil procedure class and wanted to use this post to explain why.

I started teaching civil procedure during my time at Brooklyn Law School where civil procedure was a two semester five credit course. When I got to Loyola, civ pro was a two semester six credit course. Two years ago we moved to a one semester four credit course as part of a general reform of the first year curriculum. So I have now taught the course in just about every possible permutation.

I currently spend the first 2/3 of the course on the litigation process and about the remaining 1/3 on personal jurisdiction and Erie. I am probably in the minority on this and it’s hard to find a casebook that is set up the way I prefer.

I do it this way because of my belief that only a detailed study of the litigation process reflected in the FRCP can convey a deep understanding of the American civil justice system and its strengths and weaknesses. For better or worse, we have a system that (until very recently) has deemphasized pleadings and uses discovery to lay the groundwork for settlement or summary judgment for those cases that make it into the system and is increasing reliant on ADR for those cases that don’t. Of late, the Supreme Court has seemingly raised the bar on pleadings in Twombley and Iqbal and reinvigorated motions to dismiss as a more meaningful part of the litigation process. One cannot understand what we do, how we do it, why the rest of the world thinks we are crazy, what is changing, and what needs to be changed without a large amount of class time, which of necessity limits the amount of time devoted to personal jurisdiction and Erie.

All this is driven by my view of in most litigation the law is easy, but the facts are hard. Discovery is where the facts come in. If you don’t understand how parties marshal, present, and protect facts from their files, from the real world, and from the other side through discovery then the students leave civ pro (and possibly law school) without any real clue how our civil justice system works. Read the rest of this post »

  October 12, 2009 at 9:56 am  Tags: ADR, Civil Procedure, discovery, Erie, federal rules of civil procedure, litigation process, personal jurisdiction, pleadings, subject matte jurisdiction, summary judgment, Twombley  Posted in: Civil Procedure, Education, Law Practice, Law School (Teaching), Legal Theory, Teaching   Print This Post   5 Comments

What Does Veil Piercing Success Mean Anyway?

posted by Dave Hoffman

If you look at opinions, winning in a veil piercing case is pretty easy to define: did the court agree to pierce the veil, reaching through an entity to its shareholders. If you were inclined, you could model success at those terminal moments in cases, asking which factors (described in the opinions) correlated with courts agreeing to pierce.

There’s value in this approach, not least because opinions shape reality. But there’s a problem too.  Not only are opinions unrepresentative, but they come late in cases.  The result is an extreme form of selection.  It’s not clear (to me, anyway) what the null hypothesis regarding the effect of independent variables  ought to be for late-stage dispositions.

Dockets offer the promise of a different approach: asking which factors correlate with success or failure early in cases.  Further, assuming that adjudicated motions teach the parties about the strength of their cases, and that they settle strategically, we can even start to learn from the timing and incidence of settlement.

In this post, I’m going to relay some descriptive statistics about the veil piercing successes that plaintiffs achieved in our data. (I’m continuing to pull the data and some text from our paper.)  To those who are getting annoyed by all of these posts, I’m sorry!  I’ve been living with this project for a long time — I’m excited to finally share it publicly.

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  October 8, 2009 at 7:24 am   Posted in: Contract Law & Beyond, Corporate Law, Economic Analysis of Law, Empirical Analysis of Law, Law Practice, Law School (Scholarship)   Print This Post   2 Comments

Every Day a Legal Revolution: The ATL Effect

posted by Dave Hoffman

David Post argues that heightened perceptions of political extremism are a function of more coverage, not more extremism.

I call it the ESPN Effect – mistaking filtered reality for reality . . .  My very, very strong suspicion is that there has never been a time when there weren’t truly crazy people on all sides of the political spectrum doing their truly crazy things. Maybe 1% or so, or even 0.1% — which is a very large number, when you’re talking about a population of, say, 100 million.  They didn’t get through the filters much in the Old Days, but they do now.  All this talk about how extreme “the debate” is becoming – how, exactly, does anyone get a bead on what “the debate” really is?  In reality?

I wonder if the same effect is in play with respect to complaints about law schools and the state of the employment market.  That’s not to say that the former are effective or the latter anything but abysmal.  But the question is whether law schools are worse today at their core mission than they were a generation ago, or the legal job market materially different than it was in the last bad recession (1991).  One possibility is that they are: the academic turn in law school, and the outsourcing turn in practice, combine to make today just worse than yesterday.   I don’t buy the former claim – at all – but am open-minded about the latter.

Another possibility: Above the Law didn’t exist in 1991.  Neither did the clerkship notification blog.  Or the Prawfs thread on the academic market.  Or various law school boards. Each site provides tons of useful information, but may enable us to mistake filtered reality — it’s the end of the law as we know it – for reality – it’s bad, but it’s not distinctly or structurally bad.  Call it the “ATL effect”: all legal market news will seem more dramatic today than it did in 1990.  From bonuses to layoffs, every day is more special than the last.

  September 29, 2009 at 5:28 pm   Posted in: Law Practice   Print This Post   8 Comments

If you do one thing today…

posted by Dave Hoffman

Read the last few dozen posts at the Temporary Attorney Blog.  I doubt there are more than a dozen law professors who’ve done temporary document work, so it ought to be a real eye opener.  Especially now that the market has changed.  From a recent job-opening.

“Counsel On Call is currently interviewing attorneys with at least one year of solid electronic document review experience for a contract assignment in downtown Chicago. Must have worked as a litigation associate in a large law firm 2+ years. Experience with products liability litigation strongly preferred. Full time, requires a three month commitment. Top tier school and top 1/3 of class required…”

Wow.

  September 28, 2009 at 2:33 pm   Posted in: Law Practice   Print This Post   20 Comments

Professional Responsibility Meets Facebook, Another Oops the Bar

posted by Danielle Citron

Every year, my small section reads a New Yorker “On the Town” squib called “Oops” to kick off a discussion on care and professional responsibility in their legal careers.  “Oops” tells the story of a summer associate who, in 2003, mistakenly sent the following email to lawyers with whom he worked on a deal: “I’m buy doing jack shit.  Went to a nice 2hr sushi lunch today at Sushi Zen.  Nice place.  Spent the rest of the day typing e-mails and bullshitting with people.”  The summer associate signed  off the email: “So yeah, Corporate Love hasn’t worn off yet. But give me time.”  The summer associate meant to send the email to his friend.  Oops.

For a moment, let’s put aside the stark difference between the world (and law firm environment) facing the summer associates of 2003 and the one facing the summers of 2009 and turn to Sunday’s New York Times story “A Legal Battle: Online Attitude Vs. Rules of Bar.”  The Times talked about recent cases where lawyers do violence to their careers through their online activities.  Lawyers blog about judges:  one wrote that he thought a named judge was an “Evil, Unfair, Witch” and questioned the judge’s competence.  Another lawyer friended a judge on Facebook and later posted about his/her drinking and motorbiking.  The problem: the lawyer asked the judge to delay a trial because of a death in the family in the same week that the lawyer shared the drinking tales with his/her social network.  The lawyers in those cases have suffered serious consequences (the first is facing a reprimand from the bar, the second faced the wrath of his/her firm–the judge told the lawyer’s bosses what happened).

Now, the 2003 summer associate made a big mistake, but perhaps not on the same order as the lawyers covered in yesterday’s Times.  The summer associate had a slip of the finger perhaps, a hasty moment that changed the way those in his firm saw him.  But the lawyers arguably dove into the pool of their fate head first: one might say that they knowingly risked their careers and should suffer the consequences (to the extent the Bar desires and the First Amendment permits).  Social scientists like Alessandro Acquisti and danah boyd and legal scholars like James Grimmelmann offer an explanation for why people are so foolish online.  People write carelessly not because they have “a reduced sense of privacy” but because they felt anonymous.  As danah boyd explains, social network participants “live by ‘security through obscurity’ where they assume that as long as no one cares about them, no one will come knocking.”  They operate under the norm that people with no social connection to them “could look at your profile, but shouldn’t.”  They assume that only close friends are paying attention to their online activities.  All of this is to say that perhaps President Obama shouldn’t just talk to young people about the perils of oversharing online.  Maybe lawyers need the lesson too.

Wikimedia Commons Image

  September 14, 2009 at 3:58 pm   Posted in: Cyberlaw, Law Practice, Privacy, Psychology and Behavior, Uncategorized   Print This Post   3 Comments

Time for Law Partner Sabbaticals

posted by Lawrence Cunningham

Amid the deep recession, cyclical and secular trends point to sustained reduced demand for legal services. US law firms have responded by aggressively pruning the ranks of entering and young associates (as Michael Kang’s excellent co-op post today synthesizes).

They have given less attention to trimming at the partnership levels, due to greater difficulty renegotiating membership interests and draws. One way to enable trimming at the partner level without disrupting a firm is to reinvigorate the partner sabbatical.

Before the 1970s, this characteristic feature of academic life was a staple at law firms too. Since then, however, as the US practice of law changed from a professional calling to a business enterprise, the sabbatical faded. The dog eat dog world of contemporary law practice made such a policy unappealing at most firms. Partners worry they’ll lose their books of business and cede ground to their intensely competitive partners for leadership and remuneration within the firm. They are concerned that clients will drop them in favor of other partners or other firms.

Yet the law partner sabbatical has endured elsewhere, including in Canada and England, especially in City of London firms, and even among a handful of US law firms. The partner sabbatical also was periodically revived at some firms throughout recent decades, though usually amid economic booms. Firms dangled the sabbatical as a recruiting and retention device, absorbing the high costs of funding partner draws when partners were not billing fee revenue.

In the current and coming environment, those sabbaticals must be offered on less generous terms, with partners sacrificing draws in exchange for relief from the daily grind.

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  August 13, 2009 at 8:30 am   Posted in: Law Practice   Print This Post   One Comment

The End of Summer (Programs)

posted by Michael Kang

On-campus interviewing is already underway at many law schools, and law students are obviously worried about their job prospects this fall. According to NALP, law firms had already cut back their hiring dramatically last year compared to the year before. Based on early feedback from law students and firms so far, as well as the number of firms that are forgoing summer programs altogether for 2010, it doesn’t look good for 2Ls interviewing on campus right now.

Assuming the economy bounces back, law firms will need to ramp up hiring to cope with the increased workload, particularly after laying off many associates, but it seems likely that law firm hiring at law schools will be very different. The economic downturn is a shock to the hiring system that has been in place for decades now—heavy recruiting of 2L students into lavish summer programs, with a high percentage of those students receiving permanent offers during the following fall of their 3L year. Right now, some firms are simply doing away with summer programs for the time being and freezing entry-level hiring out of law schools. Almost all big law firms are limiting the size and duration of their summer programs, and many are deferring the start date by six months to a year for new permanent associates who receive offers out of their summer programs.

I wonder how many of the new changes to law firm recruiting and summer programs will be permanent and remain after the economy bounces back.

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  August 13, 2009 at 5:14 am   Posted in: Law Practice, Law School   Print This Post   3 Comments

Howrey Simon Embraces Apprenticeships

posted by Deven Desai

As I have written before, a teaching law firm seems like one way to bridge the gap between what one learns in law school and the on-the-job training that no professional school can fully offer. I analogized the change to a medical residency and some commentators reminded me that England has a system of apprenticeship which (some noted that medical education is also working on its problems which does not surprise me but is a topic for a different time). Now it seems that Howrey Simon is embracing the apprentice model. According to the National Law Journal:

As part of the two-year program, associates will spend the majority of their time at the litigation-heavy firm attending training seminars where they will learn the practical skills of lawyering, said managing partner Robert Ruyak in an interview.

During their first year at the firm, associates will take classes on legal writing and research and will work on pro bono projects to give them hands-on experience without charging clients. In the second year of the program, associates will be embedded at client sites for several months at a reduced billing rate of between $150 and $200 an hour. They will also continue to take classes on litigation skills such as trial tactics, cross examination, and mediation and arbitration.

Although this move is part of changing compensation at the firm, the program seems promising. Associates in the program will make less but the program will also cost the firm quite a bit. If I were graduating law school right now, this program would certainly catch my attention. In addition, I would bet that this program will create a certain loyalty from the associates. Some will of course leave. But I would expect that an intense yet civilized and constructive training environment will generate goodwill and an actual collegial relationship that can only help Howrey in the long run.

I’d love to know more details about how the program will implement the program so that education and supervision run well. Nonetheless, I wish Howrey good luck and congratulations as it updates an old model for today’s legal industry.

Image: Illustration of The Sorcerer’s Apprentice, Der Zauberlehrling
Source: Wikicommons
From: German book, Goethe’s werke, 1882, by S. Barth

  June 25, 2009 at 2:33 pm  Tags: apprenticeship, Howrey Simon, law firms  Posted in: Law Practice   Print This Post   No Comments

Sartorial Rules for Attorneys

posted by Deven Desai

Cultural norms matter. They can operate across a wide region or in a space as small as a courtroom. For example, Law.com has an article about judges sharing their views on attire in the courtroom. Apparently Judge Joan Lefkow began the discussion by saying that, as the article put it, she thought “some women attorneys should pay more attention to dressing appropriately for court.” Judge Lefkow noted that one woman appeared to have been “on her way home from the gym.” After that, several present shared more views on the topic. Judge Michael McCuskey, chief judge of the U.S. District Court for the Central District of Illinois commented on “skirts so short that there’s no way they can sit down and blouses so short there’s no way the judges wouldn’t look.” Another judge, Bankruptcy Judge Benjamin Goldgar, noted that he had trouble with women’s and men’s attire. For him it is matter of showing that you take the proceedings seriously, so provocative or wacky attire posed the same problem. Apparently some thought it was an age issue. One alleged culprit was the trend not to wear formal attire unless headed to court. And, as always, some suggested that law schools should pick up the task of educating attorneys about these social issues.

So where should people go to sort out these questions? Judge Lefkow suggested that women should go to Corporette, a “Fashion and Lifestyle Blog for Overachieving Chicks,” to seek advice on how to dress. Law schools could help but not in a direct one ought to do X way. The key seems to be taking a measure of one’s audience and its customs. So when at Quinn, Emanuel if I had shown up in formal attire at all times, I may have been seen as odd with little or few consequences, but I might have run the risk of seeming out of step with the firm’s view of the world which can have consequences. I know of one story where wearing suspenders was viewed as uppity. So not appreciating what a firm or court expects is not wise.

But what if one knows that one’s dress has an effect and uses it? Playing up attractiveness; hiding wealth by not driving the fancy car to work (yes, my car was chosen for that role); assuming and dressing for a persona of the professorial or polished or activist or whatever role one chooses is part of being on the stage that is the courtroom. As one friend noted, one could take a tactic and win over a jury at the expense of losing a little face with the judge. If so, one has served the client well.

In the end, although I don’t think that these details ought to control as dress is essentially a shallow metric for assessing worth and skill, I suggest that attorneys ought not be clueless about etiquette and sartorial matters. One can wear a sober tie or conservative suit (male or female) that is not expensive and that should suffice. Then again, despite the comment, the attorney Judge Lefkow mentioned won the case. Still, that seems more of a reflection on being a good judge and less a reflection of knowing that one ran a risk by not adhering to a set of customs (and note that I could believe that any attorney could have moments where life simply interfered with being in a suit for a court appearance, but I wonder whether that point was made with an apology to the court).

In short, the these odd yet slightly important questions may be handled, as in many cases, by learning the rules, mastering them, and then working them to your advantage.

Image: “Color lithograph print showing men posed wearing fall and winter business and theater fashions with overcoats and hats, against a backdrop of an interior view of the recently opened Library of Congress Thomas Jefferson Building. Supplement to “The Sartorial Art Journal.”

Source: Wikicommons

License: Public Domain

  May 21, 2009 at 2:24 pm  Tags: attire, courtoom  Posted in: Culture, Law Practice   Print This Post   One Comment

Government Lawyers’ Ethical Obligations and the War on Terror

posted by Andrew Taslitz

Both the New York Times and the Washington Post this week had stories on a forthcoming DOJ Report expected to slam several of the Bush Administration lawyers’ for ethical lapses in preparing various memos justifying questionable techniques in the War on Terror. Both articles also addressed calls for disbarring those lawyers, as well as for impeaching Jay Bybee, who is now a federal judge.

These stories stress the importance of government lawyers’ advisory role and start from the assumption that there is a sort of “truth” about what the law is on a particular matter. That need not mean that there is only one “right” answer, but it does mean that some answers are outside the realm of the plausible; that even within the plausible, the case for some answers is far weaker than for others; and that there are widely understood standards for what is “good lawyering,” including adequate research, factual investigation, consideration of opposing arguments, and sensitivity to the practical effects of government policy.

The articles also assume that government lawyers as advisors have an obligation to tell their client things he or she might not care to know, to act as the government’s conscience, and to be attentive to history and constitutional values as much as case law precedent. I agree with these assumptions and write only to direct the reader to two new books with much to say about these matters — books worthy of careful study and debate by all who are interested, but particularly by those who are or hope to be government lawyers serving in advisory roles. Those books are Peter M. Shane’s Madison’s Nightmare: How Executive Power Threatens American Democracy and Jefferson H. Powell’s Constitutional Conscience: The Moral Dimension of Judicial Decision. My post today will be brief and focus on Shane’s book. A future post will focus on Powell’s book.

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  May 8, 2009 at 4:05 pm  Tags: Add new tag  Posted in: Book Reviews, Civil Rights, Constitutional Law, Criminal Procedure, Culture, Current Events, History of Law, Law Practice, Politics   Print This Post   5 Comments

Jurors as Second-Class Citizens

posted by Daniel Solove

Recently, I blogged about Professor Robert Martin’s article about his experience serving as a juror. He makes another point in his article that is worth discussing:

[J]urors might easily conclude that they receive second-rate treatment – despite platitudes extolling their invaluable contributions. In our case, for instance, we were informed that the trial would be extended an extra day to accommodate a physician scheduled to testify for the defense. Yet neither the judge nor lawyers bothered to inquire whether that accommodation would conflict with jurors’ schedules, thus ultimately forcing one (unemployed) juror to cancel a job interview and another to rearrange long-standing travel plans.

Other seemingly small matters proved irritating. Jurors were cautioned that they could not drink water during the trial because it would be “distracting” . . . . Moreover, during the morning and afternoon “coffee” breaks, jurors were sequestered in the back room without any amenities – including coffee. And needless to say, jurors were keenly aware that the five- dollar per diem compensation that they would eventually receive would barely cover the cost of lunch, let alone the cost of gas for travel to and from the courthouse.

Yet, paradoxically, when it ultimately came time to render a verdict, our jury was then bestowed with immense power and responsibility.

We subsidize our legal system on what is essentially free labor, for we barely pay jurors for their time. Many employers still pay the salaries of people on jury duty (though not all employers), but even under these circumstances, somebody else (employers) are subsidizing the system.

Imagine the juror who is self-employed and must sit on a two-week contract dispute. She might ask: Why should I be forced to help these two parties resolve their dispute? Why should I, one who has little expertise in their business, contract law, or anything related to their case, be the one to resolve it? Why should I have to sacrifice my time and two weeks of earning money to help these people solve their squabble?

If we are going to have a lay jury system, shouldn’t we at least have society pick up the costs rather than slough them off on randomly-selected people? Shouldn’t we pay jurors the true value of their time? Or at least a reasonable rate?

  March 22, 2009 at 2:57 pm   Posted in: Law Practice   Print This Post   7 Comments

Should We Have Professional Juries?

posted by Daniel Solove

According to Legal Profession Blog:

The New Jersey Appellate Division reversed an $876,000 plaintiff’s verdict in a slip-and-fall case where the plaintiff had fallen while looking for pantyhose in aisle five of a supermarket owned by the defendant. . . . [T]he jury foreperson was a New Jersey State Senator, full-time law professor and lawyer who had published an article in the New Jersey Law Journal about his experiences serving as a juror. The defendant contended that the article “disclosed that he improperly influenced the jurors and that there was apparent misunderstanding of the jury charges.”

The court’s opinion is here. The article by the law professor — Robert Martin of Seton Hall Law School (who is also a New Jersey state senator) is in the New Jersey Law Journal and requires a subscription to access it.

What should one conclude from this case?

The reaction many would have is that it was unwise to put a law professor on the jury. Shouldn’t one expect when a law professor or lawyer is on the jury that he or she will have significant influence? If you put a bunch of people in a airplane cockpit, none of whom know how to fly a plane, along with a pilot, it doesn’t take Einstein to figure out that the people might want to consult with the pilot! As my colleague Jonathan Turley writes in his blog: “Martin’s article is a perfect example why some of us oppose lawyers sitting as jurors. It is a terrible practice that encourages undue influence by a single juror in deliberations.”

But there’s another lesson to be learned from this case. We should have professional juries. I’m increasingly of the opinion that our jury system is a joke. Consider some of the very thoughtful points Professor Martin wrote in his article about his experiences:

I became acutely aware that jurors are not generally permitted to ask questions during trial (except through written request). . . .

Additionally, jurors are usually prohibited from taking notes. . . .

In preparation of our deliberation, the judge gave us detailed instructions, which in this case lasted about an hour. These instructions amounted to a mini-course in tort law, similar in content to what some law students have trouble absorbing over the course of a full semester. Although the judge read from carefully prepared notes, we again were prevented from taking our own notes (but reminded that we must closely follow all of the instructions).

The process which Martin describes (and which indeed is quite common) is ridiculous is so many ways. First, it is ridiculous that juries are basically taught the law after hearing the facts of the case. If one is applying a rule, shouldn’t one know about the rule first in order to determine which facts are relevant and which are not?

Second, it takes law students three years to learn the law — or at least a semester to learn a specific subject like torts — and yet juries are expected to understand the law after just one brief lecture from the judge. Who are we kidding when we think that the jury is really applying the law? Juries probably have little to no idea about what the law is.

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  March 20, 2009 at 11:04 am   Posted in: Civil Procedure, Criminal Law, Empirical Analysis of Law, Law Practice, Tort Law   Print This Post   18 Comments

Some Thoughts About Law Firms and the Slide

posted by Deven Desai

I too received the comment to which Dave responded. And, I too, promised to say a little bit about the state of the legal job market. Although I think Dave is correct that many others write about this issue quite well, I also note that we have posted several pieces about legal education and shifts in how firms operate. In addition, I arranged a mobblog on legal education and cross-posted here, precisely because I think legal education will have to change. Right now a legal education bridges a gap left in undergraduate education. That gap will remain for some time. A good legal education, one where practice and theory work together to drill a student so that she has strong critical thinking skills, will serve anyone well. My instinct is that some practical business-related skills such as finance and business strategy might need to be added to the curriculum. Other than that shift, the core idea of training the hell out of someone so that they can take any set of facts and principles, digest them, and fashion a strong solution, will continue to create someone who can excel in law and a variety of disciplines. Nonetheless, who is hiring and in what areas remains to be seen.

One way to think about the layoffs may be to ask whether new lawyers had a shot at the big corporate jobs. With fewer of those spots open, of course some folks who thought they were going to be in a certain field may not be. Still the question may be understood as were the majority of new lawyers going to have a shot at those jobs? And would laid-off or in-coming lawyers who had/wanted those jobs still want to be lawyers but in litigation or other areas? In many cases, the answer would seem to be yes. Then again, give overall attrition from law practice and some people’s expectations; some may turn their back on the law, if it does not offer what they want. Dave pointed to Bill Henderson’s post about firm economics. It is excellent. Take a look at the post. Note that the salary perceptions and the realities diverge. This data is out there, but many may miss it. Bill does a great job showing how law firm salaries operate. And, as I have said before, law students should expect that they will have three to six years of good, but not six figure pay, as they finish their training (think medical residency). On a different note, firms could probably take a cut in per partner profit as a way to retain associates. I doubt that will happen. It may be that the big firms’ business model will not allow for that shift, but I am not in a position to evaluate the truth of that idea.

  March 10, 2009 at 1:39 pm   Posted in: Law Practice   Print This Post   6 Comments

The Legal Job Market and What To Blog About It

posted by Dave Hoffman

A commentator to another thread chided me for our blog’s relative lack of focus on the rapidly imploding law employment market. We have given sporadic attention to this topic since the pace of law firm layoffs has accelerated. Instead, as the commentator noted, we’ve been generally focused on our usual concerns: writing, the legal academic job market, privacy, cyberlaw, etc. That’s about par for the course for most law professor blogs, from Volokh to Prawfs to the Conglomerate.

You might be tempted to think that this absence is evidence of us being insulated fat cats, who don’t know or care about what’s happening with our students. But I think you’d be wrong.

For me, the reason is simple: comparative advantage. I read Above the Law daily, but I don’t have much to add to their terrific coverage. The underlying economics of the great recession are similarly not something I have much new to add to, though we’ve tried (on the blog) to talk about different ways the law could respond to systemic failure. I assume most readers of this blog have read Bill Henderson’s work on law firm economics and Ribstein’s stuff on leverage, which is a reason that the job market is freezing up. (Though not a complete reason.) A minor point that I have thought about is the role of law schools in making the system worse: I’ve written that law school should be cheaper and shorter, and that the only way to really make that happen is to set schools free of certain ABA-accreditation constraints.

Given all that, I honestly don’t know what more I’ve to add about the effects of the recession on the market for lawyers. If, like every downturn since the 1930s, the economy rebounds in the near-term, I hope that the effect won’t be Generation OMG, JD. If we see structural changes – - the permanent loss of domestic finance transactional work in response to outsourcing, a movement toward Britain’s model of less exclusive attorney licensing, etc. – - then things will be different. It would strike me that any really drastic change in the economics of the legal profession would be more likely to harm expensive private institutions than cheaper public ones, assuming that state funding is somewhat stable (when compared to endowment returns). But I’ve got no crystal ball, and it strikes me as sort of a waste of time to pontificate about wicked things this way coming.

I’d rather stick to things I know about, plodding away, trying to make legal rules and their relationship to individual behavior more clear. It’s a way to stay sane.

  March 9, 2009 at 6:36 pm   Posted in: Law Practice   Print This Post   9 Comments

Running a Fire Drill

posted by Dave Hoffman

Sorry for the light blogging. I’ve been running a fire drill, trying to get a paper into shape for a workshop. It’s about veil piercing, and I hope to blog about it shortly. Just as soon as I remove more evident errors & ad hominem attacks.

A “fire drill?” That’s the term I’ve got for an intense, frenetic, period of work immediately before a sometimes arbitrary deadline, when all hands are on deck, somewhat loopy for lack of sleep. I’ve no idea how the term evolved from, well, an actual fire drill, but it was common practice at the old law firm.

What do you call the last-minute scramble?

  January 23, 2009 at 1:54 pm   Posted in: Law Practice   Print This Post   4 Comments

Intellectual Property Colloquium Podcast

posted by Daniel Solove

Professor Doug Lichtman (UCLA Law School) has launched a new podcast called the “Intellectual Property Colloquium.” The podcasts consist of discussions between Doug the guests, and they last about an hour. Lawyers who listen to them can obtain CLE credit.

The first podcast was with guest Fred Von Lohmann of the Electronic Frontier Foundation on copyright law. Upcoming shows include Stacy Byrnes (NBC Universal) and Professor Tim Wu (Columbia Law School) on DMCA notice-and-takedown, Ed Felten (Princeton University) and Dean Marks (Warner Brothers) on DRM, and me on privacy and social networks. My podcast will be recorded soon and will be posted sometime around the end of November.

  November 7, 2008 at 11:03 am   Posted in: Intellectual Property, Law Practice, Privacy   Print This Post   One Comment

Law Firms for Law Professors

posted by Miriam Cherry

Are there biglaw firms that have a reputation as more “academic,” or having a high percentage of “alumni” going into law teaching? Based on this factor, and wanting to stay in Boston, I took an opportunity here (poor Eliot was sacrificed to the branding campaign gods, although Hoag seemed the more natural candidate…). Bright lights of that era were Angela Onwuachi-Willig, Rashmi Dyal-Chand, Jessica Silbey, Joel Ngugi, Bill McGeveran, fellow guest-blogger Tim Zick, who I was scratching my head trying to figure out how I knew, thus he served as inspiration for this post, and, oh, yeah, Doug Kysar. (Dina Wreede always did do excellent work). What is the current word on which law firms send the most “alums” into academia?

  October 18, 2008 at 4:45 pm   Posted in: Law Practice   Print This Post   14 Comments

Farewell to my favorite federal judge

posted by Howard Wasserman

Last week, Judge James T. Giles, senior judge and former chief judge of the United States District Court for the Eastern District of Pennsylvania, resigned from the bench after almost thirty years, to become Of Counsel at a law firm in Philadelphia.

I had the privilege and honor of clerking for Judge Giles from 1998-2000 (the early stages of his stint as chief). Judge Giles did not have the national cache of a SCOTUS Justice, nor was he the sort of judicial rock star that made our long-lost A3G swoon. He was, instead, a “lawyer’s judge,” exemplifying what makes a good trial-court judge: smart, pragmatic, caring, and quite at ease working in close quarters with lawyers and parties. He also was about the nicest, most humble person you ever will meet holding a position of power. His were the most pleasant chambers to work in–relaxed, friendly, and very thoughtful. Giles frequently would walk into the clerks’ area to sit and chat about just about anything.

Best of all, much of what I bring to my civil procedure class on the nuts-and-bolts workings of the pre-trial process I learned from working in his chambers.

Read the rest of this post »

  October 8, 2008 at 10:28 am   Posted in: Law Practice   Print This Post   No Comments

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