Archive for the ‘Law Practice’ Category
posted by Ryan Calo
Today, an observation about the legal market (and a plug for a friend’s start up). Len Gray is a former Latham & Watkins associate who, prior to law school, worked as a headhunter in Atlanta. Even so, Len was turned off by legal headhunters, whom he regarded as too aggressive and often insensitive to finding the right fit. Read the rest of this post »
posted by Deven Desai
Anyone interested in where legal practice may beheaded should check out ReInvent Law Silicon Valley 2013 on March 8 at teh Computer History Museum in Mountain View, CA (disclosure I am a speaker). The conference is devoted to law, technology, innovation, and entrepreneurship in the legal services industry. Dan Katz gave and excellent talk at the mid-year AALS conference. He talked about how automated system, machine learning, and more are defeating outsourcing and changing the face of legal practice. I nodded as what he said mapped to what I learned while I was at Google. In 2008 I started writing about problems with the structure of legal education. Those issues are now with us in full force. I think Dan and this project get to issues within the legal industry that may make the what about firm jobs question obsolete (which it may already be for a host of reasons) but present opportunities going forward.
Here is how he sums up the idea:
At all price points, the legal services market is rapidly changing and this disruption represents peril & possibility. This meeting is about the possibility … about the game changers who are already building the future of this industry. This is a 1 day event featuring 40 speakers in a high energy format with specific emphasis on technology, innovation and entrepreneurship. It will inspire you to consider all of the possibilities.
In that Silicon Valley way, it will be a blitz of 40 speakers covering LegalTechStartUp, Lawyer Regulation, Business of Law, Quantitative Legal Prediction, Design, 3D Printing, Driverless Cars, Legal Education, Legal Information Engineering, New Business Models, Lean Lawyering, Legal Supply Chain, Project Management, Technology Aided Access to Justice, Augmented Reality, Legal Process Outsourcing, Big Data, New Markets for Law, Virtual Law Practice, Information Visualization, E-Discovery, Legal Entrepreneurship, Legal Automation … and much more.
Tickets are Free but registration is required.
Please feel free to sign up today.
posted by Bruce Boyden
Hello again Co-Op! I’m happy to be back for a short guest-blogging stint that was, er, supposed to start in January but Danielle graciously allowed me to postpone into February. I’m hoping to make up for the radio silence in the last couple of weeks of the month. Anyway, without further adieu, today’s topic: Over at Prawfsblawg, a vibrant debate is going on about the perennial subject of how to best teach law school. There’s a lot of good things to be said on both sides of the that debate. I’d like to call attention in particular to the comment by Ray Campbell, which is devoid of the absolutes that tend to abound in this area. I’ve expressed my own thoughts on this topic during previous go-rounds here and here and here.
But by “perennial,” I meant that this debate is really ancient. It far pre-dates the recent financial crisis and downturn in the legal market. It pre-dates the Carnegie Report in 2007. It pre-dates the MacCrate Report in 1992. It pre-dates the 1921 Carnegie Report. Indeed, it pre-dates most law schools altogether. Benjamin Spencer’s recent article on the skills vs. doctrine debate — which includes the question of who would be the best teachers for whatever it is the students should be learning — shows that it goes back to the 1870s, and an ABA Report that concluded that the existing method of study — one taught mainly by professors with substantial practice experience — was “too brief for useful purposes,” and that the schools were inviting “unfit” and unprepared students to fill their seats, were giving “examinations, which are such only in name,” and were allowing “degrees [to be] thrown away on the undeserving and the ignorant.”
I was reminded of the length of time these sorts of discussions have been going on when I recently stumbled across a letter from the man pictured above, Louis Brandeis, to Dean Christopher Columbus Langdell of Harvard Law School. Langdell, of course, is possibly the single person most responsible for the form of legal education we have today. It was his idea at Harvard to replace classes taught by practicing lawyers with classes taught by academic law professors, hired soon after graduation after perhaps only a short judicial clerkship, and to extend the length of the program from eighteen months to three years. In particular, it was Langdell’s idea to teach law as a science, devoted to learning the general principles that pervade the law as revealed in cases, but not necessarily constituting the law of any particular jurisdiction. That is, Harvard would focus on a generalized notion of tort law, contracts law, etc., one that had the advantage, as Charles Whitebread used to say about the Model Penal Code, of being equally the law nowhere.
Brandeis was a product of that model. He graduated from Harvard Law School in 1878, eight years after Langdell had started reforming Harvard and the first year the program was extended to three years. But a little more than ten years later he thought substantial alterations should be made to the curriculum. Brandeis worried, in effect, that Harvard Law students were not learning enough actual law:
To Christopher Columbus Langdell
December 30, 1889 Boston, Mass.
My Dear Prof. Langdell: My experience as one of the examiners for admission to the Suffolk bar has impressed upon me the importance of adding to the instruction at the School a thorough course on the peculiarities of Massachusetts law. I am aware that the introduction of such a course involves apparently a departure from the present policy of the School, but my experience and observation have convinced me that such a course would increase the usefullness as well as the membership of the School, and I therefore venture to submit to you with some detail my views of the proposed course, and the reasons which induce me to advocate it. Read the rest of this post »
posted by Heidi Li Feldman
“True peace is not the absence of tension: it is the presence of justice and brotherhood.” — Martin Luther King, Jr. (1955, 1958, 1961)
Dr. King spoke these words or similar ones on a number of occasions, usually when explaining the relationship between love, law, and civil disobedience. I invoke them here because of their affinity with the idea that law that successfully promotes the common good will not yield simply the absence of anarchy but the presence of fellowship.
In the first major chapter of Normative Jurisprudence, “Revitalizing Natural Law”, Robin West argues for “a reengagement of liberal and progressive lawyers with … the ethical inquiry into the nature of the common good furthered by just law.” This is a terrific project. But it is a more complicated project than either a casual reader or a sophisticated scholar might notice. There are at least two major kinds of complexity involved. One, to which West devotes some attention in the chapter, involves how to specify human good, common or individual. The other, which receives less attention, at least at this phase of the book, involves figuring out what is distinctively legal about a project to promote the common good. In this post, a bit about this second area of complexity. This is not to say that West herself does not appreciate the complexity of and need for sorting out the role of law in a quest for the common good.
West persuasively explains that just because the project of promoting the common good might also be a political one or an overall ethical one, that does not mean it is not also a legal one, a distinctively legal one, or one in which law plays a distinctive role. Throughout “Revitalizing Natural Law”, West emphasizes that achieving the common good, understood as arising from the demands of individual good, necessitates coordinated social action, of the sort law is uniquely positioned to bring about.
Individuals going it alone will not get very far in achieving their own good, notes West. A group of uncoordinated individuals who realize this problem need state-sponsored coordination, in the form of law, to ensure that each of them do better, which means that all of them will do better. Fair enough, as far as it goes. But there is a lot more to coordination, and to coordination implemented by law, than meets the eye.
“Coordination” can be understand more or less thickly. A law dictating whether to drive on the left or the right coordinates thinly. It solves a problem whose solution does not impact the good in question: keeping traffic flowing. The content of the law does not matter, what matters is having one. The activities and instrumentalities involved are understood, practically speaking, largely similarly by all the participants.
Most of the time, though, there is a thicker connection between laws governing collective action or social activity and the content of the laws themselves. Laws against polluting the environment presuppose or stipulate agreement on foundational matters, including what constitutes pollution and how to demarcate the polluters from the environment. Laws regulating research on human subjects presuppose or stipulate agreement on what is research, who is human, and what it means to be a subject of another’s study.
To approach jurisprudence as West urges means noticing and taking quite seriously the role law and legal institutions – all of them, not just legislatures, but courts and agencies and review boards and prosecutors and juries and so on – play in coordinating both the understanding and the lived actuality of the activities and instruments law references. The good is rich stuff, and to get us to it, law must make it possible for us to proceed from strategic interaction in a coordinated setting (e.g. driving on the highway) to substantive cooperation (e.g. creating a functional and legitimate banking system). That sort of cooperation rests on shared background understandings of matters basic, diverse, and particularistic. To enable such cooperation law must not only invite and permit, but also foster, collaboration on a worldview sufficiently shared so that law has a shared meaning for law makers, law appliers, law enforcers, and law abiders (not that these four actors are always distinct and separate).
The flight from ethical normativity that West identifies in Normative Jurisprudence is part of a larger flight from normativity in general – including the normativity of meaning. How much agreement on meaning do we need in order to achieve just law that furthers the common good? What sort of legal actors and institutions do we need to get that agreement? In future posts during this celebration of Normative Jurisprudence, I will continue to examine these questions. I take inquiry into them to be part of the project West urges. I also expect that there will be sharp disagreement among liberal and progressive scholars about how much shared meaning we need and what we are willing to do get it.
October 21, 2012 at 6:15 pm Tags: Heidi Li Feldman, jurisprudence, law and meaning, legal theory, Normative Jurisprudence, Robin West, Symposium (Normative Jurisprudence) Posted in: Jurisprudence, Law Practice, Legal Theory, Symposium (Normative Jurisprudence) Print This Post No Comments
posted by Deven Desai
One of the people I follow on Google+ posted the TED Talk by Margaret Heffernan. Her desire for better training on how to challenge authority is laudable, but I think misses that corporate and other institutional cultures often squash and punish those who speak out. Her basic point is strong: seeking out those who will challenge your views and avoiding echo chambers is the best way to ensure your ideas are solid. Dr. Heffernan tells about a researcher who managed to stand up to established medical practice and change it. She tells of a colleague who managed to voice concern at his biotech company who was worried about a new product but afraid to challenge the status quo. When he did, he found that others shared his belief. He was a hero whistleblower of sorts. The later example is quite rare. Just think of Enron and the host of other debacles. I agree that it takes courage to challenge, but a corporate culture that does not punish free thinkers is important too. As the literature on scenario planning shows, sustaining a group that is permitted to think about and challenge company goals is quite difficult. And that is for a group designed to advance corporate profits. Finding room those who would, out of loyalty to a company, ask questions about plans is a deeper problem. The current focus on teamwork, loyalty, execution, speed, and results no matter what the consequences, means that lip service to openness, out of the box thinking, and pick any other management cliche you want, rule so much that it is no surprise that 85% of managers fear speaking up as Dr. Heffernan notes. So I praise the idea, but think in addition to training people to challenge, we need to build a culture of questioning.
posted by Stanford Law Review
The Stanford Law Review Online has just published a Note by Doug Lieb entitled Regulating Through Habeas: A Bad Incentive for Bad Lawyers?. The author discusses the potential pitfalls in a pending DOJ rule that provides for fast-track review of a state’s death row habeas petitions if the state implements certain sanctions for lawyers found to be legally ineffective:
The most important—and most heavily criticized—provisions of the Antiterrorism and Effective Death Penalty Act restricted federal courts’ ability to hear habeas petitions and grant relief to prisoners. But the 1996 law also included another procedural reform, now tucked away in a less-traveled corner of the federal habeas statute. It enables a state to receive fast-track review of its death row prisoners’ federal habeas petitions if the U.S. Attorney General certifies that the state provides capital prisoners with competent counsel in state postconviction proceedings.
Now, a pending Department of Justice (DOJ) rule sets forth extensive criteria for states’ certification for fast-track review. Piggybacking on a federal statute that does the same, the proposed DOJ rule encourages states to adopt a seemingly commonsense measure to weed out bad lawyers: if an attorney has been found legally ineffective, remove him or her from the list of qualified counsel eligible for appointment. Unfortunately, such removal provisions may do more harm than good by jeopardizing the interests of ineffective lawyers’ former clients. This Note explains why removal provisions can be counterproductive, argues that rewarding the implementation of these provisions with fast-track habeas review is especially unwise, and offers a few recommendations.
The lesson, at a minimum, is that policymakers should be wary of one-off regulatory interventions into indigent defense, considering the hydraulic pressure that a new requirement might exert elsewhere in the system. Leaders within the public defense bar might also wish to think carefully about their expressions of support for ineffective-attorney-removal provisions. And, while some scholars have considered the ethical obligations of predecessor counsel when faced with an ineffectiveness claim, rigorous empirical study of lawyers’ actual responses to allegations of ineffectiveness may be needed to develop sound policy. Do most attorneys actually understand themselves to owe continuing duties to former clients, or do most do what they can to protect their professional reputations against charges of deficient performance? (And are those with the latter attitude more likely to be ineffective in the first place?) The practical effect of regulatory interventions, including removal provisions, turns on the answer to these questions.
None of this is to suggest that it’s in any way acceptable for an ineffective lawyer, let alone an incorrigibly awful one, to represent a capital—or non-capital—defendant or prisoner. The point is the opposite. Even a well-intentioned patchwork of regulation through habeas is no substitute for an adequately funded system that trains, compensates, and screens counsel appropriately. If kicking ineffective lawyers off the list may do more harm than good, the goal should be keep them off the list to begin with.
Read the full article, Regulating Through Habeas: A Bad Incentive for Bad Lawyers? by Doug Lieb, at the Stanford Law Review Online.
July 12, 2012 at 10:30 am Tags: habeas petitions, ineffectiveness of counsel, Law Practice Posted in: Capital Punishment, Civil Rights, Criminal Procedure, Law Practice, Law Rev (Stanford) Print This Post No Comments
posted by Gerard Magliocca
I just finished a biography of Charles C. Burlingham, who was a remarkable lawyer and civic activist in New York during the first half of the twentieth century. Although the book wasn’t well-written (and I can’t find a good picture of him to post here), I was eager to read about Burlingham. He keeps popping up in my research, even though he held public office only briefly on the New York City Board of Education. Here are some of his accomplishments:
1. He defended White Star against the admiralty suits that followed the sinking of the Titanic.
2. He was influential in getting Learned Hand appointed to the Federal District Court in New York.
3. He almost single-handedly convinced local politicians to nominate Benjamin Cardozo for his first judgeship.
4. He corresponded regularly with Felix Frankfurter and Franklin D. Roosevelt about all sorts of issues.
5. He was one of Fiorello LaGuardia’s closest (albeit informal) advisors when LaGuardia was the Mayor.
6. He lived to 101. (Seems remarkable to me.)
I find his story interesting, in part, because there are so few great practicioner-statesmen left. Lloyd Cutler was probably the last one, though perhaps I’m overlooking someone.
UPDATE: Here’s a great anecdote. When Burlingham was 100, he went to an awards dinner and sat with Learned Hand, Felix Frankfurter, and Earl Warren. A young lawyer drove him home and asked “Did you have a good time?” Burlingham replied: ”Yes, but I had hoped to meet some new people.”
posted by Dave Hoffman
David S. Lee, of LSE, is engaged in an interesting piece of research and asked me to post about it. After taking the survey linked below (about 10 minutes) I agreed, and I think the underlying project worthwhile. His description follows:
As David notes, “the survey itself is taken anonymously and can be completed fairly quickly.” Here is the link.
posted by Dave Hoffman
From the federal courthouse comes the very sad news that Senior District Court Judge Louis Pollak has died. Judge Pollak, a jurisprudential giant, mentor to many, and former dean of both Yale and Penn Law Schools, served on the bench from 1978 until his death. He will be missed.
(Update: The Inquirer’s brief obituary is here, though obviously there is much more that could and will be said.)
posted by Frank Bowman
Well, several days later than planned, here I am with my inaugural post as May’s guest blogger here at Concurring Opinions. Thanks to Gerard for the flattering invitation. This is my first venture as a blogger, so I’m not quite sure I’ll strike the right note. But here goes.
I’ve been thinking a good deal about the structure of American legal education lately. This bout of introspection has been prompted by the national mood of unease in the profession, and more personally, by Missouri’s three-year rollercoaster ride in the US News rankings — from 60-something to 100-something and now back up to 70-something — and by my work as chair of a curriculum committee debating whether we have to reinvent ourselves for our own and our students’ sakes. Here, in short form suitable for the blogosphere, are some of my tentative conclusions:
1) So long as US News rankings remain the primary indicator of institutional quality in the eyes of student consumers, the top 20 or perhaps 30 law schools are at liberty to change or stand pat, as suits them. So long as they continue taking in and spending a lot of money per student on whatever it is they do, the combination of reputational inertia and a US News algorithm in which most of the supposed measures of educational quality are actually proxies for money, these schools will remain on top and free to deliver legal education however they like. Their high ranking will guarantee a constant stream of the statistically best students willing to pay top tuition dollar. The raw intellectual talent of their graduates (regardless of how well or badly they were educated) will guarantee employment of those graduates by the most elite employers. And so the cycle will continue, forever and ever. Amen.
2) This model cannot work for the rest of us. In a generally stagnant economy with a legal market offering fewer jobs at less pay, we cannot continue to compete with each other in what amounts to an endless race to drive up per-student costs. Legislatures will not fund perennial increases for state-supported schools like mine. For both public and private schools, philanthropic funding is not bottomless. And trying to fund our academic arms race with ever-rising tuition is neither economically sustainable nor, frankly, moral.
3) Exacerbating the stress on non-elite institutions is the emerging emphasis on producing more practice-ready graduates. I happen to favor this trend. Indeed, over thirty years ago I wrote my third-year paper at Harvard on how to restructure upper-division legal education to achieve this end. But any serious effort to enhance practice-readiness runs head-on into the economics and sociology of law schools:
a) Increasing practice-readiness requires more training in the skills performed by actual lawyers. This in turn requires either more “experiential learning” (basically various forms of clinical education) or more in-house simulation-based skills training or some combination of both.
b) Skills training, whether experiential or simulated, requires much lower teacher-student ratios than doctrinal courses. Therefore, at least if the law school is to maintain quality control and not simply farm the whole thing out to adjuncts, it is probably more expensive.
c) I say that increasing skills training is “probably” more expensive if we conceive of the additional skills training capacity as an add-on to what we already do, and if we assume that the doctrinal faculty of law schools will continue to do what they now do in the same way they’ve grown accustomed to doing it. In other words, if law schools continue hiring the same number of doctrinal tenure-track faculty with the same set of entering qualifications, give them the same teaching loads, pay them in roughly the same way, and set the same standards for type and quantity of scholarship, then adding the staff and programs required to make graduates more practice-ready will necessarily increase the cost of legal education. And I’ve just argued that the vast majority of law schools can’t keep raising costs.
d) There are only two obvious ways out of this box. Either we abandon the objective of making our graduates more practice-ready or we rethink the role of doctrinal tenure-track faculty.
The first option is not crazy. One could fairly argue that law schools should never have gotten into the skills training business in the first place. What was good enough for Langdell should be good enough for us. Teach ‘em basic legal doctrine and the intellectual skill of legal analysis and leave the rest to the first years of practice. Or, less dogmatically, we’ve added a lot of skills training options over the last three decades (legal writing, clinics, trial advocacy) and what we have is enough.
But if you think we could and should do a better job of preparing our students for legal work, then that requires an uncomfortable self-analysis by the tenured and tenure-track class at the top of the law school hierarchy. As a conversation starter, let me suggest several changes in our comfortable lives that would make law schools better for our students, and for matter, for the legal communities of which law schools are a part:
- Reverse the trend toward competing for faculty by offering ever-lower teaching loads to tenure-track professors. I like working less for more money as well as the next guy, but paying law professors premium salaries in relation to virtually everyone else in the university for teaching 11 or 10 or 9 hours per year is increasingly hard to justify. In the Bizzarro World of US News rankings, this practice makes weird sense because reducing professors’ teaching loads requires hiring more of them, which reduces the student-teacher ratio and increases the overall expenditures per student, which raises a school’s ranking. If, however, one is trying to increase skills training without cripplingly raising costs, an obvious means of doing so is by covering the curriculum with fewer faculty and thus freeing budgetary space for the additional staff required for more skills training.
- Rethink the constellation of preferred qualifications for entry-level tenure-track law professors. Right now, we tend to hire young people with high grades from a handful of elite law schools whose work experience consists of a judicial clerkship and a couple of years at a fancy big-city law firm. With all these youngsters’ potential, in practice, no sensible senior lawyer would entrust them with unsupervised responsibility for any matter of real importance. But law schools confer on them the mantle of wisdom that comes with the title “professor” and not only ask them to educate students about a world they themselves have barely experienced, but also to write authoritative “scholarship” about that world. Because they are surpassingly talented people, newby law professors figure out their jobs, teach well enough (and sometimes brilliantly), and churn out law review articles as required. In a Langdellian model of legal education, this approach to hiring works well enough since the core subject matters are legal doctrine and legal reasoning, subjects those in our hiring pool have self-evidently mastered. And if the legal scholarship produced by professorial rookies is not profound, well, no one is much hurt. But if law schools are reimagined as institutions devoted to producing practice-ready graduates, then the practical inexperience of most of the professoriate becomes a problem. Professors with little real-world experience are ill-suited either to teach skills-rich courses themselves or to supervise or assess the content of such courses taught by others.
- Reconsider the role of “legal scholarship” in American law schools. An immediate (and horrified) objection to the suggestion of increased teaching loads will surely be the decreased time available for scholarship. And the idea of hiring more tenure-track faculty with real practice experience will surely be rejected by those who view exposure to the law in action as an irremediable pollution of the mind of the young scholar. To which I say, “Fiddlesticks!” There is far too much “legal scholarship” now. Most of it is mediocre or worse. Much of its mediocrity stems from the naivete of inexperienced professorial authors. Even if it were far better than it is, the sheer number of law review articles spewed forth each year means that only the tiniest fraction of them will ever be read by anyone other than their author’s immediate relatives or P&T committees. In saying this, I cast no aspersions on the talents of my academic fellows. To the contrary, law schools are brimming with brilliant minds, but the odd conventions of our trade often force them to opine too soon about subjects of which they know relatively little and to channel much of their creative energies into the writing of law review articles — an exercise customarily equal in practical effect to shouting down a well. As a class, law professors should probably write less, not more. If possible, they should write about subjects they have some practical familiarity with. If professors come to the academy without such familiarity, they should find ways to gain it. This means we should hire more people with more real-world experience and encourage those already hired to gain it, not only to assist in producing practice-ready graduates, but in order to improve legal scholarship. And, finally, we should most often write with a conscious view to influencing real-world legal actors.
In short, the move to restructure law schools so their graduates are better prepared to practice presents a fundamental challenge to the existing comfortable world of the tenure-track law professor. I think that is a good thing, one that would make our students and the legal profession a good deal better off. But I imagine others may differ…
posted by Dave Hoffman
Building off that my last post, and engaging in the very temptation to look at school specific outcomes that I earlier resisted, here are a series of top-10 lists for various law school employment outcomes. Each list is calculated by dividing the relevant category for each school by the total graduates of that school in 2011. (I think that dividing the category by employed graduates is likely to be misleading.) I eliminated schools with incomplete data.
Most Likely To Graduate and Lose Your Soul in a Super-Large (500+) Large Firm
- Cornell (60%)
- Columbia (59%)
- Chicago (52%)
- Penn (50%)
- Harvard (49%)
- NYU (48%)
- Stanford (44%)
- Berkeley (41%)
- Northwestern (40%)
- UVA (38%)
Most Likely to Graduate and Lose Your Soul in a Solo Practice
- Texas Southern (18%)
- Charlotte (11%)
- Faulkner (10%)
- St. Mary’s (11%)
- Williamette (11%)
- South Texas (11%)
- Florida A&M (10%)
- John Marshall (10%)
- Cooley (9% – but an astonishing 62 graduates!)
- Southern (9%)
Most Depressed Students, or Most Savvy Data Collectors [Highest Percent of Students Reporting They No Longer Are Seeking Employment]
- Santa Clara (18%)
- Chapman (15%)
- Texas Southern (12%)
- Williamette (12%)
- Colorado (10%)
- Pace (9%)
- Idaho (9%
- Widener-Harrisburg (8%)
- McGeorge (8%)
- Roger Williams (8%) Read the rest of this post »
posted by Dave Hoffman
The ABA’s just-released consolidated dataset on law school employment outcomes presents nice opportunities for data analysis. Unlike Bernie Burk, I’m not particularly interested in the relationship between bridge positions and USNWR rank: that seemed overdetermined to me. (Bernie is also, unfortunately, using a noisy measure for resources. Why not simply use the ABA-data on expenditures per student to predict bridge positions? Here’s a hypothesis: the correlation will be much higher than USNWR rank.) In any event, I imagine that everyone will be using these data to look at school-specific outcomes. Let’s do something different.
Much more interesting are columns BK-BQ, which detail where (geographically) students are placed. What can we learn?
Almost all American Law Schools are Basically Homers. The ABA asks schools to identify the state where the highest number of their graduates are employed on graduation. By my hasty count, there are eight schools in the country where that first state is not the state where the school sits. Duke (graduates go to D.C. or NYC); Harvard (graduates to go D.C. or N.Y.C.); Michigan (graduates go to N.Y.C. and California), UVA (graduates go to D.C. or N.Y.C.); Western New-England (graduates go to CT); Widener-Delaware (graduates go to Pennsylvania); Penn (graduates go to N.Y.C.); and Yale (graduates go to N.Y.C. or D.C.). That is, deciding where to go to law school goes a long way to picking the State where you will live after graduation. What schools (apart from those just listed) produce the least number of graduates employed at home? Vermont, Appalachian, Notre Dame, Vandy, Ave Maria, New Hampshire, Washington University, and Cooley. Note how this list mixes schools with very bad job outcomes (i.e., a small percent of their class is employed in the home state because a small percent of the class is employed) and those with very good outcomes (i.e., a small percent of their class is employed in the home state because many are employed elsewhere).
Which States Are the Most Popular Runner-Ups? Schools are also asked to identify the second and third most common destinations for their students. New York, D.C., California, Illinois and New Jersey top the runner-up list. New Jersey and D.C. are impressive, as they are the second choice as almost as many students as they are the first choice of others. Or to put it differently: D.C. and New Jersey receive disproportionately more law students than other states, as a percentage of the national employment market. The third-runner-up market is similar, though Virginia and Massachusetts make an appearance in the list. (As does Alaska, which is the primary and secondary destination category of exactly zero American law schools, but the tertiary destination of two.)
Which States Are the Most “Oversupplied” With Law Graduates? Given these data, I assume that for most law students, job seeking begins at home. That enables me to ask: which states have the worst environments for incoming lawyers. I estimate this answer by dividing total graduates per state by total jobs in each state (itself a product of adding together the first, second and third “choices” that law schools provide). I know that there are problems with this calculation, even assuming audited data. For example:
- It ignores missing data on location, and schools where there a large number of graduates going to the “fourth” largest state destination;
- It assumes that schools have correctly coded location data;
- It assigns schools like Yale to a State (CT) where they do not in fact send the majority of their graduates.
We know that this missing and skewed data makes a difference. Schools reported that ~37K of ~43.5K, or 86%, of law students were employed in some capacity in this dataset. But my location-based analysis finds state-specific jobs for only ~29K law students, or 66%. This isn’t malfeasance by schools, and it isn’t evidence of conspiracy. Schools are required to report employment status for all graduates, but employment location for only the top three states. (Tracking students in this way is, after all, expensive.) Nonetheless, we can learn something interesting from these data in aggregate. Below the jump, I’m going to discuss the distribution of these geographically identified jobs.
The Yale Law Journal Online: “The Gang of Thirty-Three: Taking the Wrecking Ball to Client Loyalty” and “In Defense of a Reasoned Dialogue About Law Firms and Their Sophisticated Clients”
posted by Yale Law Journal
The Yale Law Journal Online has published two essays on legal ethics: The Gang of Thirty-Three: Taking the Wrecking Ball to Client Loyalty by Lawrence Fox, and In Defense of a Reasoned Dialogue About Law Firms and Their Sophisticated Clients, a response to Fox’s essay by James W. Jones and Anthony E. Davis.
In The Gang of Thirty-Three, Lawrence Fox reviews the proposed “sophisticated client” amendments to the Model Rules of Professional Conduct. Thirty-three General Counsels at AmLaw 100 law firms submitted the proposal to the American Bar Association, requesting that some Model Rules obligations be adjusted or lessened in relationships with “sophisticated clients.” Fox examines the suggested changes and argues that they compromise the lawyer’s most important fiduciary duty to the client. As Fox writes, lawyers must safeguard their clients’ entitlements to loyalty if they “should be entitled” to call themselves professionals at all.
James W. Jones and Anthony E. Davis respond in In Defense of a Reasoned Dialogue About Law Firms and Their Clients, arguing that the current Model Rules are outdated and no longer reflect the needs of modern law firms and their increasingly global clientele. As people who were “directly involved in the preparation of the Law Firm Proposals,” Jones and Davis offer insight into the motivations for the proposals and respond to Fox’s critique.
Lawrence Fox, The Gang of Thirty-Three: Taking the Wrecking Ball to Client Loyalty, 121 YALE L.J. ONLINE 567 (2012), http://yalelawjournal.org/2012/03/27/fox.html.
James W. Jones & Anthony E. Davis, In Defense of a Reasoned Dialogue About Law Firms and Their Sophisticated Clients, 121 YALE L.J. ONLINE 589 (2012), http://yalelawjournal.org/2012/03/27/jones&davis.html.
posted by Jeffrey Selbin
In a draft essay, Service Delivery, Resource Allocation and Access to Justice: Greiner and Pattanayak and the Research Imperative, Tony Alfieri, Jeanne Charn, Steve Wizner, and I reflect on Jim Greiner and Cassandra Pattanayak’s provocative article reporting the results of a randomized controlled trial evaluating legal assistance to low-income clients at the Harvard Legal Aid Bureau. (The Greiner and Pattanayak article was the subject of a Concurring Opinions symposium last March.) Studying the outcomes of appeals from initial denials of unemployment insurance benefit claims, Greiner and Pattanayak asked, what difference does legal representation make? Their answer is that “an offer of HLAB representation had no statistically significant effect on the probability that a claimant would prevail, but that the offer did delay the adjudicatory process.” That is, not only was an offer of legal assistance immaterial to the case outcome, it may have harmed clients’ interests.
The Greiner and Pattanayak findings challenge our intuition, experience and deeply-held professional belief that lawyer representation of indigent clients in civil matters is fundamental to the pursuit of justice. Our first reaction is that the study must have fatal conceptual or methodological flaws – the researchers studied the wrong thing in the wrong way. Even when we learn that the study is credible and well designed, we doubt that this kind of research is a worthwhile use of our time or money relative to serving needy clients. Finally, and perhaps most importantly, we worry that the published results will only serve as fodder for the decades-long political assault on legal services for the poor.
If replicated across venues, however, studies like Greiner and Pattanayak’s can tell us a great deal about individual representation, program design and systemic access to justice questions. In fact, we cannot make genuine progress in any of these areas – much less marshal the case for more robust legal aid investments and the right to counsel in some civil cases – without better evidence of when, where and for whom representation makes a difference. Fortunately, developments in law schools, the professions and a growing demand for evidence-driven policymaking provide support, infrastructure and incentive for such research. For these reasons, we urge legal services lawyers and clinical law professors to collaborate in an expansive, empirical research agenda.
February 22, 2012 at 9:56 am Tags: Symposium (What Difference Representation) Posted in: Civil Rights, Empirical Analysis of Law, Law Practice, Symposium (What Difference Representation) Print This Post No Comments
posted by Stephen Galoob
Lawyers in Practice: Ethical Decision Making in Context, edited by Leslie C. Levin & Lynn Mather. University of Chicago Press: Chicago, 2012. pp. 370. $39.00
What is the best way to study the ethical world of lawyers? On a “top-down” approach, this study proceeds in two steps: first, we start with the rules of legal ethics (or, perhaps, the moral, legal or political principles that underlie those rules); second, we apply these rules and principles to particular cases that lawyers confront.
The infirmities of the top-down approach are a recurring theme of the essays collected in Lawyers in Practice. Most of the authors in this collection either champion or practice an alternative method, one that is inductive, or “bottom-up.” On this method, when studying the ethical world of lawyers, we should first examine how real-world lawyers confront real-life ethical challenges. In analyzing these responses, we should consider a variety of factors other than the rules or principles of legal ethics that drive lawyers to act in the ways that they do.
Thus, we can restate our opening question more precisely. When studying legal ethics, should we be top-downers, bottom-uppers, or both? Which is the more fundamental task: justifying the rules of legal ethics or explaining how lawyers behave when confronted with ethical challenges? Lawyers in Practice makes these broader questions salient. In this review, I want to offer a chastened case for a top-down approach, while recognizing the important (but ultimately complementary) role that bottom-up methods can play in studying the ethical world of lawyers.
Before exploring this broader topic, here are some vitals on the book. Lawyers in Practice is a collection of essays that were originally presented at a conference at the University of Buffalo Law School. Levin and Mather provide an introductory essay and short epilogue summarizing some main themes, and essays by David Wilkins and Elizabeth Chambliss explore some methodological issues for the sociolegal study of lawyers’ ethics.
posted by Danielle Citron
My brilliant colleague Lee Kovarsky is an expert on the theory and practice of habeas corpus. He’s a wunderkind. One can find him, in any given week, arguing habeas petitions before an appellate court, working on the first habeas casebook entitled Federal Habeas Corpus: Executive Detention and Post-Conviction Litigation with his co-author Brandon Garrett, and, as I imagine is true this week, grading civil procedure exams. Professor Kovarsky is also writing ground-breaking articles. Here is the abstract for his most recent work entitled Original Habeas Redux, published by the Virginia Law Review:
In Original Habeas Redux, I map the modern dimensions of the Supreme Court’s most exotic jurisdiction, the original habeas writ. The Court has not issued such relief since 1925 and, until recently, had not ordered a case transferred pursuant to that authority in over fifty years. In August 2009, by transferring a capital prisoner’s original habeas petition to a federal district court rather than dismissing it outright, In re Davis abruptly thrust this obscure power back into mainstream legal debate over both the death penalty and the Supreme Court’s appellate jurisdiction.
Scrambling to understand how the authority has evolved since its nineteenth-century heyday, commentators have been severely limited by the absence of any data reporting the attributes of the original petitions themselves. I have filled that empirical void by collecting and organizing the only modern original habeas data, and this Article presents those results for the first time. The data shows that the vast majority of original petitioners are criminally confined, but that they are not collaterally challenging that confinement in their initial habeas proceedings. Original writ procedure is now primarily a vehicle for litigating “successive” habeas corpus petitions that are otherwise subject to severe jurisdictional limits in the federal courts.
I argue that, in light of the writ’s history and the data I have compiled, Davis is not a blip in an otherwise constant state of original habeas inactivity. I observe that the availability of original habeas relief has historically exhibited two over-arching characteristics: (1) that the Supreme Court’s Article III appellate power to grant it is basically coextensive with Article III judicial power common to all federal courts; and (2) that the Court does not actually exercise that authority when it may avail itself of jurisdictional alternatives. I also present data confirming that the availability of conventional appellate jurisdiction exerts the dominant influence on the modern original habeas docket’s composition. I ultimately advance what I call the “capital safety valve paradigm”–the idea that original habeas should and likely will emerge as a means to ensure that the death penalty is not erroneously imposed.
posted by Dave Hoffman
A number of students have recently asked me about opportunities to work in transactional practice in the summer after their 1L year. That kind of job search is challenging, as the typical kind of 1L practice revolves around planning for or resolving litigation (i.e., government agency litigation interns, judicial interns, public service interns). Indeed, I imagine that a large plurality of law students who obtain a legal internship this summer (paid or not) will end up writing some kind of multi- or 50-state survey litigation memorandum.
However, there are transactional opportunities – at law firms (though these are hard to secure for 1Ls); in general counsel’s offices (same objection); in government; and, in particular, in tax and estate planning small practices. I thought I’d open up a thread for folks to share ideas/experiences with transactional practice in the first summer. If you had a great job, please tell us about it and what you did. If you’ve ideas for networking of job search, let’s make a public good of them.
posted by Daniel Solove
A reader of my post about the N.Y. Times critique of legal education writes, in regard to the value of legal scholarship:
I happen to be on the editorial board of a T14 law school’s law review, so I have to cite check and read articles regularly. Of those I’ve read, I can’t think of a single one I thought would be useful to a practicing lawyer. The problem is, in my experience, most seem to advocate a fundamental change in philosophy to an area of law that diverges from what precedent would suggest. To me, this seems extremely unhelpful, because A. Lower courts aren’t likely to accept a grand new theory that seems to contradict what SCOTUS is saying, B. As far as I can tell SCOTUS seems not to usually change its theory either, and C. I don’t think most policymakers tend to read law review articles.
This leads me to be inclined to believe that most law review articles are useless. Are you saying my sample is unrepresentative of what’s out there? Or do I simply have a narrower definition of usefulness? Could you perhaps suggest some articles from the past year that in your mind represented useful legal scholarship?
This commentator assumes that usefulness is the equivalent of being accepted by the courts. I quarrel with this view for many reasons:
1. An article can have an influence on cases, even if difficult to demonstrate. Many courts don’t cite law review articles even when they rely on them. Judges are notorious for not being particularly charitable with citations. They often copy verbatim parts of briefs, for example. If a law professor relies on a scholarly work even in a minor way, the professor will typically cite to the work. Not so for courts.
2. Most articles will not change the law. Changing the law is quite difficult, and if most law review articles changed the law, the law would be ridiculously more dynamic than it currently is.
3. No matter what discipline or area, most of the things produced are not going to be great. Most inventions are flops. Most books, songs, movies, TV shows, art works, architecture, or anything produced are quite forgettable and will likely be forgotten. Great lasting works only come around infrequently, no matter what the field.
4. Most people are forgettable too. In the law, most practitioners and judges have been forgotten. Only a few great ones are remembered. Of the judges who are most well-known, it is interesting that many were more theoretical in nature and had a major impact in changing the law — typically in ways law professors might change the law. Think of Benjamin Cardozo, who wrote many articles and books and who radically changed the law. Think of Felix Frankfurter, a former law professor. Think of Louis Brandeis. Think of Oliver Wendell Holmes. These were jurists who were thinkers. They were readers. They were literary. They were writers of scholarship too. Maybe the forgettable practitioners and judges are the ones who ignore legal scholarship.
posted by Jeffrey Kahn
David Segal has a front-page, above-the-fold article in today’s New York Times, What They Don’t Teach Law Students: Lawyering. Segal blasts legal education for failing to produce prêt-à-porter lawyers sized to fit the needs of everyone from Skadden Arps to solo practitioners. Segal also denies the value of “pure” research — law review articles and other scholarly output that do not satisfy his requirements for immediate application to daily practice. Gerard Magliocca and Alex Guerrero already commented on one of his examples. As with Dick the Butcher’s suggestion in Shakespeare’s Henry VI, Part 2, Segal’s article is wrong on both teaching and research.
First, teaching. I think that when law schools succeed at their mission they do produce graduates with skills ready for use in any legal environment. It’s just that developing the skill set that Segal prioritizes (such as his opening example: filing a certificate of merger with a secretary of state) is not the sole, let alone primary, goal of legal education. Those form-filling and filing skills are important, but best honed by firms that daily engage in those specialized, localized, and technical operations. Law schools, in contrast, have the advantage in teaching the general skills and knowledge that firms of all sizes (as well as government agencies and corporations) have neither the time, inclination, nor resources to perfect. But these organizations desperately need these things in the lawyers they hire: critical thinking, professional standards, ethical judgment, and historical perspective (to name a few).
Unlike medical schools and engineering programs, law schools do not set out to create technicians. (I suspect that the best medical and engineering institutions don’t have this goal either, but this is the common comparison.) Law schools, especially, should produce graduates comfortably inclined to question the status quo, challenge assumed truths, and think about the long-term implications of their actions as members of a learned profession. Over time, one hopes that their training will combine with experience to produce in them judgment about when each skill should take a leading role. Lawyers with these skills are needed in any age, but especially one that produced such colossal fails ranging from Enron to government-sanctioned torture.
Second, research. I also reject Segal’s essentially anti-intellectual critique of research. Last spring, I was asked by a high-level Russian official to write a report on a verdict in a criminal case. That report explored the many departures from Russia’s obligations under the European Convention on Human Rights to be found in that verdict, but it also raised serious questions about fundamental aspects of Russian law. The report could hardly qualify as research readily useful to the day-to-day activities of a practitioner at the bar of any American state or the present Russian one. Nevertheless, I found that the research that I conducted, the exercise of drafting my report, and the report itself generated useful starting points for several discussions in classes that I teach on American law. Those conversations ranged from an aspect of the famous Chenery case in my Administrative Law class to an editing exercise in a seminar on counterterrorism. Needless to say, I hope it also makes a positive impact in Russia when it is released next month.
Those teaching moments were hard to foresee at the outset of my research. But anyone who values knowledge for its own sake would not be surprised by the serendipity my Russian law work produced in my American law classrooms. That the report led to invitations to speak to groups at universities and thinktanks in the U.S., U.K., Sweden, Norway, Finland, and Belgium also suggests that what counts as valuable research might benefit from a less cramped definition than Segal and company provide.
Suggested Reading (for Law Students and Profs): Open Book: Succeeding on Exams from the First Day of Law School
posted by Danielle Citron
Barry Friedman and John C.P. Goldberg have a new book out on how to take law school exams called Open Book: Succeeding on Exams from the First Day of Law School. It is something different and really worth recommending. Here are a few reasons why I would love my students to read the book and its online content. First, the book imparts fabulous advice on why law profs give exams and how those exams directly connect to law practice and the whole law school endeavor. Second, the website has so many practice exams (in all of the core areas) with marked up answers that explain the reasons behind the prof’s thinking and evaluation of the answers. This is an incredible help: students learn what worked on the exam and why. Third, the joy that the authors take from teaching and the practice of law leaps off the page — it’s so clear how wonderful they are as teachers and mentors. Their enthusiasm and respect for what lawyers do is obvious and inspiring. The pedagogy will appeal to law professors, and it is an entertaining read, nicely illustrated. The website is full of useful content (those practice exams and feedback I talked about). (Profs: to check it out, you need an access code to get to the premium content but can easily get one by writing them from the author contact page.)
Here’s the back-of-book blurb:
Open Book is the ultimate insider’s guide to succeeding on law school exams. The authors draw on decades of classroom teaching and student counseling to create a concise, lively book that imparts a method of law school exam-taking that maximizes your chances of success—and helps prepare you for the world of practice. Their Web site (www.openbooklaw.com) gives you access to valuable exam-related resources.