Archive for the ‘Law Practice’ Category

Original Habeas Writ

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.

December 25, 2011 at 2:53 pm Posted in: Capital Punishment, Civil Rights, Constitutional Law, Courts, Criminal Procedure, Law Practice Print This Post No Comments

Transactional Internships in the Summer after the First Year

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.

December 8, 2011 at 1:26 pm Posted in: Law Practice, Law Student Discussions Print This Post One Comment

The Usefulness of Legal Scholarship

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.

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November 26, 2011 at 4:19 pm Posted in: Jurisprudence, Law and Humanities, Law Practice, Law School (Scholarship), Legal Theory Print This Post 6 Comments

“The first thing we do, let’s [train] all the lawyers.”

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.

November 20, 2011 at 8:55 pm Posted in: Education, Law Practice, Law School (Scholarship), Law School (Teaching), Uncategorized Print This Post 7 Comments

F.M. LaGuardia and Lawyers In the Way

posted by Lawrence Cunningham

As a law professor and lawyer, I like law and lawyering. But I hate as much as the next guy when lawyers get in the way of people trying to do business.

In the past year, lawyers have poisoned three separate personal deals of mine, over matters neither I nor the other side needed to care about. The lawyers were hurting not helping their clients.

Lawyers need to know, and as a law professor I try to teach, the difference between legal matters and business issues. Lawyers must know the difference and stay out of the way of business matters.

All this prompts me to reprint below a wonderful letter from the inimitable Mayor of New York, Fiorella La Guardia. The letter, dated January 29, 1944, is addressed to the heads of various airlines, including American, Eastern, PanAm, and United.

The letter’s ultimate paragraph and final words speak volumes to my point, and the letter as a whole is vintage piece of written communication. Read the rest of this post »

June 29, 2011 at 5:12 pm Posted in: Law Practice, Law School (Teaching), Teaching Print This Post 7 Comments

What Do Law Professors Do?

posted by Gerard Magliocca

In the legal writing interviews with the Justices that I referred to over the weekend, Chief Justice Roberts said that “[w]hat the academy is doing, as far as I can tell, is largely of no use or interest to people who actually practice law.” Judges and lawyers often make similar comments, so I thought that I would try to explain why I think this view is, at least, exaggerated.

First, there are many excellent scholars who write traditional doctrinal articles that are useful in deciding difficult cases. Some fields, of course, lend themselves more to that than others, but I think it would be wrong to dismiss what they do.

Second, some legal scholarship is directed at the Executive Branch, Congress, or administrative agencies. These papers will be of no interest to courts or most practitioners. For instance, I have an article coming out soon on “Reforming the Filibuster.” That article is not less valuable because it is about the Senate.

Third, a significant amount of legal scholarship is devoted to “basic research” such as philosophy or history. Almost every field can be divided into applied research and basic research, and what courts and attorneys do is applied. It does not follow that because the utility of basic research (say, human anatomy) is uncertain that means it’s useless. It takes time to figure that out.

Fourth, legal scholarship is indirectly transmitted to judges through their clerks and briefs. Even if a clerk, who is usually more familiar with current law review articles than the judge, does not cite articles that he or she read, the information or analysis in there still exerts some influence on the bench memo or draft opinion. Ditto for briefs, especially for amicus briefs written by professors, which are more common nowadays.

Now I do not deny that there is plenty of legal scholarship that is esoteric or useless. That is a necessary cost of academic freedom to some extent, and also reflects the more interdisciplinary nature of the legal academy since the 1960s. (In other words, the more subjects that are under the law umbrella, the more apt one is to think that a given aspect not your own is a waste of time.)

May 26, 2011 at 8:50 am Posted in: Law Practice Print This Post 30 Comments

Blame Email Disclaimers on Judge Harmon?

posted by Dave Hoffman

The Economist has a fun blurb on email disclaimers — the ones that boldly state that the email you’ve just received creates no legal relationship, offers no advice, and generally isn’t worth the paper it isn’t printed on. The blurb argues that such disclaimers are “are mostly, legally speaking, pointless. Lawyers and experts on internet policy say no court case has ever turned on the presence or absence of such an automatic e-mail footer in America, the most litigious of rich countries.” Why, then, do they exist? Because lawyers are lemmings, and “once something has become a legal habit it has a tendency to stick.” Also, of course, the marginal cost to each sender of adding a pointless disclaimer is basically zero.

But inefficient social movements presumably need some kind of push to get off the ground, even if they fly off a cliff. I hypothesize that Judge Harmon’s highly publicized secondary actors decision in the Enron litigation from 2002 provided the launching pad. In that decision, as you may recall, Judge Harmon said that law firms (and accountants, and consultants) could be exposed to securities liability as a primary violator of 10b-5 if they, with requisite scienter, created a document that (when routed to the public) turned to be misleading. I remember being in practice after that decision came out, and the firm was quite concerned to create disclaimers for all documents that went out the door to try to react to the decision’s potential scope. Indeed, we know that one result of the decision (and others like it) was to push firms to move from general to limited partnership models. So perhaps it also influenced email practices.

How about it? For those of you in practice in the mid-1990s, can you reach into your archives and check for email disclaimers? If not, we’ll call my theory a winner. If so, we need to find some new explanation. [AJ Sutter, I'm talking to you.]

May 16, 2011 at 10:52 am Posted in: Behavioral Law and Economics, Law Practice Print This Post 11 Comments

Randomization, Intake Systems, and Triage

posted by Jaya Ramji-Nogales

Thanks to Jim and Cassandra for their carefully constructed study of the impact of an offer from the Harvard Legal Aid Bureau for representation before the Massachusetts Division of Unemployment Assistance, and to all of the participants in the symposium for their thoughtful contributions. What Difference Representation? continues to provoke much thought, and as others have noted, will have a great impact on the access to justice debate. I’d like to focus on the last question posed in the paper — where do we go from here? — and tie this in with questions about triage raised by Richard Zorza and questions about intake processes raised by Margaret Monsell. The discussion below is informed by my experience as a legal service provider in the asylum system, a legal arena that the authors note is strikingly different from the unemployment benefits appeals process described in the article.

My first point is that intake processes vary significantly between different service providers offering representation in similar and different areas of the law. In my experience selecting cases for the asylum clinics at Georgetown and Yale, for example, we declined only cases that were frivolous, and at least some intake folks (yours truly included) preferred to select the more difficult cases, believing that high-quality student representation could make the most difference in these cases. Surely other legal services providers select for the cases that are most likely to win, under different theories about the most effective use of resources. WDR does not discuss which approach HLAB takes in normal practice (that is, outside the randomization study). On page twenty, the study states that information on financial eligibility and “certain additional facts regarding the caller and the case” are put to the vote of HLAB’s intake committee. On what grounds does this committee vote to accept or reject a case? In other words, does HLAB normally seek the hard cases, the more straightforward cases, some combination, or does it not take the merits into account at all?

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March 28, 2011 at 9:14 pm Posted in: Behavioral Law and Economics, Civil Rights, Empirical Analysis of Law, Immigration, Law Practice, Law Rev (Yale), Symposium (What Difference Representation), Uncategorized Print This Post One Comment

What Difference Representation: Case Selection and Professional Responsibility

posted by Margaret Monsell

Thanks for the invitation to participate in this interesting and provocative symposium.

I’m a legal services attorney in Boston. My employer, Massachusetts Law Reform Institute (MLRI), has as one of its primary tasks to connect the state’s field programs, where individual client representation occurs, with larger political bodies, including legislatures and administrative agencies, where the systemic changes affecting our clients most often take place. (The legal services programs in many states include organizations comparable to MLRI; we are sometimes known by the somewhat infelicitous name “backup centers.”) Among the programs with which MLRI is in communication is the Harvard Legal Assistance Bureau, and I would take this moment to acknowledge the high regard in which I and my colleagues regard their work.

The substantive area of my work is employment law. It is no surprise that during the past three years of our country’s Great Recession, the importance of the unemployment insurance system for our clients has increased enormously and, consequently, it has occupied a greater portion of my time than might otherwise have been the case.

I’m not a statistician nor do I work in a field program representing individual clients, so my comments will not address in any detail the validity of the HLAB study or the conclusions that may properly be drawn from it. As one member of the community of Massachusetts legal services attorneys, however, I have an obvious interest in the way the study portrays us: we are variously described as self-protective, emotional, distrustful of being evaluated, and reluctant to the point of perverseness in participating in randomized studies of the kind the authors wish to conduct. Our resistance in this regard has itself already been the subject of comment here. Happily, it is not often that one looks into what seems to be a mirror and sees the personage looking back wearing a black hat and a snarl. But when it does happen, it’s hard to look away without some effort at clarification. So I will devote my contribution to the symposium to the topic of the perceived reluctance of the legal services community to cooperate in randomized trials. It goes without saying, but the following thoughts are those of only one member of a larger community.

My understanding is that in the HLAB study, no significant case evaluation occurred prior to randomization. Many of us in legal services view with trepidation the idea of ceding control over case selection to the randomization process. Others have more sanguine views, either because they assume that randomization is already taking place or that it ought to be. For example, in his comments from a few months ago, Dave Hoffman was working under the assumption that to randomize client selection would not change an agency’s representation practices at all, and on that basis, he criticized resistance to randomized control trials as “trying to prevent research from happening.”

The authors of the study are enthusiastic about randomization not only because of its scientific value in statistical research but also because it can help to solve one of the thorniest problems facing legal services programs – the scarcity of resources as compared to the demand. As long as the demand for legal assistance outstrips the supply, Professor Greiner has said, randomization – a roll of the dice or the flip of a coin — is an easy and appropriate way to decide who gets representation and who does not.

I believe it’s erroneous to assume that randomization would not change representation practices, at least in the area of legal services in which I work. I also acknowledge that it is possible, at least theoretically, for all the cases in a randomized control trial to have met the provider’s standards for representation. This would provide some measure of reassurance. However, in one area of law, immigration asylum cases, the authors have concluded that time constraints make such an effort unworkable.

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March 28, 2011 at 5:11 pm Posted in: Civil Procedure, Empirical Analysis of Law, Law Practice, Symposium (What Difference Representation) Print This Post No Comments

What Difference Presentation?

posted by David Udell

David Udell is the Executive Director of the National Center for Access to Justice and a Visiting Professor from Practice at Cardozo Law School.

In my line of work, I have seen many efforts in the political realm to shut down civil legal services for the poor, and have continually worked to combat such efforts. In 1996, when the Gingrich Congress barred federally funded legal services lawyers from bringing class actions on behalf of the poor, I left Legal Services for the Elderly in order to finish a lawsuit on behalf of widows and widowers who were suing to compel the United States Treasury to fix its practices for replacing stolen Social Security payments. When I later moved to the Brennan Center for Justice, I helped bring a lawsuit against the rules that barred legal services lawyers from participating in such class actions, I filed another lawsuit against similar rules that barred law school clinic students from bringing environmental justice cases in Louisiana, and I built a Justice Program at the Brennan Center dedicated to countering such attacks on the poor and on their lawyers.

In their March 3, 2011 draft report, What Difference Representation? Offers, Actual Use, and the Need for Randomization (“the Study”), authors D. James Greiner & Cassandra Wolos Pattanyak are right about the importance of developing a solid evidence base – one founded on methodologies that include randomization – to establish what works in ensuring access to justice for people with civil legal cases. They are right again that in the absence of such evidence, both the legal aid community and its critics are accustomed to relying on less solid data. And they are smart to “caution against both over- and under-generalization of these study results.” But, unfortunately, the bare exhortation to avoid over- and under-generalization is not sufficient in the highly politicized context of legal services.

While the authors obviously do not have any obligation to arrive at a particular result, they can be expected to recognize a need to avoid statements that have a high probability to mislead, especially in light of the likely inability of much of the Study’s audience to understand the authors’ methodology and findings. In fact, because of the Study’s novelty and appearance in a non-scientific journal, it will be relied on to analyze situations where it doesn’t apply, and by people who have no background in social science research, plus it will be given disproportionate weight because so few comparable studies exist to judge it against. It is these factors, in combination with the politicization of legal services, that make it crucial that the authors’ assertions, particularly in the sections most likely to be seen by lay readers (the title and the abstract), do not extend beyond what the findings justify.

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March 28, 2011 at 8:04 am Posted in: Civil Rights, Empirical Analysis of Law, Law Practice, Law Rev (Yale), Law School, Law School (Law Reviews), Symposium (What Difference Representation), Uncategorized Print This Post No Comments

What Difference Representation: Introduction to the Symposium

posted by Dave Hoffman

Should Law School Clinics Select Clients by Roulette?

I am delighted to announce that Concurring Opinions will be hosting a symposium next Monday and Tuesday on What Difference Representation? Offers, Actual Use, and the Need for Randomization, the forthcoming Yale Law Journal article by Jim Greiner and Cassandra Wolos Pattanayak. [Update: You can read all posts in the symposium by clicking on this link.] As you may recall, What Difference has already caused quite a stir in the clinical and legal aid communities. Given our shared interest in questions of empirical methodology, and Jaya’s background in clinical legal services, we decided that bringing that debate to CoOp would be an excellent use of our time and energy. Here’s the (revised) abstract) – though you should download the article if you haven’t already:

“We report the results of the first in a series of randomized control trials designed to measure the effect of an offer of, and the actual use of, legal representation. The results are unexpected. In the context of administrative litigation to determine eligibility for unemployment benefits, a service provider’s offer of representation to a claimant had no statistically significant effect on the claimant’s probability of a victory, but the offer caused a delay in the proceeding. Because a substantial percentage of the provider’s client base consisted of claimants who were initially denied benefits but who would later have that initial denial reversed as a result of the litigation, the offer of representation inflicted a harm upon such claimants in the form of an additional waiting time for benefits to begin, this with no discernible increase in the probability of a favorable outcome. In other words, within the limits of statistical uncertainty, these claimants would have been better off without the offer of representation. The size of the delay (around two weeks, depending on how measured) was not large in absolute terms, and would have been negligible in many other legal settings, but was relevant in the context of this particular administrative and legal framework, one in which speed has remained a special concern for decades. Moreover, in a small number of cases with a certain profile, the delay caused the unemployment system to continue paying benefits erroneously for a longer period of time, potentially imposing costs on the financing of the unemployment system. We were also able to verify a delay effect due to the actual use of (as opposed to an offer of) representation; we could come to no firm conclusion on the effect of actual use of representation on win/loss.

We hypothesize three potential explanations for our findings (and acknowledge that others are possible). First, it is possible that the client base that reached out to the service provider (and thus was subject to randomization) was a specialized subset of unemployment claimants, a subset that did not actually need legal assistance. This theory suggests special attention to provider intake systems. Second, it is possible that the administrative adjudicatory system at issue, with its semi-inquisitorial style of judging, is pro se friendly. Third, it is possible that the subject matter in dispute in these cases is less legally, factually, or procedurally complex than in other settings.

We caution against both over- and under-generalization of these study results. We use these results as a springboard for a comprehensive review of the quantitative literature on the effect of representation in civil proceedings. We find that this literature provides virtually no credible information, excepting the results of two randomized evaluations occurring in different legal contexts and separated by over three decades. We conclude by advocating for, and describing challenges associated with, a large program of randomized evaluation of the provision of representation, particularly by legal services providers.”

We have assembled a terrific group of symposiasts, mixing clinicians, academic empiricists and practitioners. Besides Jim, Cassandra, Jaya and me, the group includes twelve contributors, lauded in detail after the jump:

Read the rest of this post »

March 23, 2011 at 11:23 am Posted in: Behavioral Law and Economics, Empirical Analysis of Law, Law Practice, Law Rev (Yale), Law School, Law School (Scholarship), Symposium (What Difference Representation) Print This Post One Comment

Parting Thoughts on the Profession

posted by Michelle Harner

I want to thank the permanent authors of Concurring Opinions for the opportunity to guest blog. I truly enjoyed the experience and the lively debate. Academia can be isolating in many respects—particularly compared to private practice—so it is nice to have this type of forum to exchange ideas and discuss timely and interesting topics.

For my last post, I want to highlight some trends in law firm practices and consider what they mean for the profession more generally. We are all aware of the difficult job market: law school graduates continue to receive deferred offers, summer associate classes continue to be smaller and many lawyers who lost their jobs are still unemployed. (Even lawyers who managed to keep their jobs may face challanges, see here.) These realities have translated into increased anxiety for law students (exactly what they do not need; law school is stressful enough when the market is good) and new challenges for law schools. But what do they mean for law firms? (For a thoughtful discussion of the challenges facing big law, see here.)

Many commentators have opined on the changing roles of law firms and lawyers, and they often paint a pretty bleak picture (see here, here and here). It is one where lawyers are marginalized and society protects its legal rights by purchasing commoditized legal products or interacting with a computer program or virtual lawyer. The profession also faces challenges from non-lawyers and non-U.S. lawyers. In fact, anecdotal evidence suggests that an increasing number of firms are—either voluntarily (to reduce overhead) or involuntarily (to meet client demands)—outsourcing certain legal services to lawyers in foreign countries (see here and here).

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February 28, 2011 at 6:48 am Tags: academia, Current Events Posted in: Law Practice Print This Post No Comments

UCLA Law Review Vol. 58, Issue 3 (February 2011)

posted by UCLA Law Review

Volume 58, Issue 3 (February 2011)

Articles

Good Faith and Law Evasion	Samuel W. Buell	611
Making Sovereigns Indispensable: Pimentel and the Evolution of Rule 19	Katherine Florey	667
The Need for a Research Culture in the Forensic Sciences	Jennifer L. Mnookin et al.	725
Commentary on The Need for a Research Culture in the Forensic Sciences	Joseph P. Bono	781
Commentary on The Need for a Research Culture in the Forensic Sciences	Judge Nancy Gertner	789
Commentary on The Need for a Research Culture in the Forensic Sciences	Pierre Margot	795

Comments

What’s Your Position? Amending the Bankruptcy Disclosure Rules to Keep Pace With Financial Innovation	Samuel M. Kidder	803
Defendant Class Actions and Patent Infringement Litigation	Matthew K. K. Sumida	843

February 25, 2011 at 1:19 pm Posted in: Bankruptcy, Civil Procedure, Constitutional Law, Courts, Criminal Law, Criminal Procedure, Current Events, Economic Analysis of Law, Empirical Analysis of Law, Evidence Law, History of Law, Indian Law, Intellectual Property, International & Comparative Law, Jurisprudence, Law and Humanities, Law and Inequality, Law and Psychology, Law Practice, Law Rev (UCLA), Psychology and Behavior, Race, Sociology of Law, Supreme Court Print This Post No Comments

My New Position at Hogan Lovells

posted by Daniel Solove

I’m very pleased to announce that since last week, I am now a senior policy advisor at the law firm of Hogan Lovells. The position is part-time, and I still remain a full-time law professor.

In particular, I’ll be working as part of the Privacy and Information Management Group, headed by Marcy Wilder and Christopher Wolf.

I decided to take this position because I believe I can help clients, and the work will be fun and rewarding. The people in the practice group are terrific. And I hope the work will bring new practical knowledge to my scholarship. I’ll get to see the front lines of how companies address privacy issues in the global economy. Increasingly, the disjunction between the approach to privacy law in the United States and in many other countries is presenting a challenge, as commerce and communication are global. What is particularly special about Hogan Lovells is that the firm is a truly international one, with an extensive practice in Europe and around the world.

I’m really excited about this new position. I think it will be quite a rewarding experience.

January 8, 2011 at 1:36 pm Posted in: Law Practice, Privacy Print This Post 4 Comments

Bingham’s Bungling

posted by Lawrence Cunningham

Bingham, the galactic law firm with roots in Boston’s old-fashioned legal market, is a ubiquitous advertiser in expensive print publications, boasting about its deftness in navigating complex business challenges with keen legal insight. The firm even brags about its advertising prowess.

The shameful performance of one of its Boston-based partners in botching a basic matter of document handling suggests the firm ought to spend more time and money on the nuts and bolts of old-fashioned lawyering than on Madison Avenue promotion and mercantile ambitions.

At issue is the embarrassing spectacle of Larry Silverstein handling a simple contract drafting exercise for Jamie and Frank McCourt. The rich erstwhile couple feud over ownership of the Los Angeles Dodgers baseball team—a feud protracted because of Silverstein’s inexplicable bungling that was confounded by conduct verging on the unethical.

A California court hearing the McCourt divorce case released an opinion declaring invalid the couple’s contract that Silverstein prepared. The contract was invalid because Silverstein botched it. His errors culminated in the existence of two versions of a single contract, one declaring that the Dodgers belonged solely to Frank and the other that the team was the couple’s joint property. The contract thus failed elementary requirements of contract law and basic requirements of California law applicable to marital asset splits.

Following are some of the problems in Silverstein’s and Bingham’s representation of the McCourts in this matter, culled from the court’s opinion: Read the rest of this post »

December 9, 2010 at 8:53 am Posted in: Contract Law & Beyond, Current Events, Law Practice Print This Post 6 Comments

The Journal of Legal Education’s Bipolar Issue

posted by Dave Hoffman

Of course, failing the Bar doesn't always turn out badly

I rarely read the The Journal of Legal Education. The Journal, sent to every law professor in the country, is printed “as a public service” by Westlaw, which means that it is indirectly subsidized by the clients of practicing lawyers. Regardless of the merits of that practice, and indeed the Journal’s existence, there is a good and useful article in the recent issue: Jane Yakowitz’s “Marooned: An Empirical Investigation of Law School Graduates Who Fail the Bar Exam.” In the Article, Yakowitz focuses on the 150,000 law school graduates who have “taken but never passed a bar exam”: 1 in 10 law school J.D.s. She creatively amasses data from various sources to conclude:

1) African American and Latino and hispanic law graduates are “at least twice as likely as white graduates to become a never-passer”.

2) If a graduate comes from a poor background, all else equal she is just as likely to pass the bar on the first administration as a student from a richer background. But if she fails the first time, being poor is correlated with becoming a never-passer. Yakowitz argues that this result follows from a lack of resources to study and prepare a second and third time.

3) In the short term, bar failure significantly reduces employment and earnings. In the long term – ten years – never-passers “bounce back”. Though they never make as much as lawyers, they “surpass the trajectory of average college graduates their age.” Most are working in legal settings. That said, they make about “$17,000 less than J.D.-holders the same age and gender…” And compared to lawyers who passed, never-passers experience significantly more career instability. They are divorced more often than passers, and are less likely to live with their children. In sum, never-passers decision to attend law school turns out to be a raw deal – though in the latter half of their careers, may pay mild dividends.

All in all, a decidedly useful and sobering piece of scholarship. Law schools whose students pass the bar at less often than the state average should be thinking hard about changes they can make. About a decade ago, Temple faced a problem like this, and we dealt with it through various forms of mentoring, and by lowering our curve to give students in trouble more sharp notice of what they were facing. Our bar passage rate rebounded sharply, which is a source of great comfort after reading Marooned.

It’s a shame the rest of the issue is full of snarky work in which various authors assert that law schools intend to obfuscate and prevent learning because they are willfully blind to the blinding truth (discovered by the authors) that this is a bad way to teach doctrine. As if that what the main purpose of law teaching was – as opposed to understanding why the rules work the way they do. It is true that you need to know the rules to pass the bar exam. But passing the bar exam – however wealthy and healthy it might make you – will not make you good lawyer.

September 14, 2010 at 11:13 am Posted in: Law Practice, Law School (Scholarship), Law School (Teaching) Print This Post 5 Comments

A Tale of Two Gay Marriage Litigations: To Stay or Not to Stay?

posted by Glenn Cohen

While Perry and the Prop 8 litigation has been getting most of the attention in the media and blogosphere, the Massachusetts District court decisions in Gill v OPM and Massachusetts v. Dep’t of Health & Human Services striking down parts of the Defense of Marriage Act are in some ways the more interesting (and if upheld more meaningful) decisions. Today, though, I noticed reporting that Gay & Lesbian Advocates & Defenders (GLAD) the Massachusetts-based gay rights group that ligated Gill among many other major LGBT rights cases (including the MA gay marriage case, Goodrich) had agreed to stay the ruling while the DOJ decided whether to take an appeal. I thought this was an interesting contrast to Boies and Olson’s decision to fight the stay of Perry at each stage. Of course there are a number of legal differences between the cases — in the press release GLAD points to not wanting to have to pay back benefits if the decision is overturned and there is a possibility that the Obama administration may relent in its opposition to the suit — but I find the strategic/political perspective even more intriguing here. Would Olson and Boies have been perceived to have let down their backers if they did not fight the stay, whereas as more institutional repeat player like GLAD has already built up significant goodwill? Are there good strategic reasons why the Perry litigators want to try and accelerate their litigation while the Gill ones want to maintain the typical pace, or is this instead a matter of the litigators’ own interests? Are Boies and Olson more confident of a good reception than the Gill lawyers at the Supreme Court now, and are they right to be? Which case is the one someone supportive of these efforts should want to see get to the cert stage first? How does the standing to appeal issue in Perry fit in to the calculation? Part of it may also just be a reflection of the slowness of the 9th Circuit’s typical docket as compared to the lithe 1st Circuit, such that even with the stay acceleration in Perry the Gill case gets resolved first. Lots of questions and few answers, but I thought others might have interesting thoughts…

August 20, 2010 at 12:00 pm Posted in: Civil Procedure, Constitutional Law, Family Law, Law Practice Print This Post 2 Comments

Hertz, Appellate Review, and Sneaky Tricks

posted by Glenn Cohen

You will be forgiven if you did not pay attention to the Supreme Court’s decision in Hertz Corp v. Friend last year — indeed unless you are a Civ Pro junkie, paying attention might be the less foregivable act. The case resolved a piece of perennial low-hanging fruit on Civ Pro exams as to what is the test under diversity subject matter jurisdiction for the citizenship of a corporation, which turns on where it has its principal place of business. The Court resolved that the “Nerve Center” is the test, ending a circuit split where the “corporate activities/operating assets” and “hybrid” tests were also contenders.

What I am more curious about, though, is whether after the decision any attorneys used the following sneaky trick : If they had lost the case in district court, and diversity jurisdiction was proper on one of the other tests that governed in the Circuit pre-Hertz, but not the nerve center test, did they on appeal ask the Circuit court to vacate the decision for lack of subject matter jurisdiction? If not, were Circuit courts making independent subject matter jurisdiction assessments in light of Hertz and dismissing cases with district court decisions in these circumstances? After all, as that old 1804 chestnut Capron v. Van Noorden, 6 U.S. (2 Cranch) 126 (the case that Arthur Miller, who it appears still retains a larger than life grip on his students’ imaginations now that he is at NYU, terrorized us with on Day 1 one of Civ Pro) suggests, Subject Matter Jurisdiction objections can be raised at any time, and the Court has an independent obligation to determine if it has jurisdiction over the case.

Did these post-Hertz dismissals actually materialize? I don’t see why they shouldn’t have. After all the court did not suggest it was making a new rule for subject matter jurisdiction (it claims this was always the right reading of the statute), nor did it suggest the rule was non-retroactive. I have not seen any discussion of such dismissals, but that just may mean they are off the law professoriate radar, or maybe I am missing something preventing litigators or courts from behaving in the way I suggested? I am curious if others have seen anything like this or have thoughts, I thought this might be a nice way to teach the otherwise somewhat rote rules of diversity jurisdiction to my first-year Civ Pro class this year….

August 19, 2010 at 9:53 am Posted in: Civil Procedure, Law Practice, Uncategorized Print This Post 5 Comments

The Value of Law School “Eliteness”

posted by Michael Kang

A paper recently circulated by Richard Sander and Jane Yakowitz finds that “performance in law school—as measured by law school grades—is the most important predictor of career success” and is “decisively more important than law school ‘eliteness.’” The conclusion drawn from Sander and Yakowitz’s paper, at least by the ABA Journal, is that prospective students would be badly served by the “standard advice” of attending the best school that will accept you.

Sander and Yakowitz’s paper seems to support this conclusion because it finds that better academic performance at a lower ranked school can offset the prestige advantage of a higher ranked school, at least when it comes to predicted salary later as a firm lawyer. Of course, this assumes that a particular individual would perform better at a lower ranked school than a higher ranked school, where the peer competition would be more intense. The paper is consistent with Sander’s earlier work on affirmative action and the mismatch hypothesis, which suggested that certain beneficiaries of affirmative action would be better off if they attended lower ranked schools rather than higher ranked schools where their incoming numerical credentials would be mismatched with the prestige of their law school. (For more about this earlier work, see Albert Yoon & Jesse Rothstein’s and Dan Ho’s responses.)

No doubt, Sander and Yakowitz’s paper helps bolster the recruiting pitches of lower ranked schools. To use Sander and Yakowitz’s example from the paper, a prospective student can be better off attending law school at Florida instead of George Washington University, or even Boalt Hall, provided that she gets much better grades at Florida than she would have at GW or Boalt. This makes sense—elite law firms, at least ones in the big cities, collect the best students from law schools across the country and pay them all well (they just hire more from the top ranked schools).

However, I don’t think Sander and Yakowitz’s paper goes so far as to disprove the standard advice of attending a top school. First, Sander and Yakowitz’s paper still finds large advantages in salary for graduates of top ten law schools even controlling for law school GPA. That is, even if there is less of an advantage in attending GW instead of Florida, there remains a very significant advantage in attending a top ten school. This is what Paul Oyer and Scott Schaefer found earlier as well. Just as important, this prestige advantage is certain and known from the moment the student decides to attend a top ranked law school.

Second, the decision to attend a lower ranked school pays off only if the underlying assumption is correct—the student will get appreciably better grades at the lower ranked school than the higher ranked school. This assumption is often correct, and Sander and Yakowitz support it with their data, but it is uncertain to be sure at the individual level. Exam taking, as law professors often observe, is a specialized skill. Scoring well on law school exams doesn’t flow so directly from native intelligence such that anyone smart enough in some general sense to be admitted to Boalt can be sure they would get top grades at Florida. It’s still a bet, though perhaps a good one. But if I’m the prospective student that Sander and Yakowitz imagine, I wouldn’t be as sure as they are that I’d have a GPA in the 3.25-3.5 range at Florida but only in the 2.5-2.75 range at Boalt. In fact, even if Sander and Yakowitz are right about the GPA comparability, this estimation pushes me to attend Boalt, not Florida. I can average a C+ to B- at Boalt and get roughly the same predicted salary as a B+ to A- GPA would get me at Florida.

I think that probably sounds like an attractive deal to many students, particularly if they have any measure of risk averseness, to say nothing of a taste for “eliteness” for its own sake.

August 10, 2010 at 12:48 am Posted in: Law Practice, Law School Print This Post 6 Comments

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