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Category: Law Practice

[If] you read some fantasy, the magic is omnipresent. In Harry Potter the magic is omnipresent, a primarily magic universe. They got magic for everything there. Every time you turn around there’s a new magic thing that’s popping up. A magic hat or a magic sword or a spell to solve something. Because magic is so omnipresent, you don’t have to [resort] to mundane ways to…solve a murder mystery. “Who murdered Joe? Well we’ll just give him the truth spell and he’ll tell us who murdered Joe,” or “We’ll just cast this other spell and open the veil of time and we’ll be able to see who murdered Joe.” If those options exist then it’s very difficult to write a traditional John Grisham type novel or a detective novel or anything that depends on evidence and all that because there are all these magical ways of getting it.

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Lawyers in Westeros

An uncomfortable chair in a modern partner's office?

An uncomfortable chair in a modern partner’s office?

This is Part 2 of the interview I did with George R. R. Martin in  2007.  For background and part 1, click here.  For the audio file, click here.

 HOFFMAN: Are there lawyers in your books that are just in the wings off stage that haven’t yet appeared?

MARTIN: That’s an interesting question. I hadn’t really considered that until I started reading those links that you sent me. There are certainly laws but are there special classes of advocates who make their living by interpreting those laws? My inclination is probably not because the laws my books are administered by lords. In some ways it’s government as much for men than law. We like to say our government in the United States is a government of laws not men. In some ways the Seven Kingdoms I think is the reverse. There is basis of a law but also a lot depends on who is interpreting it and who is sitting in the Lord’s seat, who is sitting on the Iron Throne and how they settle these disputes.

HOFFMAN: Well those are ultimate questions but I think in two places one could have imagine lawyers and one of them again will be this church trial because there were church lawyers in the ecclesiastical church system there were lawyers who specialized in canon law. And the second one was at least twice I can think of in the books there’re trials by combat. And I don’t really know what the other alternative would be but I assume would be trial by jury – the path that Tyrion did not choose both times. And I was thinking –

MARTIN: Well he does choose in the first…in the second…second of his two trials, he is being tried – it’s not by jury – it’s by lord. There’s no jury of his peers, no twelve people that are randomly picked but there are three lords sitting on his case and hearing the evidence.

Read More

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The Law Clerk Hiring Process – An Interview with Federal Judge Thomas Ambro

Thomas Ambro is a judge on the United States Court of Appeals for the Third Circuit and sits in Wilmington, Delaware. He was confirmed by the Senate by a 96-2 vote and has served on the Third Circuit since 2000. Judge Ambro received both his undergraduate and law degrees from Georgetown University. He was a law clerk for former Delaware Supreme Court Chief Justice Daniel Herrmann (1975-1976). Thereafter, Judge Ambro was with the firm of Richards, Layton & Finger in Wilmington, Delaware, where he was known nationally in two areas—legal opinions in commercial transactions and bankruptcy. Judge Ambro is a former Chair of the Business Law Section of the ABA. He is also a member of the American Law Institute and the National Bankruptcy Conference.

Welcome, Judge Ambro, to our corner of the blogosphere here at Concurring Opinions. It is an honor for us to have you contribute to this blog.Unknown

Question: How many law clerks do you have, and how long are their terms?

Answer: I have four law clerks per term. Generally those who clerk with me serve only one term. Because of the timing of exceptional post-clerking job opportunities, a few clerks have served less than a full-year term. For scheduling reasons, some have served up to a few months longer.

Question: Tell us a little bit how the clerkship application process works. For example, when do you first start accepting applications and up to what point do you stop considering them?

Answer: When the hiring protocols were in effect, I would receive applications from putative clerks via  OSCAR (Online System for Clerkship Application and Review) when those applications were released. All applications would be from persons who had completed at least their 2L year in law school. Because the hiring plan for federal law clerks has been discontinued, applications now come in randomly, and they are often from applicants in their 2L years.

I stop considering applications when the four law clerk positions for a term have been filled. Thereafter, the judicial assistant in our chambers alerts OSCAR of this fact.

I review the applications sent to me, whether online or in the mail. If I am interested in a particular application, I either wait for the letters for recommendation to come in (if they do not accompany the application) or begin calling the recommenders. Often an application is preceded by one or two recommenders alerting me of an applicant and inquiring whether I have a position available for the term to which the applicant is applying. In any event, if I remain interested, I call the applicant to set up a time to meet. For the four spots in a given term, it is uncommon that I would have more than a half dozen interviews with potential applicants.  In addition, the interviews with me and with my clerks are lengthy. Thus, it is rare if I do more than one interview of an applicant in a day.

Question: How much do you rely on OSCAR?

Answer: With the demise of the hiring plan, many applications come by mail. Thus, in a technical sense, I rely on OSCAR less than I did when the hiring plan was in effect. Nonetheless, I find OSCAR very helpful in every respect I can think.  In addition to saving reams of paper, it is both easy to use, highly efficient, and much appreciated.

Question: How far in advance do you select your clerks?  Some federal judges are now hiring two years in advance?  What is your current practice?

Answer:  Right now (March 2014) I have all positions filled for the 2014-’15 and the 2015-’16 terms.  I also have two clerks committed for the 2016-’17 term. My typical lead time for a clerk is two years. That may mean that a clerk will be at least a year removed from law school when she or he begins working in my chambers. That time is usually spent in another clerkship (almost always a District Court clerkship, though on two occasions it has been another Circuit Court clerkship), with a law firm, or sometimes both another clerkship and work in a law firm. Read More

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How Is Privacy Not a Class at all Law Schools?

Privacy law does not exist, but it should be taught at every law school. There is no one law of privacy. That is why I love teaching Information Privacy (Solove and Schwartz (Aspen) is the text I use). The class requires students to reengage with and apply torts, Constitutional law (First and Fourth Amendment at least), and statutory interpretation. It also lends itself to learning about sectoral approaches to regulation in health, finance, commerce, and education. Given that the idea and problems of privacy are everywhere, there are jobs in them thar hills. Yet, schools often see the course as a luxury or somehow part of IP. That is a mistake.

Schools should not pander to skills and job training demands, but sensitivity to areas of practice that have large needs is not pandering. Much of the skills, ready-to-practice rot comes from a small segment of the legal practice (i.e., big firms with huge profits who are not willing to pay for training their employees). That said, law schools tend to use the same playbook. For example, the rarified world of public corporation law is a standard part of business associations course materials. Yet according to the Economist, the number of public companies peaked at around 7,888 in 1997. Of course folks will say “Don’t teach to the bar.” Amen brothers and sisters, but why teach for a tiny portion of students in a core course? To be clear, I love teaching business associations and think it is useful, because agency and limited liability forms are so important. They are important, because being able to compare and contrast the forms for a client makes the attorney worth her pay. Grasping the beauty and nuances of the system unlocks the ability to be a true counselor. There are many, many businesses that are not, and may never become, public and that could benefit from having an attorney set up their project from the start. Privacy is similar. It reaches across many aspects of our lives and businesses.

Privacy issues come up in such a large range of practice that the course can allow one to address doctrinal mastery while also moving students beyond the silo approach of first year law. Seeing how property and trespass ideals reappear in criminal procedure, how assumption of risk permeates issues, and so on, shows students that the theories behind the law work in not so mysterious, but perhaps unstated ways. The arguments and counter-arguments come faster once you know the core idea at stake. That is the think-like-a-lawyer approach working well. It does not hurt that along the way students pick up knowledge of an area such as HIPPA or criminal procedure and technology that will make them a little more comfortable telling an employer or future client “Yes, I know that area and here’s how I’d approach it.”

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Gatekeeping and the Economic Value of a Law Degree (Part 2)

LincolnIn my last post, I discussed how the commentary on Michael Simkovic and Frank McIntyre’s “The Economic Value of a Law Degree” has illuminated a separate and worthwhile avenue for further research—namely, whether the presence of powerful gatekeepers who oversee the practice of law should make us confident that the value of the law degree will be relatively stable.

Most helpful in this regard has been Deborah Merritt’s post regarding the impact of the typewriter on lawyer education requirements.  At the risk of putting words into her mouth, Merritt observed that the typewriter may have contributed to the decision of the New York bar to make attendance at a three-year law school a prerequisite to bar admission and, therefore, that S&M were too hasty in concluding that people misconceived the typewriter to be a threat to the value of the law degree.

My earlier post explained that we must be careful not to conflate structural changes in the law degree’s value with structural changes in the credentials that one will need to become a lawyer.  By keeping the two separate, we can better understand how the gatekeepers to the industry might be able to insulate the value of the degree from exogenous forces.

In this second post, I’d like to offer some final observations on gatekeeping.  I begin with the acknowledgement that the effects of gatekeeping extend well beyond the population of degree holders, though S&M had perfectly valid reasons for focusing on that population.  Thereafter, I return to the relationship between gatekeeping and nostalgia, highlighting the strange role that the late Abe Lincoln played in the adoption of education requirements.  To finish up, I briefly explain how gatekeeping measures have long been—and will continue to be—a tempting tool for those with the power to wield them. Read More

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Incorporating Skills Training in Substantive Courses

Historically, skills training was not part of the education students received in law school. Things have changed, of course, and recently many have emphasized the need for practice-ready law grads. Incorporating skills training in substantive courses offers one promising option for improving students’ education. I’m prepping Sales (UCC Article 2) for the fall, and the course seems to lend itself well to a more skills-oriented approach. I plan to use problem-solving exercises and assignments which will not only teach students the law governing sales of goods, but will also enhance their statutory and contractual interpretation, drafting, and client-counseling skills. I have extensive experience litigating contractual disputes, so I know these skills are essential for commercial litigators. And they seem equally important to transactional lawyers.

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Brian Tamanaha’s Straw Men (Part 2): Who’s Cherry Picking?

(Reposted from Brian Leiter’s Law School Reports)

BT Claim 2:  Using more years of data would reduce the earnings premium

BT Quote: There is no doubt that including 1992 to 1995 in their study would measurabley reduce the ‘earnings premium.’” 

Response:  Using more years of historical data is as likely to increase the earnings premium as to reduce it

We have doubts about the effect of more data, even if Professor Tamanaha does not.

Without seeing data that would enable us to calculate earnings premiums, we can’t know for sure if introducing more years of comparable data would increase our estimates of the earnings premium or reduce it.

The issue is not simply the state of the legal market or entry level legal hiring—we must also consider how our control group of bachelor’s degree holders (who appear to be similar to the law degree holders but for the law degree) were doing.   To measure the value of a law degree, we must measure earnings premiums, not absolute earnings levels.

As a commenter on Tamanaha’s blog helpfully points out:

“I think you make far too much of the exclusion of the period from 1992-1995. Entry-level employment was similar to 1995-98 (as indicated by table 2 on page 9).

But this does not necessarily mean that the earnings premium was the same or lower. One cannot form conclusions about all JD holders based solely on entry-level employment numbers. As S&M’s data suggests, the earnings premium tends to be larger during recessions and their immediate aftermath and the U.S. economy only began an economic recovery in late 1992.

Lastly, even if you are right about the earnings premium from 1992-1995, what about 1987-91 when the legal economy appeared to be quite strong (as illustrated by the same chart referenced above)? Your suggestion to look at a twenty year period excludes this time frame even though it might offset the diminution in the earnings premium that would allegedly occur if S&M considered 1992-95.”

There is nothing magical about 1992.  If good quality data were available, why not go back to the 1980s or beyond?   Stephen Diamond and others make this point.

The 1980s are generally believed to be a boom time in the legal market.  Assuming for the sake of the argument that law degree earnings premiums are pro-cyclical (we are not sure if they are), inclusion of more historical data going back past 1992 is just as likely to increase our earnings premium as to reduce it.  Older data might suggest an upward trend in education earnings premiums, which could mean that our assumption of flat earnigns premiums may be too conservative. Leaving aside the data quality and continuity issues we discussed before (which led us to pick 1996 as our start year), there is no objective reason to stop in the early 1990s instead of going back further to the 1980s.

Our sample from 1996 to 2011 includes both good times and bad for law graduates and for the overall economy, and in every part of the cycle, law graduates appear to earn substantially more than similar individuals with only bachelor’s degrees.

 

Cycles

 

This might be as good a place as any to affirm that we certainly did not pick 1996 for any nefarious purpose.  Having worked with the SIPP before and being aware of the change in design, we chose 1996 purely because of the benefits we described here.  Once again, should Professor Tamanaha or any other group wish to use the publicly available SIPP data to extend the series farther back, we’ll be interested to see the results.

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Brian Tamanaha’s Straw Men (Part 1): Why we used SIPP data from 1996 to 2011

(Reposted from Brian Leiter’s Law School Reports)

 

BT Claim:  We could have used more historical data without introducing continuity and other methodological problems

BT quote:  “Although SIPP was redesigned in 1996, there are surveys for 1993 and 1992, which allow continuity . . .”

Response:  Using more historical data from SIPP would likely have introduced continuity and other methodological problems

SIPP does indeed go back farther than 1996.  We chose that date because it was the beginning of an updated and revitalized SIPP that continues to this day.  SIPP was substantially redesigned in 1996 to increase sample size and improve data quality.  Combining different versions of SIPP could have introduced methodological problems.  That doesn’t mean one could not do it in the future, but it might raise as many questions as it would answer.

Had we used earlier data, it could be difficult to know to what extent changes to our earnings premiums estimates were caused by changes in the real world, and to what extent they were artifacts caused by changes to the SIPP methodology.

Because SIPP has developed and improved over time, the more recent data is more reliable than older historical data.  All else being equal, a larger sample size and more years of data are preferable.  However, data quality issues suggest focusing on more recent data.

If older data were included, it probably would have been appropriate to weight more recent and higher quality data more heavily than older and lower quality data.  We would likely also have had to make adjustments for differences that might have been caused by changes in survey methodology.  Such adjustments would inevitably have been controversial.

Because the sample size increased dramatically after 1996, including a few years of pre 1996 data would not provide as much new data or have the potential to change our estimates by nearly as much as Professor Tamanaha believes.  There are also gaps in SIPP data from the 1980s because of insufficient funding.

These issues and the 1996 changes are explained at length in the Survey of Income and Program Participation User’s Guide.

Changes to the new 1996 version of SIPP include:

Roughly doubling the sample size

This improves the precision of estimates and shrinks standard errors

Lengthening the panels from 3 years to 4 years

This reduces the severity of the regression to the median problem

Introducing computer assisted interviewing to improve data collection and reduce errors or the need to impute for missing data

Introducing oversampling of low income neighborhoods
This mitigates response bias issues we previously discussed, which are most likely to affect the bottom of the distribution
New income topcoding procedures were instituted with the 1996 Panel
This will affect both means and various points in the distribution
Topcoding is done on a monthly or quarterly basis, and can therefore undercount end of year bonuses, even for those who are not extremely high income year-round

Most government surveys topcode income data—that is, there is a maximum income that they will report.  This is done to protect the privacy of high-income individuals who could more easily be identified from ostensibly confidential survey data if their incomes were revealed.

Because law graduates tend to have higher incomes than bachelor’s, topcoding introduces downward bias to earnings premiums estimates. Midstream changes to topcoding procedures can change this bias and create problems with respect to consistency and continuity.

Without going into more detail, the topcoding procedure that began in 1996 appears to be an improvement over the earlier topcoding procedure.

These are only a subset of the problems extending the SIPP data back past 1996 would have introduced.  For us, the costs of backfilling data appear to outweigh the benefits.  If other parties wish to pursue that course, we’ll be interested in what they find, just as we hope others were interested in our findings.

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Brian Tamanaha’s Straw Men (Overview)

(Cross posted from Brian Leiter’s Law School Reports)

Brian Tamanaha previously told Inside Higher Education that our research only looked at average earnings premiums and did not consider the low end of the distribution.  Dylan Matthews at the Washington Post reported that Professor Tamanaha’s description of our research was “false”. 

In his latest post, Professor Tamanaha combines interesting critiques with some not very interesting errors and claims that are not supported by data.   Responding to his blog post is a little tricky as his ongoing edits rendered it something of a moving target.  While we’re happy with improvements, a PDF of the version to which we are responding is available here just so we all know what page we’re on.

Stephen Diamond explains why Tamanaha apparently changed his post: Ted Seto and Eric Rasmusen expressed concerns about Tamanaha’s use of ad hominem attacks.

Some of Tamanaha’s new errors are surprising, because they come after an email exchange with him in which we addressed them.  For example, Tamanaha’s description of our approach to ability sorting constitutes a gross misreading of our research.  Tamanaha also references the wrong chart for earnings premium trends and misinterprets confidence intervals.  And his description of our present value calculations is way off the mark.

Here are some quick bullet point responses, with details below in subsequent posts:

  • Forecasting and Backfilling
    • Using more historical data from SIPP would likely have introduced continuity and other methodological problems
    • Using more years of data is as likely to increase the historical earnings premium as to reduce it
    • If pre-1996 historical data finds lower earnings premiums, that may suggest a long term upward trend and could mean that our estimates of flat future earnings premiums are too conservative and the premium estimates should be higher
    • The earnings premium in the future is just as likely to be higher as it is to be lower than it was in 1996-2011
    • In the future, the earnings premium would have to be lower by **85 percent** for an investment in law school to destroy economic value at the median
  • Data sufficiency
    • 16 years of data is more than is used in similar studies to establish a baseline.  This includes studies Tamanaha cited and praised in his book.
    • Our data includes both peaks and troughs in the cycle.  Across the cycle, law graduates earn substantially more than bachelor’s.
  • Tamanaha’s errors and misreading
    • We control for ability sorting and selection using extensive controls for socio-economic, academic, and demographic characteristics
    • This substantially reduces our earnings premium estimates
    • Any lingering ability sorting and selection is likely offset by response bias in SIPP, topcoding, and other problems that cut in the opposite direction
    • Tamanaha references the wrong chart for earnings premium trends and misinterprets confidence intervals
    • Tamanaha is confused about present value, opportunity cost, and discounting
    • Our in-school earnings are based on data, but, in any event, “correcting” to zero would not meaningfully change our conclusions
  • Tamanaha’s best line
    • “Let me also confirm that [Simkovic & McIntyre’s] study is far more sophisticated than my admittedly crude efforts.”