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, [...]]]> 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.

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 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.

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 [...]]]> 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.

5. The commentator’s remarks that I quoted above seems to be only focused on judicial decisions.  Legal change can occur legislatively as well as through administrative rulemaking.  A lot of legal scholarship that critiques the law can have influence in legislatures or with agencies.

6. The commentator writes: “I don’t think most policymakers tend to read law review articles.”  I doubt that the Congresspeople themselves read law review articles, but staffers might take a look where relevant.  They won’t likely read them cover to cover, but if there’s an article on point that is helpful, I believe they will read it.

7. In my own experience, I’ve found that some of my more theoretical writing has been read frequently by practitioners.  My book Understanding Privacy, for example, is a theoretical account of what “privacy” means and why it is valuable.  I base my theory on the ideas of Ludwig Wittgenstein and John Dewey, and I cite to a lot of social science literature.  More than some of my more so-called “practical” work, it is this book where I receive the most positive feedback from practitioners.  In particular, a lot of Chief Privacy Officers in business, government, and education find the book useful.

8. Legal change can be slow.  Samuel Warren and Louis Brandeis’s The Right to Privacy was a very influential law review article, spawning four privacy torts in a majority of states.  They published their article in 1890.  Ten years later, the article would have been viewed as a failure.  No courts had adopted their theory.  No legislatures had adopted their theory.  Finally, in 1902, the N.Y. Court of Appeals rejected Warren and Brandeis’s theory.  At this point, the legal scholarship naysayers would be saying that Warren and Brandeis’s article would have been a total flop.  A dozen years had passed, and a court declined to change its precedent based on the article.  But then the N.Y. legislature stepped in and recognized a privacy tort based on the article.  And slowly, other courts and legislatures followed.  This process was slow.  It took about 50 years to unfold.

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 [...]]]> 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.

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, [...]]]> 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. 

Dear Sirs:

This is the last call on the matter of the runway layout at the new airport.

Thursday, February 3rd, 1944, at my office, City Hall, at 2:30 pm o’clock, come prepared to make any suggestions or forever hold your peace. I have heard some grousing about the present layout which I know is not justified. If you have any cockeyed ideas on tangent runways that have not yet been tried out, keep them for some other time.

I am willing to hear constructive criticism and to receive helpful suggestions.  I cannot compete against white tablecloths and soft pencils. Everyone who gets two drinks under his belt is now designing runway layouts on restaurant tables.

We will have a map here, our consulting engineer will be here, and I expect to have the matter finally, completely and definitely settled.

You may bring anyone you desire from your engineering, technical and piloting staff. Lawyers cannot contribute anything. This is not a legal matter.

Very truly yours,

F.M. La Guardia

No wonder the Mayor’s name graces New York’s most efficient airport.

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 [...]]]> 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.)

But inefficient social movements presumably [...]]]> 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.]

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 [...]]]> 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.

Moreover, to many of us allowing the attorney-client relationship to be the product of random selection rather than conscious choice would mean not only that clients with meritorious claims are being denied representation (the familiar problem of scarcity), but also that clients with unmeritorious claims are receiving representation in the furtherance of scientific experimentation. This latter outcome would almost certainly raise issues of ethics and professional responsibility. To take just one example, a lawyer whose client was assigned blindly rather than selected after at least some case evaluation could easily find himself or herself risking a lack of candor to the tribunal in order to afford the zealous representation the law requires or withdrawing from representation altogether. Neither of those results, it seems to me, would further the interests of justice or the efficient use of legal resources.

Of course we in legal services do not find it easy to make decisions about which clients to represent. Demand swamps supply, making triage (even choosing principles for triage) difficult. It is similarly difficult to allocate resources between individual representation and systemic advocacy. Among the balancing acts in which we in legal services are perpetually engaged is to attempt to meet both these important goals. Shall we spend our resources advocating for a systemic change that is necessarily speculative but potentially of great significance, or shall we focus on the representation of an individual client, a matter of less sweeping significance, but one with a frequently higher probability of success and one that might also shine a useful light on the proper direction of our systemic work? Notwithstanding the difficulties and uncertainties, it seems to me that it is our obligation to choose our clients and our priorities and not to consign the job to a coin flip, even in the face of overwhelming demand. The fact that we will make some wrong choices does not relieve us of the burden of making them.

As is the case with the study’s authors, I regard the improvement of the legal services delivery system as part of our systemic advocacy. If randomized control trials can inform us about what works and what does not and can do so without interfering with our professional responsibility as lawyers, I would welcome them.

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 [...]]]> 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.

So, it is a cause of concern that the Study leads with dramatic headlines and minimizes essential caveats – most significantly, omitting the authors’ own important acknowledgement that the data could not support any useful empirical conclusion about the effect of actual representation (as distinct from an offer of it).  Thus, the title still leads with the phrase “What Difference Representation?,” while the abstract declares the findings “unexpected” and then goes on to state:

• “a service provider’s offer of representation to a claimant had no statistically significant effect on the claimant’s probability of a victory.”
• “the offer of representation inflicted a harm upon such claimants [. . .] with no discernible increase in the probability of a favorable outcome.”
• “within the limits of statistical uncertainty, these claimants would have been better off without the offer of representation.”

By leading with the question “What Difference Representation,” and by employing alarming phrases such as “no … effect,” “inflicted harm,” and “better off without an offer of representation,” the title and abstract guide readers to conclusions that reach beyond the underlying data.  The abstract offers caveats, but only in the form of opaque technical phrases such as “statistically significant,” “no discernible increase in the probability,” and “statistical uncertainty.”  This is an approach that invites misuse.

I do not exaggerate the risk.  An overview of the politics surrounding the federally funded Legal Services Corporation (LSC)), published just two weeks ago in the National Law Journal, describes recurring efforts to defund the nation’s flagship legal services institution.  One piece carries the title, “For LSC, a 30-year funding rollercoaster; Throughout most of its history, the agency has been a political football, periodically the target of massive cuts.”  Another leads with, “Looking for allies in Congress, and finding few.”  Indeed, for decades, we have seen the legal services community compelled to respond to allegations that on investigation prove trumped up or spurious.  A recent example is Disappointing Reporting on Legal Services, in which the Legal Aid Society of the District of Columbia undertakes to rebut an “exposé” circulated on the internet that falsely sought to tar all legal services programs based on a single instance involving a single employee’s misconduct.

But, more specifically, in a Brief submitted this past month to the United States Supreme Court, opponents of legal services cited the “What Difference” study for the proposition that legal representation doesn’t matter, urging “A recent randomized, controlled Harvard study of simple, nonjury litigation found no significant difference in success rates between litigants who were offered legal representation and those who were not.”   In its haste to attack legal representation, the Brief omits to mention that the Study:  i) contains no empirically useful finding regarding the efficacy of actual representation (as distinct from offers of representation), ii) examined administrative advocacy, not court litigation, and, iii) evaluated law students, not lawyers.  Nor does the Brief mention that (as described in greater detail below):  i) the control group for the Study included many people (apparently 49% of the group) who ultimately  received actual representation from “other service providers,” ii) those “other service providers” presumably possessed greater experience and greater training than the law students, and iii) the Study included cases without regard to whether representation was expected to make a difference in their outcomes.  Finally, the Brief omits to mention the Study’s explicit admission that “It would be a mistake to over-generalize the results of our study to conclude that offering free legal assistance is not worth the cost or time, or even that offers of representation make no difference in Massachusetts first-level appeals.”  Study at 47.

But, the Study’s presentation isn’t likely to confuse only the enemies of legal services.  Even as esteemed a thought leader as Ian Ayres omits mention of some the Study’s limitations in an essay he published this past winter, Iatrogenic Legal Assistance, in the on-line forum, Freakonomics.  Describing the Study’s primary finding as “The claimants who were offered representation were no more (or less) likely to win their administrative appeal,” Ayres (who flagged several of the Study’s limitations, including a concern about the small size of the pool of subjects) does not include the authors’ acknowledgment that the Study failed to make any empirically useful finding that actual representation (as distinct from offers of representation) has any effect on a claimant’s probability of a win.  He also makes no mention of the fact that the “other service providers” who represented members of the control group should be presumed to possess deeper experience and training than the law students.  Nor does he mention that the Study included cases without regard to whether representation would be expected to make a difference in their outcomes.  Like the authors of the Supreme Court Brief, Ayres also does not mention the Study’s acknowledgment, that “It would be a mistake to over-generalize the results of our Study to conclude that offering free legal assistance is not worth the cost or time, or even that offers of representation make no difference in Massachusetts first-level appeals.”

Although many of the Study’s limitations were omitted from the Supreme Court Brief and from the Ayres essay, and although virtually all of them are omitted from the Study’s abstract, for the most part they are articulated in the body of the Study:

1. The “mixed control group” problem – Contrary to what is implied by the abstract, the Study compared outcomes obtained by members of a “treatment group,” who received offers of representation from HLAB law students, to outcomes obtained by members of a “control group,” 49% of whom obtained offers of representation (and, actual representation) elsewhere (from advocates with presumably greater experience and greater training, see discussion below), and 51% of whom obtained no offers (and, no representation).  The fact that 49% of the members of the control group received representation potentially upwardly biases how well the control group did (as if in a medical trial, ensuring that 49% of the control group took the same medicine administered to the treatment group), thereby making the impact of HLAB offers of representation more difficult to discern in relation to the full control group.  Indeed, some members of the unrepresented 51% portion of the control group may also have received certain limited forms of legal help, such as “legal advice” or “brief assistance,” further upwardly biasing the performance of the control group.  The Study acknowledges the mixed control group issue (see, e.g., pp. 11, 41), but rejects, as “implausible,” the theory that it prevented  detection of the impact of the HLAB offers of representation (see p. 45).  In fact, the authors’ assertion of implausibility appears unwarranted in light of the “experience  gap” problem (discussed in greater detail below).  But, regardless of whether the authors are persuaded (or not persuaded) that the presence of represented persons in the control group upwardly skewed the results, the abstract should let readers know the facts. To prevent readers from being misled about what was studied, the authors should simply modify the abstract to make clear that:  “the HLAB law student service provider’s offer of representation to a claimant had no statistically significant effect on the claimant’s probability of a victory when compared to a control group in which 49% of the members received representation from other service providers and in which the remainder of the members may have received other forms of assistance.”
2. The experience gap problem – The abstract omits all mention of the experience gap that exists between the HLAB students and the “other service providers” who represented members of the control group.  Although the Study explicitly rejects, as “implausible,” the notion that the HLAB “lawyering” was “low quality,” (see p. 45), “low quality” isn’t the relevant issue.  Rather, the Study fails to acknowledge that the “other service providers” who represented 49% of the members of the control group presumably possessed greater experience and greater training than the HLAB students (some of whom were handling their first case), and that this discrepancy with respect to experience and training may have upwardly biased the performance of the control group, with respect to both the possibility of a clamant obtaining a favorable outcome and the speed with which a favorable outcome is obtained.  This experience gap may thus be expected to conceal the effectiveness of the HLAB students’ performance while highlighting any delay caused by the HLAB students’ performance. To prevent readers from being misled about what was studied, the authors should modify the abstract to make clear that “the HLAB law student service provider’s offer of representation to a claimant had no statistically significant effect on the claimant’s probability of a victory in a study in which a portion of the control group (49%) received representation from other service providers who should be presumed to possess greater experience and training than the HLAB law students, and in which the remainder of the members may have received other forms of assistance.”
3. The “screening for merit” problem – Another limitation that is missing  from the abstract is that subjects were selected for inclusion in the Study without regard to whether advocacy would be expected to make a difference in the probability of their obtaining a victory. The authors describe this problem as worthy of further inquiry (which they are pursuing) and explicitly acknowledge that:  “One might object, however, that [the current study’s] design cannot capture the effect of representation because one of the tasks attorneys, particularly legal aid attorneys, perform is to choose which cases will benefit from representation, and the randomizer prevents them from exercising their judgment in this manner.”  Study at 72.  To prevent readers from being misled about what was studied, the authors should modify the abstract to make clear that:  “Subjects were included in the Study without investigation as to whether their cases could benefit from representation by an advocate.”
4. The “what is statistically significant” problem – The abstract relies on technical concepts of statistical significance, statistical uncertainty, and discernibility, but contains no definition of these concepts, thereby giving no clue to the lay reader to counteract the abstract’s direct message that a service provider’s offer of representation is ineffective, harmful, and necessary to avoid.  It is therefore interesting to see, deeper in the Study, the following clarification:

This finding [of “no statistically significant effect on the probability that a claimant would prevail”] does not mean that we know that the HLAB offer had no positive effect on a claimant’s probability of success; we can say, however, that the [sic] any such effect is unlikely to be very large (or the data probably would have shown it).

Study, at 8; see also Study at 45 (repeating clarification). Moreover, the Study explicitly acknowledges that the data are “useless” with respect to the question of whether HLAB “actual representations” increase a claimant’s probability of a victory (as distinct from HLAB “offers”).  See Study, at 43.  The Study also explicitly acknowledges, as noted above, that “It would be a mistake to overgeneralize the results of our study to conclude that offering free legal assistance is not worth the cost or time, or even that offers of representation make no difference in Massachusetts first-level appeals.”  Study at 47.  To prevent readers from being misled about the Study’s findings, the authors should modify the abstract to  make clear that:  “The Study does not find ‘that the HLAB offer had no positive effect’ or ‘that offers of representation make no difference,’ nor does it contain any useful findings regarding the possible effect of actual representation.”

As I hope is evident, I direct my comments primarily to issues concerning the accuracy of the presentation of the authors’ findings in the title and in the abstract, and leave issues concerning the accuracy of the findings themselves to the empirical experts in this on-line symposium.  I commend the authors for tackling very important questions, highlighting randomization methodology, acknowledging limitations on their findings, and urging readers neither to over-or under-generalize their findings.  But in light of the politicization of legal services, and as the Brief and the Ayres column make plain, readers will tend to overlook the Study’s limitations, including those acknowledged by the authors themselves in the body of the Study.  Of course the authors are not entirely accountable for choices others may make about how to use their Study.  But, nor would it be responsible for the authors to decline to take easy corrective steps to ensure that their title and abstract describe the Study for what it is rather than for what it is not.  One subject is beyond dispute:  “What Difference Representation?” poses a more challenging problem than “What Difference Presentation?”

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 [...]]]>

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:

Jeanne Charn is Director of the Bellow Sacks Access to Civil Legal Services Project and Senior Lecturer in Law at Harvard Law School, teaching clinical courses on civil advocacy, delivery of legal services, professional responsibility and housing law and policy.  In 2006, she stepped down after 27 years as Director of the WilmerHale Legal Services Center at Harvard Law School.  During law school, Jeanne was a student practitioner at Community Legal Assistance Office (CLAO), one of the first O.E.O funded legal service projects. Upon graduation from law school in 1970, Jeanne was a staff attorney at Massachusetts Law Reform Institute representing statewide and local public housing tenant groups and providing training and support for legal services in the state.  In 1973, Jeanne was appointed Assistant Dean for Clinical Programs at Harvard Law School. She arranged for and monitored the educational quality of all course related student placements and worked with Professor Gary Bellow to develop Harvard’s clinical program. In 1978, Gary and Jeanne conceived of a Harvard Law School supported “teaching law office” similar to the teaching hospital in medicine. The predecessor of the WimerHale Legal Services Center opened in 1979.  Jeanne received her B.A. from the University of Michigan in 1967, and her J.D. from Harvard Law School in 1970.

Ted Eisenberg is a Professor of Law at Cornell Law School,  where he has emerged in recent years as one of the foremost authorities on the use of empirical analysis in legal scholarship. After his graduation from University of Pennsylvania Law School, Eisenberg clerked for both the District of Columbia Circuit of the U.S. Court of Appeals, and Chief Justice Earl Warren of the U.S. Supreme Court. After three years in private practice, Professor Eisenberg began teaching at UCLA. A groundbreaking scholar in the areas of bankruptcy, civil rights, and the death penalty, Eisenberg has used innovative statistical methodology to shed light on such diverse subjects as punitive damages, victim impact evidence, capital juries, bias for and against litigants, and chances of success on appeal. He is the founder of the Journal of Empirical Legal Studies and a Fellow of the American Academy of Arts and Sciences. He currently teaches bankruptcy and debtor-creditor law, constitutional law, and federal income taxation.

Steve Eppler-Epstein is the Executive Director of Connecticut Legal Services (CLS), whose core mission is to provide comprehensive civil legal help to low-income people throughout most of Connecticut, partnering with other members of the legal aid network to cover the state.  Steve has worked with CLS since 1984, when he joined them as a staff attorney.  His work has included individual and class-action client service on domestic violence and public benefit issues; legislative advocacy; and community legal education and writing.  In 1995 Mr. Eppler-Epstein was hired to be the Deputy Director of Connecticut Legal Services, and in 2007 he was selected to be the Executive Director.  As a leader in legal services, Mr. Eppler-Epstein’s priorities are keeping program priorities fresh and relevant in light of changes in the client population; empowering staff to explore change and to pursue client service through the most effective means available; and enhancing the public understanding of CLS’ mission of justice so as to maximize the funding resources available to serve low-income people in crisis.  In addition to his work at CLS, Mr. Eppler-Epstein is the Chair of the Board of the Boston-based Center for Legal Aid Education, where he has been very active in the development and deployment of CLAE’s Leadership Institute.  He has served on the Board of Directors of the Connecticut Coalition Against Domestic Violence, and is co-Chair of the Advisory Council to the Judicial Branch Office of Victim Services.  His recognitions include the Governor’s Victim Services Award, the Connecticut Bar Foundation’s Legal Services Leadership Award, and the Connecticut Bar Association’s Charles J. Parker Legal Services award.

Michael Heise is a Professor of Law at Cornell Law School, where he specializes in empirical legal scholarship and bridging empirical methodologies, legal theory, and policy analysis.  His empirical work focuses on a wide array of public and private law topics.  He is the author of numerous articles and has co-edited the Journal of Empirical Legal Studies since 2005.  Michael is also a Founding Director of the Society for Empirical Legal Studies and a contributing editor of the ELS Blog.  Prior to joining the Cornell Law School faculty Michael taught at Case Western and Indiana University.  He is a graduate of Stanford (A.B.), Chicago (J.D.), and Northwestern (Ph.D.).

Andrew D. Martin is Professor of Political Science and Professor of Law at Washington University in St. Louis. He is the Chair of the Political Science Department in Arts & Sciences, and serves as the founding Director of the Center for Empirical Research in the Law in the School of Law. Professor Martin is a Resident Fellow of the Center in Political Economy, and is a core faculty member of the Center for Applied Statistics.  Professor Martin’s expertise is in the study of judicial decisionmaking, with special emphasis on the Supreme Court and the lower federal courts. He also works extensively in the field of political methodology and applied statistics. He has published in a number of prominent law reviews and leading social science and applied statistics journals, and is a frequent presenter at conferences and workshops throughout the country. His research has been supported by the National Science Foundation, the MacArthur Foundation, and the National Institutes of Health.  Professor Martin is the principal investigator of the The Judicial Elections Data Initiative, a study of litigation processes in employment discrimination suits initiated by the EEOC, and a cross-national study that examines decisionmaking in constitutional courts around the globe. He is also a collaborator on The Supreme Court Database project, and a contributor to The Discography. With his collaborator Kevin M. Quinn (UC Berkeley), Professor Martin developed the Martin-Quinn Scores that are widely used to measure ideology on the U.S. Supreme Court.  Professor Martin teaches courses in the law school on judicial decisionmaking and on social science and statistics for lawyers, in addition to graduate and undergraduate courses in political methodology in Arts & Sciences. He also regularly offers workshops on social science research methods for judges, prosecutors, and legal academics.

Margaret Monsell joined the Massachusetts Law Reform Institute in January 1999.  She practices employment law in areas including unemployment insurance, the earned income tax credit program and low-wage worker protections, and she is a co-author of the Unemployment Advocacy Guide. Prior to joining MLRI, she worked as a law clerk at the Massachusetts Appeals Court and the Massachusetts Supreme Judicial Court, as an Assistant Attorney General in the state Attorney General’s office, and as General Counsel for the Senate Committee on Ways and Means in the Massachusetts Legislature. She received a Ph.D. in Theological and Religious Studies from Boston University in 1988, and she graduated with honors from Boston College Law School in 1990.

Kevin Quinn is a Professor of Law at the UC Berkeley School of Law. Prior to  joining the Boalt faculty in 2009 he was associate professor of Government at Harvard University. Professor Quinn holds a Ph.D in Political Science from Washington University in St. Louis. He has written extensively on judicial decision making and statistical methodology. His research has been supported by the National Science Foundation and has appeared in, among other outlets, the Columbia Law Review, the Stanford Law Review, the University of Pennsylvania Law Review, the American Journal of Political Science, the Quarterly Journal of Political Science, the Journal of the American Statistical Association, and the Journal of the Royal Statistical Society Series A. Professor Quinn is a three time winner of the Gosnell Prize for excellence in political methodology. He is currently an Associate Editor for the Journal of the American Statistical Association.

Bob Sable has served as the Executive Director of Greater Boston Legal Service since 1991, and he has spent more than 40 years as a legal services lawyer.  He has won many awards for his service, including the Massachusetts Bar Association’s Legal Services Award and the Boston Bar Association’s John G. Brooks Legal Services Award.  Some would say that Bob Sable’s proudest moment occurred in 1994, when with the help of the Boston Bar Association and the Volunteer Lawyers Project, he gave up more than $2.1 million in federal funding for GBLS funding rather than accept new Legal Services Corporation rules that would have restricted the types of representation and people who could be represented by GBLS.  After giving up the LSC funding, GBLS grew from a budget of $6 million to $14 million expanding its base of support to include everyone from individuals, corporations, law firms foundations, state and federal government to the United Nations enabling GBLS to serve more than 15,000 individuals and families as well as continuing to bring major cases.  A graduate of Harvard College, Bob Sable served as a Peace Corps Volunteer in Liberia before going on to Yale Law School, where he was Chair of the Student Legal Services Corporation.

Rebecca L. Sandefur is a senior research fellow at the American Bar Foundation, which she joined in September 2010 to lead the Foundation’s new access to justice research initiative. Her research has two strands: one focuses on inequality and civil justice and the other focuses on lawyers’ work and careers. A nationally and internationally recognized expert on legal professions, access to justice and public experience with civil justice problems, she is a frequent speaker at scholarly conferences and meetings of practitioners. Her scholarship has appeared in numerous edited volumes and law reviews as well as outlets such as American Sociological Review, Annual Review of Sociology, and Law and Society Review. She is the editor of the multidisciplinary volume Access to Justice (Emerald/JAI Press, 2009) and an author of Urban Lawyers: The New Social Structure of the Bar (with John P. Heinz, Robert L. Nelson and Edward O. Laumann, University of Chicago Press, 2005). She has served in elected governance positions with the American Sociological Association, the Law and Society Association, and the Pacific Sociological Association, as well as on the editorial boards of the American Journal of Sociology, Law and Social Inquiry and Law and Society Review. Her public service includes work on the Right to Counsel Committee of the California Access to Justice Commission and on the Research Advisory Board of the Civil Right to Counsel Leadership and Support Initiative. Before joining the American Bar Foundation, Sandefur served on the faculty of Stanford University for nine years after receiving her PhD in sociology from the University of Chicago. In addition to being Senior Research Social Scientist at the ABF, she is Consulting Assistant Professor of Sociology at Stanford University.

Jeffrey Selbin is a Clinical Visiting Professor of Law at Yale Law School and a Clinical Professor of Law at the University of California, Berkeley, School of Law (Boalt Hall). He is also Faculty Director of the East Bay Community Law Center, Boalt Hall’s community-based poverty law clinic. He founded EBCLC’s HIV/AIDS Law Project in 1990 and served as the organization’s Executive Director from 2002 through 2006. His research interests include clinical education, anti-poverty lawyering, and community lawyering, with an emphasis on evidence-based approaches. He is a graduate of the University of Michigan, L’Institut d’Etudes Politiques, and Harvard Law School.

David Udell is Executive Director of the National Center for Access to Justice, is also a Visiting Professor from Practice at Cardozo Law School. He was founding director of the Justice Program of the Brennan Center for Justice from September 1997 through August 2010, and earlier served as a Senior Attorney at Legal Services for the Elderly and as a managing attorney at MFY Legal Services. He has served in leadership roles in the national civil right to counsel movement and the national indigent defense reform movement, and has coordinated national advocacy initiatives to help strengthen the Legal Services Corporation. Mr. Udell has taught as an adjunct professor at New York University School of Law and at Fordham Law School, and has served on the Pro Bono and Legal Services Committee of the Association of the Bar of the City of New York. He is currently a member of the Advisory Board to the Justice Center of the New York County Lawyers’ Association. He is a 1982 graduate of New York University School of Law.

Richard Zorza is an attorney and independent consultant who has worked for the past fifteen years on issues of access to justice.  He is the coordinator of the national Self Represented Litigation Network, see www.selfhelpsupport.org, and has acted as a consultant to the Harvard Law School Bellow-Sacks Project on the Future of Access to Civil Justice, www.bellowsacks.org, and works in support of the national LawHelp network of access to justice websites, www.lawhelp.org.His book, The Self-Help Friendly Court: Designed from the Ground Up to Work for People Without Lawyers, was published by the National Center for State Courts in 2002.   His article The Disconnect Between the Requirements of Judicial Neutrality and Those of the Appearance of Neutrality when Parties Appear Pro Se: Causes, Solutions, Recommendations, and Implications, 17 Georgetown Journal of Legal Ethics, 423 (2004) is widely used to define the structure of thought on the topic.  He coordinated the National Judicial Conference on Self-Represented Litigation held at Harvard Law School in November of 2007, the launching conference of the Court Leadership Package on Self Represented Litigation, in the fall of 2008, and a national confernce on Public Libraries and Access to Justice in January of 2010.  He is the recipient of the 2008 American Judicature Society Kate Sampson Access to Justice Award. He lives in Washington DC, and is in partnership with his wife Joan.  Additional information and publications are available on his website, www.zorza.net. He blogs at www.accesstojustice.net.

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 [...]]]> 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).

As I have previously mentioned, I enjoyed private practice and working with clients to solve their legal problems or accomplish their legal objectives. And I have a soft spot for the professional components and service-to-justice principles underlying the profession. So I have a more optimistic view of the profession and what lawyers can do to address the challenges we currently face. I know that the profession is fortunate to have a wealth of talent working on these issues, and I remain confident that we can retool what it means to be a lawyer or law student in the current environment and strengthen the profession in the process.

I like some of the innovation that emerged from law firms facing economic pressures—from implementing apprenticeship-like programs (see here and here) to subsidizing lawyers’ pro bono and self-development projects. These are good trends that should continue as law firms look to reposition themselves in the marketplace. Admittedly, continuing some of these changes would require an adjustment to the traditional firm compensation models, but I think that process is already well underway.

Lawyers also need to continue to explore ways to better use technology. I personally do not think that technology can or should act as a substitute for human analytical skills and counseling (see here). A core part of a good lawyer-client relationship is a lawyer who listens to the client’s story, takes time to understand the client’s objectives and invokes her skill set to consider nuances and factors that identify or create a legal solution for the client. This is true in the corporate or consumer client context. That same lawyer, however, certainly can use technology to work more efficiently for, and improve communications with, the client.

I have no doubt that more changes are in store for the legal profession as we move through the next few years. I remain an optimist, however, about the profession’s ability to respond in an innovative and positive manner. Hopefully, the lessons of the recession are not for naught.

Volume 58, Issue 3 (February 2011)

Articles

Comments

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

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 [...]]]> 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:

1. Bingham/Silverstein represented both spouses, despite obvious conflicts of interest—and despite advising them that was a bad idea.

2. California law applied, though Silverstein is not licensed to practice California law and is not knowledgeable about relevant California law.

3. The matter involved contract and family law, though Bingham’s web site states that Silverstein specializes in tax, corporate, securities and real estate law.

4. Silverstein’s directions to his secretary were apparently not clear and/or he did not carefully proofread or otherwise verify the results.

5. Silverstein revised a version of the contract on his computer that apparently differed from the master that appeared on Bingham’s system.

6. Silverstein required his clients to sign multiple copies of the contract “out of an abundance of caution,” one reason why two different versions were signed.

7. To be “super cautious,” Silverstein had his clients sign one set of contracts in Massachusetts and another set in California, mistakenly thinking that something in California law required that.

8. Silverstein had the first set of documents notarized, apparently thinking, wrongly, that was somehow relevant to the validity of a contract under California law. (Lay people commonly make that mistake.)

9. When he discovered his mistakes, Silverstein covered his tracks by switching the differing sets of documents so that it would appear as if only a single set existed.

10. Silverstein did not tell either of his clients about his bungling or ask either’s permission to make that switch.

The case has eerie echoes of The Verdict, David Mamet’s movie starring Paul Newman, where a prominent, but exhausted, Boston doctor put a patient in a coma because of failing to do what elementary medical procedure required—looking at her medical chart before an operation—and then forged documents to hide the truth.

The most elementary lessons for lawyers are: (1) proofread documents and double-check collation of contracts and attachments before having clients sign them and (2) if you make a mistake in proofreading or collating, tell your client(s) and ask permission to correct.   

Hat Tip: A.J. Sutter

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 [...]]]>

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.

What I am more curious about, though, is whether after the decision any attorneys used the following sneaky trick : [...]]]> 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….

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 [...]]]> 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.