Archive for the ‘Law Practice’ Category
Parting Thoughts on the Profession
posted by Michelle Harner
I want to thank the permanent authors of Concurring Opinions for the opportunity to guest blog. I truly enjoyed the experience and the lively debate. Academia can be isolating in many respects—particularly compared to private practice—so it is nice to have this type of forum to exchange ideas and discuss timely and interesting topics.
For my last post, I want to highlight some trends in law firm practices and consider what they mean for the profession more generally. We are all aware of the difficult job market: law school graduates continue to receive deferred offers, summer associate classes continue to be smaller and many lawyers who lost their jobs are still unemployed. (Even lawyers who managed to keep their jobs may face challanges, see here.) These realities have translated into increased anxiety for law students (exactly what they do not need; law school is stressful enough when the market is good) and new challenges for law schools. But what do they mean for law firms? (For a thoughtful discussion of the challenges facing big law, see here.)
Many commentators have opined on the changing roles of law firms and lawyers, and they often paint a pretty bleak picture (see here, here and here). It is one where lawyers are marginalized and society protects its legal rights by purchasing commoditized legal products or interacting with a computer program or virtual lawyer. The profession also faces challenges from non-lawyers and non-U.S. lawyers. In fact, anecdotal evidence suggests that an increasing number of firms are—either voluntarily (to reduce overhead) or involuntarily (to meet client demands)—outsourcing certain legal services to lawyers in foreign countries (see here and here).
February 28, 2011 at 6:48 am
Tags: academia, Current Events
Posted in: Law Practice
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UCLA Law Review Vol. 58, Issue 3 (February 2011)
posted by UCLA Law Review
Volume 58, Issue 3 (February 2011)
Articles
| Good Faith and Law Evasion | Samuel W. Buell | 611 |
| Making Sovereigns Indispensable: Pimentel and the Evolution of Rule 19 | Katherine Florey | 667 |
| The Need for a Research Culture in the Forensic Sciences | Jennifer L. Mnookin et al. | 725 |
| Commentary on The Need for a Research Culture in the Forensic Sciences | Joseph P. Bono | 781 |
| Commentary on The Need for a Research Culture in the Forensic Sciences | Judge Nancy Gertner | 789 |
| Commentary on The Need for a Research Culture in the Forensic Sciences | Pierre Margot | 795 |
Comments
| What’s Your Position? Amending the Bankruptcy Disclosure Rules to Keep Pace With Financial Innovation | Samuel M. Kidder | 803 |
| Defendant Class Actions and Patent Infringement Litigation | Matthew K. K. Sumida | 843 |
February 25, 2011 at 1:19 pm
Posted in: Bankruptcy, Civil Procedure, Constitutional Law, Courts, Criminal Law, Criminal Procedure, Current Events, Economic Analysis of Law, Empirical Analysis of Law, Evidence Law, History of Law, Indian Law, Intellectual Property, International & Comparative Law, Jurisprudence, Law and Humanities, Law and Inequality, Law and Psychology, Law Practice, Law Rev (UCLA), Psychology and Behavior, Race, Sociology of Law, Supreme Court
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My New Position at Hogan Lovells
posted by Daniel Solove
I’m very pleased to announce that since last week, I am now a senior policy advisor at the law firm of Hogan Lovells. The position is part-time, and I still remain a full-time law professor.
In particular, I’ll be working as part of the Privacy and Information Management Group, headed by Marcy Wilder and Christopher Wolf.
I decided to take this position because I believe I can help clients, and the work will be fun and rewarding. The people in the practice group are terrific. And I hope the work will bring new practical knowledge to my scholarship. I’ll get to see the front lines of how companies address privacy issues in the global economy. Increasingly, the disjunction between the approach to privacy law in the United States and in many other countries is presenting a challenge, as commerce and communication are global. What is particularly special about Hogan Lovells is that the firm is a truly international one, with an extensive practice in Europe and around the world.
I’m really excited about this new position. I think it will be quite a rewarding experience.
January 8, 2011 at 1:36 pm
Posted in: Law Practice, Privacy
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Bingham’s Bungling
posted by Lawrence Cunningham
Bingham, the galactic law firm with roots in Boston’s old-fashioned legal market, is a ubiquitous advertiser in expensive print publications, boasting about its deftness in navigating complex business challenges with keen legal insight. The firm even brags about its advertising prowess.
The shameful performance of one of its Boston-based partners in botching a basic matter of document handling suggests the firm ought to spend more time and money on the nuts and bolts of old-fashioned lawyering than on Madison Avenue promotion and mercantile ambitions.
At issue is the embarrassing spectacle of Larry Silverstein handling a simple contract drafting exercise for Jamie and Frank McCourt. The rich erstwhile couple feud over ownership of the Los Angeles Dodgers baseball team—a feud protracted because of Silverstein’s inexplicable bungling that was confounded by conduct verging on the unethical.
A California court hearing the McCourt divorce case released an opinion declaring invalid the couple’s contract that Silverstein prepared. The contract was invalid because Silverstein botched it. His errors culminated in the existence of two versions of a single contract, one declaring that the Dodgers belonged solely to Frank and the other that the team was the couple’s joint property. The contract thus failed elementary requirements of contract law and basic requirements of California law applicable to marital asset splits.
Following are some of the problems in Silverstein’s and Bingham’s representation of the McCourts in this matter, culled from the court’s opinion: Read the rest of this post »
December 9, 2010 at 8:53 am
Posted in: Contract Law & Beyond, Current Events, Law Practice
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The Journal of Legal Education’s Bipolar Issue
posted by Dave Hoffman
Of course, failing the Bar doesn't always turn out badly
I rarely read the The Journal of Legal Education. The Journal, sent to every law professor in the country, is printed “as a public service” by Westlaw, which means that it is indirectly subsidized by the clients of practicing lawyers. Regardless of the merits of that practice, and indeed the Journal’s existence, there is a good and useful article in the recent issue: Jane Yakowitz’s “Marooned: An Empirical Investigation of Law School Graduates Who Fail the Bar Exam.” In the Article, Yakowitz focuses on the 150,000 law school graduates who have “taken but never passed a bar exam”: 1 in 10 law school J.D.s. She creatively amasses data from various sources to conclude:
1) African American and Latino and hispanic law graduates are “at least twice as likely as white graduates to become a never-passer”.
2) If a graduate comes from a poor background, all else equal she is just as likely to pass the bar on the first administration as a student from a richer background. But if she fails the first time, being poor is correlated with becoming a never-passer. Yakowitz argues that this result follows from a lack of resources to study and prepare a second and third time.
3) In the short term, bar failure significantly reduces employment and earnings. In the long term – ten years – never-passers “bounce back”. Though they never make as much as lawyers, they “surpass the trajectory of average college graduates their age.” Most are working in legal settings. That said, they make about “$17,000 less than J.D.-holders the same age and gender…” And compared to lawyers who passed, never-passers experience significantly more career instability. They are divorced more often than passers, and are less likely to live with their children. In sum, never-passers decision to attend law school turns out to be a raw deal – though in the latter half of their careers, may pay mild dividends.
All in all, a decidedly useful and sobering piece of scholarship. Law schools whose students pass the bar at less often than the state average should be thinking hard about changes they can make. About a decade ago, Temple faced a problem like this, and we dealt with it through various forms of mentoring, and by lowering our curve to give students in trouble more sharp notice of what they were facing. Our bar passage rate rebounded sharply, which is a source of great comfort after reading Marooned.
It’s a shame the rest of the issue is full of snarky work in which various authors assert that law schools intend to obfuscate and prevent learning because they are willfully blind to the blinding truth (discovered by the authors) that this is a bad way to teach doctrine. As if that what the main purpose of law teaching was – as opposed to understanding why the rules work the way they do. It is true that you need to know the rules to pass the bar exam. But passing the bar exam – however wealthy and healthy it might make you – will not make you good lawyer.
September 14, 2010 at 11:13 am
Posted in: Law Practice, Law School (Scholarship), Law School (Teaching)
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A Tale of Two Gay Marriage Litigations: To Stay or Not to Stay?
posted by Glenn Cohen
While Perry and the Prop 8 litigation has been getting most of the attention in the media and blogosphere, the Massachusetts District court decisions in Gill v OPM and Massachusetts v. Dep’t of Health & Human Services striking down parts of the Defense of Marriage Act are in some ways the more interesting (and if upheld more meaningful) decisions. Today, though, I noticed reporting that Gay & Lesbian Advocates & Defenders (GLAD) the Massachusetts-based gay rights group that ligated Gill among many other major LGBT rights cases (including the MA gay marriage case, Goodrich) had agreed to stay the ruling while the DOJ decided whether to take an appeal. I thought this was an interesting contrast to Boies and Olson’s decision to fight the stay of Perry at each stage. Of course there are a number of legal differences between the cases — in the press release GLAD points to not wanting to have to pay back benefits if the decision is overturned and there is a possibility that the Obama administration may relent in its opposition to the suit — but I find the strategic/political perspective even more intriguing here. Would Olson and Boies have been perceived to have let down their backers if they did not fight the stay, whereas as more institutional repeat player like GLAD has already built up significant goodwill? Are there good strategic reasons why the Perry litigators want to try and accelerate their litigation while the Gill ones want to maintain the typical pace, or is this instead a matter of the litigators’ own interests? Are Boies and Olson more confident of a good reception than the Gill lawyers at the Supreme Court now, and are they right to be? Which case is the one someone supportive of these efforts should want to see get to the cert stage first? How does the standing to appeal issue in Perry fit in to the calculation? Part of it may also just be a reflection of the slowness of the 9th Circuit’s typical docket as compared to the lithe 1st Circuit, such that even with the stay acceleration in Perry the Gill case gets resolved first. Lots of questions and few answers, but I thought others might have interesting thoughts…
August 20, 2010 at 12:00 pm
Posted in: Civil Procedure, Constitutional Law, Family Law, Law Practice
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Hertz, Appellate Review, and Sneaky Tricks
posted by Glenn Cohen
You will be forgiven if you did not pay attention to the Supreme Court’s decision in Hertz Corp v. Friend last year — indeed unless you are a Civ Pro junkie, paying attention might be the less foregivable act. The case resolved a piece of perennial low-hanging fruit on Civ Pro exams as to what is the test under diversity subject matter jurisdiction for the citizenship of a corporation, which turns on where it has its principal place of business. The Court resolved that the “Nerve Center” is the test, ending a circuit split where the “corporate activities/operating assets” and “hybrid” tests were also contenders.
What I am more curious about, though, is whether after the decision any attorneys used the following sneaky trick : If they had lost the case in district court, and diversity jurisdiction was proper on one of the other tests that governed in the Circuit pre-Hertz, but not the nerve center test, did they on appeal ask the Circuit court to vacate the decision for lack of subject matter jurisdiction? If not, were Circuit courts making independent subject matter jurisdiction assessments in light of Hertz and dismissing cases with district court decisions in these circumstances? After all, as that old 1804 chestnut Capron v. Van Noorden, 6 U.S. (2 Cranch) 126 (the case that Arthur Miller, who it appears still retains a larger than life grip on his students’ imaginations now that he is at NYU, terrorized us with on Day 1 one of Civ Pro) suggests, Subject Matter Jurisdiction objections can be raised at any time, and the Court has an independent obligation to determine if it has jurisdiction over the case.
Did these post-Hertz dismissals actually materialize? I don’t see why they shouldn’t have. After all the court did not suggest it was making a new rule for subject matter jurisdiction (it claims this was always the right reading of the statute), nor did it suggest the rule was non-retroactive. I have not seen any discussion of such dismissals, but that just may mean they are off the law professoriate radar, or maybe I am missing something preventing litigators or courts from behaving in the way I suggested? I am curious if others have seen anything like this or have thoughts, I thought this might be a nice way to teach the otherwise somewhat rote rules of diversity jurisdiction to my first-year Civ Pro class this year….
August 19, 2010 at 9:53 am
Posted in: Civil Procedure, Law Practice, Uncategorized
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The Value of Law School “Eliteness”
posted by Michael Kang
A paper recently circulated by Richard Sander and Jane Yakowitz finds that “performance in law school—as measured by law school grades—is the most important predictor of career success” and is “decisively more important than law school ‘eliteness.’” The conclusion drawn from Sander and Yakowitz’s paper, at least by the ABA Journal, is that prospective students would be badly served by the “standard advice” of attending the best school that will accept you.
Sander and Yakowitz’s paper seems to support this conclusion because it finds that better academic performance at a lower ranked school can offset the prestige advantage of a higher ranked school, at least when it comes to predicted salary later as a firm lawyer. Of course, this assumes that a particular individual would perform better at a lower ranked school than a higher ranked school, where the peer competition would be more intense. The paper is consistent with Sander’s earlier work on affirmative action and the mismatch hypothesis, which suggested that certain beneficiaries of affirmative action would be better off if they attended lower ranked schools rather than higher ranked schools where their incoming numerical credentials would be mismatched with the prestige of their law school. (For more about this earlier work, see Albert Yoon & Jesse Rothstein’s and Dan Ho’s responses.)
No doubt, Sander and Yakowitz’s paper helps bolster the recruiting pitches of lower ranked schools. To use Sander and Yakowitz’s example from the paper, a prospective student can be better off attending law school at Florida instead of George Washington University, or even Boalt Hall, provided that she gets much better grades at Florida than she would have at GW or Boalt. This makes sense—elite law firms, at least ones in the big cities, collect the best students from law schools across the country and pay them all well (they just hire more from the top ranked schools).
However, I don’t think Sander and Yakowitz’s paper goes so far as to disprove the standard advice of attending a top school. First, Sander and Yakowitz’s paper still finds large advantages in salary for graduates of top ten law schools even controlling for law school GPA. That is, even if there is less of an advantage in attending GW instead of Florida, there remains a very significant advantage in attending a top ten school. This is what Paul Oyer and Scott Schaefer found earlier as well. Just as important, this prestige advantage is certain and known from the moment the student decides to attend a top ranked law school.
Second, the decision to attend a lower ranked school pays off only if the underlying assumption is correct—the student will get appreciably better grades at the lower ranked school than the higher ranked school. This assumption is often correct, and Sander and Yakowitz support it with their data, but it is uncertain to be sure at the individual level. Exam taking, as law professors often observe, is a specialized skill. Scoring well on law school exams doesn’t flow so directly from native intelligence such that anyone smart enough in some general sense to be admitted to Boalt can be sure they would get top grades at Florida. It’s still a bet, though perhaps a good one. But if I’m the prospective student that Sander and Yakowitz imagine, I wouldn’t be as sure as they are that I’d have a GPA in the 3.25-3.5 range at Florida but only in the 2.5-2.75 range at Boalt. In fact, even if Sander and Yakowitz are right about the GPA comparability, this estimation pushes me to attend Boalt, not Florida. I can average a C+ to B- at Boalt and get roughly the same predicted salary as a B+ to A- GPA would get me at Florida.
I think that probably sounds like an attractive deal to many students, particularly if they have any measure of risk averseness, to say nothing of a taste for “eliteness” for its own sake.
August 10, 2010 at 12:48 am
Posted in: Law Practice, Law School
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Flynn v. Holder, Markets for Bone Marrow, and Abigal Alliance
posted by Glenn Cohen
Over the summer at the annual health law professors’ conference organized by ASLME, I saw a wonderful presentation on Flynn v. Holder from John Robertson, which I think John will be publishing soon. The case is a challenge to the National Organ Transplant Act (NOTA) of 1984’s ban on selling bone marrow filed in the U.S. District Court, Central District of California, and you can view the complaint here.
My main interest in the case is how it will compare to Abigail Alliance v. Eschenbach, a case I helped litigate at the D.C. Circuit en banc stage when I was at the DOJ. Abigail Alliance involved a challenge by terminally ill patients to have access to drugs that had cleared Phase 1 Clinical Testing but had not gone further in the testing process. There, the plaintiffs succeeded in getting a panel of the D.C. Circuit to to hold that a fundamental right of theirs was being violated by the FDA policy, with a remand for consideration of whether the government could make its showing on strict scrutiny. On rehearing en banc, however, the full D.C. Circuit reversed gears finding no fundamental right (there was no serious argument in the case that the government would not prevail on rational basis review).
In many ways, Flynn is a beautifully set up test case. The primary plaintiff is very sympathetic — a “single mother of five with three daughters who suffer from a deadly bone marrow disease.” Because bone marrow is renewable, and many other renewable “organs” (think sperm and egg) explicitly fall outside of NOTA’s prohibition, there is an air of arbitrariness here. The plaintiffs do not want to buy bone marrow in crass commercial terms, but instead to “create a pilot program that would encourage more bone marrow donations by offering nominal compensation—such as a scholarship or housing allowance.” While I do not think this fact actually allows us to avoid the the corruption form of the anti-commodificationist argument (I may blog more on that topic soon), on a superficial level it does seem to reduce the strength of at least one talking point. The fact that we already tolerate altruistic bone marrow donation suggests that the risk-prevention rationale that was central in Abigail Alliance faces some problems here. Indeed as I , Lori Andrews, and others have argued in the context of reproductive services, in some ways the “coercion” or “exploitation” concerns that are sometimes raised in anti-commodificationist arguments may be more worrisome in the altruistic and familial setting than in arm’s length market arrangements. The case also seems to compare favorably on crowding-out concerns. Although the Abigail Alliance court did not reach the issue (because whether a fundamental right was present dominated the analysis) the government offered a somewhat attenuated crowding out argument: that the availability of experimental drugs outside of clinical trials would reduce the enrollment in clinical trials, and therefore slow either approval of these drugs (and widespread availability) or a demonstration that they were unsafe or ineffective. Though attenuated, this was a concern that many took quite seriously in the run-up and aftermath of the case. Here, by contrast, I think the crowding out argument is more straightforward and is similar to one that people associate with Richard Titmuss’ work as to blood sale, that adding commercial elements will drive altruistic donation out of the market. To be sure that is an empirical claim, but one that seems less plausible to me than the parallel claim in Abigail Alliance, and I think here again the charitable/foundation approach may blunt some concerns about the transformation of the social meaning of bone marrow donation.
August 9, 2010 at 10:00 am
Posted in: Bioethics, Civil Rights, Consumer Protection Law, Health Law, Law Practice, Property Law
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Bartering Legal Services for Sex
posted by Solangel Maldonado
Sometimes I think that lawyers unfairly get a bad rap. Most lawyers work hard, comply with all of the ethical rules, and respect their clients. However, there are a few that repeatedly violate the Rules of Professional Conduct, hurting their clients and threatening the public’s trust in the legal profession. Unfortunately, they continue to practice law.
Imagine an attorney who has been admonished, reprimanded, and censured four times in a 6-year period for failing to communicate with clients and for recordkeeping violations, and who is later held ineligible to practice law for 15 months for failure to pay into the state’s Lawyers’ Fund for Client Protection among other things. Imagine that this attorney (who continues to practice law during this period of ineligibility) offers discounted fees to three female bankruptcy clients and to the daughter of another client in exchange for sexual favors. (He told the daughter of a bankruptcy client who could not afford his fee that he would forgive her father’s debt if she would meet him “in a hotel room for three hours.”) You can read the rest of the stipulated facts here.
August 4, 2010 at 8:08 pm
Posted in: Feminism and Gender, Law Practice, Legal Ethics
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Book Review: Levit & Linder’s The Happy Lawyer
posted by Naomi Cahn
Nancy Levit & Douglas O. Linder, The Happy Lawyer: Making a Good Life in the Law. Oxford University Press, 2010. 304 pp.
So here’s a book we can all rejoice over: Nancy Levit and Doug Linder’s The Happy Lawyer: Making a Good Life in the Law. Although it offers the reader lots of research, it’s not really a legal academic book, and may not even mention the Constitution or a court case; although it offers the reader a happiness toolbox, it’s definitely not a self-help book. Instead, it’s a book that anyone who is – or was – or wants to be –a lawyer (or anyone who knows a lawyer) should read to find out how career choices can maximize our chances of achieving happiness. It even discusses the meanings of happiness, and why happiness might be an appropriate life goal! To be sure, the authors also discuss the role of melancholy in our lives.
I’m recommending it to all of my students, and to my friends practicing law, and even to my husband, who prides himself on NOT being a lawyer. Note that there is very little advice for law professors on how to achieve happiness in our own lives, perhaps in recognition that we’ve achieved happiness already — or that being happy is not our focus. There is one very long chapter on how students can use their law school years to prepare themselves for job satisfaction.
The book makes it case by using the developing literature on the science of happiness and through interviews of hundreds of lawyers. Although this may cause many of us to think about those books sold in airports with titles like, “You Too Can Be Happy if Only . . .,” an increasing number of studies focus on the psychology and sociology of happiness, as well as the neuroscience of happy minds. Levit and Linder walk through the impact of dopamine, oxytocin, and Ecstasy on the brain, suggesting that wading through thousands of depositions may not cause the release of happiness-inducing chemicals. Instead, the authors point out that six experiences are essential to making a person satisfied with her life, including “security, autonomy, authenticity, relatedness, competence, and self-esteem” (p. 44).
July 6, 2010 at 10:19 am
Posted in: Book Reviews, Law Practice
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UCLA Law Review Vol. 57, Issue 5 (June 2010)
posted by UCLA Law Review
Volume 57, Issue 5 (June 2010)
Articles
| Introduction to the Symposium Issue: Sexuality and Gender Law: The Difference a Field Makes | Nan D. Hunter | 1129 |
| Elusive Coalitions: Reconsidering the Politics of Gender and Sexuality | Kathryn Abrams | 1135 |
| The Sex Discount | Kim Shayo Buchanan | 1149 |
| What Feminists Have to Lose in Same-Sex Marriage Litigation | Mary Ann Case | 1199 |
| Lawyering for Marriage Equality | Scott L. Cummings Douglas NeJaime | 1235 |
| Sexual and Gender Variation in American Public Law: From Malignant to Benign to Productive | William N. Eskridge, Jr. | 1333 |
| Sticky Intuitions and the Future of Sexual Orientation Discrimination | Suzanne B. Goldberg | 1375 |
| The Dissident Citizen | Sonia K. Katyal | 1415 |
| Raping Like a State | Teemu Ruskola | 1477 |
| The Gay Tipping Point | Kenji Yoshino | 1537 |
July 5, 2010 at 7:12 pm
Posted in: Articles and Books, Constitutional Law, Current Events, Feminism and Gender, History of Law, Immigration, Law and Humanities, Law and Inequality, Law and Psychology, Law Practice, Law Rev (UCLA), Law School, Legal Theory, Politics, Psychology and Behavior, Supreme Court
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Evidence that Academia is an Aristocratic Country
posted by Nate Oman
Academics make less money than they would probably be able to make were they not academics. This is certainly true for the vast majority of law professors, most of whom were educated at elite law schools and often have had professional experience in the upper levels of the legal profession. Yet despite the fact that they make less money than their non-academic professional peers, law professors still work hard (although not as hard as say junior associates at Skadden). This morning I was reading De Tocqueville, and I came across this passage, which could be applied, I think, to much of academic work: Read the rest of this post »
July 2, 2010 at 12:31 pm
Posted in: Law Practice, Law School (Scholarship)
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Paradoxes in Formal Courts versus Informal Justice / Quasi-Legal Processing of Human Rights Cases in India
posted by Tamara Relis
Continuing from my previous post, I will elaborate here on some of the initial arguments from my forthcoming book, INTERNATIONAL HUMAN RIGHTS AND VIOLENCE AGAINST WOMEN: THEORY, GLOBAL STANDARDS AND SOUTHERN ACTORS’ PRAXIS based on the empirical research I conducted throughout India, which I described earlier. Some of these issues are discussed in my forthcoming article, International Human Rights and Southern Realities, 112 HUMAN RIGHTS QUARTERLY (2010), HTTP://PAPERS.SSRN.COM/SOL3/PAPERS.CFM?ABSTRACT_ID=1592042 . There, I argue that on the basis that a culturally plural universalism in human rights is an acceptable aim, we are in dire need of a new integrated analytical framework, one that is grounded not only in the understandings and perceptions of Southern actors (i.e. individuals from the Global South), but that simultaneously imbeds their perspectives within the realities of human rights case processing in the legally pluralistic Global South. This involves not only formal courts but also informal justice or quasi-legal non-state mechanisms processing human rights cases.
PARADOXES IN FORMAL COURTS VERSUS INFORMAL JUSTICE / QUASI-LEGAL MECHANISMS IN INDIA - Paradoxically, the data suggest that the bulk of lawyer advocates and judges working in the lower criminal and civil courts, as well as court-linked ‘lok adalats’ (mediations)–who process great numbers of cases involving serious violence against women involving food deprivation as a means of punishment, physical and mental torture, and rape–utilize international human rights principles to a far lesser extent, if at all, in dealing with these cases than do some informal justice / quasi-legal mechanisms processing the very same type cases. In contrast, the non-lawyer mediators/arbitrators in the informal justice mechanisms studied—who were not only not formally legally trained, but many of whom had poor literacy skills—were far more geared towards resolving cases utilizing principles of international human rights law and CEDAW in particular (e.g. equality, autonomy).
May 24, 2010 at 8:49 pm
Posted in: Civil Procedure, Civil Rights, Criminal Law, Criminal Procedure, Culture, Empirical Analysis of Law, Feminism and Gender, International & Comparative Law, Interviews, Law and Inequality, Law and Psychology, Law Practice, Sociology of Law, Uncategorized
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INTERNATIONAL HUMAN RIGHTS AND VIOLENCE AGAINST WOMEN: THEORY, GLOBAL STANDARDS AND SOUTHERN ACTORS’ PRAXIS – Some highlights from a forthcoming book
posted by Tamara Relis
My second book is entitled INTERNATIONAL HUMAN RIGHTS AND VIOLENCE AGAINST WOMEN: THEORY, GLOBAL STANDARDS AND SOUTHERN ACTORS’ PRAXIS (forthcoming). It is based on data I collected over three years in eight states of India and in seven languages while I was a postdoctoral research fellow at Columbia Law School and the LSE (London School of Economics, Dept. of Law, where I continue to be a research fellow). This data was collected with the help of eight teams of about 200 research assistants throughout India. The United Nations Development Program (Delhi), 11 law school Deans, domestic judges, state legal services authorities, local district and high courts, NGO’s and human rights/public interest lawyers throughout India were also involved in the project. The dataset comprises 400 semi-structured depth interviews and questionnaires from victims, accused, lawyers, judges, arbitrators and mediators in 193 cases involving human rights violations of serious violence against women. It also includes case hearing observations in lower formal courts, court-linked mediations known as “lok adalats” and non-state, quasi-legal women’s arbitrations known as “mahila panchayats” and “nari adalats” (British Academy Award PDF/2006-09/64).
Similar to my first book, the South Asian research analyzes legal and lay actors’ understandings, objectives and experiences during case processing. However, the South Asian research builds on and takes in new directions the theories and conceptual arguments I developed in PERCEPTIONS IN LITIGATION AND MEDIATION . In particular, it focuses on local, Southern actors’ perspectives (i.e. individuals from the Global South) on the permeation and perceived relevance of international human rights laws and norms in formal courts and non-state informal justice mechanisms.
Drawing on interdisciplinary scholarship (international relations, law & anthropology, law & development, and victimology literatures), the book questions how the current proliferation of international human rights has shaped case processing systems at grassroots levels. Expanding on my North American findings, Southern legal and lay actors provide local perspectives on non-western models of formal courts and informal justice processes as forms of legal pluralism. I examine how, if at all, international human rights laws and norms (e.g. CEDAW 1979, ICCPR 1976, UN Declaration on Basic Principles of Justice for Victims of Crime and Abuse of Power 1985) have permeated the processing of these cases, comparing how receptive the different spaces of lower courts versus quasi-legal regimes are to claims made from the international sphere. I further examine the theoretical ideas informing these processes (including norm diffusion theory, universalism versus cultural relativism, restorative justice, and feminist critiques of mainstream human rights paradigms) and how these ideas are understood by those on the ground. The research also highlights the interdependence of all human rights and the link between human rights, women’s rights and development, which has been the subject of much debate. Finally, the findings provide a critique on the boundaries created both between formal and informal justice, as well as between ratified international law and the permeation of international human rights norms in case processing at grass roots levels.
Interestingly, depending on arbitrary factors including parties’ geographic and/or socioeconomic positions within India, the same type cases might be heard in either criminal or civil lower courts (magistrates/sessions/district) or in the above-mentioned court-linked or non-state quasi-legal mediations or arbitrations. The dataset additionally comprises “in-chambers mediations”, which are newly exported forms of American justice to India. These are case management tools that include ADR and plea bargaining methods, which have been and are being taught to Indian judges and advocates by a number of Californian judges and US Department of Justice representatives with the aim of deflecting cases from the overburdened Indian courts where trial waits of 10 years or more are not uncommon. This is being done predominantly for US commercial interests. However, these case management tools also affect the processing of violence against women cases.
May 17, 2010 at 8:54 pm
Posted in: Articles and Books, Civil Procedure, Civil Rights, Criminal Law, Criminal Procedure, Culture, Empirical Analysis of Law, Feminism and Gender, International & Comparative Law, Interviews, Law and Inequality, Law and Psychology, Law Practice, Sociology of Law
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Some data from PERCEPTIONS IN LITIGATION AND MEDIATION: LAWYERS, DEFENDANTS, PLAINTIFFS AND GENDERED PARTIES (Cambridge University Press, New York, 2009)
posted by Tamara Relis
I want to provide some support for the claims made in my previous post, summarizing the main findings of my book Perceptions in Litigation and Mediation. Below are two of the many areas that support the “parallel worlds” theme relating to the different understandings of legal case processing and case resolution as between legal actors and lay litigants.
CHAPTER 2 EXCERPTS ON UNDERSTANDINGS OF WHAT PLAINTIFFS WANT:
Chapter 2 explores and attempts to make sense of an issue fundamental to litigation in general as well as mediation in particular: What do plaintiffs want? Why plaintiffs sue, and their consequent litigation aims should have a marked impact on their objectives and experiences in litigation and litigation-linked mediations. Likewise, attorneys’ objectives, approaches to their cases and conduct throughout litigation and mediation are affected by their basic understandings of what those who commence these suits want; that is, what the cases are about. Little is known about what litigants really want from the civil justice system and what they aim to achieve. Consequently we have little knowledge of whether litigants’ real objectives are met by the realities of civil litigation including litigation–linked processes such as mediation.
PHYSICIAN LAWYERS: IT’S ONLY ABOUT MONEY
Virtually all physician lawyers were of the strong belief that plaintiffs had sued for financial compensation alone. Even the two who mentioned that non-fiscal objectives might also have been involved put much emphasis on claimants’ primary monetary aims.
The following excerpts are typical of defense physician lawyers in answering the global question, ‘WHAT IN YOUR VIEW WERE THE PLAINTIFF’S AIMS IN LITIGATING?’
‘My view is the issue was money, to compensate for the pain associated with the deterioration, and to compensate for lost income associated with the surgery that was necessary. SO IT WAS MONEY ALONE? I believe so.’ Male attorney-50’s-prescription alleged to have destroyed bone tissue, resulting in 40-year-old plaintiff undergoing hip replacement surgery-litigating several months
‘To settle it. Their assumption was that this would never go to trial; that they would get money out of this beforehand. SO, YOU FEEL IT IS SOLELY AN ISSUE OF OBTAINING FINANCIAL COMPENSATION Yes, but I also think that they are of the view that if they obtain financial compensation it will make…them feel better. I think they’re misguided on that.’ Female attorney-30’s-abdomen not left intact after surgery litigating several months
‘I think in virtually all cases it’s directly driven by their desire for compensation…The sole aim, you know, in most of the cases it is to be financially compensated for the wrong. And I would say that’s in 99% of the cases I do, that’s what plaintiffs want.’ male attorney-30’s-child fatality case-litigating 4 years Read the rest of this post »
May 11, 2010 at 12:00 am
Posted in: Articles and Books, Civil Procedure, Empirical Analysis of Law, Health Law, Insurance Law, Interviews, Law and Psychology, Law Practice, Sociology of Law, Tort Law
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Book Review: Denbeaux & Hafetz, The Guantánamo Lawyers
posted by John Ip
The Guantánamo Lawyers by Mark P. Denbeaux & Jonathan Hafetz (eds), New York: NYU Press, 2009.
The Guantánamo Lawyers is a collection of stories from more than one hundred lawyers who have been involved in some way in representing the detainees held by the United States at Guantánamo Bay Naval base and elsewhere since the terrorist attacks of September 11, 2001.
The lawyers’ accounts are arranged to form an approximate chronological narrative of the Guantánamo litigation, although the chronology is interrupted to a degree in some of the chapters that deal with matters such as torture, rendition, and the cases of detainees held outside Guantánamo. Short introductory explanations by the editors appear throughout, and provide some context and continuity to the lawyers’ stories.
The book begins with the establishment of Guantánamo as a detention facility after 9/11, and the decision of certain lawyers to get involved from an early stage in arguing for the habeas corpus rights of Guantánamo detainees, then termed “the worst of the worst”. In 2002, lawyers willing to represent terrorist suspects were few and far between. Among the initial few were Thomas Wilner of Shearman & Sterling and Michael Ratner of the Center for Constitutional rights; Joe Margulies, Clive Stafford Smith and Eric Freedman, all lawyers with expertise in death penalty litigation, also joined the cause from the outset.
These pioneers were later joined by many others, particularly after the Supreme Court’s 2004 decisions concerning the war on terrorism. The general picture that emerges about the motivations of the lawyers is that they did it out of a strong belief in the rule of law and due process, as well as a desire to restore the United States’ adherence to its own ideals. Many of the stories emphasize that the decision to act for the detainees was a form of patriotism as well — a salient point in light of the recent (and widely discredited) attack on the integrity of current Department of Justice lawyers who had previously worked on Guantánamo litigation.
May 4, 2010 at 9:30 pm
Posted in: Book Reviews, Constitutional Law, Criminal Law, Criminal Procedure, Law Practice, Privacy (National Security)
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What are we missing when we think about case processing in litigation and mediation?
posted by Tamara Relis
Hi everyone. I am delighted to be here. I would like talk today about epistemological differences between lawyers and litigants involved in case processing, resulting in frequently conflicting comprehensions, perceptions, needs and objectives for case resolution. This has been the main finding in my recently published book, Perceptions in Litigation and Mediation: Lawyers, Defendants, Plaintiffs and Gendered Parties (New York, Cambridge University Press, 2009). I would like to set out the main framework of the research findings in this post, and will provide you with particular examples including charts and quotes in my next post.
The book explores the question ‘How do professional, lay and gendered actors understand and experience case processing in formal courts and quasi-legal regimes including mediation?’ I use a novel methodological framework of juxtaposing all sides’ views (plaintiffs, defendants, lawyers on all sides, judges, mediators/arbitrators) on the same issues within the same cases heard in formal courts or mediations. Therefore, actors’ perceptions and agendas act as lens to map, theorize, and critically analyze the phenomenon of legal case processing. By injecting actors’ understandings, praxis and experiences into the analyses, the data offer a unique look into the diversity of prevalent realities, illuminating important paradoxes inherent in legal policy initiatives related to case resolution. I compare perceptions of justice, understandings of the purpose of the justice system, comprehensions of victims/plaintiffs’ motivations in approaching the legal system, case resolution objectives, and experiences during hearings. The findings reveal significant and disturbing discontinuities in terms of interests, language and agendas. The book demonstrates through lawyers’ and parties’ own voices that professional and lay actors occupy largely parallel worlds of understanding, affecting how conflict and its resolution are perceived. Stark similarities in the discourse of plaintiffs and defendants on the one hand (operating from an extralegal/therapeutic/communicatory paradigm), and lawyers of all camps on the other notwithstanding whom they are representing (and functioning through a strategic/tactical framework) reveal unlikely conceptual alignments. There is some evidence that mediation experience leads lawyers to reconceptualize their cases and their roles in terms of addressing disputants’ intrinsic, often overriding extralegal needs. The findings additionally suggest that gender influences the way attorneys and parties understand and experience conflict, case processing and case resolution. Nevertheless, in juxtaposing actors’ perspectives on all sides of the same or similar cases, the data reveal inherent problems with the core workings of the civil justice system. This is something that is not being adequately captured in current debates, perhaps because of monumental access problems in acquiring this type of data, particularly relating to confidentiality issues.
Three themes are recurrent throughout the chapters, each of which examines a different step within case processing (e.g. Why did you sue vs. why do you think the plaintiff sued?(ch.2); What were your aims in resolving the case (ch.5))? The three recurrent themes are: (1) the parallel worlds of understanding and meaning inhabited by legal actors versus lay disputants, reflecting materially divergent comprehensions and functions ascribed to legal case processing and how cases should be resolved (2) lawyers’ ‘reconceptualization’ pertaining to mediation’s role in the transformation of legal actors’ conceptions of their cases and their roles within them, evidencing a move away from conventional legal thought to increasingly include extralegal considerations outside the traditional province of the law. This represents part of a shift in what lawyers ‘are’ and how they present themselves, and (3) A gender theme, which provides evidence to suggest that gender affects the way conflict and resolution are perceived and experienced, both for legal actors (e.g. female lawyers’ tendency for greater extralegal sensitivity during case processing versus males’ more tactical focus) and lay disputants (e.g. gender disempowerment).
May 3, 2010 at 4:29 pm
Posted in: Articles and Books, Civil Procedure, Empirical Analysis of Law, Feminism and Gender, Health Law, Law and Psychology, Law Practice, Sociology of Law, Tort Law
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Book Review: Feigenson & Spiesel’s Law on Display
posted by Peter McCormick
Neal Feigenson & Christina Spiesel, Law on Display: The Digital Transformation of Legal Persuasion and Judgment (New York University Press, 2009) 252 pages.
Law has long been about words; today, increasingly it is about pictures as well. This is the fence (or, if you prefer, the cliff) over which Neal Feigenson and Christia Spiesel want us to look, and the view is quite something. Their warning, which could be taken as a leitmotif for the whole book, is that “pictures are different” — indeed, much more different, with an impact that is much more portentous, than might appear at first glance.
The authors begin by pointing out that “pictures in law” (their focus really is “pictures in court”) involves several critically different phenomena that need to be discussed in quite different terms. The first, problematic but both obvious and increasingly common, is the use of videotape material as part of the package of evidence, whether these are surveillance videos, the dashboard cameras routinely installed in police vehicles, or the product of the increasingly ubiquitous private cell phone. The problem here is simply an extension of the age-old problem of eye-witness evidence, which is often taken far more literally and attributed much greater weight and reliability than it really deserves. The most high-profile example so far — Scott v. Harris 127 Sup.Ct 1769 (2007), where the USSC attached an internet-accessible version of the videotape to its decision — splendid illustrates the problem, the USSC majority simply asserting that the video plainly spoke for itself. But “speaking for itself” is precisely what videotapes cannot do, and the problems of framing, viewpoint and editing (if only with respect to start and end points) can never be overlooked. The Court’s casualness, without even the excuse of being a crowded docket trial court, is not at all a promising start to an appropriate judicial response.
The second is the use of scientific evidence in picture form. The essential problem is that although videotape material is (or can be, or should be) largely an un-retouched representation of a physical reality, scientific evidence typically involves pictures that have been enhanced to focus on or emphasize relevant details. Enhance them too little, and they tell judges and juries nothing; enhance them too much, and they become misleading or even dishonest, especially if the viewers underestimate the extent of the enhancement. And all this, of course, operates in the shadow of the “CSI effect” and the high expectations of science-based examination that it inculcates, with a double risk: on the one hand, juries may punish litigants for failing to come up to the level of polished completeness that the TV show always delivers but real life often cannot; on the other hand, it may be too ready to take the science as more conclusive than it is, as a statement of simple facts rather than an informed assessment of probabilities. A picture may be worth a thousand words, but scientific evidence in pictorial form needs to come surrounded by at least a thousand words if it is going to be assessed properly and used appropriately.
April 19, 2010 at 4:24 pm
Posted in: Law and Humanities, Law Practice, Technology, Uncategorized
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Chick Sexers To Be Automated: Are Lawyers Next?
posted by Dave Hoffman
The Good Old Days of Lawyer and Chick Sexing Glory
Chick sexers were famously touted by Dan Kahan because they can do something very hard — distinguish male from female chicks- but allegedly can’t explain well how they do it. Moreover, becoming a chick sexer, like learning how to be a lawyer, radiologist, diagnostician, or other professional, involves repeated confrontation with error. As Kahan explained:
“[T]he lawyer attains her skill – to recognize what she can’t cogently explain – in much the same way that the chick sexer does: through exposure to a professional slideshow, this one conducted by law grandmasters, including law professors but also other socialized lawyers, who authoritatively certify what count as good and bad decisions, sound and unsound arguments, thereby inculcating in students and young practitioners the power of intuitive perception distinctive of the legal craft.”
But now, it turns out, chick sexing is going to be turned over to automated (objective) pattern recognition machines. As the Economist noted, this development is “sad for the redundant sexers … but you can’t make an omelette without breaking eggs.” It’s also, of course, bad for the baby boy chickens, who will be turned into pet food more efficiently.
More grimly, taking Dan’s analogy seriously, this is a scary reminder for lawyers, especially the kind who dominate the profession (i.e., transactional attorneys), that professional judgment can sometimes be automated, and must never be complacent. The only thing that lawyers really have on those poor chick sexers right now is a very entrenched guild.
(H/T: The Economist)
March 8, 2010 at 10:41 pm
Posted in: Law Practice
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