The Stanford Law Review Online has just published an Essay by Yale’s Stephen L. Carter entitled The Iraq War, the Next War, and the Future of the Fat Man. He provides a retrospective on the War in Iraq and discusses the ethical and legal implications of the War on Terror and “anticipatory self-defense” in the form of targeted killings going forward. He writes:

Iraq was war under the beta version of the Bush Doctrine. The newer model is represented by the slaying of Anwar al-Awlaki, an American citizen deemed a terror threat. The Obama Administration has ratcheted the use of remote drone attacks to unprecedented levels—the Bush Doctrine honed to rapier sharpness. The interesting question about the new model is one of ethics more than legality. [...]]]>

The Stanford Law Review Online has just published an Essay by Yale’s Stephen L. Carter entitled The Iraq War, the Next War, and the Future of the Fat Man. He provides a retrospective on the War in Iraq and discusses the ethical and legal implications of the War on Terror and “anticipatory self-defense” in the form of targeted killings going forward. He writes:

Iraq was war under the beta version of the Bush Doctrine. The newer model is represented by the slaying of Anwar al-Awlaki, an American citizen deemed a terror threat. The Obama Administration has ratcheted the use of remote drone attacks to unprecedented levels—the Bush Doctrine honed to rapier sharpness. The interesting question about the new model is one of ethics more than legality. Let us assume the principal ethical argument pressed in favor of drone warfare—to wit, that the reduction in civilian casualties and destruction of property means that the drone attack comports better than most other methods with the principle of discrimination. If this is so, then we might conclude that a just cause alone is sufficient to justify the attacks. . . . But is what we are doing truly self-defense?

Read the full article, The Iraq War, the Next War, and the Future of the Fat Man by Stephen L. Carter, at the Stanford Law Review Online.

Law professors qua law professors have become engaged in topical public controversies since the early 1900s. Some law professors spoke out about the Sacco-Vanzetti trial, and many professors took well-publicized positions on Franklin Roosevelt’s court-packing plan. I am unfamiliar with any widely distributed petition as to either event, however. (Although the AALS did initiate, only to abandon, a poll of law faculties designed to gauge their support or opposition to FDR’s plan.)

The first petition I have found that specifically requested the support of American law faculties circulated almost exactly 73 [...]]]> Not long ago, I was asked to sign a petition, circulating among law professors, that condemns the recent pepper-spraying of protesters at the University of California-Davis. This invitation rekindled my interest in the origins of these petitions.

Law professors qua law professors have become engaged in topical public controversies since the early 1900s. Some law professors spoke out about the Sacco-Vanzetti trial, and many professors took well-publicized positions on Franklin Roosevelt’s court-packing plan. I am unfamiliar with any widely distributed petition as to either event, however. (Although the AALS did initiate, only to abandon, a poll of law faculties designed to gauge their support or opposition to FDR’s plan.)

The first petition I have found that specifically requested the support of American law faculties circulated almost exactly 73 years ago, in early December 1938. This petition was prepared and distributed by telegram shortly after the Kristallnacht pogroms, and read as follows:

Faculty of Law [Institution, Location]

The Faculty of Law of the University of Amsterdam invites you kindly to inform them by telegram before December ten whether your Faculty of Law would be willing to second the following resolution. The invitation being wired today to all Faculties of Law in the British Empire, United States of America, France, Netherlands, Belgium, Switzerland, Finland, Denmark, Sweden, Norway, Iceland. The Faculties of Law of the Universities mentioned below noting with sorrow and dismay that in some countries innumerable people are being persecuted and tormented on account of their faith, race or political convictions and that particularly in the so called Concentration Camps innocent people are without legal procedure subjected to inhuman treatment considering that the basic principles of justice are thus insufferably violated voice their protest against this violation in view of their duty to uphold the principles of justice and the rights of man appeal to the conscience of mankind to support them in this protest and decide to publish this resolution and to communicate it to their respective governments.

The telegram, which on its face requested the support of each contacted institution (as opposed to the endorsement of individual professors) met with a range of responses. Some American law faculties (including those at Yale, the University of Chicago, the University of Michigan, the University of California-Berkeley, and the University of Colorado) signed on to the petition. At Harvard, it was agreed that individual professors could endorse the petition, if they so chose, but that no such backing would come from the general faculty, speaking as a whole and for the institution generally.

Today, it’s assumed that individual professors, as opposed to the institutions where they work, represent the proper signatories of a petition such at the one circulated by the University of Amsterdam law faculty. Were assumptions different, one presumes that there would be a lot fewer petitions in circulation. Plus faculty meetings would become much longer.

I think we’d all agree that if a student or an academic did this, it would be plagiarism.  True for a court as well? One reason I ask is that courts often lift passages from briefs without attribution (John Marshall famously did this in M’Culloch v. Maryland) and nobody seems to care.  Likewise, I don’t know of any examples of “judicial plagiarism” [...]]]> I’m curious to know what folks think of this hypothetical.  Suppose somebody writes a law review article with an insightful and original analysis of an issue.  When that issue comes before a court, the court adopts the logic of the article and closely tracks its reasoning in the opinion (in a way that’s pretty obvious), but does not cite the article.  Is that wrong?

I think we’d all agree that if a student or an academic did this, it would be plagiarism.  True for a court as well? One reason I ask is that courts often lift passages from briefs without attribution (John Marshall famously did this in M’Culloch v. Maryland) and nobody seems to care.  Likewise, I don’t know of any examples of “judicial plagiarism” where the professor in question complained and got a court to amend its opinion and acknowledge that a particular idea that was passed off as original was, in fact, not. More broadly, one might say that all that matters is that the law gets stated correctly, not who gets the credit, especially as the professor can always write another paper that takes the credit.

Is [...]]]> Depending on whom you speak with, CLE is either: (1) a necessary means of ensuring that lawyers remain current on the practice of law or (2) an endeavor primarily designed to generate revenue for state bar associations.  Do proponents of the latter description have more ammunition because most state bars allow attorneys to earn at least some percentage of required CLE via video that streams to a personal computer?  At least one state requires lawyers to click at regular intervals, but in many others lawyers just stream and then print a certificate at the end of the video.  To quote one site that sells online CLE, the format is advantageous because it is “available 24/7,” “eliminates travel and travel-related expenses,” and can be “viewed from the couch.” 

Is it too cynical to suggest that the format also allows attorneys to cook dinner while the video is streaming to an empty room upstairs?  Of course lawyers who are sitting through a live presentation can find plenty of ways to distract themselves, but social conventions usually dictate that they cannot make themselves entirely absent, either actually or metaphorically.  Does the decision to allow online CLE demonstrate the faith that state bars have in their attorneys to do what is right, or is it an indication that providing education is secondary to the bars’ other concerns?

The story struck a nerve, not only with the affected community, but with the [...]]]> Recently the New York Times carried a front page story about an eighth grade girl who foolishly took a nude picture of herself with her cell phone and sent it to a fickle boy – sexting. The couple broke up but her picture circulated among her schools mates with a text message “Ho Alert” added by a frenemy.  In less than 24 hours, “hundreds, possibly thousands, of students had received her photo and forwarded it. In short order, students would be handcuffed and humiliated, parents mortified and lessons learned at a harsh cost.”  The three students who set off the “viral outbreak” were charged with disseminating child pornography, a Class C felony.

The story struck a nerve, not only with the affected community, but with the Times’ readers as well.  Stories about the misuse and dangers of technology provide us with opportunities to educate our students, and us. In a Washington State sexting incident, for example, the teen charged had to prepared a public service statement warning other teens about sexting to avoid harsher criminal penalties.  But the teen’s nude photo is still floating around.  Information has permanence on the internet.

Few of us appreciate how readily obtainable our personal information is on the internet.  Just google your name and see what you learn about yourself.  One of my students did and found, along with the usual links to law school and other websites like Facebook, a statement he made while running for an office in the Christian Legal Society posted on a website unknown to him.  Without paying he found his name, home town and state, and a list of his immediate family members.  Googling his phone number the first link that popped up was a map that located where he lived.  The next link was to spokeo.com “a people search engine that organizes vast quantities of white-pages listings, social information, and other people-related data from a large variety of public sources.”  According to Spokeo, its “mission is to help people find and connect with others, more easily than ever.” This site provided, without charge, the initials of all his family members, his approximate age and that of his parents and sister.  It revealed the family’s home address, approximate home value and length of residence.  Then my student saw a Google picture of his house and himself walking to his car with his backpack, presumably leaving to go to school.  He was stunned.

Much of this information reaches the internet through social networking catching us, and our students, off guard.  Some of us have Facebook accounts and followers on twitter, while others, concerned about privacy, think we can avoid internet scrutiny altogether, but alas we cannot.  While Facebook is more of a “socializing” network, LinkedIn calls itself a “professional network” designed to promote professional contacts.  It too has a “friend” feature and I have received email requests from students and law faculty I vaguely know to join their LindedIn network.  I’ve declined. Just how “social” should we be in our professional capacity as law professors, students and lawyers?    This question plagues all of us in the legal arena, even judges.

In 2009 the Judicial Ethics Advisory Committee of the Florida Supreme Court, in addressing several issues about a judge’s use of a social networking site, wrote that these sites generally serve two purposes.  First and foremost they are places “to post pictures, comments, and other material that visitors to the site can view.”  But increasingly networking sites are places “to identify a member’s ‘friends’….[,] a person who requests to be identified as the member’s ‘friend’”. The Committee concluded that “a judge may [not] add lawyers who may appear before the judge as ‘friends’ on a social networking site, [or] permit such lawyers to add the judge as their ‘friend.’”

Should we develop similar networking standards for professors and their students?  I plan to explore this question in my torts class this fall.  So I am constructing a series of problems that involve social media to keep them engaged in thinking about tort law.  This also is an opportunity to get them thinking about how their use of social media may raise ethical and professional issues starting as early as law school.  Wish me luck.

The report piqued my interest regarding whether the recession was having a similar, positive effect on the provision of pro bono legal services. I suspected that more people were in greater need of legal assistance as a result of the recession, which in fact turns out to be the [...]]]> I heard an interview today with a representative of a nonprofit organization that matches volunteers with organizations in need—a sort of match-maker in the volunteer context. Interestingly, the representative reported an increase in the number of available volunteers during the recession (see also here and here). She attributed this trend to two things: people who had lost their jobs wanting to keep up their skills while searching for new employment and people generally wanting to help others in need.

The report piqued my interest regarding whether the recession was having a similar, positive effect on the provision of pro bono legal services. I suspected that more people were in greater need of legal assistance as a result of the recession, which in fact turns out to be the case (see here and here). I did not know, however, whether lawyers were meeting this increased demand. I like to think we are, but the profession’s record on this point is not necessarily encouraging (see, e.g., here).

The results appear mixed. Some reports suggest that the level of pro bono activity has remained the same or increased slightly in the past few years (but see here). (For interesting perspectives on the recession and the legal profession, including pro bono legal services, see here and here.) Nevertheless, even these increased activity levels fall woefully short of the reported need. So, given high lawyer unemployment rates and the desire to better train new lawyers, why does this gap exist?

Some law firms have encouraged associates who were deferred or underutilized at the firm to pursue pro bono activities (see, e.g., here and here). This approach likely is a win-win situation because the law firm and associates satisfy their ethical obligations to provide pro bono legal services, both also get the benefit of on-the-job skills training for younger lawyers and people get the legal help they need. Hopefully, this trend will continue after the economy and the legal market recover.  (For an interesting discussion of pro bono work in the U.S. Supreme Court, see here.)

Many bar associations, courts and law schools (see, e.g., here, here and here) have pro bono and access to justice programs that make wonderful contributions to their communities and the profession. These efforts started well before the recession and likely will continue well after. But their success depends on lawyers’ commitment to the recommended 50 hours of pro bono service per year under the ethical rules. Reports suggest that 50 percent or less of lawyers actually meet this aspirational goal, at least in certain jurisdictions (see, e.g., here and here). Notably, Mississippi is considering a mandatory pro bono requirement for its lawyers (see also here).

What does this all mean for the profession and the underserved? I am not quite sure, but the cynic in me suspects that, when the dust settles, it will mean very little, as the value of pro bono work remains unrecognized in many law firm cultures.  One nonetheless can hope that the underprivileged and underserved become surprising beneficiaries of a recession-generated upswing in pro bono activity.

I know that many even inside the legal profession question whether it remains a profession or is now just a business and all about the bottom line. (For interesting discussions of this debate, see here, [...]]]> One of my favorite courses to teach is Legal Profession (i.e., ethics and professionalism) because it truly is an “ah-ha” moment for many law students. I tend to believe that not many students consider the “profession” part of the “legal profession” prior to attending law school. Rather, I suspect they view law school as a means to an end—landing a lucrative job (or at least that was the case in days gone by; see here,  here and here). They probably give little thought to the fact that they are preparing to join a “profession.”

I know that many even inside the legal profession question whether it remains a profession or is now just a business and all about the bottom line. (For interesting discussions of this debate, see here, here, here and here). I am very traditional in this respect, and I hold dear the notion that the law is an esteemed profession. (I particularly like Roscoe Pound’s definition of the legal profession as “a group…pursuing a learned art as a common calling in the spirit of public service—no less a public service because it may incidentally be a means of livelihood.”) And I am proud to be a member of that profession.

For this reason, I stress the nature of the profession and what it means to be a professional in the early days of Legal Profession. I often quote the Preamble of the Model Rules of Professional Conduct to emphasize that a lawyer does more than serve clients. “A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.” I then use a series of hypothetical problems to work through what that triad of responsibilities means for lawyers. You can actually see the light bulb go off for some students.

I then tie the discussion into admission to the bar, which is a subject near and dear to the hearts of most law students. We talk about the character and fitness requirements of the bar application process (see example here), and how those relate to the professionalism expected of practicing lawyers. And one trait that I think always surprises students is financial irresponsibility—bar examiners have denied applicants’ admission to the bar for failing to pay or attend to their debt obligations, including student loans. As you might imagine, particularly given the current economic environment and the huge amount of debt assumed by students just to attend law school (see, e.g., here and here), this fact always gets students’ attention and sparks an interesting discussion.

You can never really tell how much students take away from any given class, but I think this semester’s Legal Profession class is off to a good start. Students are starting to incorporate a sense of responsibility to something greater than just a single client in responding to questions. And several students sent me email links to articles about professionalism (and financial irresponsibility) after class, which is always a good sign and something I appreciate. Hopefully, some of this newfound enthusiasm for professionalism will remain not only during law school but throughout their legal careers.

For instance, digital expressions of hatred helped inspire the 1999 shooting of African-Americans, Asian-Americans, and Jews in suburban Chicago [...]]]> Although intermediaries’ services can facilitate and reinforce a citizenry’s activities, they pose dangers that work to undermine them.  Consider the anonymous and pseudonymous nature of online discourse.  Intermediaries permit individuals to create online identities unconnected to their legal identities.  Freed from a sense of accountability for their online activities, citizens might engage in productive discourse in ways that they might not if directly correlated with their offline identities.  Yet the sense of anonymity breeds destructive behavior as well.  Social science research suggests that people behave aggressively when they believe that they cannot be observed and caught.  Destructive online behavior spills offline, working a fundamental impairment of citizenship.

For instance, digital expressions of hatred helped inspire the 1999 shooting of African-Americans, Asian-Americans, and Jews in suburban Chicago by Benjamin Smith, a member of the white supremacist group World Church of the Creator (WCOTC) that promotes racial holy war.  Just months before the shootings, Smith told documentary filmmaker Beverly Peterson that: “It wasn’t really ‘til I got on the Internet, read some literature of these groups that . . . it really all came together.”  More recently, the Facebook group Kick a Ginger Day urged members to get their “steel toes ready” for a day of attacking individuals with red hair. The site achieved its stated goal: students punched and kicked children with red hair and dozens of Facebook members claimed credit for attacks.

Cyber hate can produce so much psychological damage as to undermine individuals’ ability to engage in public discourse.  For instance, posters on a white supremacist website targeted Bonnie Jouhari, a civil rights advocate and mother of a biracial girl.  They revealed Ms. Jouhari’s home address and her child’s picture.  The site showed a picture of Ms. Jouhari’s workplace exploding in flames next to the threat that “race traitors” are “hung from the neck from the nearest tree or lamp post.”  Posters included bomb-making instructions and a picture of a hooded Klansman holding a noose.  Aside from moving four times, Ms. Jouhari and her daughter have withdrawn completely from public life; neither has a driver’s license, a voter registration card or a bank account because they don’t want to create a public record of their whereabouts.

Search engines also ensure the persistence and production of cyber hate that undermines citizens’ capability to engage in offline and online civic engagement.  Because search engines reproduce information cached online, people cannot depend upon time’s passage to alleviate the damage that online postings cause.  Unlike leaflets or signs affixed to trees that would decay or disappear not long after their publication, now search engines index all of the content hosted by social media intermediaries, producing it instantaneously.

Jeremy Waldron contends that cyber hate produces a “permanent disfigurement” of group members.  Online hate mars our social environment by visibly and publicly conveying the message that a “group in the community is not worthy of equal citizenship.”  It denigrates group members’ basic standing in society and deprives them of their “civic dignity.”  Search engines ensure that cyber hate endures, instantly accessible far into the future.

Another distinct feature of the Internet is that it can facilitate “echo chambers” of extreme views.  As Cass Sunstein explored in Republic.com 2.0, people may tailor their online news, only seeking out those who reinforce their views and filtering out contrary information.  This leads to the hardening of positions into more extreme ones.  Sunstein explained that hate groups on the internet are so extreme because they often expose themselves to only to online groups with similar views and link exclusively to hateful content.

Intermediaries should recognize these particular challenges that cyber hate in networked spaces poses to individuals’ capability to participate meaningfully offline and online.  In our upcoming article Intermediaries and Hate Speech: Fostering Digital Citizenship for the Information Age (forthcoming Boston University Law Review 2011), Helen Norton and I invoke a concept of digital citizenship to ensure that intermediaries acknowledge and address these challenges.   In so doing, we do not mean to suggest that individuals are somehow citizens of a virtual space that is unconnected from our territorial polity.  Quite the contrary, we speak of digital citizenship as it relates to individuals rooted firmly in our territorial polity.  Digital citizenship acknowledges that our networked environment can be a blow to territorial polity in ways that intermediaries need to recognize and redress.

Citizenship is not simply a matter of legal status enjoyed by members of a body politic, though it serves that crucial role.  It refers to one’s engagement in public life as well.  Public participation is often viewed as essential for members of a democracy to form a citizenry.  As John Dewey wrote, citizenship extends beyond the legal dimension to include “all of the relationships . . . involved in membership in a [...]]]> Most naturally, social media providers and search engines see their users as consumers.  As commercial enterprises, they aim to reap profits, which users help secure with advertising and information revenue.  Yet they should also view their users as citizens.  Because intermediaries are designed to enable public discourse, they facilitate the formation of a citizenry.

Citizenship is not simply a matter of legal status enjoyed by members of a body politic, though it serves that crucial role.  It refers to one’s engagement in public life as well.  Public participation is often viewed as essential for members of a democracy to form a citizenry.  As John Dewey wrote, citizenship extends beyond the legal dimension to include “all of the relationships . . . involved in membership in a community.”  For John Stuart Mill, citizens are individuals who develop their faculties through active engagement in public life.  In this sense, citizenship “provides what other roles cannot, namely an integrative experience which brings together the multiple role activities of the contemporary person and demands that the separate roles be surveyed from a more general point of view.”

Online intermediaries provide essential tools for citizenship.  Individuals rooted in our national polity connect, debate, and pursue common interests on intermediaries’ platforms.  Seeing users as citizens is important for intermediaries interested in understanding what is at stake when they host and index cyber hate.  This leads to the question of how intermediaries impact citizenry in the Information Age, to which I will turn in my next post.

The Mississippi Supreme Court is considering whether to require the state’s lawyers to either provide “at least 20 hours of free service to the poor each year” or buy their way out of the requirement by donating “$200 to $500″ a year in fees.  The arguments for an against mandatory pro bono – whether in law schools or in practice – are familiar.  Lawyers in the Mississippi make them pretty well:

Don Lacy of http://en.wikipedia.org/wiki/Flowood,_Mississippi. . .  lambastes the proposal as “an unprecedented and unjustifiable unilateral extension of the authority of the court.”

“Other than perhaps the priesthood, I am unaware of any profession which requires its members, as a condition of their right to practice their craft, to contribute a portion [...]]]>

Lawyering on the Chain Gang

The Mississippi Supreme Court is considering whether to require the state’s lawyers to either provide “at least 20 hours of free service to the poor each year” or buy their way out of the requirement by donating “$200 to $500″ a year in fees.  The arguments for an against mandatory pro bono – whether in law schools or in practice – are familiar.  Lawyers in the Mississippi make them pretty well:

Don Lacy of http://en.wikipedia.org/wiki/Flowood,_Mississippi. . .  lambastes the proposal as “an unprecedented and unjustifiable unilateral extension of the authority of the court.”

“Other than perhaps the priesthood, I am unaware of any profession which requires its members, as a condition of their right to practice their craft, to contribute a portion of their income to charity,” Lacy said in a letter to the court.

There are supporters, however, and Will Bardwell, a Jackson lawyer in private practice for a little more than a year, is among them.

“I understand the argument, doubtlessly voiced by many of my colleagues, that no one should be required to provide what is, in essence, community service,” Bardwell said. “Fundamentally, I agree. But the fact is that attorneys are different. That distinction exists as both an honor, and sometimes, a burden.

For what it is worth, I’m with Lacy.  If the State thinks that there is a need for more and cheaper legal work for the poor, it should loosen restrictions on entry into the profession.  This proposal, which increases barriers to entry and to practice, may make the problem worse.

(But see SHG)

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 [...]]]> 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.

What is an appropriate sanction in this case? Is disbarment too harsh? Is it relevant that Mr. Witherspoon has a “troubling disciplinary history?”  That he claims that he made the offers “purely in jest”?  Does it matter that none of the women accepted his offers even though they all believed that he was serious—that their legal fees would be reduced if they provided sexual favors?  Attorneys who willfully misappropriate trust funds are generally disbarred. Is Mr. Witherspoon’s conduct as egregious as theft?

New Jersey Supreme Court Justice Jaynee LaVecchia thought so. As she put it, “[o]ne’s bodily integrity is at least as important as the security of the finances one entrusts to an attorney.” According to Justice LaVecchia, Mr. Witherspoon’s “astounding exhibition of bad taste, lack of professionalism, and overreaching of vulnerable clients” warranted disbarment: “The only appropriate measure of discipline that protects the public from respondent’s intolerable behavior, and sends a zero-tolerance message toward lawyers who would consider preying on their clients, is disbarment.”

If you are worried that Mr. Witherspoon will no longer be able to earn a living as a lawyer, you can relax. Justice LaVecchia wrote the dissenting opinion (which Justice Barry Albin joined). The majority of the Court, in an opinion written by Justice Helen Hoens, held that disbarment was not warranted and instead suspended Mr. Witherspoon from practicing law for one year and required him to complete a sensitivity training course. The Court reasoned that while Mr. Witherspoon’s “repeated, demeaning and offensive suggestions to his clients were not merely in jest, but an effort to barter his professional services for sexual favors,” his behavior was not criminal, nor did it involve unwanted physical contact or children. Thus, it lacked the severity that has led to disbarment in other cases. (In some cases, attorneys who have been convicted of sexual offenses, including sexual exploitation of a minor, have not been disbarred). The majority was concerned that the zero-tolerance rule advocated by the dissent would require automatic disbarment of attorneys involved in “non-criminal, non-threatening, non-traumatizing, purely verbal, sexual improprieties directed at other adults, simply because [the victims] are clients.”

I, for one, believe we should disbar attorneys who seek sexual favors from their clients even if their conduct is not criminal or threatening, or involve physical contact. If Mr. Witherspoon behaved in this manner towards his employees, he could be liable for sex discrimination and sexual harassment under Title VII of the federal Civil Rights Act, and if he were a college professor, his behavior, if directed at one of his students, could similarly be actionable under Title IX. In fact, the District Ethics Committee that first heard this case found that Mr. Witherspoon had violated Rule of Professional Conduct 8.4(g) (sexual discrimination and harassment). So why shouldn’t preying on clients, which the majority concedes “goes directly to the heart of the trust on which the attorney-client relationship is founded,” lead to automatic disbarment?

Republican Senators (encouraged quietly by candidate Nixon) together with the Dixiecrats blocked the Fortas nomination in hopes that Nixon would fill the seat with a nominee of his choice. As grounds for opposing confirmation, they cited, among other grounds, the Justice’s unusually close relationship to LBJ—an [...]]]> Recall 1968 and the failed confirmation of Abe Fortas to be Chief Justice of the United States. President Lyndon Johnson had announced he was not seeking reelection; Republican presidential candidate Richard Nixon menaced in the wings. Chief Justice Earl Warren announced his resignation—contingent upon the Senate’s confirmation of his successor—and thereby auspiciously created one last vacancy for LBJ to fill. LBJ nominated Associate Justice Abe Fortas as the inside candidate. Homer Thornberry was nominated to fill Fortas’s to-be vacated seat.

Republican Senators (encouraged quietly by candidate Nixon) together with the Dixiecrats blocked the Fortas nomination in hopes that Nixon would fill the seat with a nominee of his choice. As grounds for opposing confirmation, they cited, among other grounds, the Justice’s unusually close relationship to LBJ—an open secret in official Washington.

Under oath, Fortas decided to put the allegations to rest with this testimony: “Let me say in the first place—and make this absolutely clear—that since I have been a Justice, the President of the United States has never, directly or indirectly, approximately or remotely, talked to me about anything before the Court or that might come before the Court. I want to make that absolutely clear.”

Except, that really wasn’t the truth—far from it.

Documentary evidence has long been available that Fortas collaborated with the FBI to influence the Supreme Court’s resolution of Black v. United States, 385 U.S. 26 (1966), a case concerning FBI wiretapping from which Fortas was supposed to have been disqualified.

Released more recently by the LBJ Library in Austin, Texas is the LBJ audio tape that recorded the October 6, 1966 telephone call between Fortas and LBJ discussing the then-pending case. That audio is available for download (search for conversation 10929, then cue the MP3 to 7:48 to end). The Fortas half of the dialogue is hard to make out and both parties speak elliptically, but for those familiar with the episode it is clear the subject is wiretapping and the forthcoming Black opinion. For additional context, it is helpful to consult the October 25, 1966 memo that then-FBI Assistant Director Cartha “Deke” DeLoach had prepared on Fortas’s leaks of information (attached; click to enlarge).

What makes this episode particularly interesting is that Hoover’s FBI, including DeLoach who was then still serving, likely knew the Fortas statement was untrue. Notwithstanding, DeLoach and the FBI assisted the President in trying to secure Fortas’s confirmation. Also interesting, LBJ had declined to submit Fortas to the usual background check, even though Fortas had been subject to such reviews in 1964 after the Walter Jenkins sex scandal and once again less than a year later in 1965 upon Fortas’s nomination to be Associate Justice.

It is likely infrequent that Supreme Court nominees outright lie. After all, it has long been a felony to knowingly and willfully “make[] any materially false… statement or representation” in any “matter within the jurisdiction of the… legislative… branch of the Government of the United States.” That offense could provide a future willing Congress with grounds to impeach and convict the appointee for the high crime and misdemeanor of having made a materially false statement to the Senate.

Daniel Markovits’s A Modern Legal Ethics could change the way we think about legal ethics, although not necessarily far enough or in only the right directions.

The main argument is elegant and provocative.  Markovits contends that a central issue in legal ethics should be the “problem of integrity.”  Lawyers must be able to integrate their professional commitments into their moral lives.  This is the most important insight of the book.  Other commentators have noted the problem of integrity, but Markovits offers the most sustained and nuanced discussion.  His argument opens up new avenues for thinking about the rules governing lawyers.

On Markovits’s telling, the lawyer’s integrity is directly challenged by her professional [...]]]> A Modern Legal Ethics, by Daniel Markovits.  Princeton University Press: New York 2008.  Pp. 361.  $29.95

Daniel Markovits’s A Modern Legal Ethics could change the way we think about legal ethics, although not necessarily far enough or in only the right directions.

The main argument is elegant and provocative.  Markovits contends that a central issue in legal ethics should be the “problem of integrity.”  Lawyers must be able to integrate their professional commitments into their moral lives.  This is the most important insight of the book.  Other commentators have noted the problem of integrity, but Markovits offers the most sustained and nuanced discussion.  His argument opens up new avenues for thinking about the rules governing lawyers.

On Markovits’s telling, the lawyer’s integrity is directly challenged by her professional obligations.  Good lawyering requires what, on ordinary morality, would be considered lying and cheating.  These “lawyerly vices” are endemic to the adversarial system, so they can’t be cured by tailoring the rules governing lawyers.  Neither is avoiding these vices an option, given their incompatibility with integrity.

For Markovits, there are better and worse ways to solve this problem.  Most theories of legal ethics utilize what he calls (after David Luban) the “adversarial system excuse,” or the consequentialist view that the lawyerly vices are justified as part of a legal system that is just overall.  Here, if the overall practice is justified, then the integrity issues fall away.  Impersonal approaches can only accidentally or incidentally resolve integrity problems.

Interpersonal theories of legal ethics (which he calls “Kantian” approaches) don’t fare any better.  On these approaches, principles of legal ethics are acceptable only if they fulfill specified criteria (e.g., that they could be reasonably consented to, that they could not be reasonably rejected, etc.).  Yet, Markovits argues, concentrating on fulfilling such criteria raises the same problem as with impersonal approaches: any resolution to the problem of integrity is a byproduct, rather than an important end in itself.

Markovits thinks we must take the “lawyer’s point of view” in order to solve the problem of integrity in the right way, which requires a “first-personal” approach to morality.  Markovits calls his version “role-based redescription.”  If there were a distinctive, morally worthy role for lawyering, then the lawyer could preserve her integrity by redescribing her professional obligations to lie and cheat as requirements of fulfilling this role.

Markovits derives such a lawyerly role from two distinctive “lawyerly virtues,” fidelity and negative capability.  Fidelity involves concern not only for advancing a client’s ends, but also for identifying (and deferring to) her views about what those ends are.  Negative capability is the self-effacing capacity to speak from the point of view of another.  Although Keats thought this was a virtue of poets, Markovits sees it as a virtue of lawyers.

Markovits argues that such a role could vindicate the lawyerly life.  If the legal system itself is justified (perhaps on something like the “adversarial system excuse”), then lying and cheating can be redescribed as the hallmarks of advocacy within the system.  The lawyer could plausibly see her advocacy as part of a process that enhances overall political legitimacy.  Despite this possibility, Markovits argues, role-based redescription won’t vindicate the lawyerly life because it is practically inaccessible to lawyers.  Contemporary society simply does not allow the insularity necessary to sustain such a role for lawyers.

Thus, Markovits views lawyers as doomed to lives that lack integrity.  Given the professional obligations to lie and cheat, no lawyer’s professional life could be worth committing to.  The only route for resolving these conflicts of integrity is unavailable.  A Modern Legal Ethics is, then, skeptical about the possibility of legal ethics in the modern world.  The lawyer is effectively condemned to an ethical version of Rainier Wolfcastle’s response in this exchange from The Simpsons:

Jay: “How do you sleep at night?”

Rainier: “On top of a pile of money with many beautiful ladies.”

* * *

After Markovits, the problem of integrity is (or should be) a central question in legal ethics.  However, we need not accept Markovits’s tragic and skeptical conclusion.  We can question both his diagnosis of the problem of integrity and his solution to it.

Let’s take the solution first.  Resolving the problem of integrity does not require taking “the lawyer’s point of view,” or utilizing a subjective, first-personal approach to legal ethics.  Contra Markovits, “Kantian” approaches of legal ethics can assign the right kind of importance to integrity.  These approaches are actually better equipped to resolve the problem of integrity than first-personal approaches.[1]

Consider an account of legal ethics framed in terms of “reasonable accommodation” like the one Seana Shiffrin has offered for contract law.  Shiffrin argues that “legal rules should be sensitive to the demands placed on moral agents so that law-abiding moral agents do not, as a regular matter, face substantial burdens on the development and expression of moral agency.” (The Divergence of Contract and Promise, 120 Harv. L. Rev. 708 (2006)) Applied to the rules of professional ethics, the primary question in evaluating requirement or permission is whether we could reasonably expect an ethical person to abide by it, in light of her moral agency.  Provisions that fail this test can be rejected as overly demanding.  Indeed, Markovits actually employs an argument like this when criticizing impartial approaches to morality as placing “unreasonable” demands on the agent to revise her ground projects.

This approach is clearly “second-personal,” in Markovits’s terms.  Yet it also accommodates integrity by assigning non-derivative importance to an agent’s commitments, which define the contours of what she could reasonably be expected to reject.  Thus, we need not take the “lawyer’s point of view” in order to resolve the problem of integrity.

This reasonable accommodation approach also avoids the ethical reconstruction that Markovits deems necessary to vindicate the lawyerly life.  What matters is articulating a standard for professional ethics that could apply to otherwise ethical people.  We needn’t convince the lawyer that he’s Atticus Finch in order to determine whether he should (or should be allowed to) refuse to answer a compound interrogatory.  Most importantly, this approach does not invite skepticism about the possibility of a modern legal ethics, as does Markovits’s position.

* * *

What about the diagnosis of the problem of integrity?  Others have disputed whether lying and cheating (which, for Markovits, give rise to the problem of integrity) are necessary features of legal systems.  I want to question another aspect of the diagnosis: that the “lawyerly vices” diverge from ordinary morality in the first place.

This divergence plays a significant role in Markovits’s argument.  An unchecked divergence renders the lawyerly life unworthy of living.  If the lawyer’s professional obligations did not substantially depart from his everyday moral commitments, then (on Markovits’s formulation) there would be no problem of integrity.

To be fair, most academic commentary on legal ethics relies on some variation of this empirical claim that legal ethics diverge from ordinary morality.  Yet no systematic empirical evidence confirms this hypothesis, and there’s significant reason to doubt it.  For example, empirical evidence suggests that ordinary morality is supple (see the evidence summarized in  J. M Doris, J. Knobe & R. L Woolfolk, Variantism About Responsibility, 21 Philosophical Perspectives 183 (2007)).   Perhaps it is supple enough to address many seemingly divergent requirements of legal ethics.  Moreover, many plausible moral views allow a person’s responsibilities to depend on (and arise out of) her special relationships.  Finally, ordinary morality seems far more in line with the standards of legal ethics about, e.g., prohibitions on sexual relations with clients than about, e.g., the adequacy of disclosing conflicts of interest for resolving conflicted representations.

Many academic commentators (including Markovits) attempt to justify the divergence of legal ethics from ordinary morality.  Yet we don’t know whether this divergence exists, or if so what it looks like.  Finding out is important for assessing Markovits’s position, as well as for figuring out how to think about legal ethics in the first place.  Reconstructive efforts, like the one Markovits offers in A Modern Legal Ethics, are dazzling and difficult, but ultimately they might not be necessary or helpful.

_____________________________________________________________________

Stephen Galoob is a graduate student in the Jurisprudence and Social Policy program at the University of California-Berkeley.  He would like to thank David Fontana, Mindy Galoob, Adam Hill, Daniel Ho, and Daniel Solove for their support.

Along with dozens of others apparently caught up in the ongoing insider trading scandal at Galleon, today, an associate at the prestigious firm, Ropes & Gray, is alleged to have violated securities laws by using confidential information obtained from clients to profit in securities trades. [...]]]> In my corporations classes, I urge my students planning a career in corporate and securities law to resist the ubiquitous opportunities and occasional temptations to trade on the basis of material non-public information. I offer in terrorum encouragement by emphasizing that all trades are tracked and that enforcement authorities periodically review them for unusual patterns. Those are traced back to professional advisors, including law firms, having been involved in related deals. It is not difficult for authorities to catch these violations.

Along with dozens of others apparently caught up in the ongoing insider trading scandal at Galleon, today, an associate at the prestigious firm, Ropes & Gray, is alleged to have violated securities laws by using confidential information obtained from clients to profit in securities trades. Lawyers, as fiduciaries, who obtain material information through client representation, violate their fiduciary obligations and hence federal securities laws when they trade on it.  See United States v. O’Hagan, 541 U.S. 642 (1997).

Over at the Wall Street Journal blog, Ashby Jones is asking how common insider trading is among lawyers. This is obviously a difficult empirical question. I can add, however, that (a) in the four years that I practiced law at Cravath, Swaine & Moore, one of my fellow-associates engaged in this activity (with his brother) and authorities prosecuted him (in 1995) for it and (b) during the two years before that when I was a paralegal at Skadden, Arps, one of the associates for whom I worked did so (with his sister) and he was likewise caught (in 1990). 

In addition, the famous case embracing the so-called misappropriation theory of insider trading, United States v. O’Hagan, 541 U.S. 642 (1997), involved a lawyer—a partner at Dorsey & Whitney, representing Grand Met in its acquisition of Pillsbury, who generated nearly $4 million in unlawful trading gains from the knowledge.

I repeat to my students, past and present, and all lawyers: do not do this!

(H/T: TNC)

My thanks to Danielle for granting me this one-time-post-guest spot to pose a few questions to the Co-Op community about law review submission practices. What follows is from me, and should in no way be attributed to Danielle.

I am at best a neophyte, so apologize straight away if this is ground that has been covered elsewhere, but I have been thinking a lot lately about normative issues germane to the process for placing articles in law reviews. I have seen and read with great interest a number of blogs, websites, and SSRN postings relating to practical and strategic considerations, but have yet to [...]]]> Today, I would like to share a post by my colleague and former guest blogger David Gray on publishing ethics.  Here is his post:

My thanks to Danielle for granting me this one-time-post-guest spot to pose a few questions to the Co-Op community about law review submission practices. What follows is from me, and should in no way be attributed to Danielle.

I am at best a neophyte, so apologize straight away if this is ground that has been covered elsewhere, but I have been thinking a lot lately about normative issues germane to the process for placing articles in law reviews. I have seen and read with great interest a number of blogs, websites, and SSRN postings relating to practical and strategic considerations, but have yet to see a sustained discussion of what, if any, rules of conduct or decorum we ought to respect along the way. After the jump I stumble through some of my sketchy thoughts and solicit views, advice, and anecdotes from authors, law review editors, and others in a much better position than I am in to inform this discussion.

My sense is that this is touchy territory, so let me begin with this caveat: the purpose here is to provoke discussion and solicit information and views from others.  I have glommed together some practices of my own, but they are evolving and I have neither a meta- nor applied-theory of what might be called “placement ethics.”  So, assume that anything that sounds preachy is a transmission error.  With that caveat in place . . .

I am a fan of the law review submission process.  With just a brief taste of peer-review, it is hard to overstate the value of having a diversity of law reviews, little if any personal politics in the process, and the time-compression and information return provided by multiple-submission. 

It is not at all uncommon for peer-reviewed journals in the humanities and social sciences to take six months or more to reach a decision.  Because submission is exclusive, authors cannot use the abstract threat of a competitive market or the more direct threat of a competing offer to speed up that process.  As a consequence, work worthy of publication on any inter-subjective standard may languish for years before it finally hits the press.  Multiple submission changes that dynamic.  We all know how it goes.  Freed from exclusive submission, authors submit manuscripts to scores of law reviews, wait for someone to make an offer, and, then ask the offering journal for ten days or two weeks to respond.  In the meantime, the author “expedites” by using that offer to prod other journals to come to a decision.  If another journal makes an offer, the author repeats the process, hoping to deal the draft up to an offer from YLJ or HLR.    In the meantime, the law review editors who made the initial offer are left to bite their nails, hoping that their offer will be accepted, and living in fear that they will not be able to fill their volumes.    

The mind boggles at the strategic possibilities with just these few points in place.  Moreover, we—authors and editors alike—are a competitive bunch, so there is a real temptation to approach the process with self-interest as the only guide and short-term self-interest the main distraction.  Consider the following scenarios as potential points of departure for discussion:

1.  An author has worked very hard on her latest article and is firmly convinced that it should place in a top-ten law review.  She has more than her own confidence to back this view.  She has circulated drafts to trusted colleagues on and off her faculty, presented at several conferences, and everyone agrees this is hot stuff.  Nevertheless, she knows how the law review game is played and suspects that her chances of getting a top-ten placement depend on expediting from a lower-ranked journal.  In fact, she has heard that, with the exception of submissions from a few high-profile authors, many of her target journals do not review submissions in the first instance, but wait for expedites from journals whose tastes they generally respect.  So, our author submits to fifty law reviews with no intention of publishing in any but one of the fifteen or so journals in the top ten.  For her, the remaining thirty-five journals on her list are there for expediting purposes only.  If she does not get a top-ten offer, she will withdraw the article and resubmit in the next season.

2.  An author submits to fifty law reviews and gets an offer with a one-week window from the journal he reckons as number forty.  He then expedites at journals 50-41 and journals 39-30 in the hope that he will get another offer which he can use to expedite again, to pry more time from the first journal, or both. 

3.  An author submits to fifty law reviews and gets an offer with a one-week window from the journal she reckons as number forty.  The author knows that one week is not enough time for many journals to complete an expedited review, so immediately demands that the offering journal give her two weeks rather than one week.  Out of an interest in maintaining good relations, and because it is early in the season, the EIC accedes.

4.  Same as #3, but instead of immediately demanding time, the author waits for six days.  Despite hearing nothing from other reviews, the author calls the offering journal and asks for more time.

5.  An ambitious author with an article he believes in submits to fifty law reviews.  He is prepared to take the best offer he gets, but hopes for something in the top-ten.  The article does well, and the author gets an initial offer, which he uses to expedite.  During the expedite period, the author gets three more offers.  The author continues to expedite, keeping all offers open.  The author eventually amasses and holds five offers. 

6.  After a long season of expediting and negotiation, an author accepts an offer from a journal he reckons is number thirty.  He is satisfied, but not overly pleased.  Two weeks after accepting the offer, the journal he ranks as number two gives him a call.  It seems that the board just lost an article to another journal and would like to offer the author a spot.  The author is momentarily torn, but accepts and sends his belated regrets to journal thirty. 

7.  Tired of losing articles to the expediting process, a law review that most folks would rank somewhere between thirty-five and fifty decides that it will no longer give long windows or extensions.  Instead, board members decide to streamline their review process in order to get ahead of other law reviews.  They find an article they are excited about, as are their faculty advisors.  The editors know, because their faculty advisors told them it was so, that getting this article would be a coup because the article is bound for a top-five journal.  The journal makes an offer days after receiving the article and, in the hope of forcing the author’s hand before other journals can join the show, gives the author four hours to accept.

8.  Suffering under the bi-annual deluge of articles, a board makes the decision not to do an initial review of most articles.  The journal editors are diligent when they review an article, regularly dedicating 5-10 personnel hours to articles they decline quickly and well north of fifty hours to articles they take all the way through the process.  Over the past several seasons, this has meant that thousands of hours were “wasted,” both on articles that are rejected and on articles where offers were made but declined.  Rather than continue along this road, the board decides that it will read only articles from those on an internally held list of significant authors, from young faculty at top schools who have the right credentials, from those who recently placed an article at a top-ten journal, and articles on expedite from “feeder” journals.  

9.  Faced with the same frustrations as our journal in #8, a law review inaugurates an exclusive submission processes wherein the journal promises to reach a decision in one week in return for an exclusive right to publish.  In a variation on this theme, another journal forms a small coalition with a few others, allowing authors to submit to the coalition, again with the offer of quick review in exchange for an exclusive right of publication to the first coalition member to make an offer. 

10.  Tired of being asked for and granting extensions, a journal initiates a practice of informing authors if their articles are going to final board review several days before the meeting and vote is scheduled.  Along with that notice, the journal informs the author that any offer of publication will be subject to a short, immovable window for acceptance.  The journal knows that the author will use this information to expedite at other journals, but decides that it prefers to limit its exposure post-offer.

11.  An EIC makes an offer subject to a fairly short window for acceptance, but agrees with the author that the board will grant reasonable extensions if requests are specific and grounded.  The author then expedites.  An articles editor at another journal reads the article in response to the expedite, likes it, and wants to put it to her board and faculty advisors.  Unfortunately, she cannot complete the process within the current window.  She contacts the author, apprises him of the situation, and asks for a three-day extension.  The author approaches the offering EIC, explains the circumstances, and receives the extension.   

12.  A board sits down with professors whose judgment they trust to hash out a set of negotiation strategies to guide their interactions with authors.  The round table agrees that the journal will no longer grant extensions absent some consideration.  Among the possibilities they endorse are: a) asking the author withdraw the article from journals ranked below or within ten-spots above the offering journal, b) soliciting a promise from the author that she will make a timely decision on any competing offers, or, c) if the extension is granted to give a specific journal the time it needs to go to board review, asking the author not to use the extension to issue a new, general expedite request. 

Whether any or all of these practices are respectable, I will leave for public discussion.  My preliminary view is that some are perfectly okay, some perfectly not, and others subject to taste or slight modification.  I hope, however, that I have presented them in sufficiently sympathetic terms so that the interests at stake are clear. 

Authors want their work to be read and cited.  Placement in a highly-ranked journal can advance those goals in at least two ways.  First, most faculties have journal displays in their lounges.  Getting an article in one of the journals featured on most of those displays can get your work noticed.  Second, placement at a top journal is often used as a proxy for quality and contribution.  There are also secondary advantages to placing an article in a top journal: it feels good; colleagues often say nice things to you; and, at some schools, deans pay bonuses. 

Boards want to fill their volumes and to maintain or advance the reputations of their publications by getting the articles most likely to drive conversations or to be read and widely cited.   

All of these are respectable goals.  The questions I want to raise relate to where those goals should lead us in our conduct during the submission and review process and what, if any, normative considerations ought to temper our conduct.  I don’t have any ready answers, so will leave it here for now.  I look forward to the discussion and with particular anticipation to reading comments from current and recent law review editors.  If you want to yell at me in private, please feel free to do so at dgray@law.umaryland.edu.