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.

I am one of those who is irked by the Timothy Geithner and now the Tom Daschle tax controversies. Geithner avoided paying tens of thousands of dollars in self-employment taxes. Then he paid back the part that he was forced to. Then, when his nomination as Treasury Secretary loomed, he paid the rest of it. And he wasn’t straightforward about his reasoning for the timing of all of this. Wags took the opportunity to argue that we need to reform the tax code, to make it simple enough that even the Treasury Secretary can follow it. Geithner was confirmed, apparently because [...]]]> I have enjoyed my visit at Concurring Opinions, but alas, my time is up and this will probably be my last (and maybe least) post.

I am one of those who is irked by the Timothy Geithner and now the Tom Daschle tax controversies. Geithner avoided paying tens of thousands of dollars in self-employment taxes. Then he paid back the part that he was forced to. Then, when his nomination as Treasury Secretary loomed, he paid the rest of it. And he wasn’t straightforward about his reasoning for the timing of all of this. Wags took the opportunity to argue that we need to reform the tax code, to make it simple enough that even the Treasury Secretary can follow it. Geithner was confirmed, apparently because none of the candidates who paid their taxes correctly were good enough for the job.

Now, Tom Daschle is facing similar issues. Nominated for Secretary of Health and Human Services, he amended his last three years’ worth of tax returns. Upon further reflection, he realized that he had failed to report hundreds of thousands of dollars in income, and that he shouldn’t have claimed some of the deductions that he took. He wrote a check for $140,000 and is now hoping for the best. It apparently wasn’t very challenging to get it right the second time around; why couldn’t he have had his “people” be equally careful in the first place? The most obvious reason is that nobody was watching then.

I agree with the idea that you can gauge how ethical someone is by how they behave when they think nobody is watching. Given the difference between how Geithner and Daschle behaved before and after people were watching, I think that they both fail the test.

I’m in a self-righteous mood about this right now, because I am doing my taxes this week and I found some old mistakes.

I use TurboTax, just like Geithner did. He blamed the program for failing to prompt him to enter his information correctly, which it probably didn’t. But there is good reason to argue that he should have known without the program telling him.

I recently found out that I had been double-counting a certain deduction. TurboTax asks about it twice, on the Schedule C and the Schedule A. If you have already entered it on the former, it warns you not to enter it on the latter. Unfortunately, I do the Schedule A first and I didn’t get prompted.

Still, I should have known better. When I realized the problem this week, I sheepishly went back through all of my old returns. I found that I had made the error in 2007, 2006, and 2004. I dutifully filled out 1040X amended returns for those years, wrote out some checks, and will file them next week. It’ll total $125 plus interest, which is not going to break me—but I can think of a lot of things I’d rather spend the money on.

The IRS would never come after me for any of this. They have bigger fish to fry. Even if they did come after me, the 2004 return is probably past their time limit to pursue me. So why am I doing it? And why have I done it in the past, over other innocent, small, but inexcusable errors? Not because I think I am ever going to be nominated to be Secretary of Health and Human Services, let alone imminently. Not even so that I can affect a holier-than-thou air if I ever meet Geithner or Daschle (though I reserve that right).

The reason is simple. I pay my taxes because I am supposed to pay them. If I make a mistake, I try to correct it. I’m not perfect, but I try not to make excuses. To say anything else—to say that I get to decide which taxes I have to pay, and which mistakes I have to correct—is to put myself above the law. That is not acceptable. It would set a horrible example for my sons.

Let me put it more strongly. Our leaders send the message that you only need to do the right thing if somebody is watching. Living that way borders on the sociopathic. But it doesn’t keep you out of the Cabinet. There are apparently more important qualifications for office than these.

Readers may recall the case of GMAC Bank v. HTFC Corp. GMAC is infamous because of an opinion by E.D.Pa. Judge Robreno discussing the deposition of HTFC CEO Aaron Wider, in which Wider profanely abused plaintiff’s counsel Robert Bodzin. If you need to see it, and are in environment where lots of cursing isn’t going to get you in trouble, hit play and shudder at the decline of civility in American life:

In his opinion, Robreno also sanctioned Wider’s attorney Joseph Ziccardi for failing to restrain his client and even (allegedly) snickering at the bad conduct. Ziccardi was stripped of his pro hoc admission, fined $29,000 (equally with his client) and referred to the [...]]]> [Updated and bumped, for update see below]

Readers may recall the case of GMAC Bank v. HTFC Corp. GMAC is infamous because of an opinion by E.D.Pa. Judge Robreno discussing the deposition of HTFC CEO Aaron Wider, in which Wider profanely abused plaintiff’s counsel Robert Bodzin. If you need to see it, and are in environment where lots of cursing isn’t going to get you in trouble, hit play and shudder at the decline of civility in American life:

In his opinion, Robreno also sanctioned Wider’s attorney Joseph Ziccardi for failing to restrain his client and even (allegedly) snickering at the bad conduct. Ziccardi was stripped of his pro hoc admission, fined $29,000 (equally with his client) and referred to the Bar.

Ziccardi has filed a motion for reconsideration. I found it quite persuasive. In the memorandum in support of the motion, and the reply, Ziccardi provides evidence that he didn’t snicker at Wider’s profane conduct but instead tried to stop it off the record. The evidence was purportedly not submitted earlier because Ziccardi was still representing Wider and lacked notice that the Court was considering sanctioning him under the discovery rules as a co-offender. Ziccardi has provided affidavits from (among others) himself and Wider. The latter in particular is a must read. Wider falls on his sword for his former lawyer, stating that Ziccardi had repeatedly cautioned him not to act out and worked to prevent his outbursts behind the scenes. (Oddly, based on this document, I’m not sure that anyone is currently representing Wider. The affidavit is very much not in his interest, but sounds like it was a lawyer-generated document. Ziccardi’s conflict is quite acute at this point, as he realizes, and I wonder how he handled that communication.)

The general thrust is that it is procedurally unfair to punish Ziccardi with such a large fine for what boils down to his client’s bad conduct, and, ultimately, for merely failing to adjourn the deposition and withdraw as counsel immediately. In his last reply, filed a month ago, pro se, Ziccardi has thrown himself on the Court’s mercy:

Of all of the statements made by Aaron Wider during the two days of his deposition testimony, there is one subject on which he was conclusively and indisputably wrong: the intelligence of GMAC’s lead counsel. No one can credibly deny that Mr. Bodzin is a brilliant legal strategist whose litigation savvy is likely unparalleled in any jurisdiction. Unfortunately for defendant HTFC, Mr. Wider took every inch of the twelve hours worth of “rope” that was handed to him and successfully hanged himself with it.

Now heading for the gallows right behind Mr. Wider is defense counsel, Joseph Ziccardi, an honorable but mild-mannered attorney with a modest practice and an impeccable ethical record maintained throughout his nearly fifteen years practicing law – until now. Ziccardi now finds himself in the unenviable position of having lost a case, lost a client, and most important, lost the ability to honestly state that “no one has ever called into question” his professional conduct.

This might all be palatable to Ziccardi if only it were not so unjust. In a situation where, as here, neither the facts nor the law have been found or applied in accordance with the mandates of the Constitution that Ziccardi swore to uphold, acceptance of one’s fate is counter-intuitive to the well-educated and ethical lawyer. Nevertheless, Ziccardi holds out hope that the system that he has dutifully served for most of his adult life and the principles that he has defended on behalf of numerous needy clients will not fail him now.

Notwithstanding the purple prose, as I’ve already said I think Ziccardi has a very strong argument that his conduct doesn’t merit the sanction that Judge Robreno imposed (GMAC naturally disagrees.)

The big picture question here is the degree to which attorneys should be punished for failing to affirmatively prevent their clients’ incivility. Some punishment of this client is certainly warranted. But punishing the “mild-mannered” solo practitioner attorney as if he were equally culpable goes too far. I hope that the Court walks it back a bit.

[Other coverage of the latest happenings: Law Blog; The Legal Intelligencer]

[Update: Judge Robreno has ordered a hearing on the pending motion for reconsideration, to be held June 18. This may be a good sign for Ziccardi.]

A good April Fool’s joke has to be plausible, and I think this abstract fits the bill. The same arguments that have been advanced to argue that executions might be morally required and that torture is at least permissible, if not required, can be used to require torture [...]]]> Readers of Larry Solum’s Legal Theory Blog might have noticed yesterday abstracts for several new papers from heavy hitters in the legal academy. My favorite of these April 1 abstracts was the Cass Sunstein-Adrian Vermeule paper on “Unrestricted Interrogation of Minors Not Yet Shown to Have Engaged in Culpable Behaviors.” “Given our assumptions, there is a moral obligation for the state to engage in the torture of innocent children.” Download that while it’s hot!

A good April Fool’s joke has to be plausible, and I think this abstract fits the bill. The same arguments that have been advanced to argue that executions might be morally required and that torture is at least permissible, if not required, can be used to require torture for tots. All you need is the right hypothetical.

And yet, I think Larry Solum is right that torture for tots is a proposal that most will view as a joke. Indeed, it’s a prospect that might help test the claim that we torture when, and if, and only if, necessity demands it. In a seminar discussion a few months ago, I suggested that contemporary support for torture might be driven by a presumption that those who are tortured deserve to be treated thus. Some of those present resisted this characterization, claiming that the arguments were based strictly on necessity, so I offered a hypothetical in which the only way to find the location of the ticking bomb is to torture the terrorist’s innocent young child. As I recall, none of my fellow seminar attendees wanted to defend torture under those circumstances.

A previously unreleased torture memo penned by John Yoo became available yesterday. Marty Lederman links to Part 1 and Part 2 and discusses the memo. David Luban addresses torture for tots, and other weaknesses of ticking bomb arguments, in a new paper available here. And in “Professors Strangelove,” available here, I offer some thoughts on torture, national security tough talk, and one of my favorite movies.

UPDATE: My soon-to-be colleague Frank Pasquale points out this Salon piece, which includes a link to a fascinating Youtube clip on the question of torturing children.

Quite reasonably, Palmer wrote a letter to each of the justices, recommending adoption of a rule mandating disqualification in such cases. Receiving no reply, he wrote again. Once more, no response was forthcoming. Some might have given up on the quixotic endeavor at this point. Being at academic, however, Palmer instead decided to [...]]]> An article in today’s New York Times, by Adam Liptak, reports on a forthcoming article in the Tulane Law Review, co-authored by Vernon Palmer (Tulane Law) and John Levendis (Loyola-New Orleans economics). As Liptak reports it, Palmer – a comparative law scholar – had long been struck by the ability of Louisiana Supreme Court justices to hear cases involving individuals who had previously made campaign contributions to them.

Quite reasonably, Palmer wrote a letter to each of the justices, recommending adoption of a rule mandating disqualification in such cases. Receiving no reply, he wrote again. Once more, no response was forthcoming. Some might have given up on the quixotic endeavor at this point. Being at academic, however, Palmer instead decided to recruit Levendis to help him do an empirical study of campaign contributions to the Court’s justices and relevant case outcomes.

Their basic calculations indicated the justices to have voted in favor of their contributors, on average, 65% of the time. (In the case of some justices, the level rose to 80%.) But the really interesting findings came when they used voting patterns in cases without contributors as their control. Liptak is worth quoting:

Justice John L. Weimer, for instance, was slightly pro-defendant in cases where neither side had given him contributions, voting for plaintiffs 47 percent of the time. But in cases where he received money from the defense side (or more money from the defense when both sides gave money), he voted for the plaintiffs only 25 percent of the time. In cases where the money from the plaintiffs’ side dominated, on the other hand, he voted for the plaintiffs 90 percent of the time. That is quite a swing. . . .

Larger contributions had larger effects, the study found. Justice Catherine D. Kimball was 30 percent more likely to vote for a defendant with each additional $1,000 donation. The effect was even more pronounced for Justice Weimer, who was 300 percent more likely to do so.

Not having seen the article itself, it’s hard to evaluate the quality of the authors’ empirics. If they’re even a little right, though, it seems like quite a finding. And perhaps quite telling, about justice and the elected justice.

Judge Kevin Eddinger found Salisbury attorney Todd Paris in contempt after he saw him reading a Maxim magazine with “a female topless model” on the cover, according to the order.

When Eddinger gave Paris a chance to respond he apologized and “stated in his view the magazine was not pornography, was available at local stores and that he did not intend contempt,” the order said.

Eddinger fined Paris $300, gave him a 15 day suspended jail sentence that remains in effect for a year and placed him on unsupervised probation, [...]]]> A weekend treat:

A Rowan County District Court judge held a local attorney in contempt Wednesday for reading a men’s magazine during a court session, according to a contempt order filed in the Rowan County Clerk of Court’s Office.

Judge Kevin Eddinger found Salisbury attorney Todd Paris in contempt after he saw him reading a Maxim magazine with “a female topless model” on the cover, according to the order.

When Eddinger gave Paris a chance to respond he apologized and “stated in his view the magazine was not pornography, was available at local stores and that he did not intend contempt,” the order said.

Eddinger fined Paris $300, gave him a 15 day suspended jail sentence that remains in effect for a year and placed him on unsupervised probation, according to the order.

Although I can understand the judge’s ire, this seems like an overreaction to me. Is Maxim really so shocking so as to:

“interrupt[] the proceedings of the court and impaired the respect due its authority. In addition, the contemnor’s actions were grossly inappropriate, patently offensive, and violative of Rule 12 of the General Rules of Practice. Courtroom staff, law enforcement, members of the Bar and the general public shall be able to conduct courtroom business in an atmosphere free of the display of offensive material as demonstrated by the contemnor, thus necessitating this action.”

How did this [...]]]> Tonight, I was reading “Why I am Not a Lawyer,” in Joseph Epstein’s In a Cardboard Belt!. Epstein wonders about the decline and fall of the American lawyer.

“[How did they go from] America’s natural aristocrats, from an almost priestly cast, to figures an increasingly large share of the population look upon as, chiefly, dangerously expensive to do business with, hopelessly pugnacious, and people for whom life is much better when they play no part in it. Something has happened to the practice of law over the past fifty years to cause it to lose its grandeur, and, in many quarters, even its dignity. To allow that one is a lawyer nowadays even gain[s] you the automatic contempt of strangers.”

How did this happen? Epstein suggests that we’ve lost some of our well-roundedness – he refers to Oliver Wendell Holmes Jr. as a shining model of the past. Holmes was “tremendously well rounded” “splendidly well read in all realms of civilized interest” and could “doubtless have served in the Department of Philosophy at Harvard with his friend William James.” (Heller ignores Holmes’ cold dislike for actual people.) Today, (Heller alleges by contrast) lawyers are “businessmen, entrepreneurs, operators, hustlers….”; they lack virtue because they are seen to be partisan; they lack loyalty because the have monetized their partnerships; and the law has lost “its old and grand mystique . . . it is [instead] business, an efficient form of moneymaking and not much more.”

There’s quite a bit here. But it’s worth starting with the observation – made in the context of today’s political debates – that politicians too are castigated for being partisan, but most risk-averse voters chose candidates who can withstand such fights with more ease. As a commentator on Talking Points Memo wrote (in evaluating the Clinton/Obama choice):

“I’m reminded of people who hate lawyers because they’re too contentious and sleazy and aggressive — but when they get sued, they insist on getting the meanest bull dog of a lawyer they can find.”

That is, in the old days, lawyers were gentlemanly, courteous, learned, but probably something less than zealous advocates for their clients. Lawyers today offer better – more sophisticated, thoroughly researched, and nuanced – arguments than lawyers in the past; their deals are more carefully worded. We’ve lost the public good of the Bar’s reputation, but we’ve (probably) improved client service. Or to put it most provocatively, I’d prefer to hire a team of attorneys at a mid-sized legal firm to the brilliance of Holmes or Brandeis. They’d work harder.

Second, I wonder if Heller’s point also illuminates some of the class dimensions of the Tamanaha-Solum-Leiter-Solove discussion about the usefulness of Interdisciplinary Legal Studies. Why do you think? Is ILS an attempt to recapture lawyers’ position as the country’s “natural aristocrats.”

Today, Doug Berman comments on the ]]> We’ve been fairly called out for giving insufficient attention to the ongoing quiet revolution in capital punishment law. It is true: our criminal law coverage is underdeveloped. My excuse – as usual – is incompetence. DP law presents a host of complicated doctrinal problems: sounding off at random to the latest development is dangerous. On the other hand, no one said blogging was supposed to be safe.

Today, Doug Berman comments on the NYT story on capital punishment costs. The story offers anecdotal evidence that the judiciary has responded to underfunded capital defense units by shutting down prosecutions. If the trend continues, “states unwilling to pay the huge costs of defending people charged in capital cases may be unable to conduct executions.” Doug sums up:

Consequently, states that do not adequately fund capital defense get sub-standard efforts that lead to more costs on the back end during appellate review. Indeed, as the posts below highlights, any capital punishment system is necessarily a very costly endeavor.

My cynical response to these observations starts with the observation that stringent judicial review of capital claims hinges largely on Justice Kennedy’s continued status as swing Justice. The executing States would move quickly to reduce capital defense guidelines given even subtle signals from the Court that ultimate merits review would be unavailing.

Moreover, it seems odd to me to claim that the death penalty is expensive and therefore inefficient when, of course, it is expensive primarily as the result of a self-conscious litigation strategy by folks like Steven Bright and Brian Stevenson. The death penalty doesn’t have to be expensive: abolitionists have made it so on purpose. By setting ever-higher standards for effective capital defense through litigation and by example, abolitionists have made death penalty prosecutions more difficult for states to swallow. Of course, abolitionists can have mixed motives: a standard that increases cost will also likely reduce wrongful conviction in any individual case. But it is odd that the article spent so little time examining the possibility that costs aren’t a byproduct of the search for innocence but instead a direct result of what we might think of a litigation strategy to impose a constitutional tax on capital prosecutions. The article says – without further explanation – that “Lawmakers say [a particular judge] and the defense lawyers are deliberately driving up the costs to make sure that the death penalty is too expensive for the state.” Well, no kidding!

Increasing costs is good strategy if your only goal is to prevent executions. But it is a bad strategy – as least when compared to the innocence project – at increasing public support for abolition. And it is a worse strategy if your concerns are more broadly directed. Legislatures will resent being bootstrapped out of their preferred sentencing means. And it is unlikely that the death penalty funds taken from indigent defense organizations by spiteful legislatures will ever be restored.

(Image source: Wikicommons)

Now that you are finished watching the bullying (I knew you couldn’t help yourself) click through to Lat’s thread, where the commentators have a really interesting discussion going on.

The paper is clearly written but not (for me) surprising: it fits unpublished research I’ve seen, and common sense. I’d bet that a large minority of all law professors, and a majority of law professors hired since 1990, haven’t sat for the Bar in the jurisdiction hosting their law school. It would be surprising if teaching behind this veil of ignorance could significantly improve test scores [...]]]> Bainbridge and others are abuzz over Rush and Matsuo’s paper, Does Law School Curriculum Affect Bar Examination Passage? An Empirical Analysis of the Factors Which Were Related to Bar Examination Passage between 2001 and 2006 at a Midwestern Law School. The paper reports that simply taking “bar courses” generally does not improve performance on the Bar Exam.

The paper is clearly written but not (for me) surprising: it fits unpublished research I’ve seen, and common sense. I’d bet that a large minority of all law professors, and a majority of law professors hired since 1990, haven’t sat for the Bar in the jurisdiction hosting their law school. It would be surprising if teaching behind this veil of ignorance could significantly improve test scores for marginal students. You can’t teach to a test you haven’t seen.

But if that’s true, two questions come to mind. The first has been addressed by some commentators already, and boils down to: if not bar courses, what courses should law students take? Josh Wright responds: antitrust! Sam Kamin disagrees: professors you like! As for me, I offered the following comments in a package of diverse suggestions on this topic from my colleagues distributed to our first year students at the end of the Spring term:

I recommend that you select courses that are challenging and intrinsically interesting. This means tailoring course selection to your abilities (take a tax course, especially if you are afraid of math); and interests (recall what made you excited about the Law before coming here). The data I have seen do not correlate Bar passage with any particular package of courses, but rather with your overall performance and work ethic. Certain employers may expect to see foundational courses like corporations and evidence on your transcript, but I believe those expectations are the exception rather than the rule. The bottom line: take classes that will make you want to come to school in the morning.

Maybe such advice is helpful, maybe not. But regardless, it doesn’t answer the big (second) question, which is this: is there a point to law school beyond sorting students?

The question shouldn’t be read to understate the value of sorting. A little-discussed implication of Rush and Matsuo’s research is that bar passage turns almost exclusively on how well the bottom half of a law school’s class performs. In law schools with “high curves”, such bottom dwellers probably aren’t signaled that they are in trouble. They know they are relatively worse than their fellows, but they are getting B-minuses, which don’t hurt enough to change study habits. Thus, a good technique for increasing bar passage is to sort students using a very low curve, target low performers, and remediate them. This takes lots of work, and may reduce a faculty’s scholarly production. But it is worth it, because a law school that doesn’t graduate students who can pass the bar is a very bad value proposition. And for what it is worth, Rush and Matsuo’s findings provide some support for law professors who may be otherwise worried that law school grading is random. In the aggregate, it isn’t, or at least it is just as good as Bar Exam grading.

But ranking can’t be the only purpose of law school (even if it sometimes feels that way from students’ perspectives). As the Sorting Hat sang in The Order of the Phoenix:

And now the Sorting Hat is here

and you all know the score:

I sort you into Houses

because that is what I’m for.

But this year I’ll go further,

listen closely to my song:

though condemned I am to split you

still I worry that it’s wrong,

though I must fulfill my duty

and must quarter every year

still I wonder whether sorting

may not bring the end I fear.

Oh, know the perils, read the signs,

the warning history shows,

for our Hogwarts is in danger

from external, deadly foes

and we must unite inside her

or we’ll crumble from within

I have told you, I have warned you…

let the Sorting now begin

All of which is to say: a law school that does no more than rank students and get them jobs is missing a justifying mission, which (I think) makes it hard to support. Thus, the Moneylaw advice to Dean Chemerinsky articulated here doesn’t fully satisfy me, even it is tactically wise.

(Image Source: The Hogwart’s Sorting Hat Toy)

The likely howls of protest from the [...]]]> A little while back, former Judge, and law school Dean, Joseph Bellacosa (St. John’s) proposed that members of the public shun the 88 Duke faculty members who sponsored an advertisement in the early days of the Nifong investigation implicitly condemning the accused lacrosse players. Bellacosa argued that

[A]lthough the group [of faculty members] can’t technically be charged with crimes – though abandoning your young and endangering youth sure do come close to real definable crimes – there are ways these professors can be held accountable. The identities of the 88 professors should be posted in significant ways and places, including in the media and on the Internet, so that they may be known for what they have done.

The likely howls of protest from the tenure police, university guild apologists and free-speech absolutists notwithstanding, the professoriat should not be shielded from appropriate public condemnation for their misconduct. Their dormant consciences and sensibilities should be reawakened to the abhorrent nature of the actions they inflicted on their own students.

I am regrettably late commenting on Judge Bellacosa’s article, and so this post may be stale. But still. What the heck is going on here?

Finding the original ad put up in 2006 isn’t so easy. A follow-up statement by Concerned Duke Faculty member has dead links, and Duke’s African-American studies department has removed the page from its server. Fortunately, this blog post pdf’d the ad, which I’ve copied to the right. Unfortunately, Bellacosa doesn’t say, and I don’t understand, exactly what was so wrong about this statement. There are some rumors that the students whose voices are being spotlighted are composites. That would be bad, but not a deadly sin. And the heart of the ad – the statement by the professors themselves – seems to me to consist of a set of vague generalities that verge on truisms, and aren’t objectionable:

“Regardless of the results of the police investigation, what is apparent everyday now is the anger and fear of many students who know themselves to be objects of racism and sexism, who see illuminated in this moment’s extraordinary spotlight what they live with everyday.”

Regardless, we’re supposed to shame and shun the signatories to the ad. Why?

But unlike almost all other catastrophic risks that we face, the costs of divorce can not be fully insured. Because of statutory requirements that limit insurance coverage to “fortuitous events”, and the perception that divorce is elected (at least by one of the parties to the marriage), you can’t buy a policy that will pay you for breach of the marriage contract. Such is the law.

I’m interested in this topic, and so I was quite intrigued to read about a new product being developed by an entrepreneur named John Logan, of [...]]]> Divorce is catastrophic: it increases the rates of suicide and heart disease; can decrease overall well-being for both parents and children; and it significantly hurts the financial position of the parties, especially women.

But unlike almost all other catastrophic risks that we face, the costs of divorce can not be fully insured. Because of statutory requirements that limit insurance coverage to “fortuitous events”, and the perception that divorce is elected (at least by one of the parties to the marriage), you can’t buy a policy that will pay you for breach of the marriage contract. Such is the law.

I’m interested in this topic, and so I was quite intrigued to read about a new product being developed by an entrepreneur named John Logan, of the SafeGuard Guaranty Corporation: divorce insurance.

There has been significant enthusiasm for the concept. As some noted, you could imagine such insurance having a collateral-benefit: “risk matching” your perspective spouse (or even a first date) based on their premiums. But when you think about the concept a little bit, obvious objections present themselves:

• Fraud and Adverse Selection: Since divorce can be elected, how could an insurance company prevent gaming? Fake marriages seeking divorce payouts might soon abound: would the insurance company have to order Green Card from NetFlix to train its agents? For lack of a cheap way to assess the risk of divorce, and fraudulent marriage, premium rates overall would increase, leading “good” candidates (i.e., those who would never divorce) to opt out of the pool. This divorce insurance externality would be extremely difficult to manage. Indeed, this is why marriage insurance excludes reasons like “change of heart.” I don’t know that it is a soluble problem.
• Public Policy:

Imagine that we could solve the problem of intentional fraud, so the only payouts would go to innocent victims of adulterous spouses. We might still imagine that the common law, which generally prohibits insurance that encourages socially wrongful conduct, would strike such contracts on public policy grounds. The argument would go that the insurance regime, by decreasing the cost of divorce on the victim spouse, in effect increases the incentives for adultery, by reducing the ultimate financial and emotional obligations. In my view, this is a foolish argument, but courts seem to persist in treating insurance as a step-child of the freedom to contract movement.

The externality problem seemed so severe that I decided to go to the source, and emailed John Logan about his product. He was nice enough to chat with me for a few minutes, and I can now share the fruits of that conversation with you.

I started the conversation believing that Logan was offering a true insurance product. A business methods patent the company may have filed stated that divorce insurance is:

1. An insurance policy covering at least some financial consequences of the untimely ending of a contractual relationship between two or more natural persons, which contractual relationship governs the natural persons way of living together.

12. A method of doing business comprising: determining a periodic amount to be charged a prospective participant for divorce insurance; charging that periodic amount to a participant in an insurance program over a period of time; and administering the insurance program.

But when I talked to Logan, he preferred to call the product to be offered a “hybrid insurance/investment product.” The idea is that individuals would buy the right to a payout, in 25 years, of a fixed sum, and in turn promise to pay premiums priced based solely on the total face value of the instrument. The instrument – let’s call it an annuity for ease of reference – has a contingency: if its owner gets divorced, the annuity pays out immediately, at a rate to be calculated based on the time since purchase and the premium rate. That is, the longer you stay in the marriage, and the closer you are to the end of the 25-year annuity, the more money you will get paid on divorce. The product does not seem to intend to graduate premiums at all based on the risks of divorce, or the “why”. It is a fairly simple investment vehicle. The only other bell I learned about was their plan to permit individuals to recapture premiums at any time, so long as they purchase an initial premium rider, which is a bit of departure from ordinary insurance practice.

Because this isn’t an insurance product, Logan plans to market and run his business largely online, with little or no need for the ordinary back-end costs of an insurance business (actuaries, etc.) That said, he still needs an initial capital investment, and is still looking for additional investors before the product launches. He hopes to roll out “divorce insurance” this fall, if the financing lines up. He estimates a premium market approaching $200 billion annually, based on a base premium of something like $1,200 annually per policy.

So what to think? Well, first, this is simply not divorce insurance. That doesn’t mean it is a bad investment – I have no idea whether it is or not – but it does not intend to permit individuals to pay an actuarially measured share of the risks of divorce. I imagine that the legal and economic issues I’ve already discussed play a large role in the shaping of this product, but it still left me with some questions. There is obviously a degree of “yuck” factor when thinking about purchasing insurance for divorce – the kind of distaste than long discouraged pre-nups, and which makes proposals like these dead-letters. But this kind of financial vehicle would appeal to me more were I not “forced” to subsidize others’ divorces, and instead were measured at my own risk level. What’s the chance that courts will relax their public policy limitations on insurance anytime soon? Second, another way to approach the legal-fees aspect of this problem is through a prepaid legal service. I don’t know enough about these kinds of contracts, so this is a really ignorant question: how can such services possible get around conflict problems if they don’t counsel the entire couple about the ethical issues at the beginning of the lawyer-client relationship?