Category: Legal Ethics

55

Stealing the Throne

Ever-brilliant Web comic The Oatmeal has a great piece about piracy and its alternatives. (The language at the end is a bit much, but it is the character’s evil Jiminy Cricket talking.) It mirrors my opinion about Major League Baseball’s unwillingness to offer any Internet access to the postseason, which is hard on those of us who don’t own TVs (or subscribe to cable). Even if you don’t agree with my moral claims, it’s obvious that as the price of lawful access diverges from the price of unlawful access (which is either zero, or the expected present value of a copyright suit, which is darn near zero), infringement goes up.

So, if you want to see Game of Thrones (and I do), your options are: subscribe to cable plus HBO, or pirate. I think the series rocks, but I’m not paying $100 a month for it. If HBO expects me to do so, it weakens their moral claim against piracy.

Unconvinced? Imagine instead that HBO offers to let you watch Game of Thrones for free – but the only place on Earth you can view the series is in the Kodak Theater in Hollywood. You’re located in rural Iowa? Well, you’ve no cause for complaint! Fly to LA! I suspect that translating costs into physical costs makes the argument clearer: HBO charges not only for the content, but bundles it with one particular delivery medium. If that medium is unavailable to you, or unaffordable, you’re out of luck.

Unless, of course, you have broadband, and can BitTorrent.

As a minimum, I plan not to support any SOPA-like legislation until the content industries begin to offer viable Internet-based delivery mechanisms that at least begin to compete with piracy…

Cross-posted at Info/Law.

1

Did Spitzer and Levitt Stoke the Financial Crisis?

Many are to blame for the financial crisis and plenty of reports and analyses have been written detailing assorted causes and assigning responsibility.  Overlooked in accepted versions of events are two fateful decisions and their context: Eliot Spitzer’s overzealous drive to oust Hank Greenberg from heading AIG, and Arthur Levitt’s governance reforms implemented at AIG shortly thereafter.

The ouster of Greenberg and transformation of AIG are pivotal events because before the ouster and reforms, AIG wrote few of the credit default swaps that became the centerpiece of the crisis, but wrote increasingly risky and unhedged swaps thereafter.  Many informed people consider it extremely unlikely or nearly impossible to imagine that, had AIG still been run by Greenberg under its traditional governance structures, the swap business at AIG could have gotten so out of hand. 

In that telling, Spitzer’s aggressive tactics to have Greenberg ousted and Levitt’s ambitious reforms were at least indirect contributing causes of the crisis and its severity.  The actions and ideas therefore deserve greater scrutiny than they have been given.  

In Spitzer’s case, it’s important to highlight how he took many steps that were at least dubious as a matter of prosecutorial ethics; in Levitt’s case, the reforms were extreme departures from traditional corporate governance. Potential lessons include the importance of prosecutors not overstepping their bounds and the value of adhering to some traditions in the development of corporate governance. Read More

0

Book Review: Levin & Mather’s Lawyers in Practice: Ethical Decision Making in Context

Lawyers in Practice: Ethical Decision Making in Context, edited by Leslie C. Levin & Lynn Mather. University of Chicago Press: Chicago, 2012. pp. 370. $39.00

What is the best way to study the ethical world of lawyers? On a “top-down” approach, this study proceeds in two steps: first, we start with the rules of legal ethics (or, perhaps, the moral, legal or political principles that underlie those rules); second, we apply these rules and principles to particular cases that lawyers confront.

The infirmities of the top-down approach are a recurring theme of the essays collected in Lawyers in Practice. Most of the authors in this collection either champion or practice an alternative method, one that is inductive, or “bottom-up.” On this method, when studying the ethical world of lawyers, we should first examine how real-world lawyers confront real-life ethical challenges. In analyzing these responses, we should consider a variety of factors other than the rules or principles of legal ethics that drive lawyers to act in the ways that they do.

Thus, we can restate our opening question more precisely. When studying legal ethics, should we be top-downers, bottom-uppers, or both? Which is the more fundamental task: justifying the rules of legal ethics or explaining how lawyers behave when confronted with ethical challenges? Lawyers in Practice makes these broader questions salient. In this review, I want to offer a chastened case for a top-down approach, while recognizing the important (but ultimately complementary) role that bottom-up methods can play in studying the ethical world of lawyers.

***

Before exploring this broader topic, here are some vitals on the book. Lawyers in Practice is a collection of essays that were originally presented at a conference at the University of Buffalo Law School. Levin and Mather provide an introductory essay and short epilogue summarizing some main themes, and essays by David Wilkins and Elizabeth Chambliss explore some methodological issues for the sociolegal study of lawyers’ ethics.

Read More

5

Stanford Law Review Online: The Iraq War, the Next War, and the Future of the Fat Man

Stanford Law Review

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.

0

Law Professors, Petitions and Kristallnacht

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.

12

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.

2

Online CLE

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?

0

Technology Musings

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.   Read More

6

Volunteering in a Recession

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?

Read More

2

Teaching Professionalism

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.

Read More