Judges Citing Literature

Professor Todd Henderson (U. Chicago Law School) has posted an interesting article on SSRN, Citing Fiction, 11 Green Bag 2d 171 (2008). He provides many illuminating facts about judges citing literary works:

A comprehensive survey of over 2 million federal appellate opinions over the past 100 years reveals only 543 identifiable citations or references to works of fiction. Of these, less than half – 236 – were employed rhetorically to evoke an emotional response in the reader. This type of citation, which I’ll call a "literary" citation, occurs in only about 1 out of every 10,000 federal appellate opinions.

Todd's data is quite interesting, but I disagree with how he frames his essay and some of the conclusions he draws. Todd writes:

[A] central claim of the law and literature movement (which I'll refer to as "the Movement") is that reading fiction can provide judges with knowledge about how to solve real world problems. For example, Professor Martha Nussbaum writes that "the novel constructs a paradigm of a style of ethical reasoning … in which we get potentially universalizable concrete prescriptions by bringing a general idea of human flourishing to bear on a concrete situation." If this is true and the Movement has had a significant effect on law, one would expect to see an increase in the use of literature in judicial opinions, since judges routinely cite to works that have a direct impact on their decisionmaking. We should also expect to see works cited for the reasons the Movement wants them to be – to reveal that the fiction has evoked feelings of pity and empathy for the less fortunate and given a voice to traditionally marginalized segments of society. Neither of these things is true.

Unpacking this paragraph, I see the following claims: (1) whether the law and literature movement "has had a significant effect on law" can be assessed by instances when literature has a "direct impact" on judicial decisionmaking; (2) "central" claims of the law and literature movement are that literature makes judges more ethical or empathetic and that literature provides judges with "knowledge about how to solve real world problems"; and (3) citations will demonstrate whether literature has a "direct impact" on a judge's decisionmaking.

Let's begin with the first claim: Whether the law and literature movement "has had a significant effect on law" can be assessed by instances when literature has a "direct impact" on judicial decisionmaking.

This claim begins with an assumption that having a significant effect should be measured by having a direct impact. But it is unclear why the significant effect must be a direct impact rather than an indirect one. Reading Orwell's 1984 might help shape how judges perceive surveillance and government power. Will it directly affect their decisions? Probably not, if direct effects mean that but for reading Orwell's book, a judge inclined to decide a case one way will now decide it another way. But it might have helped shaped a judge's mindset along with other works of literature and a number of other social and cultural experiences. It might have an indirect effect. The difficulty is that looking for direct impact is far too demanding a requirement.

On to the second claim: "Central" claims of the law and literature movement are that literature makes judges more ethical or empathetic and that literature provides judges with "knowledge about how to solve real world problems"

I quarrel with the argument that a "central" claim of the law and literature movement is to make judges more empathetic or ethical, or to give them "knowledge about how to solve real world problems." I don't think that literature necessarily makes one more moral, ethical, or empathetic. Nor do I think that literature provides specific "solutions" to problems. Literature can provide a critique or commentary about the law. It can develop thinking, reasoning, and interpretive skills. It can provide insight into jurisprudential questions, and it can help people see between the lines, be more nuanced, recognize ambiguity, see different interpretations, and so on.

While there are some in the law and literature movement who have claimed that literature makes lawyers more ethical or empathetic, most have not made such claims. Todd's quote from Martha Nussbaum doesn't suggest she makes these claims. Instead, Nussbaum seems to be saying that literature can contain ethical teachings and that it embodies them in concrete situations. I agree with this. The fact that literature can illustrate an ethical prescription by embodying it in concrete situations doesn't mean that the reader will necessarily agree with the ethical prescription. Moreover, much literature is not dogmatic about any particular ethical or moral view -- it often demonstrates the ambiguities and tensions in various ideas. Literature is not the same as a philosophical or political argument. It is often more suggestive and ambiguous.

Finally, it's time to turn to the third claim that I've parsed out of Todd's essay: Citations will demonstrate whether literature has a "direct impact" on a judge's decisionmaking.

The legal academy has a fetish over citations. Because it is so fun and easy to play around with Westlaw, we can now readily do studies about citations. This data is quite interesting, but it is tempting to make too much of it.

What exactly does the lack of citations to literature mean? First, even if a literary work had a "direct impact" on a judge's decision, I doubt in many cases the judge would admit this. Judges often read and rely on law review articles they never cite. Judges might be informed by history, philosophy, sociology, economics, etc. and might not cite to such works. What would we think of the judge who writes: "For the reasons stated in Dickens' works, I hereby conclude that this case should be decided in favor of the 'little guy'"? Does a judge who is heavily influenced by a particular philosophy need to cite to specific philosophical works? So a judge influenced by Rawls might never cite to Rawls. Judge Richard Posner is influenced by pragmatism, yet he doesn't cite to works by William James or John Dewey in every opinion in which he employs pragmatic ideas. The bottom line is this: Cites don't necessarily prove influence or impact, or the lack thereof. They show how many times something has been cited to. People often read much more into cites than they should.

The influence of literature is quite indirect. It provides ideas and fodder for thought. But rarely does it have a direct bearing on any particular case. It doesn't hold any particular authority over the judge. It's not precedent. It doesn't provide a syllogistic argument or complete analysis of a particular problem. But it still might be influential. A judge might reason, interpret, think, and perceive things differently for having read certain works of literature. There's no easy way to measure this.

So that ends my critique, but on the positive side, I did find some really interesting facts in Todd's article:

* "In the Seventh Circuit, Judges Posner and Easterbrook combined for nearly all citations to fiction, and over 80 percent of all references to George Orwell."

* "On the Supreme Court, Justices Brennan and Douglas accounted for most references to Orwell. Judges have favorite authors or themes, and they cite to them again and again."

* [O]f the 110 Supreme Court justices who have served, only 21 have ever cited to the authors or works in this survey. The leading Supreme Court fiction citers are Justices Douglas, Stevens, Brennan, and Rehnquist, each of whom has cited to fiction around five times. These four justices account for almost 50 percent of all Supreme Court citations to fiction."

* "About half of all citations are about the law’s delay, the definition of legal terms, and the role of courts in our system, not about generating empathy for litigants."

* The most frequently cited authors are "George Orwell (61 citations); William Shakespeare (35); Franz Kafka (34); John Milton (20); Homer, Chaucer, and Oscar Wilde (14 each)."

* "[J]ustices appointed by Democrats or with an otherwise liberal voting record made almost 80 percent of all literary citations."

* "In the Supreme Court, nearly three-quarters of literary citations are in dissenting or concurring opinions (63 percent in dissenting; 27 percent in majority; and 10 percent in concurring). In the circuit courts, by contrast, the reverse is largely true, with about 64 percent in majority opinions and 36 percent in dissenting and concurring opinions."

I'm pleased to see Orwell and Kafka as being among the most-cited literary works. I once wrote about how conceptions of information privacy and computer databases are framed in terms of Orwell and how they might better be framed in terms of Kafka.

Posted by Daniel J. Solove at 12:02 AM | Comments (2) | TrackBack

"Doing What We Do Best" or "Why Law Professors Should Feel Less Guilt"

Deven invited me to participate in the Mobblog over at Madisonian about the nature of law schools. Here is my curmudgeonly (can you be a curmudgeon when you are 32?) first contribution to the debate:

Law schools, we are told, are failing to properly train lawyers for the profession. Most of the criticism comes from those who insist that legal education is too impractical, focusing on abstract questions with little relevance to legal practice and failing to provide the concrete skills in interviewing, drafting, etc. that are an attorney's bread and butter. What happens in law schools, the critics insist, bears little resemblance to what happens in legal practice.

Before law professors join too enthusiastically in the self-flagellation, however, I think that we would do well to question the assumption that what happens in law schools ought to closely mirror in some sense what happens in legal practice. Rather, I think that law schools ought to devote their attention to those areas of legal education where they have a comparative advantage. What do law schools do well? The answer is that we do "theory" well. We do not, however, do "practice" nearly as well as . . . well . . . practitioners. Accordingly, I think that law schools should focus unabashedly on "theory."

The scare quotes in the last three sentences are deliberate. When I say "theory," I don't necessarily mean philosophy or critical theory or deep meditations on the methodology of law and economics. Rather, I want the term to mean something like abstract, reflective, or big-picture approaches. Hence, theory does include subjects like philosophy or economics, but it also includes understanding doctrinal subtleties or careful analysis of the moves made in one of Cardozo's pocket-picking opinions. Much of what I am thinking of as "theory" would fall into the academically much maligned category of "doctrinal thought."

I think that law schools ought to focus on "theory" for three reasons. First, at some deep subterranean level I think that it is useful in practice. Lawyers who are intellectually excited by and engaged with the law are more successful than those who flopped into the profession by default and seek the minimal legal understanding necessary to perform their work today. They are also happier. Second, I think that "theory" in this broad sense is an area where law professors have a real advantage over legal practitioners. Finally, if students don't get a broad exposure to theoretical perspectives on the law in law school, it is unlikely that they will get them in practice.

Inherent in this vision of the law school, however, is the reality that law schools are one player in legal education, rather than the player. Many of the law-schools-are-failing-to-train lawyers complaints essentially boil down to the assumption that upon graduation with a JD our students should be ready to hang out their shingle and begin the practice of law. I see no reason, however, why this should be taken as the standard against which to measure legal education. Law was learned through apprenticeship long before there were law schools. There are great benefits to apprenticeship. I learned much more about writing appellate briefs from clerking for a judge or going over drafts with a senior partner than I ever learned in law school. Law firms, however, wish -- as much as possible -- to push the task of training attorneys entirely onto the shoulders of the law schools. Yet there are many areas where practitioners enjoy a massive comparative advantage over law schools.

What about the law student who graduates and goes into solo practice you ask? My answer is that she shouldn't. Indeed, if we are serious about increasing the quality of legal education, then I suspect that ultimately we are going to have to restructure the legal profession itself. English barristers, for example, are required to go through a period of formal "pupilage" before they are allowed to practice for themselves.

To be sure, there is much about law schools that could be improved. Still, at the end of the day, I think that the profession needs to recognize that the training of young lawyers is not something that they do because the law schools "fail." Rather, legal education is something for which law schools and senior lawyers are jointly responsible. If that means changing the process of admission to the profession or even the nature of employment contracts for young lawyers (who perhaps should look more apprentices and less like at-will employees) so be it.

crossposted at Madisonian.net

Posted by Nate Oman at 01:39 PM | Comments (8) | TrackBack

Guantanamo on 60 Minutes

Reviewing recent books on the U.S. shadow prison system at Guantanamo Bay, Raymond Bonner concludes:

There are still hundreds of prisoners held without charge at Guantánamo, and it will in all likelihood be left to the new administration to deal with them. Until it does so, the United States will maintain its reputation as a country that has flouted the basic principles of justice and set a deplorable example for the world.

A new 60 Minutes story details one detainee's claims about his treatment:

"They used to beat me when my head is underwater. They beat me into my stomach and everything," he says.

Kurnaz says the Americans used a device to shock him with electricity that made his body go numb. And he says he was hoisted up on chains suspended by his arms from the ceiling of an aircraft hangar for five days.

"Every five or six hours they came and pulled me back down. And the doctor came to watch if I can still survive [or] not. He looked into my eyes. He checked my heart. And when he said okay, then they pulled me back up," Kurnaz says.

"The point of the doctor's visit was not to treat you. It was to see if you could take another six hours hanging from the ceiling?" Pelley asks. "Right," Kurnaz says.

My Seton Hall colleague Baher Azmy represented Kurnaz; you can watch him on the 60 Minutes clip here starting at 8:50 in.

And here's a transcript:

[Azmy] dug into the case and found that the military seemed to have invented some of the charges. Military prosecutors said one of Kurnaz’s friends was a suicide bomber, but the friend turned up alive and well in Germany.

"How could they have gotten that so wrong? I mean, you're either a suicide bomber or you're not. There's no in between," Pelley remarks.

"This goes to the utter preposterousness of the government’s legal process that they established in Guantanamo, this tribunal system that was supposed to differentiate from enemy combatant and civilian. So in order to justify that he was an enemy combatant, they simply made up an allegation about someone he was associated with," Azmy says.

But far worse than the false charges was the secret government file that Azmy uncovered.

Six months after Kurnaz reached Guantanamo, U.S. military intelligence had written, "criminal investigation task force has no definite link [or] evidence of detainee having an association with al Qaeda or making any specific threat toward the U.S."

At the same time, German intelligence agents wrote their government, saying, "USA considers Murat Kurnaz’s innocence to be proven. He is to be released in approximately six to eight weeks."

But Azmy says Kurnaz was kept at Guantanamo Bay for three and a half years after this memo was written in 2002.

They kept him, Kurnaz says, by inventing new charges. In a makeshift courthouse, Kurnaz claims that a military judge charged that Kurnaz had been picked up near Osama bin Laden's hideout in Afghanistan while fighting for the Taliban. Ironic, since it was the U.S. that flew him to Afghanistan to begin with.

"Have you ever in your legal career run across anything like this?" Pelley asks Baher Azmy.

"In my legal career, no," Azmy says. "But in Guantanamo, no detainee has ever been able to genuinely present evidence before a neutral judge. And so as absurd as Murat Kurnaz's case is, I assure you there are many, many dozens just as tenuous."

And a U.S. federal judge agreed. She ruled the Guantanamo military tribunals violated the prisoners' right to a defense, and she singled out Kurnaz's case as an example.

Though Kurnaz's book "An Innocent Man in Guantanamo: Five Years of My Life" details his story, the Administration "still considers him to be an unlawful enemy combatant." Denying the accused any semblance of due process makes it quite easy to stick to one's guns. Perhaps the most depressing aspect of Kurnaz's story is that it was a German diplomatic intervention--by Chancellor Angela Merkel--that ultimately freed him. Nothing in the American legal system appears capable of stopping the executive branch from holding someone a prisoner without evidence for years.

Posted by Frank Pasquale at 09:05 AM | Comments (0) | TrackBack

Legal Extortion

Scott Greenfield of Simple Justice mentions a fascinating case out of New Hampshire, where a lawyer crusading for justice in haircut pricing found himself on the wrong end of a "misdemeanor theft by extortion" jury verdict. The jury apparently found it implausible that the lawyer, a man, was as mentally anguished by the disparity as his demand letter claimed. Greenfield asks the following:

Where do we draw the line? People often feel the "lawyer letter," that demand that you pay money "or else" or stop doing something "or else," is extortionate. After all, the express threat is "pay me or pay to go to court and then pay me." There's certainly something extortionate there.

The question deepens when it's no longer a matter of threatening to take someone to court if they don't settle a claim, but when it reaches the point of becoming a crime. Does it turn on the lawyer's good faith? Does it turn on whether the claim has a reasonable basis in law?

These strike me as the right questions to ask. I share Greenfield's sense of unease at an extortion claim here, though what strikes me as a more appropriate remedy (100 hours of pro bono service for those afflicted by similar letters?) might be considered more severe by some. I'll mention some more provocative thoughts on the nature of coercion below the fold. . . . .

I'm still working my way through the works of Robert Lee Hale, the great legal realist who helped lay the theoretical foundations for the New Deal. He tries to show the universality of coercive force in daily life. For example, in one of his leading essays, Coercion and Distribution in a Supposedly Non-Coercive State, he states:

If an act is called "coercion" when, and only when, one submits to demands in order to prevent another from violating a legal duty, then every legal system by very definition forbids the private exercise of coercion--it is not coercion unless the law does forbid it. And no action which the law forbids, and which could be used as a means of influencing another, can fail to be coercion--again by definition. Hence it would be idle to discuss whether any particular legal system forbids private coercion.

***

[I]t seems better, in using the word "coercion", to use it in a sense which involved no moral judgment. But popular feeling sometimes makes another distinction. If I plan to do an act or to leave something undone for no other purpose than to induce payment, that might be conceded to be a "threat." But if I plan to do a perfectly lawful act for my own good, or to abstain from working for another because I prefer to do something else with my time, then I take payment for changing my course of conduct in either respect, it would not be called a threat.

***

[Ultimately,] the income of each person in the community depends on the relative strength of his power of coercion, offensive and defensive. . . . In fact it appears that what [is often called] the "productivity" of each factor means no more nor less than this coercive power.. . . . Not only does the law of property secure for the owners of factories their labor; it also secures for them the revenue derived from the customers. The law compels people to desist from consuming the products of the owner’s plant, except with his consent; and he will not consent unless they pay him money. They can escape, of course, by going without the product. But that does not prevent the payment being compulsory, any more than it prevents the payment of the government tax on tobacco from being compulsory. The penalty for failure to pay, in each case, may be light, but it is sufficient to compel obedience in all those cases where the consumer buys rather than go without.

Hale may take things too far; if coercion is everywhere on his account it may well be nowhere in others. (It's no surprise that Duncan Kennedy's article "The Stakes of Law" connects Hale and Foucault, and the latter was critiqued by Charles Taylor (in "Foucault on Freedom and Truth") for seeing the exercise of power in so many situations that he essentially rendered the concept meaningless.). Nevertheless, the recent extortion ruling that Greenfield mentions shows that an expansive concept of coercion may be taking root in popular consciousness. The real question is whether lawyers should be its target, or groups with far more effective power to set the "rules of the game."

Posted by Frank Pasquale at 01:52 PM | Comments (27) | TrackBack

Measuring Justice(s) in Louisiana

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.

Posted by Robert Ahdieh at 09:12 PM | Comments (6) | TrackBack

Happy Lawyers in New York and London

It's a big day for news stories on the life of lawyers. First, the NYT says that many law firms are starting to permit associates more flexible schedules. (There's a nice summary and commentary on the article by David Lat.) Second, the London Times reports on some young lawyers who are happy because either a) they are in an interesting practice or b) a legal career lets them pursue the avocations they love. (The piece resonates with me because I have a friend from law school (Joanna Norland) who's both an excellent tax attorney in London and an award-winning playwright. . . . I don't know how she does it, but having amazing energy and smarts must help.)

The pieces also reminded me of some reflections on Russ Muirhead's Just Work, which I'll put below the jump.

Reviewing Muirhead's philosophical take on modern-day work, Gilbert Meilaender observes:

If one asks too much personal fulfillment from work, one raises the bar so high that no work can satisfy us. And then, positioned to be disappointed, we miss the genuine, if limited, ways in which work can still be meaningful and worthwhile.

Muirhead’s own attempt to give meaning to work without inflating our expectations comes from development of the idea of goods internal to a “practice.” . . . [Muirhead] show[s] how sometimes goods can be embedded within work itself and not simply imposed from the outside . . . . Nevertheless, Muirhead has to grant that there is much work that must be done but which, lacking internal goods, cannot really be understood as a practice. So the tension between the social and the personal in the concept of “fitting work” remains and cannot be fully overcome. A sober realization of this truth is perhaps the best lesson Muirhead has to teach his readers.

So expect those spirited comment threads at Above the Law to continue, no matter how much law firms try to improve their employees' lot.

Posted by Frank Pasquale at 01:27 PM | Comments (0) | TrackBack

Telecommuting: Will the Feds Lead the Way?

There's a very interesting article in Network World on efforts to implement "Public Law 106-346, which went into effect Oct. 23, 2000, [and] called for agencies to increase telework participation." Though many agencies have been resisting telework initiatives, a public employee union appears to be getting the Federal Service Impasses Panel (FSIP) to require at least one agency (ATF) to increase its level of compliance with the law:

The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) . . . was ordered by a federal arbitration panel to allow its legal instrument examiners to telework on a pilot basis. ATF was against letting these specialists telework because it says the material they need to remove from agency offices in order to telework posed a security risk.

However, this success may obscure a larger problem in getting the agencies to give their employees more options:

[F]ederal telework adoption is still painfully lagging. Only 9.5% of the more than 1.2 million federal employees who were eligible in 2005 to work from an alternative site did so at least once a month, according to survey data released last year by the Office of Personnel Management.

“The problem is that there’s no uniformity in the federal government. There’s nobody who says, ‘this is the way it’s going to be for everybody,’” [the president and CEO of the Telework Coalition] says. “I think it’s going to take either a catastrophe or some real strength from the top, to push this thing down.”

It will be interesting to see whether federal employees' unions, or market forces in private sector employment, are most effective at increasing the level of telecommuting. . . especially as fuel prices rise and traffic congestion worsens. As David Brooks (citing Nick Paumgarten) notes, "One in six Americans spends at least 90 minutes a day commuting. The number of Americans who spend more than 180 minutes a day doing it — 3.5 million — has doubled since 1990."

Posted by Frank Pasquale at 02:38 PM | Comments (1) | TrackBack

More on the Wild World of Law Firm Business

The legal profession continues to evolve. Those who have practiced in a big to medium size firm know that some practices thrive while others struggle. Then a change in the economy reverses the roles. In addition some practices seem never to generate the same billings as others. Now, Luce, Forward has decided to use a sliding scale for associate pay. At first it sounds fair in that one can receive $145,000 at 1,950 hours [up] to $165,000 for 2,100 hours. (note that the hourly rate varies a little for these totals but that is likely rationalized as the more an associate works the higher the profit margin). Still the other dimension of the scale may be more significant. One part of the explanation is it will “maintain flexibility for attorneys who work in lower-billing rate practices or who prefer to work fewer hours.” And there is the other shoe. Lower-rate billing practices suggests a second tier of worth. Once a ranking based on income is clearer that may be the only metric people consider (think of the horrible effect box office numbers have on film marketing and quality). In one sense, the group may not generate as much so the differentiated system makes sense especially if a firm is thinking of ditching the practice area altogether which does happen. Still if one wants to be a partner, always earning (and bringing in) less and always working less hours will most likely kill any chance of making partner.

The odds that a firm will have a culture where some high-hour, high yield partners will say sure add a few of those less-hours, less pay people to the letterhead seem low. As the article notes some question what will happen when a practice area starts well but crashes (anyone hear a credit/transaction crunching noise recently?). Others suggest that students will be drawn to high paying areas and thus the lower paying ones will have less quality. That may be an overstatement.

First, remember that this is still a rarefied area of income and practice. So, as one employment attorney put it, the system allows her to build an employment practice at lower billable rates and so she “would, in a heartbeat, take a lower salary as an employment attorney than as an IP attorney.” That idea may be the key. The eat-what-you-kill model (which this move seems to parallel) can cause trouble. But by recognizing that not all practices can have the same rates, a firm may allow people to grow their practice area as fits the market and still retain the benefits of scale that go with a larger firm in general. Last, a note to those entering the profession: pick an area you want to be in. Law practice is difficult enough. Choosing one area over another based solely on the pay scale fails to see that the long-term high-pay practice will flow from being excellent in your area. To reach that status you will slog through enough nonsense that it is more likely you will make it to the end if you like the practice. Then again if you just want to pay off law school debt, there are enough jobs for you that will let you take the money and run.

Image: Extant Shark Orders, Wikicommons

Posted by Deven Desai at 07:20 PM | Comments (0) | TrackBack

Can Actors Do Everything? Mediate, Litigate?

George Clooney, Tom Hanks and other actors have offered to step in and "mediate" the writer's strike. They say they will just tell the two sides "you have to live with this (particular terms) and get over it." Some bloggers suggest only "starpower" will make the producers bargain in good faith.

I hope these well intended actors know what they are doing when they offer to mediate. It sounds like they don’t. Mediators don’t tell the parties what to do (”you need to live with that and get over it”). They facilitate negotiations between the parties so they can (together) come to an agreement and “live with it.” It is interesting that actors think they can “act” anything–including being professionals in a field that is complex and requires judgment and knowledge of how and when to “intervene.” George Clooney “acted” a great doc on ER but I wouldn’t want him doing my actual emergency treatment. And he was a law firm "fixer" in Michael Clayton but would you really want him to negotiate a legal settlement or litigate an unfair labor practice charge? Mediation can be just as hard as “human surgery” and more difficult than a trial. Not necessarily a good idea to have non-professionals (even those with clout) in this situation. As we say as professional mediators, first “do no harm.” (And that means entering into things/performances we know nothing about.)

Using arguments about "starpower" is not unlike "muscle mediation" (what we (the United States) do in North Korea and the mid-east --use our power to try to dictate terms (and peace). One can see how stable those "agreements" are. If they want to mediate, perhaps next we'll have law professors (and mediators) acting!!

Posted by Carrie Menkel-Meadow at 11:17 PM | Comments (6) | TrackBack

Status Anxiety in the Professions

The most emailed NYT story at the moment is a litany of complaints from doctors and lawyers:

[S]omething is missing, say many doctors, lawyers and career experts: the old sense of purpose, of respect, of living at the center of American society and embodying its definition of “success.”

[P]rofessional status is now inextricably linked to ideas of flexibility and creativity, concepts alien to seemingly everyone but art students even a generation ago. “Now we have people trying to start a Facebook or a MySpace. You might be working like a maniac, but it’s going to pay off in status. You’re going to be famous, providing something people are going to know and use all over the world” [says one career guidance professional].

In a culture that prizes risk and outsize reward — where professional heroes are college dropouts with billion-dollar Web sites — some doctors and lawyers feel they have slipped a notch in social status[.]

Perhaps a brief swim in the TechCrunch DeadPool could bring these folks out of their quarterlife-style quagmire. For every glittering Mt. Zuckerberg, there's an iceberg of "wanna-be-preneurs" with little more than a business plan and a prayer. Seriously, there are reasons for doctors and lawyers to be glum, but I think they have little to do with the fantasies of early retirement or nonstop creativity the article adumbrates.

First, on a practical level, lawyers may want to consult Steven Keeva's Transforming Practices: Finding Joy and Satisfaction in the Legal Life. I imagine there are similar resources for doctors.

Second, the diversity of doctors and lawyers makes this a "best of times/worst of times" market. Though doctors on average make 2-5 times more than OECD averages, specialists do much better than generalists. And as Bill Henderson has shown, there is a bimodal distribution of lawyer salaries that Cook & Frank's Winner Take All Society likely would have predicted in 1995. Those at the top firms are doing better than ever; those on the bottom have to worry more and more about outsourcing, contract employment, and corporate cost-cutting.

Finally, the political question here is how the professions will respond to this wave of inequality. One individualistic response would be to scramble to attach oneself to the patients/clients that are doing best in the current economy. Boutique medicine, cosmetic surgery, and specialty hospitals all offer opportunities here for doctors. Lawyers will probably have to keep angling for firm jobs, though the entrepreneurial may find inroads as, say, compliance specialists within thriving companies.

Another path points away from individualism and toward a more communitarian approach. Doctors are in the business of saving lives and improving health--how can they get the government to pay them properly so they can expand their services to those who are either un- or inadequately insured? Attorneys might question whether deregulation and limits on lawsuits have gone too far. Both lawyers and doctors may "do well by doing good" if they focus on a frankly redistributive agenda that uses money now reserved for tax cuts for the wealthiest to fund basic medical and legal services.

If they do not, they might see their own political position further erode in the midst of skepticism about restrictions on entry into these professions. Consider Dean Baker's argument:

[We now] allow[] many less-skilled workers into the country to fill jobs at lower wages than employers would be forced to pay the native born population. While allowing immigrant workers into the country can be seen as part of the free market, like allowing imported goods into the country, this is only half of the picture. The. . . state puts on strict controls to limit the extent to which doctors, lawyers, economists, journalists, and other highly paid professionals must face foreign competition. [Thus] not everyone’s labor is placed in international competition. Those at the top of the wage ladder get to enjoy protected labor markets. This both raises their wages and means that everyone else must pay more money for their services.

The key justification for a "privileged" position for the medical and legal professions is that they work to provide the entire community with health and justice. If that spirit of noblesse oblige withers, it's hard to see why its legal underpinnings should persist.

Posted by Frank Pasquale at 01:22 AM | Comments (3) | TrackBack

To Sleep Perchance to Dream: New Drug May Eliminate Sleepiness

The way American work environments function is amazing. Law firms and similar professional services industries often require absurd hours of work per 24 hours, per week, per month, and per year. How well one functions at two in the morning for weeks on end seems to be a low-grade form hazing to prove what I am not sure. Certainly the quality of the work has a chance of declining at those points. Indeed some states have laws preventing doctors from working too many hours without sleep as a way to reduce fatigue-related errors. Now thanks to the folks at DARPA (the technology arm of the Department of Defense) who funded some UCLA scientists all that may be gone. In other words be afraid.

Wired reports that "Darpa-funded scientists might have found a drug that will eliminate sleepiness. A nasal spray containing a naturally occurring brain hormone called orexin A reversed the effects of sleep deprivation in monkeys, allowing them to perform like well-rested monkeys on cognitive tests." As one person interviewed noted whether someone using the drug would not be susceptible to other problems stemming from sleep deprivation is unknown. Before firms and other employers get excited the drug is at an early stage and FDA approval is likely far away. Still given the way many rely on stimulants to meet job demands, don't be surprised to hear that Starbucks has begun to poke around the research or approval process.

For one set of numbers regarding the amount of sleep one should have in a night (still eight by the way) check out this report.

Image: Wikicommons

Posted by Deven Desai at 12:44 PM | Comments (0) | TrackBack

Too Much Happiness?

Increasingly, the study of “happiness” is making its way into legal academic writing. In some analyses it is framed as an alternative to money as a measure of welfare; in others as a focus on addressing the recurring problem of law firm associates’ pessimism. It is applied to tax policy, the calculation of pain-and-suffering damages, democratic institutions, and more. And happiness is making its way into law schools—well, in a sense anyway—with seminars being offered at Yale and Temple Law Schools on, for instance, “Law, Happiness, and Subjective Well-Being.” The study of happiness, and the related research program in positive psychology, are becoming increasingly prominent in law and policy.

The connection to the also-burgeoning literature on paternalism is clear; to the extent different interventions might be able to increase people’s happiness and welfare, is government justified in promulgating such interventions (or even obligated to do so)? That’s a can-of-worms type of question that I won’t get into in this post, but it connects with an interesting new article that indirectly raises the question whether such intervention—even if justified—might in fact backfire. That article, “The Optimum Level of Well-Being: Can People Be Too Happy?,” suggests that even though higher happiness seems to correlate with higher success in other areas, simply continuing to increase happiness might not increase that success consistently. The abstract follows:

Psychologists, self-help gurus, and parents all work to make their clients, friends, and children happier. Recent research indicates that happiness is functional and generally leads to success. However, most people are already above neutral in happiness, which raises the question of whether higher levels of happiness facilitate more effective functioning than do lower levels. Our analyses of large survey data and longitudinal data show that people who experience the highest levels of happiness are the most successful in terms of close relationships and volunteer work, but that those who experience slightly lower levels of happiness are the most successful in terms of income, education, and political participation. Once people are moderately happy, the most effective level of happiness appears to depend on the specific outcomes used to define success, as well as the resources that are available.

We know that “money doesn’t buy happiness”—that simply increasing financial success doesn’t directly correlate with happiness above a certain (surprisingly low) point; here’s an interesting suggestion that above a certain point, happiness doesn’t “buy” success.

Posted by Jeremy Blumenthal at 02:13 PM | Comments (2) | TrackBack

What Does It Take For a Judge to Jail 46 People in His Courtroom?

From CNN comes this bizarre story of a judge in Niagara Falls who had 46 people in his courtroom thrown into jail. Why? A cell phone rang and interrupted his court proceedings:

A judge in Niagara Falls, New York, has apologized for jailing nearly four dozen people over a ringing mobile phone in his courtroom, his attorney said Wednesday.

In removing City Court Judge Robert Restaino from office Tuesday, the state Commission on Judicial Conduct called his decision to lock up 46 people after no one claimed ownership of the phone "a gross deviation from the proper role of a judge." . . .

"We conclude that respondent's behavior ... warrants the sanction of removal, notwithstanding his previously unblemished record on the bench and the testimony as to his character and reputation," the panel ruled.

According to the commission report, Restaino was presiding over a domestic-violence case when a ringing mobile phone interrupted proceedings. When no one took responsibility for the ringing phone, Restaino ordered that court security officers search for the device.

About 70 defendants were in the courtroom that day to take part in a monitoring program for domestic violence offenders. When no one admitted to owning the phone, Restaino heard the remaining cases and then recalled the cases of defendants who had already been released to question them about the phone, according to the commission report.

After all the defendants denied having the phone or knowing who it belonged to, Restaino sent 46 people to jail. Fourteen who were unable to make bail were handcuffed and jailed for several hours.

According to the report, Restaino decided to release defendants only after learning reporters were inquiring about their incarceration.

I guess inconsiderate cell phone man has met his match.

Posted by Daniel J. Solove at 12:08 AM | Comments (2) | TrackBack

Ah the Good Life: Firms and Keeping Associates Happy

It seems that associates are not so grateful to be associates. At least the ones at the corporate or mega firms paying $160,000 plus a year are not so happy. But fear not, as the New York Times reports, law firms serve not only clients but their employees as well. So some firms have “happiness committees” to pick up these abused workers with candied apples and milkshakes when they least expect it. Others allow the use of concierge services to “pick up theater and sports tickets, the dry cleaning, take a car to the repair shop or even choose a Halloween costume.” All of these efforts are aimed at winning the talent war and providing a balanced life. A balanced life? The story reminds me of an on campus interviewed a friend had.

A partner sat across from a law student and told the tale. The firm had suspended the use of messengers to pick up dry cleaning. An associate came in his office and was furious. How dare the firm suspend this service? He had no wife to take care of these details! He worked hard. The partner beamed as he told his quick response: no committee meeting needed; policy revoked; messengers for everyone.

The friend smiled and appreciated the partner's perspective: “We love and support an associate who gives us her life,” while thinking “Wow, you need a messenger to do your own errands? What kind of job is this?”

Of course megafirms lose talent all the time. And yes, the job is difficult such that high burnout rates are common. But the firms that offer training and a real shot at having a life might keep talent longer. Less pay might even be possible if a firm really cared about giving an associate a life. With the focus on profits per partner and other useless AmLaw criteria that concern will likely be given lip-service only. In addition, the rising cost of law school means that associates will likely want the high pay. Whether the law firm recipe for success means happiness for the young attorney is up for grabs. Still given the changes in training programs (albeit based on client pressures) and the need for happiness committees, maybe it is time to rethink what being an attorney means. One way to start the reflection is to remember there are many who struggle to have jobs and many who work just as hard if not more so to serve their deserving, non-corporate clients. Talent exists in these contexts as well but they battle in wars outside the zone of why didn't I receive the in-house massage?

Posted by Deven Desai at 12:03 AM | Comments (1) | TrackBack

Gallacher on Cite Neutrality

The law should be freely accessible to all, but in many ways it is not. Ian Gallacher's Cite Unseen is a brilliant piece that works to solve this problem on two levels: 1) it offers keen insights about the legal profession, and 2) exposes an easily avoidable injustice perpetuated by the legal system's inertia and neglect. It turns out that 1) explains a lot about 2), as I'll try to show below.

1) I believe Richard Posner has called the Bluebook a "hypertrophy of ritual"--an elaborate manual of propitiation as involved (and useless) as the pyramid tomb of a Pharaoh. Given the near-universal availability of hyperlinking and searchable texts, why does anyone still bother with figuring out whether a committee report needs to be in small caps or italics? Gallacher suggests that the answer may by psychological:

Law school is place of almost existential doubt, a world in which the Socratic teaching method replaces knowledge with questions and understanding with incomprehension. For many law students, The Bluebook is a binary state refuge in the dismal swamp of hypothetical ambiguity that can be law school classes, replacing . . . blurred doctrine with a sharp focus, and principles with rules.

An almost Linnaean taxonomy (reflecting Langdell's geological approach to precedents) vests law with the trappings of science. Just as a posh Etonian can spot a Cockney pretender on the basis of any one of thousands of well-trained social gestures, the elect can instantly identify the work of an outsider who writes "F. 3d" instead of "F.3d".

Many of us are annoyed by this aesthetic tic masquerading as scientific precision. But where's the injustice?

2) Here Gallacher offers a tour de force telling of a story that has only been fragmentarily recognized before: how lawyers' inertia and West's extraordinary lobbying skills have blocked the adoption of a neutral citation system in the U.S. A truly neutral citation system would permit authors to refer to freely accessible versions of cases. Current practices demand cites to West's proprietary reporters--and West has vigorously fought to control the reproduction of the page numbers within those reporters by anyone it has not licensed. Since the case law is mixed, Gallacher correctly observes that any good samaritan trying to reproduce the page numbers would face a "possible legal battle with West."

Neutral citation practices would provide a way out of this dilemma; for example, judges could number the cases of their circuit (the third case of this year would be 2007.3), and the paragraphs within each case. However, this elementary step has gotten remarkably little traction:

[I]n 1994, the Technology Resource Committee of the Wisconsin State Bar proposed a neutral citation format that would allow the “courts, not private publishers, determine the citation” and would mean that “[t]he state, and not private publishers, will ‘own’ the final text of the case law. It will encourage publishers to compete by the value that they add to opinions such as headnotes or search tools, rather than by preferred access to the text of case law.”

Two heavyweights entered the neutral citation format debate in the mid-1990s; the American Association of Law Librarians (“AALL”) in 1995 and the American Bar Association (“ABA”) in 1996. Yet even though both organizations endorsed the need for neutral citations, there has been little movement towards acceptance of a neutral citation format.

What happened? Here the story takes a sad but predictable turn, as a crabbed resistance to change gets dressed up traditionalist aesthetics. One judge harrumphed that paragraph numbering “belongs to the civil law tradition and to decisions of the Federal Communications Commission, not to the common law.” Never too quick to challenge privilege, Judge Posner has said the innovation would "disfigure and bureaucratize the opinion-writing process."

Like law review editors who cling to Bluebook "tradition" in the face of new technology that renders it obsolete, judges in a maze of confining precedent espy a rare chance to assert their autonomy by refusing case and paragraph numbering. This kind of traditionalism reminds me of the family that, from time immemorial, cut its Christmas ham in half and threw out the bottom half before cooking it...only to find out from their matriarch that the "tradition" originated because her stove of 70 years ago was too short to hold a full ham.

Fortunately, programs like AltLaw are beginning to challenge the proprietary status quo. As Gallacher observes, many laws require the federal judiciary to publish opinions online. We can only hope that all Circuits eventually join the Sixth in its commitment to providing a "court-generated, vendor neutral, reference number" for all cases--and the paragraphs within them. And imagine how scientific we'd look if we referred to an authority as, say, 2.2007.3.56 (for the 56th paragraph in the 3rd case of the year 2007 heard by the 2nd circuit).

PS: For real entertainment, read West's litany of reasons given in opposition to neutral citation, on p. 32 ff. Here are my favorites:

[West's report to the AALL asked] “[w]hat are the potential costs of numbering paragraphs in judicial opinions?” and observe[s] that it might be costly to hire clerks to number the paragraphs in judicial opinions, and note that “there exists the very real possibility that unintentional changes will be made to the substance of the opinions themselves.”

I never knew that numbered paragraphs could be so fraught with peril.

Posted by Frank Pasquale at 07:07 PM | Comments (3) | TrackBack

Bootstrapping Against Capital Punishment

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)

Posted by Dave Hoffman at 12:01 AM | Comments (3) | TrackBack

Advising Female Graduates

Hello to everyone and thanks to Dan for inviting me to post this month.

I wanted to begin by noting an article that appeared in today’s New York Times. In it, Lisa Belkin surveys the flood of research on how women in the workplace are viewed differently than men. Belkin’s article cites many studies, all of which will sound familiar—probably because if you haven’t heard of the study she is discussing, you’ve heard of one that had similar results. These studies all boil down to the same conclusion: women are perceived to lack whatever qualities are most valued in the workplace, at least when compared to men who are behaving the same way as their female counterparts.

As Belkin explains, women are advised:

Don’t get angry. But do take charge. Be nice. But not too nice. Speak up. But don’t seem like you talk too much.

She continues:

These are academic and professional studies, not whimsical online polls, and each time I read one I feel deflated. What are women supposed to do with this information? Transform overnight? And if so, into what? How are we supposed to be assertive, but not, at the same time?

Belkin’s article has made me consider what I say to graduating female law students. My gender-specific advice always involves the thorny issue of balancing a legal career and children. I don’t say anything about the situation that all female graduates will find themselves in: that is, being a woman in a legal workplace.

I’m wondering what advice others give on this topic, or what valuable counsel others have received. If you have anything useful, please pass it along.

Posted by Sarah Waldeck at 08:43 PM | Comments (2) | TrackBack

False Cries of Foul? U.S. Law Firms in London May Have to Report Financials

As LLPs, law firms in the U.S. do not have to share financials with the public. Maybe they should. For example, it appears that law firms that use a business form similar to LLPs but are based in the U.K. must disclose their financials. U.S.-based LLPs that have offices in London do not, yet. A proposal under consideration would change this rule so that the U.S.-based LLPs would have to disclose their financials. That possibility met resistance in 2001 and seems to be upsetting some firms again.

Law firms make an incredible amount of money and have enviable margins. On one hand, firms seem to love being at the top of the AmLaw lists and being the highest revenue firm or highest profit per partner firm. So now when a firm like Reed Smith protests the possibility of having to disclose the numbers there is some irony. Some of this information is available through the AmLaw rankings. For 2006, Reed Smith comes in at 31, based on its 2005 gross revenue of $562,500,000. If the desire is to remain so secret -- in the firm's words "we would prefer to keep our financials private. Many of our U.S. counterparts would feel this way too." -- then how is it that AmLaw has these figures? Granted it is not the full financials but someone is likely giving the information to Law.com and others. Want to know profits per partner for the firm in 2005? Read below the fold. Hint: The firm provided the numbers.

The Legal Intelligencer's article about Reed Smith shows that Reed Smith gave them the information:

"According to financial data provided to The Legal, Reed Smith saw a 21 percent increase in profits per partner in 2005, jumping from $662,000 in 2004 to $800,000 last year. The firm said its revenue for 2005 was $563 million, a 12 percent increase over the $504 million in revenue in 2004. Revenue per lawyer also increased, going up about 10 percent from $553,000 in 2004 to $609,000 in 2005. According to data released by Reed Smith, the firm has seen a steady rise in its financials across the board over the past five years, increasing its profits per equity partner by 154 percent since 2000 and its revenue per lawyer by 62 percent in the same time span."

According to Legal Week, "several U.S. firms, including White & Case and O'Melveny & Myers, have already opted to operate their London office through a U.K. LLP." If so, given the willingness to share some of the information for bragging rights in AmLaw and the willingness by some large firms to be a U.K. LLP, what are other firms trying to hide?

Now the AmLaw rankings have had an arguably negative effect on firms as they try to squeeze more from the business. So it may be that there are reasons not to ask for public information from LLPs. The reasons may have more to do with the way information seems to change how one thinks about anything and the conclusions one may draw. Does this information shift focus to bottom line rather than being an excellent counsel? Would people start to ask more about what an attorney or a firm makes as part of hiring a firm or litigating a case? Might clients start to question the fees? Would smaller firms worry about the false correlation between income and being a good attorney? Maybe. Still, for the AmLaw 200 firms some of this information is available from the firms and does not appear to have slowed the firms' ability to charge high rates or obtain clients. The claims that a firm must be able to keep its information private are a bit puzzling when the major firms appear to revel in sharing the information in the first place. There may be real theoretical reasons not to require public reporting but they are not so clear in the context of the firms at issue here. Once the U.K. releases its consultation for comment, the ideas behind the public reporting will be available for comment. That should yield some interesting statements from U.S. firms. Maybe some statements in favor of the policy will come out. We'll see.

Posted by Deven Desai at 12:54 PM | Comments (1) | TrackBack

More Firms Cut or Change Billable Hours for First Year Associates

Dan has posted thoughts on the problems of billable hours, Frank noted students trying to impact the way firms behave, and I have suggested that one’s firm plan to cut first year associate billables completely is one to watch. Apparently a shift is indeed occurring. In the past month one firm, Strasburger & Price of Dallas, Texas, has decided to modify the first billable requirement and others are trying changes as well. Strasburger has cut billables to 1,600 from 1,920 but “will require incoming associates to spend 550 hours shadowing senior attorney mentors, participating in training sessions and working on pro bono projects.” So the total is now 2,150 which may be less than the 1,920 assuming that the previous figure expected associates to shadow, train, and perform pro bono on top of that base. A couple of firms have decided to offer a track with less hours and less pay. Whether choosing the fewer hours track allows one, at least as policy, to be on the same partner track as others is unclear.

Perhaps the most radical move is from Howrey which is trying to implement a pure performance-based model. In addition to hours, the factors to be examined will include “writing, deposition, trial practice, and client presentation skills.” Although a partner is supposed supervise associates and make sure they have opportunities for such experiences, this model seems likely to run into the problems of that the reduced billable strategies seek to address. Partners simply become too busy to oversee such programs. Another problem is that this group will come from a system where lack of training (or training by fire) was the norm so a reference to how or why they should focus on such duties could be missing. One more question is what happens when an associate is paired with a poor match? Like assigned advisors in school, those situations can be awful. The mentor may be bad at the mentoring or may not want to do it. The two participants may just not have personalities that work well together.

In any event, for those of you interviewing as students or employers it may be that the legal profession is experiencing a change. Insofar as a new law-school graduate can find a position that offers more chances to learn and experience the complexities of the practice of law with less pay, take that job. You will probably be happier. You may even work more just because you like the work. And you will gain skills if not wisdom that will open career opportunities both within and outside the firm where you began.

Posted by Deven Desai at 05:53 PM | Comments (4) | TrackBack

The Supreme Court Bar

Tony Mauro at Law.com has an interesting story (also reprinted at Yahoo! news) about the growing influence of the Supreme Court Bar -- the group of lawyers who routinely argue cases before the Court:

For the elite of the Supreme Court Bar, this is the Gilded Age. Or call it the Age of the Guild.

The Court's docket continues to shrink. Yet dramatic new research by Georgetown University Law Center professor Richard Lazarus shows that more and more of the Court's cases are brought and argued by the seasoned veterans who have honed Supreme Court practice into a fine, and exclusive, art form. Last term, fully 44 percent of the nongovernment petitions that were granted review by the Court were filed by such veteran advocates. In 1980, that number was less than 6 percent.

The justices and their law clerks, it seems clear, pay special attention to the briefs and arguments of these virtuosos of the bar. Chief Justice John Roberts Jr., after all, was once one of them, arguing 39 cases to the Court in his days as an appellate lawyer in the private and public sector. And Lazarus cites a 2004 survey published in the Journal of Law & Politics indicating that 88 percent of law clerks openly acknowledged giving extra consideration to briefs filed by what one called the "inner circle" of the Supreme Court Bar. The clerks, who play a crucial role in screening incoming cases for their justices, often then go to work for these same firms, garnering hiring bonuses that this year have reached $250,000.

According to statistics compiled by Professor Richard Lazarus (Georgetown Univ. Law Center), the percentage of successful cert petitions filed by expert Supreme Court attorneys has gone up from 6% in 1980 to 44% in 2006. And the percentage of first-timers arguing before the Court has dropped from 76% to 52%, while the number of seasoned veterans (10 arguments or more) has risen from 3% to 26%.

Posted by Daniel J. Solove at 07:21 PM | Comments (1) | TrackBack

Correcting the Mismeasure of Firms

Show-me-the-money measures of profits-per-partner and median associate salaries have dominated law firm rankings. The good folks at Law Students Building a Better Legal Profession [Refirmation] are improving the system by painting portraits of firms that go beyond the bottom line. Their press conference today focused on pro bono opportunities and diversity initiatives. I hope that they continue the project in other areas, particularly by encouraging some calculation of "hourly wages." Who knows, perhaps people at the "lifestyle firms" may be making more per hour than grinding peers.

The Refirmation Program deserves support for exploring quality of life issues. There's a good deal of evidence that lawyers are facing increasing job stress, which can be defined as follows:

Two characteristics define a high stress job . . . . one, you have to do more and more things with less time and fewer resources. Two, you have little control over your work procedures or authority to make decisions on your own. These conditions generally reflect the tasks of lower-level workers and have been shown in numerous studies—most prominently in the long-running Whitehall Study of British civil service workers–to have a detrimental impact on health and longevity.

So avoid cardiovascular distress, and support firms with heart! A few notes on the broader implications below the fold. . . .

The Refirmation project is part of a larger initiative to question joyless economism and the crude measures of well-being (such as GDP) that legitimate it. As Courtney Martin observes, many important thinkers are urging a questioning of our economic priorities:

[W]hat does "quality of life" even mean to us overworked, exhausted, overwhelmed, and often unfulfilled 21st-century citizens? An informal survey of recent popular books indicates that Americans are deeply concerned with our dwindling contentment: Stumbling on Happiness by Daniel Gilbert, The Happiness Hypothesis by Jonathan Haidt, and Authentic Happiness by Martin Seligman (to name just a few).

All of these authors, in one form or another, argue that quality of life is typified by fulfilling work, general wellness, and deep, authentic connections to others. They also all confirm the old adage that money doesn't buy happiness, which is certainly not a shock to any of us who have had the misfortune of seeing the dysfunction among wealthy individuals up close and personal. (I am reminded of a boss I once had who lived in a deluxe apartment in Greenwich, Connecticut, and gave herself plastic surgery once a year as a Christmas gift, but had no family or friends to spend the holidays with.)