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Posted by Kaimipono at 04:34 PM | Comments (0) | TrackBack

"For Every Three Judges, Two Are in the Fire": Richard Posner and the Usul al-Fiqh

I've been reading Richard Posner of late, and it strikes me that there is an odd analogy between the his vision of the pragmatic judge and the position of the judge under the classical usul al-fiqh of Islamic law. It seems to me that ultimately Judge Posner's theory of adjudication rests on a radical rejection of the ex post perspective. On his view all judicial decisions are -- and ought to be -- forward looking, focusing solely on the consequences for the future that will come from deciding one way rather than another. Of course, a concern for future consequences needn't preclude a certain respect for past practices, expectations, and rule of law values, but none of this stuff has any force in and of itself. It only matters in so far as it impacts the future. One of the implications of this theory is that the judge can never hide behind the "the law" as a way of distancing him or herself from moral responsibility for her decisions. The law does not dictate particular results in any case. Rather, it is always a matter of the judge making an individual -- albeit practically constrained -- judgement about what would -- all things considered -- be best. One doesn't get any sense that Judge Posner spends much time thinking about the personal moral status of the judge, but it seems to me his theory makes the judge into a radically responsible moral agent. If the consequences of one of Judge Posner's decisions is really bad, it really is Judge Posner's fault.

Where Judge Posner's theory of law is radically ex ante, the theory of law (usul al-fiqh) proposed by the classical Islamic jurists purported at any rate to be radically ex post. In theory, all human legislation is a denial of the sovereignty of God, a kind of blasphemy. Rather, a righteous society follows God's law. This law, however, is finished and complete, indeed according to the dominant theological approach in Islam it is uncreated, a co-eternal emanation of the divine mind. The task of a jurist is to discover the divine law as revealed in the Qur'an and the example of the Prophet Muhammed. Put in more concrete terms, the classical Islamic jurists claimed that every rule necessary for the proper government of society could be discovered -- not deduced from or promulgated in accordance with -- with the sacred texts of Islam. At this point in their theory, however, the jurists came up against the ultimately unsystematic and ad hoc nature of the Islamic revelation. The Qur'an is not a legal code. Rather it is a collection of "recitations" -- often in the form of religious poetry -- given by God to the Prophet, often in response to concrete questions or problems raised by the early Islamic community. It was only in the generation after his death that these "recitations" were collected into the Qur'an. Not surprisingly, it takes some nimble exegetical gymnastics to transform this religious ur-stuff into a functioning body of substantive law. What haunted the classical jurists was that they might be wrong in their exegesis. As Marshall Hodgson has written, for a Muslim “every person, as such with no exceptions, was summoned in his own person to obey the commands of God: there could be no intermediary, no group responsibility, no evasion of any sort from direct confrontation with the divine will." Hence, there was no sense in which a jurist could hide behind some abstraction like office or "the law" to shield himself from full responsibility for his judicial decisions. He was to apply the law of God, and if he got it wrong he was responsible for that mistake.

According to one Muslim legal aphorism, "For every three judges, two are in the fire." The fire in question here is the hell reserved by God for judges who do not apply His law. Indeed, there are stories of great classical legal scholars who fled from Baghdad at the prospect of being made an actual judge by the Caliph. The reason was that once one moved from exegetical speculation to deciding actual cases, one's eternal soul was on the line. I don't think that Judge Posner is much worried about hell fire, but ironically his radically ex ante approach leaves him in a similar moral position personally to the radically ex post approach of the ulema.

Posted by oman at 12:37 PM | Comments (7) | TrackBack

Sanctioned Lawyer Throws Himself on the Mercy of the Court

[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.]

Posted by hoffman at 12:13 AM | Comments (3) | TrackBack

Torture for Tots

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.

Posted by Alice_Ristroph at 11:37 AM | Comments (2) | 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

More Things Not to Do in Court

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."

Posted by hoffman at 06:01 PM | Comments (1) | TrackBack

Bringing a Lawyer to a Gun Fight

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."

Posted by hoffman at 11:16 PM | Comments (3) | TrackBack

An Ethics Puzzle

My friend and Suffolk colleague Andy Perlman has a neat little question in ethics and morals over at Legal Ethics Forum. I recommend it heartily. (Personally, I think this is an easy application of the Categorical Imperative, but decide for yourself!) But while you are over there, ignore the crass pandering for votes, and if by some chance you do click through to the ballot for best blog in the "Lawyers Behaving Badly" category, think about how much your support would mean to my Legal Profession Blog colleagues, Alan Childress and Mike Frisch.

Posted by Jeffrey_Lipshaw at 08:50 AM | Comments (1) | 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 hoffman at 12:01 AM | Comments (3) | TrackBack

Judicial Bullies on T.V.

David Lat highlights the following video, featuring an encounter between a faux judge (former Florida Circuit Court Judge Marilyn Milian, now the private dispute resolution "judge" on the People's Court) and a faux lawyer (a current Miami Law student). I know that this is supposed to be entertainment, but I've got to say, it felt like a case study in Steven Lubet's Bullying From the Bench. Judicial temperament means never having to say you are sorry, but only because you don't flip out on the parties before you.

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.

Posted by hoffman at 02:24 PM | Comments (10) | TrackBack

New Summer Program

This is an exceptional new summer law study program open to both law students and interested law professors. Summer Study in Italy, will take place from June 6- July 21 2008. Three weeks in Rome follow by three weeks in Florence. Students will be lectured by Professor Chadsworth Osborne, Jr., and Hugo Valencia, and several esteemed representatives of the Italian legal system -- such that it is. Six hours of credit available from a choice of 4 courses. Groups outings will be arranged to important and historic sites. All inclusive tuition is $3000. This includes housing but not airfare and meals. However, the airfare should be highly discounted as you do not actually have to travel to Italy to participate. Video transmissions will include classes, meals, and all outings so you will be able to absorb the beauties of Italy while at home. Why eat at Italian McDonalds when the program permits you to stay at home and eat at your local McDonalds or any other restaurant of your choice. The program fillled quickly last year and was a huge success. Applications are found at Privilegelaw. See you in Roma!!

Posted by Jeffrey_Harrison at 10:57 PM | Comments (0) | TrackBack

Is Sorting Law School's Only Function?

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)

Posted by hoffman at 03:12 PM | Comments (15) | TrackBack

Shunning Duke's Faculty

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?

Posted by hoffman at 11:13 AM | Comments (11) | TrackBack

Should You Buy Divorce Insurance?

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?

Posted by hoffman at 11:44 AM | Comments (5) | TrackBack

Why Do Lawyers Blog?

In response to my posts on the "flatness" and the "stagnation" of the legal blogosphere, I've received a number of helpful comments and feedback from practicing laywers who blog. See, e.g., Anne Reed, Eric Turkewitz and Scott Greenfield. One relatively constant response has been a rejection of the idea that all lawyer blogs "exist primarily to market the firm's services." Eric writes, in response:

Most blawgers, I think, do it simply for enjoyment, or to network with other attorneys for possible referrals, or perhaps hope a future client stumbles on the blog while looking for counsel. Trying to place a financial figure on such an indirect form of networking is not only impossible, but would completely miss any real benefits that might accrue based on new contacts and clients.

And Scott writes:

I'm just here to write and add my thoughts, for whatever their worth, to the body of thought that floats around the internet. It gives me purpose beyond making a buck.

These authors (and others who emailed me directly) suggest that I've gotten it all wrong. There is a "new wave" of small blogs, run largely by solo-practitioners. Unlike, say, practice-group blogs, these small shops are writing largely to express themselves. They are excited by the medium, and think that the potential untapped audience for their musings is pretty large. [Update: See Mark Bennett's post on the Practical Blogosphere for a good taste of the commentary.]

If true, this would be pretty exciting. Of course, it is hard to generalize from a few comments, however informed and heartfelt. I also think that lurking in the background of the "we're not about marketing" is the Bar's onerous marketing rules, which complicate and restrict lawyer blogging. However, I thought it would be useful to inform this discussion with another informal survey. Please take it only if you are a practicing lawyer who blogs.

Why Do You Blog?
	Primarily to market my firm to clients
	Primarily to market myself to clients
	Primarily to serve as an expressive outlet
	Predominantly marketing, some expression
	Predominantly expression, some marketing
	Purely for fun (or, because I'm bored)
	Primarily to generate referrals
	Predominantly referrals, some expression.
	Predominantly expression, some referrals.
	Other
Free polls from Pollhost.com

Posted by hoffman at 03:37 PM | Comments (4) | TrackBack

Outsourcing Law

I recently received an email from an Indian firm advertising certain legal services. It raised a number of issues I hadn’t thought about before, so I’ll publish it after the jump and then offer a few comments.

Hi,

We are a professional legal organization based in New Delhi, India, and would like to offer our services for your legal research & documentation requirements. Having a large pool of qualified lawyers with extensive experience and expertise in handling legal assignments, we can work on the law of most countries, including the US, UK, Canada, Australia etc. We cater to both solo lawyers as well as law firms.

The proper budgeting of an attorney's time can be a substantial factor in maintaining a successful legal practice. Outsourcing your legal requirements can give you what you need most - time. Whether it is a minor research project, cite checking an adversary's brief, or if you simply just don't have the resources, we are here to assist you. We will investigate the latest case law, statutes, administrative pronouncements and rulings, law review articles, and many other sources to find the information you need. In addition, we handle Federal Tax matters, Federal document location, and extensive searching of secondary sources. A few members of our team have been specially trained by US attorneys for handling legal assignments.

Research is done using both online and offline research tools.

India, as you may already be aware, is one of the most preferred outsourcing destinations for high-quality, low cost work, with excellent delivery schedules. Many lawyers and law firms are now outsourcing their legal research/documentation assignments to India. Not only do they achieve substantial cost savings, the availability of a large number of professionally trained lawyers also ensures high quality of work. We can serve you efficiently and cost effectively, and deliver as per your customized needs.

We are one of the leading Indian organizations in our field, and serve many international organizations. For accomplishing jobs with us, a team of highly trained and dedicated lawyers work at our state-of-the-art facilities. We understand the basic international business processes and ensure that all projects undertaken by us are completed within the stipulated time period with complete confidentiality, accuracy, and quality.

Our legal services are priced nominally at US$ 25 per hour. Details of the assignment can be sent to us via email, or via courier. We shall return the completed report to you within 72 hours, or earlier if you require. We are so confident that you will be satisfied with our services that we offer a `no-deposit' policy. Entire payment can be made after receiving satisfactory delivery of service.

If you are interested in cutting your current costs to at least one-eighth, increasing your productivity without compromising on the quality and turn-around time, then please do get back to us. We can help you maximize your time and enhance your law practice.

We look forward to hearing back from you.

Sincerely,
Dhiraj Aggarwal

...

Disclaimer: We are an internet-based legal research organization. We only conduct legal research and do not provide any kind of legal advice, opinion or recommendation. While we have taken every effort to make the information on this site up-to-date, we cannot guarantee that the information is accurate or up-to-date. You are requested not to act upon the information on this site without obtaining professional counsel from an attorney. Any disputes arising out of or related to accessing of this site will be exclusively governed by the laws of Republic of India. You agree that any lawsuit arising out of or relating to the use of this site shall be filed exclusively in the courts located within New Delhi, India, and you hereby consent and submit to the jurisdiction of the courts situated within New Delhi, for the purposes of litigating any such lawsuit.

The services of EconomicalServices.com are only intended for those jurisdictions where they may be legally offered. This communication does not constitute an offer or solicitation to anyone in any jurisdiction in which such an offer or solicitation is not authorized or to any person to whom it is unlawful to make such a solicitation.

Well. In no particular order:

Do the disclaimers have bite? One major issue with outsourcing legal work overseas is private and public policing of the rules against unauthorized practice. I see no clear difference between "conduct[ing] legal search" and "providin[ing] ... legal advice, opinion or recommendations." Unauthorized practice is not, after all, limited to telling a client to do X. This firm will draft complaints or demurrers or even plain-vanilla memoranda. Simply because these memoranda aren’t directly sent to a client, but instead washed through another law firm, doesn’t make them non-legal services. Clearly, were such services offered by a domestic firm, the Bar would come down like a ton of bricks. (I say this without meaning to suggest that the attorneys for this particular firm lack credentials or intelligence. They probably are more than capable. But they aren’t members of a State bar.) In sum, I don’t think that the disclaimers would offer a real defense to an UP action. I am aware that many law firms have begun to outsource their paralegal/document processing work - but I was not aware that they were also outsourcing legal research. Obviously, they have gotten comfort from their insurers and ethics counsel, but still it is a surprising development.

The Dispute Resolution Clauses. Such clauses are presumptively enforceable. But if, say, a client sued a lawyer for malpractice and that lawyer joined the Indian firm, the clause would probably not stand up because litigating professional standard rules in Indian courts would confront strong state public policies. Even if the only parties to the lawsuit were the American and the Indian lawyers, I think a US court might have trouble with the choice of law clause, given the domestic interest in Bar regulation. Given this strong policy, why do the contracts attempt to advance an Indian forum and law? This is an interesting issue, connected to the larger puzzle of why parties generally choose contracting terms that are either unlawful or suboptimal. (See Choi and Gulati, for example. Maybe the idea is that choosing an Indian forum, by increasing the enforcement costs of the contract, selects for contracting parties who are either litigation-averse or who have particularly large contracts to trade.

Is Law a Portable Skill? In the International Dispute Resolution course I just finished teaching, I spent a great deal of time trying to push against the idea that domestic courts could do a decent job at interpreting other nations’ legal rules. The point I was trying to communicate was that legal research involves much more than just reading statutes or cases and looking for rules: learning any jurisdiction’s law requires you to get a sense of the deep structure of doctrine; its motivating policies, assumptions, and roots in history; the connections between rules in seemingly unrelated regimes; and the place of the law in society as a whole. To predict what a judge will do given a set of facts, you can’t simply read a bunch of cases naively: you need to approach them after having read hundreds of other cases over years. Maybe this is a conceit of someone who teaches law (a special pleading for the second and third years of law school) but I think it fundamentally unwise to trust client's legal issues to foreign lawyers' reading of domestic statutes, if those foreign lawyers have not had the pleasure of taking a domestic bar exam. Indeed, outsourcing law strikes me as a very easy way to commit malpractice.

(Photo Credit: Economical Services, the firm in question)

Posted by hoffman at 07:55 PM | Comments (3) | TrackBack

Law Clerks and Book Proposals

There's a fairly disturbing (at least to me) book proposal making its way around the e-mail universe, disturbing not because of the subject (the current debate over habeas and the war on terrorism), but because of the occupation of the authors/editors -- two current D.C. Circuit law clerks. Indeed, the proposal itself harps on this fact, suggesting that the two clerks "are uniquely suited to moderate this debate," having "spent a year in the legal trenches, as it were; each serving as law clerks on the Court of Appeals for the District of Columbia Circuit during a year that saw several landmark detention decisions likely to end up before the Supreme Court."

My initial reaction is that this rubs me totally the wrong way. Wholly separate from the prospect of law clerks speaking to reporters about their jobs after their clerkships are over is clerks using their position as a ground for a book deal. If I remember right, the relevant provision of the Code of Conduct for Judicial Employees is Canon 3D, which provides:

A judicial employee should avoid making public comment on the merits of a pending or impending action and should require similar restraint by personnel subject to the judicial employee's direction and control. . . . A judicial employee should never disclose any confidential information received in the course of official duties except as required in the performance of such duties, nor should a judicial employee employ such information for personal gain. A former judicial employee should observe the same restrictions on disclosure of confidential information that apply to a current judicial employee, except as modified by the appointing authority.

So I guess there are three questions here: First, is using your current position as a law clerk to promote a book deal in effect (if not actually) employing "confidential information received in the course of official duties . . . for personal gain"? Second, even if not, aren't we opening a can of worms if clerks start using their position to hawk book deals? Third, although we'll probably have no sense of the answer, does their judge know, and if not, shouldn't s/he?

UPDATE: I should be clear, as some have noted in the comments, that the proposal is for a volume of essays from multiple contributors, and that the clerks do not appear to be planning to write anything themselves. There also does not appear to be an actual book deal; the e-mail referenced in the post is effectively gauging interest for possible contributors. I'm not sure that changes the issue, but wanted to clarify the original content.

Posted by Steve_Vladeck at 08:16 AM | Comments (17) | TrackBack

The Death of Fact-finding and the Birth of Truth

Today's Supreme Court decision in Scott v. Harris is likely to have profound long-term jurisprudential consequences. At stake: whether trial courts, or appellate courts, are to have the last say on what the record means. Or, more grandly, does litigation make findings of fact, or truth?

The story itself is pretty simple. Victor Harris was speeding on a Georgia highway. Timothy Scott, a state deputy, attempted to pull him over, along with other officers. Six minutes later, after a high-speed chase captured on a camcorder on Scott's car, Scott spun Harris' car off the road, leading to an accident. Harris is now a quadriplegic. He sued Scott for using excessive force in his arrest. On summary judgment, the District Court denied Scott's qualified immunity defense; the Eleventh Circuit affirmed.

Justice Scalia, writing for the majority, noted that the "first step is . . . to determine the relevant facts." Normally, of course, courts take the non-moving party's version of the facts as given. [Or, to be more precise, the district court resolves factual disputes in favor of the non-moving party.] But here, the videotape "quite clearly contradicts the version of the story told by respondent and adopted by the Court of Appeals." Notwithstanding a disagreement with Justice Stevens on what whether that statement was accurate ("We are happy to allow the videotape to speak for itself." Slip Op. at 5), the Court proceeded to reject the nonmoving party's version of the facts. To do so, it relied on the ordinary rule that the dispute of facts must be "genuine": the Respondent's version of the facts is "so utterly discredited by the record that no reasonable jury could have believed him." (Slip Op. at 8).

Let’s get a bias out of the way. At the Court's suggestion, I watched the video. I lean toward Justice Stevens' view: "This is hardly the stuff of Hollywood. To the contrary, the video does not reveal any incidents that could even be remotely characterized as 'close calls.'" Such a dispute over a common story immediately highlights the most serious problem with the Court’s opinion: we all see what we want to see; behavioral biases like attribution and availability lead to individualized view of events. Where the majority sees explosions, Justice Stevens sees "headlights of vehicles zooming by in the opposite lane." (Dissent at 2, n.1 - and check out the rest of the sentence for a casual swipe against the younger members of the court.) It brings to mind the Kahan/Slovic/Braman/Gastil/Cohen work on the perceptions of risk: each Justice saw the risk of speeding through his or her own cultural prism.

But even if I agreed with the majority on what the videotape shows, the Court’s opinion is disruptive to fundamental principles of American Law. Justice Stevens suggests that the majority is acting like a jury, reaching a "verdict that differs from the views of the judges on both the District court and the Court of Appeals who are surely more familiar with the hazards of driving on Georgia roads than we are." (Dissent at 1). There are several problems with such appellate fact finding based on videotape that the Court ignores.

First, if we take seriously the idea that experience in evaluating evidence brings skill, then appellate judges are likely to be worse at evaluating video evidence than trial judges. Certainly, there is no reason to think they are better. So, imagine a world in which the police routinely videotaped their searches and seizures of homes, and all resulting conversations with suspects. (It isn’t too hard to imagine.) Trial courts would make rulings on the admissibility of evidence based on that videotape, supplemented, perhaps, by testimony from the police and accused. Assuming that such videos would be put into the record, what kind of deference should an appellate court give a trial court on such judgments after this opinion? Current practice accords the trial judge deference because she is “in the room,” and “smells the same air” as the testifying parties. But that approach would seem to be significantly undermined by the Court’s formalation of the purpose of litigation: to determine what “actually happened.” The Scott rule starts to make trial courts into something like magistrates: useful for moving paper and effecting settlement, but ultimately not decision makers.

Second, Scalia's opinion demonstrates its weakness by telling the reader to make their own independent evaluation of the video evidence. Opinions should stand on their own feet. In world where all opinions were freely available online to all citizens, complete with video embedding, we might not care. That world, of course, is coming, but only for those who can afford computers and broadband connections. This characterizes almost every reader of this blog, but only a minority of the rest of the population. To take only a small example, consider prisoners in the state jail. Prisons strictly control internet access, and time, on the theory that the law in the books is an adequate substitute for constitutional purposes. If most courts begin throwing questions from the page to the tape, will prisoners gain a constitutional right to computer access?

But this project is misguided anyway. The majority as much as turns its back on the courts’ ordinary role to determine legal facts, instead of the truth of the "event." We don't read opinions to tell us what happened. We read them to tell us what facts the courts have found. That is why innocence is not, ultimately, a legal defense: the facts found by a jury control. This separation is a necessary part of the dispute resolution system, enabling finality. The court’s opinion has the potential to destabilize this delicate regime in areas that would likely matter to some folks more than the civil rights suit of one speeder.

(H/T: Orin Kerr; More commentary at SCOTUSBlog, which notes that "this decision is a constitutional holding more than it is an essay about facts, and very likely will be applied by lower courts beyond its specific factual setting."; Marty Lederman has charactistically great comments here.)

(Photo: Garrison Photography, courtesy of SXC.)

Posted by hoffman at 01:41 PM | Comments (22) | TrackBack

Academic Detachment and Consulting Work

Today's Boston Globe reports a story involving a lawsuit filed by eSapience, "a media and research entity that shapes the debate on issues that intersect law, economics, and policy," against one of its former clients. eSapience is claiming unpaid consulting fees for a project to rehabilitate the public image of Maurice Greenberg, an insurance executive pursued at one point by Eliot Spitzer for alleged improprieties connected with Greenberg's work at AIG insurance.

The interesting twist is that eSapience appears to have employed prominent academics, including U. Chicago Law Professor Richard Epstein, to write articles favorable to Greenberg. The Globe reports that "Their mission was 'to change the public conversation about Maurice Greenberg ,' according to a confidential plan summary. This was to be accomplished, in part, by organizing invitation-only events where 'influencers' would hear Greenberg weigh in on insurance issues and by penning papers, editorials, books, and other content aimed at putting the executive in a favorable light, the summary said."

Assuming for the sake of argument that the Globe story is true, did these professors cross some line of academic impropriety? It's certainly common for law professors to take on consulting projects or testify as expert witnesses knowing that they will advocate a certain position. However, if they took on certain "scholarly" projects knowing that their point of view was predetermined, that sounds a bit fishy. Granted, the opinions they ended up taking may have been the ones they'd have taken independently. However, it seems much more proper if academics fully disclose any financial interest they have in the positions they take.

p.s. Here are links to another Globe story and a PR Week story about the same matter.

Posted by Alfred_Yen at 08:55 AM | Comments (1) | TrackBack

A National Law Student Code of Conduct?

Reputation Defender is a new start-up that seeks to commodify internet self-help. According to yesterday’s WashingtonPost article on Xoxohth, the service will destroy harmful content about you wherever it appears on the World Wide Web, presumably through an escalating series of gentle reminders followed by hard nudges against hosts. As I blogged yesterday, the site is trying to make a public good out of this private remedy by "encourag[ing] law schools to adopt a professional conduct code for students."

How is this different from the codes of conduct that currently govern law student behavior? Temple, to take an example I'm familiar with, has a broad-ranging student code that includes the following provisions of interest:

It shall be a violation of this Code for a TLS student knowingly to do or to attempt to do or to assist in . . . a course of conduct . . . directed at a member of the Law School community which would cause a reasonable person in the victim's position severe emotional distress or which would place a reasonable person in the victim's position in fear of bodily injury or death, provided that this provision shall not be interpreted to abridge the right of any member of the Law School community to freedom of expression;

[or] . . . engage in conduct, not otherwise covered by any other provision of the Code, involving dishonesty, fraud, deceit or misrepresentation with regard to activities or programs related to the Law School, which adversely reflect upon his or her fitness to remain a student at the Law School.

Such policies are fairly widespread, often with explicit stalking provisions. I think that any law student who posts the name of another student at their school, in a public forum with a hostile sexual or racial tone, and refuses to stop making such comments on demand, would face probable disciplinary sanction if they were identified. (I understand there are First Amendment implications here, somewhere, but that is an argument I’ll leave to folks like David Bernstein to make.) This conclusion holds even if the comments were intended in jest, so long as a reasonable person would feel threatened (in the language of most codes). I assume that law students read disciplinary codes when they start their education, or would not find them terribly surprising.

Now, whether such a student would be liable for making comments about students at another university - who they may never have met, or intend to meet - is a harder problem. Individual law schools may believe that they have an attenuated interest in such cases, and that the matter is better left to Bar Committees or the police. This is a jurisdictional concern. They may also believe that they have no writ for protecting non-community members – something like an international law/statist view. (What will happen when the human rights folks get a hold of such codes is an interesting problem!) That said, I am pretty sure that a substantiated allegation of cyberharassment would be good grounds for denying bar admission, though criminal prosecution would be unlikely. So, law students submitting pictures to such contests, or commenting about the affected students, run a real risk of professional sanction if they are discovered.

What, then, does a national code add? Most importantly, I think, the goal would be to create intra-school responsibilities, resulting in a work-around of the host-immunity problem by sanctioning students who enable such conduct, instead of just the (anonymous and hard-to-reach) students that perpetuate it. Thus, the national code of conduct would make law school disciplinary committees something like private attorneys general for conduct that the criminal law will rarely reach and the ethical rules reach only on discovery.

Additionally, a national code of conduct might have a signaling function. No doubt there would be a following campaign to enlist law school student deans in education efforts about the professional consequences of cyber-stalking for victims and perpetrators alike, and to suggest that schools have ways of detecting such conduct that will (no doubt) be undisclosed. These efforts will not eliminate cyber stalking by law students, but it will push it to less public fora. Good.

Photo Credit: The Code of Hammurabi, diorite, c. 1750 bce, Old Babylonian.

Posted by hoffman at 11:34 PM | Comments (3) | TrackBack

The Godfather's Connection to the US Attorney Scandal

I'm still trying to get my mind around the burgeoning US Attorney scandal. While I mull it over, it worth remembering that there is nothing new under the sun, claims about the non-partisanship of the USAO office notwithstanding.

Lyndon Johnson’s biographer, Robert Caro, relates a great story about LBJ’s attempt to win the support of liberal senators in his election as minority leader in 1952. (LBJ had the conservative Southern Democrats on his side, but wanted all the votes). According to Caro, LBJ looked to Nevada Senator Pat McCarran, who was then a target of an FBI investigation into his contacts with the Las Vegas mob. (In the Godfather movies, McCarran was morphed into Senator Pat Geary.)

McCarran wanted his friend, James Johnson, to be named the US Attorney by President Truman before he left office. The theory was that Johnson would protect McCarran by halting any further inquiries. But the President hated the Senator. By January 1 (before Ike's January 20th inauguration) Truman still had not signed the necessary papers. (Shades of Marb