Monthly Archives: June 2013

Late-Night Law Firms

Nora Freeman Engstrom, Sunlight and Settlement Mills, 86 N.Y.U. L. Rev.  805 (2011).

Every year, I ask the students in my torts class whether any of them came to law school because they wanted to practice tort law. So far, only one has said yes. And she planned to join her father’s personal injury practice, so that was something of a special case.

This is not surprising. An awful lot of my students do not know what tort law is, at least not at the start. And those that know what tort law is tend to associate it with the lawyers that advertise on late-night television. Though most first-year students do not know what they want to do, they do know that they do not want to be one of those lawyers, whom they take to occupy the bottom rung of a profession that is not held in all that high esteem anyway. It is a constant struggle to get my students to see that there is more to tort law than those late-night lawyers.

But it turns out that those late-night lawyers may not deserve the scorn that they get. In Sunlight and Settlement Mills, Nora Freeman Engstrom argues that firms like the ones that advertise late at night have developed practice models that achieve many of the aims that reformers have for no-fault accident compensation schemes. They deliver compensation cheaply and quickly, because they settle almost every claim and nearly never go to court.  They resolve claims predictably and consistently, on account of cozy relationships with insurance adjusters that lead to a shared sense as to what different sorts of claims are worth. And perhaps most important, they increase access to justice, offering representation to clients with meritorious claims who would otherwise not seek lawyers or find ones willing to pursue their low-value claims. Continue reading "Late-Night Law Firms"

The Real Legal Realism

Karl N. Llewellyn, The Theory of Rules, edited and with an introduction by Frederick Schauer (Univ. of Chicago Press, 2011).

Llewellyn began this book in 1938 in response to mischaracterizations of his views about legal rules. After working on it for two years, he set it aside unfinished. Mouldering for decades among the rest of Llewellyn’s papers at the University of Chicago, it has finally been published, with a masterful introduction and set of notes by Fred Schauer.  Although the book offers many valuable insights about what this prominent legal realist thought about legal rules, my emphasis here will be on how it might help put to rest two persistent misreadings of the realists.

The first is that the realists believed in global legal indeterminacy—that they thought legal rules can never (or only rarely) give judges sufficient guidance to come to a particular decision. This misreading is evident in H.L.A. Hart’s critique of “rule skepticism” in Chapter VII of The Concept of Law. The Theory of Rules is a useful corrective, for Llewellyn repeatedly insists that legal rules can, and often do, meaningfully instruct judges about how cases should be decided (e.g., Pp. 40-41, 46-47). What is more, he identifies the likely source of the mistaken view that the law is globally indeterminate—the tendency of legal scholars to concentrate on cases that make it to appellate review. (P. 47.) Here Llewellyn’s book supports Brian Leiter’s reading of the realists, for Leiter has argued tirelessly that the realists were not global legal indeterminists (e.g., Pp. 19-20 of Naturalizing Jurisprudence). Continue reading "The Real Legal Realism"

“Creative Destruction” and the Legal Services & Legal Education Markets

Ray Worthy Campbell, Rethinking Regulation And Innovation in The U.S. Legal Services Market, 9 N.Y.U. J.L. & Bus. 1 (Fall 2012).

If you are like me, you have started to notice—more and more frequently—expressions such as “creative destruction,” “creative disruption,” “disruptive innovation,” and “positive disruption.” Two recent examples include the TEDxCHANGE 2013 event held in April in Seattle which had the theme of Positive Disruption and a January 2013 Harvard Business Review blog entry entitled Creative Destruction Visits the Legal Profession. These terms have also appeared in conferences (see Panel 1) and talks at places such as Georgetown and Harvard law schools and in blog posts by higher education leaders, legal academics such as Bruce Kobayashi, and legal consultants such as Jordan Furlong (see here and here [legal education] and here, here, and here [legal services]). Disruptive innovation has been a prominent theme in the award-winning LawWithoutWalls program, which was founded by Michele DeStefano and Michael Bossone from University of Miami School of Law and in the ReInvent Law Laboratory, which is a creation of Michigan State Professors Dan Katz and Renee Knake.

During the past five years, as I have noticed more and more people using expressions such as “creative destruction,” I wondered what class or book I had missed since the speakers all seemed to know much more about this topic than I did. For this reason, I was particularly pleased to read Professor Ray Campbell’s new article entitled Rethinking Regulation and Innovation in The U.S. Legal Services Market because it provided the historical and theoretical background behind these expressions and because it gave me a new way to think about changes taking place in the legal services and legal education markets. Continue reading "“Creative Destruction” and the Legal Services & Legal Education Markets"

Property and (Not “vs.”) the State

Richard R.W. Brooks and Carol M. Rose, Saving the Neighborhood: Racially Restrictive Covenants, Law, and Social Norms (Harvard University Press, 2013).

One of my favorite cases is Shelley v. Kraemer (1948), which held that racially restrictive covenants (restrictions barring a racial or ethnic group(s) from owning a home in a particular neighborhood) were unenforceable. In fact, I use this case, along with State v. Mann, Commonwealth v. Alger, and Johnson v. M’Intosh, to help frame my Property course. I use Alger and Johnson to get my students to think about the statist dimensions of property. I then bring in Shelley to explore the relationship between courts and the state, pushing them to see how a judicial decision concerning property rights is an allocation of those rights by the state. Richard Brooks and Carol Rose’s book, Saving the Neighborhood, is a wonderful doctrinal history of Shelley that both confirms and complicates the story I tell my students. More importantly for this piece, it also complicates our understanding of an important period in American legal history.

Saving the Neighborhood charts the rise, fall, and curious persistence of racially restrictive covenants. What particularly grabs Brooks and Rose’s attention is Shelley’s failure to eradicate these covenants. Their persistence is illustrated dramatically by the discovery during Justice Rehnquist’s confirmation hearings for Chief Justice that he owned properties subject to racial covenants (pp. 1-2). This persistence leads Brooks and Rose to an exploration of the relationship between law and social norms. They argue that the covenants’ utility was more about signaling to both insiders and outsiders who was desirable as a neighbor than it was about enforceability. Covenants assured those already within the neighborhood, while warning out racial others who might want to move into it. Continue reading "Property and (Not “vs.”) the State"

Taxation and the Family: The Next Generation

• Anne Alstott, Updating the Welfare State: Marriage, the Income Tax, and Social Security in the Age of the New Individualism, Tax L. Rev. (forthcoming, 2013) available at SSRN.
• Shari Motro, Preglimony, 63 Stan. L. Rev. 647 (2011).

The tax treatment of marriage, children, and the family unit has attracted increasing attention in the past few years. The most dramatic example is the same sex or “gay marriage” phenomenon, where academics—Patricia Cain and Anthony Infanti come particularly to mind—have frequently anticipated real-world developments. But taxation of heterosexual couples is stuck in a similar time warp, and scholars have been no less aggressive in trying to catch up.

Two authors in particular have done provocative work in this area.  The first, Anne Alstott, has a long track record: her book “No Exit” describes the unique phenomenon that is motherhood and the need for tax, spending, and social policies to recognize that uniqueness.  In a more recent article, “Updating the Welfare State: Marriage, The Income Tax, and Social Security in the Age of the New Individualism,” Alstott focuses specifically on the tax component.  She argues that, because of the overall decline in marriage and the concentration of marriage among higher-income groups, it is no longer appropriate to organize the taxation of families around the existence of the marriage relationship. The most obvious implication is that joint returns should be repealed and replaced with separate, individual returns or (more ambitiously) with combined returns for households whether or not organized by marriage. The social security system would likewise be amended to replace spousal benefits with a system that emphasized caregiver relationships.  Many additional portions of tax and nontax law would require similar adjustment: Alstott does not purport to provide a complete list but rather to focus attention on the paradigm shift from which these changes would flow. Continue reading "Taxation and the Family: The Next Generation"