Category Archives: Legal Profession
May 16, 2025 Scott CummingsLegal Profession
Adam Chilton, Jacob Goldin, Kyle Rozema, & Sarath Sanga,
Occupational Licensing and Labor Market Mobility: Evidence from the Legal Profession (Aug. 23, 2024), available at
SSRN.
In Occupational Licensing and Labor Market Mobility: Evidence from the Legal Profession, Adam Chilton, Jacob Goldin, Kyle Rozema, and Sarath Sanga investigate the tradeoffs of state bar licensing requirements through the lens of bar exam waiver policies. These policies permit lawyers with a threshold level of experience to obtain a state bar license without having to sit for the bar examination, effectively “waiving in.” The authors use variation in state waiver policies as a natural experiment permitting empirical analysis of whether states allowing entry through waiver experience a decline in lawyer quality, measured in relation to metrics of lawyer discipline and law school status. The variation in policies arises because some states, like California, categorically do not permit waiver, while waiver states include those that are more restrictive (with “Reciprocity” policies requiring reciprocal waiver from the originating state) and less restrictive (with “Admission on Motion” policies permitting waiver without reciprocity).
The authors conceptualize waiver policies as creating “corridors” between states that are either closed or open and codes corridors based on waiver policies from 1983 to 2019. They examine lawyer bar admissions through these corridors based on Martindale-Hubbell directory information on the state and year in which each listed lawyer obtained license(s) (1.7 million observations through 2019). They then fold in data on lawyer quality, derived from a dataset of all lawyers for whom public discipline records are available during the relevant time frame (from a total of 37 states), added to which is information on law school attended (available for roughly 90 percent of lawyers in the dataset). The authors put in an impressive amount of work assembling these datasets and demonstrates ingenuity in using waiver policy variation to conduct the experiment. Continue reading "Do Bar Exam Waivers Hurt Lawyer Quality?"
Apr 16, 2025 Rebecca RoipheLegal Profession
Maya Steinitz,
Zombie Litigation: Claim Aggregation, Litigant Autonomy, and Funders’ Intermeddling, __
Cornell L. Rev. __ (forthcoming, 2025), available at
SSRN (Nov. 1, 2024).
There has been so much enthusiasm for litigation funding. Scholars have sung its praises: it will solve the access to justice problem; it is no different from insurance; if you find yourself balking at litigation funding it is probably because you secretly want big powerful corporations to get away with misconduct. I was always one of those shamed observers who had inchoate concerns about litigation funding but felt embarrassed to take the side of Goliath over David. In Zombie Litigation: Claim Aggregation, Litigant Autonomy, and Funder’s Intermeddling, Maya Steinitz has skillfully articulated these concerns and explained how the litigation funders themselves are often the Goliath, not the defendants whom they sue.
The profession has watched as litigation funding has changed the civil justice system, the market for legal services, and the attorney-client relationship. According to one recent study, there are about forty litigation funders worth about ten billion dollars in capital. By creating a market in claims that can be bundled and sold, more people and entities can bring lawsuits, law more closely resembles other commodities, the attorney-client relationship loses its centrality, and judges are increasingly marginalized. Some of these changes are good but others are more concerning. In this article, Steinitz argues that litigation funding and portfolio aggregation, which involves gathering a number of claims together into one funding vehicle, results in clients’ loss of autonomy over their cases. Litigation becomes another market commodity, like the bundled mortgages that contributed to the financial collapse in 2008, with lawyers as brokers and managers. This, Steinitz argues, is not in the interest of the public and inconsistent with core principles of the profession. Continue reading "Stopping the Zombie Apocalypse"
Mar 17, 2025 Carole SilverLegal Profession
International students have been a significant presence on U.S. campuses and in U.S. law schools for decades. They have accounted for 5% or more of overall enrollment in U.S. higher education each year since 2015 (with the exception of the 1st year of the pandemic) and 3% or more since 1992. While trends in the law school context are difficult to discern (more about this below), it is clear that international students have been an important element in U.S. legal education since at least the late-1990s, when schools began to increase the number and size of degree programs aimed at international students. Between 2012 and 2021, for example, nearly 60,000 unique individuals obtained a visa to study in an ABA-approved law school. It is not clear what impact the second Trump administration will have on this dynamic, particularly because of visa delays and uncertainty about OPT, but the rhetoric against international individuals in the first Trump administration did not substantially dampen mobility into the U.S. for law school until the pandemic.
While law schools and universities have grown reliant on the contributions of international students to the intellectual life of their institutions, to their financial well-being and to their global reputations, there is very little understanding of the identities and experiences of these students, including where they’re from, who pays for their education, their bar exam aspirations (much less results) and even the number of international students studying in particular law schools.
Kathryn Hendley and Alexander Straka aim to shed light on these issues in their new article, International Students from the Perspective of U.S. Law Schools. The article analyzes data they collected from 81 law schools during the spring of 2019 (that is, just as law schools and universities were shifting to online classes because of COVID) by surveying the administrators managing international students. (P. 61.) Their focus is on international students enrolled in LLM and other non-JD degree programs as well as non-degree students such as visitors. (P. 68.) The LLM remains the degree program that attracts the largest share of international students. Hendley and Straka found that “[w]ell over half [of the responding law schools] told us that…[LLM programs] accounted for 80 percent or more of their foreign students.” Continue reading "Who’s Here? How U.S. Law Schools Understand Their International Students"
Feb 20, 2025 Melissa MortazaviLegal Profession
“Civil lawsuits—especially class actions and multidistrict litigation (MDL)—can be messy and complicated,” (P. 49) Professor Seth Endo begins his lucid article, Ethical Guardrails to Unbounded Procedure, which is anything but messy and provides a deceptively simple solution to a complicated area of law. Here, Professor Endo sinks his teeth into the question of how judges should approach areas of civil procedure where the Federal Rules of Civil Procedure (FRCP) provide little guidance, biting off a meaty chunk of the beast that is the wild west of MDL complex litigation as his primary illustrative example. His solution? To give teeth to a body of legal authorities already in existence and largely previously ratified by the courts: that of professional-conduct rules.
Professor Endo sets his target on “common-benefit” fees, specific fees afforded to a subset of lawyers in MDL who are members of plaintiffs’ steering committees (PSC), to compensate them for litigation coordination. These fees spring from a void left in procedural rules and statutes. These fees are highly controversial, both for affording attorneys’ fees that are disproportionately high compared to plaintiffs’ recovery and because the composition of MDL leadership positions has often been under representative of both the demographic composition of the bar and the plaintiffs. As an example, Professor Endo highlights the Propulsid litigation against Johnson & Johnson where common benefit fees amounted to approximately twenty-seven million dollars in contrast to plaintiffs’ recovery at under seven million dollars. (P. 52.) In that case, the seven member PSC was entirely composed of white men despite a “disproportionately large percentage” of the plaintiffs being female. (P. 53.) These types of facts, coupled with the courts’ underutilization of traditional forms of lawyer sanctioning in MDL cases, gives the damning impression that courts use these fee structures and lucrative appointments at best to control and manipulate lawyer conduct to privilege expediency and out of court resolution of claims, and at worst to fall prey to bias and reward powerful lawyers at the expense of injured clients and less well-connected attorneys. Continue reading "Seeing the Unseen: Procedural Solutions in Plain Sight"
Jan 29, 2025 Amy SalyzynLegal Profession
New kid on the block. Legal ethics, as a scholarly discipline, has long been referenced in relation its youth—and, fair enough, given its relatively recent emergence in the United States in 1970s and even later arrival in other countries. But another story about legal ethics also exists. This is a discipline that has, over the last several decades, clearly come of age. We now have an extensive body of scholarship full of rich, diverse writings and lively conversations. While the full breadth of legal ethics is beyond any one book, we are fortunate to get a captivating snapshot of the field in the recently published Leading Works in Legal Ethics, edited by Julian Webb.
Leading Works aims not to identify “canonical” works but rather to allow scholars to explore what they personally view as a “leading work.” The result is a vibrant tapestry. Individual chapter authors bring their own unique threads to the collection—some of anticipated hues, while others wholly unexpected. Continue reading "New Kid No Longer: Tracing Legal Ethics’ Growth and Charting its Future"
Dec 12, 2024 Robert GordonLegal Profession
A Senator or editorial or public personality or group of protestors expresses outrage that a lawyer or law firm undertakes to represent bad people or corporations pursuing bad ends. Bradley Wendel, the eminent legal-ethics scholar and legal philosopher, notes that “lawyers patiently…respond that representing apparently-evil or distasteful clients is what lawyers do” and should do. He adds: “This [response] happens every. single. time.” (P. vi.) The response expresses what legal ethics scholars call the “nonaccountability principle.” So long as lawyers represent their clients competently and within the boundaries of the law and legal ethics rules, they should be beyond criticism and reproach. The principle usually is accompanied by an instrumental rationale: If lawyers are tainted by their clients’ apparent moral failings, they will be less willing to take on unpopular clients and causes, and justice and the common good will suffer. In Canceling Lawyers, Wendel brings a sharp analytic intelligence, a clear and engaging prose style, and a repertoire of hundreds of examples and case studies to bear on the standard response. He finds the response severely wanting, yet ends up at a pretty similar bottom line.
Readers will find all the familiar cases here: The Cravath firm lawyers who represented Credit Suisse in litigation against heirs of Jews who claimed the bank had laundered treasures looted from their families by Nazis. The Harvard housemaster who volunteered to help defend Harvey Weinstein from rape charges. The Black ACLU attorney who defended the KKK against compelled disclosure of its membership list. The Gibson Dunn firm that represented an oil company alleged to be polluting indigenous land and peoples in Ecuador. The Kirkland & Ellis firm that gave up representing gun manufacturers in the face of pressure from other clients, against the objections of a partner who left the firm in protest. The law student boycott of the Paul Weiss firm for its representation of ExxonMobil. The government lawyers who justified torturing suspected terrorists in the Bush (Jr.) Administration. And many, many more. Continue reading "Should Lawyers be Accountable for their Clients?"
Sep 24, 2024 Elizabeth ChamblissLegal Profession
It is an exciting time for access to justice and access to justice research. Jurisdictions around the country are experimenting with new models for expanding access to legal assistance by training nonlawyer advocates and advisors to provide limited legal services in areas of high unmet need. Such models range from for-profit programs for specially trained paralegals to not-for-profit community-based programs using a variety of staffing models. Research on such programs is growing and becoming more organized, rigorous, and impactful. Finally, after decades of resistance to new categories of providers, regulators are beginning to pay attention to evidence about the limits of the lawyer-only model and possible benefits of expansion.
The question now is, how are these programs working? And what should be the criteria for assessment? How might we move beyond case-by-case, after-the-fact program assessment based on the number of intakes and outcomes and incidents of demonstrable harm, toward a more robust, comparative framework for research? Two new articles tackle these questions by proposing specific evaluative criteria, measurement strategies, and sources of data to guide researchers and policymakers in program evaluation and design. Continue reading "Evidence-Based Innovation: Criteria for Evaluating Lay Legal Assistance Programs"
Jul 26, 2024 Scott CummingsLegal Profession
Ann Southworth is a pioneering scholar of the conservative legal movement. Her 2008 book, Lawyers of the Right: Professionalizing the Conservative Coalition, offered path-breaking insights into the evolution of the movement, charting its origins, features, and fractures. Her new book, Big Money Unleashed: The Campaign to Deregulate Election Spending, is a worthy—and timely—successor that explores one facet of what the movement has achieved. In it, Southworth examines the decades-long legal campaign to transform the First Amendment into a vehicle to enable unfettered corporate influence in politics. This campaign culminated in the 2010 Supreme Court case, Citizens United v. FEC, which gave corporations the right to spend unlimited amounts on candidates for political office, overruling precedent to strike down a critical provision of the Bipartisan Campaign Reform Act 2002 (BCRA), otherwise known as the McCain-Feingold law.
Southworth’s aim is not to explain or defend the doctrine resulting from this campaign, but rather to uncover the “process that generated” it. (P. 2.) She does so by analyzing “how lawyers and other key actors worked with the justices to create that law, borrowing a litigation strategy pioneered by the NAACP Legal Defense Fund to dismantle racial segregation and using it to advance a very different type of cause.” (P. 2.) Southworth mobilizes a trove of primary research, which includes data on the political alignments and financial supporters of organizations filing briefs in Roberts Court campaign finance cases (Citizens United (2010), Arizona Free Enterprise Club v. Bennett (2011), and McCutcheon v. FEC (2014)), language analysis of arguments in briefs filed in twelve Supreme Court cases since the 1970s, and interviews with fifty-two lawyers who participated on both sides of the campaign. It is a testament to Southworth’s careful scholarship and status as a scholar both sides respect that she was able to gain access to lawyers on this deeply polarizing political issue. Continue reading "How the Conservative Legal Movement Gave First Amendment Rights to Corporations—and Why It Matters Now"
Jun 28, 2024 Nora Freeman EngstromLegal Profession
In Ethics, Lawyering, and Regulation in a Time of Great Change: Field Notes from the (R)evolution, Lucian Pera depicts a profession caught in a storm of transformation, both driven by—and driving—the “twin factors” of economic and regulatory change. (P. 802.) In the midst of this rapidly shifting environment, and as some states (most notably, Utah and Arizona) relax their legal practice regulations while most others cling to the traditional rules, the two modes of regulation will invariably collide. In a timely and accessible piece, Pera maps this collision, unearths under-explored complexities, and offers tentative thoughts on a possible path forward.
At the center of Pera’s contribution is the alternative business structure (ABS), variously called nonlawyer ownership (NLO), corporate law practice, or multidisciplinary practice (MDP). Whatever term or abbreviation is used to describe it, in this arrangement, a nonlawyer-owned or nonlawyer-controlled entity offers legal services to consumers or customers. This form of practice flourished in the 1920s in the United States (until it was snuffed out by the bar), and it has been around for a while in the U.K. and Australia. But it is viewed skeptically (to put it mildly) in most states. Continue reading "When Worlds Collide: Mapping the Collision Between Lawyer Regulatory Regimes"
May 3, 2024 Eli WaldLegal Profession
One of my favorite “classes” at law school was not a class at all. Once a week, along with dozens of other seemingly busy law students, I would head to Pound Hall to hear eminent international law professor Joseph Weiler lead an informal bible reading group. Two aspects of the reading group were especially intriguing: the analysis of the Old Testament from the perspective of “thinking like a lawyer” and the group’s inclusivity. All were welcomed and no prior knowledge or experience was required. The only thing one was expected to do was read the weekly portion ahead of the gathering. The reading group carried no credit and yet regularly it was standing room only. People attended because it was a fun intellectual exercise. It was a highlight of my days at Harvard Law School.
Daphne Barak-Erez’s new book, Biblical Judgments, reminds me of the old law school reading group. Barak-Erez invites readers to “think about law and legal institutions by a rereading of the Hebrew Bible,” revisiting hidden assumptions underlying, and testing correlations to, contemporary legal systems. (P. 1). The manuscript explores excerpts from the Old Testament to illuminate contemporary challenges confronted by lawyers in six areas of law practice: law and government, judging and judges, human rights and social justice, criminal law, private law, and family and inheritance. My favorite section is Part III, dealing with individual rights and social justice. It tackles topics such as discrimination, harassment, and racism, not shying away from acknowledging the limitations of pursuing social justice back in Old Testament times and—in what is one of the book’s important takeaways—now. Turning to the old text, Barak-Erez effectively mines new, refreshing, and often surprising insights, compelling readers to revisit and rethink their own perspectives and convictions. The analysis of the principle of “an eye for an eye,” (pp. 247-48), is a typical gem, arguing persuasively that retribution is not only a justification for imposing liability but also at the same time a call for proportionality and limiting the scope of liability. Continue reading "Biblical Insights for Lawyers"
