Category Archives: Legal Profession
Apr 11, 2024 Rebecca RoipheLegal Profession
Nora Freeman Engstrom & James Stone,
Auto Clubs and the Lost Origins of the Access-to-Justice Crisis, 134
Yale L. J. __ (forthcoming 2024), availible at
SSRN (March 14, 2024).
Imagine a world in which you call AAA for roadside assistance after a fender bender and you can ask to be transferred to a lawyer to help you with your insurance claim. In their article, Auto Clubs and the Lost Origins of the Access to Justice Crisis, Nora Freeman Engstrom and James Stone bring back a past when this was reality and offer a vision for a future in which not only drivers but also others in need of legal services can find a fast, effective, and inexpensive solution to their problems.
Engstrom and Stone trace the origin of the contemporary unauthorized practice of law rules to disputes about auto clubs, staffed with lawyers, who helped members with an array of legal problems related to cars and roads. They draw on archival material to bring the reader back to a very different legal landscape. It is not always easy to use history in legal scholarship. If you aren’t engaged in an originalist interpretation of the Constitution or a statute, it is often not entirely clear how history can be relevant to a contemporary legal problem. The story that Engstrom and Stone tell, however, is so clearly useful. It helps expose the strict unauthorized practice of law rules as a contingent product of a self-interested bar interfering with the market, not a benevolent effort to protect the public from inept lawyering. By unearthing this dispute, Engstrom and Stone not only expose the selfish motivations behind the rules but also help us imagine a different future. By painting such a vivid portrait of a lost era of law practice, the authors make our contemporary approach seem less natural and inevitable, freeing the reader to follow a more creative path to the future of the profession. Continue reading "Cars, Bars, and the Delivery of Legal Services"
Feb 2, 2024 Amy SalyzynLegal Profession
What should new lawyers be required to promise, as a condition of entry into the legal profession? This inquiry raises existential questions about what it means to practice law. It can also prompt questions about the appropriate reach of lawyer regulation. Lawyer oaths—which are used to elicit promises from new lawyers in North America—should not be seen as merely symbolic and ceremonial (although they are certainly both these things). Lawyer oaths also intersect with core legal ethics questions. Thus, what is included in these oaths deserves our attention.
In Human Rights and Lawyer’s Oaths, Lauren Bartlett takes a deep dive into lawyer oaths, resulting in a comprehensive historical account of lawyer oaths in the United States, as well as a novel proposal for a way forward. In short, Bartlett contends that lawyer oaths can be “useful as a tool to build a dignified, respectful, and inclusive legal profession” but in order to function as such, “the unremarkable, irrelevant, inappropriate, discriminatory, and obsolete language in lawyer’s oaths must be removed and replaced by ethical guidance and aspiration” (P. 415). Bartlett points to human rights norms, specifically, as an optimal touchpoint for better aligning lawyer oaths with our current times. One potential benefit, according to Bartlett, is that human rights norms can point lawyers to more aspirational ethical and moral ideals than can be found in professional conduct codes, which tend to focus on minimum standards. Insofar as human rights norms transcend country borders and legal practice is increasingly globalized, Bartlett also argues that “legal ethics—and lawyer’s oaths in particular—should not stand out as separate from human rights” (P. 437). Continue reading "Out with the Old (Oaths): Lawyer Promises for a New Era"
Jan 11, 2024 Melissa MortazaviLegal Profession
Milan Markovic,
Charging Abortion, __
Fordham L. Rev. __ (forthcoming, 2024), available at
SSRN (September 13, 2023).
While Americans today are often starkly divided, they appear oddly unified in their general skepticism of American legal institutions. What was once countercultural is mainstream, as anti-establishment sentiment against “the system,” once reserved for hippies, is the common rallying cry of protesters and political leaders alike.
Enter Milan Markovic’s article, Charging Abortion, which makes a simple, unpopular, and therefore courageous point: maybe parts of the system can (and do) work. More specifically, this article makes the case that prosecutorial ethics can work to provide a thoughtful rubric to exercise principled discretion in difficult situations. Taking up the hot button issue of abortion (now in a post-Dobbs world,) Markovic tries to puzzle through a fundamental question: how should prosecutors opposed to criminalizing abortion individually do their jobs in anti-abortion states? Continue reading "A Radical Assertion"
Nov 21, 2023 Eli WaldLegal Profession
After the JD (AJD), is a national longitudinal study of legal careers in the United States, which tracked the professional lives of more than 4,500 lawyers during their first twenty years after graduating in 2000 and passing the bar exam. The first wave of interviews was done in 2002-3; the second wave in 2007; and the third wave in 2012-13. Subsequently, employment data for respondents has been updated through web searches through 2019. Some of AJD’s key findings are that female attorneys in every racial and ethnic group report higher levels of discrimination than their male counterparts; and attorneys of color, white women, and LGBTQ+ attorneys perceive high levels of workplace bias compared to white male attorneys and to respondents in other workplace studies.
Over the years, AJD researchers have published numerous articles reporting and discussing the study’s findings. Now, The Making of Lawyers’ Careers collects some of the study’s main findings. The book is organized in four parts: The Structure of Lawyers’ Careers, which revisits and explores the reality of lawyers in the United States clustering in individual and corporate “hemispheres” of practice; The Narratives of Lawyers’ Careers, which tells the stories of law firm, solo, in-house and government lawyers; Inequalities of Race and Gender, which investigates inequalities in the practice of law; and Public Roles and Private Lives, which studies public service, pro bono and lawyers’ satisfaction. Continue reading "The Making of Lawyers’ Careers"
Oct 30, 2023 Robert GordonLegal Profession
Michael Ariens has long been one of the best informed and most acute observers of the legal profession. His ambitious new book surveys the ethics of American lawyers from the Revolution to the present day. More precisely, it is a history of how lawyers talked about ethics in the nineteenth century, and of how lawyers and their organized associations, especially the American Bar Association, have tried to regulate ethics in the twentieth and twenty-first centuries. On these topics Ariens is extremely well-informed, and his footnotes are a comprehensive treasure trove of primary materials. He seems to have found almost every speech, tract, report, or regulation uttered by lawyers on the ethical principles that ought to define their professional identity, and on how lawyers actually live up, or fail to live up, to those principles.
Lawyers have always claimed to follow professional principles superior to their own commercial self-interest. In the early 19th century, Ariens says, American lawyers asserted that gentlemanly ideals of “honor” kept them from abusing clients or the public interest. Gradually talk of honor faded out, to be replaced with the more Protestant notion of individual “conscience” as the restraint on self-serving conduct. Lawyers deflected criticism onto scapegoats, blaming abuses such as meritless lawsuits or forensic trickery or defrauding clients on “pettifoggers”. Writers on legal ethics like David Hoffmann and George Sharswood advised lawyers to limit their zeal to avoid assisting injustice, deploring Lord Brougham’s famous advice that a lawyer must further a client’s interest to the utmost, heedless of harms to opposing interests or third parties. But, says Ariens, such strictures “did not match reality.” (P. 63). Lawyers argued they could be disbarred for bad behavior, but this rarely happened; a lawyer disbarred by one court could appear before another; and “neither the judiciary nor practicing lawyers showed much interest in disbarring venal lawyers to protect either the public or the profession’s claim to integrity during this time.” (P. 29). The public might be made uneasy by seeing famous advocates like Rufus Choate use courtroom wizardry to secure the acquittals of robbers and murderers, but lawyers assured their critics that such results were the unavoidable costs of assuring due process for everyone. Continue reading "A New History of Legal Ethics"
Sep 22, 2023 Sida LiuLegal Profession
In The Ghostwriters: Lawyers and the Politics behind the Judicial Construction of Europe, Tommaso Pavone provides a paradigm-shifting perspective on the roles of judges and lawyers in the development of the European Union’s legal system. Unlike many works in the legal profession literature that portray judges as the dominant figures and lawyers as subordinate, Pavone presents a compelling argument that lawyers, in fact, took the lead in constructing the laws and regulations of the European Union. Using 353 interviews with legal professionals across Italy, Germany, and France, as well as participant observation in national courts, Pavone offers a richly detailed account of how lawyers shaped the legal construction of the European Union.
Pavone’s book challenges the widely held belief, especially among Anglo-American scholars, that judges enjoy a high degree of autonomy and direct power to make law. In contrast to their common law counterparts, continental European judges are described in the book as legal bureaucrats who are occupied with routine tasks and face significant internal and external controls from the judiciary and other branches of the state apparatus. Pavone’s extensive interviews and fine-grained ethnographic accounts reveal that European judges were generally uninterested in legal innovation, particularly when it comes to the application of EU rules in the early years of the European Union. This finding contradicts the mainstream “judicial empowerment” thesis in the international law literature, which posits that the construction and dissemination of EU law were primarily the result of European judges’ judicial innovation. This is a key contribution of the first half of the book, shedding new light on the limited role of judges in the construction of the EU legal system. Continue reading "The Silent Heroes of European Legal Integration"
Aug 10, 2023 Nora Freeman EngstromLegal Profession
In Should Prosecutors Be Expected To Rectify Wrongful Convictions?, Bruce Green makes a compelling argument for why the titular question should be answered with a resounding “yes.”
To understand what is at stake, it’s best to start with a few statistics:
The National Registry of Exonerations identifies more than 3,000 wrongly convicted individuals who have been exonerated since 1989—likely a tiny fraction of the innocent men and women who have been made to serve time. Black individuals are up to 19 times more likely to be wrongly convicted of certain crimes than their white counterparts. Also chilling, “official misconduct”—most often involving the concealment of exculpatory evidence by prosecutors or their investigators—is present around 40% of the time. Continue reading "Innocence, Integrity, and Rule Reform"
Jul 12, 2023 Rebecca RoipheLegal Profession
As faith in government institutions plummets, the legal profession continues to ponder what it can do to reverse this trend. Bar association talks and panel discussions tackle what role the profession can play in upholding the rule of law and democracy. Most of these discussions are theoretical. Some are grounded in constitutional law and the rules of professional conduct, but few draw on empirical work to answer this critical question. Matthew Kim begins to fill this hole with his article, For Appearance’s Sake: An Empirical Study of Ethical Dilemmas in the Legal Profession, which draws on original data to identify when the public loses faith in lawyers and judges.
So much of the law governing lawyers rests on untested empirical assumptions. Kim questions some of these hypotheses and intuitions, drawing useful conclusions for lawyer regulation in the process. Kim asks when private lawyers, judges, and prosecutors ought to be sanctioned for the appearance of impropriety. He does so by setting out to understand what it is that leads the public to lose faith in the legal system. In other words, what sort of behavior by lawyers triggers a decline in confidence in the judicial process? Not only does his article begin to answer this relevant and pressing question, it also provides a roadmap for addressing similar unproven assumptions that form the cornerstone of the system of lawyer regulation. Continue reading "So it Seems"
Jun 14, 2023 Veronica Root MartinezLegal Profession
Jeremy Fogel, Mary Hoopes, & Goodwin Liu, Law
Clerk Selection and Diversity: Insights From Fifty Sitting Judges of the Federal Courts of Appeals, __
Harv. L. Rev. __, (forthcoming), available at
SSRN (Feb. 17, 2023).
Once upon a time, when I was a 2L at the University of Chicago, every student who wanted to clerk had to first meet with a professor on the clerkship committee. In anticipation for this meeting, my fellow students and I were required to identify a list of fifty judges that we were interested in applying to clerk for. The professor then provided advice and guidance on that list and each individual student’s likelihood of success of obtaining a clerkship based on the list presented.
I remember my meeting with the professor well. I was very frightened that he might tell me I didn’t have a chance at clerking, and I really wanted to clerk. My fear was, thankfully, unfounded, as he provided me with reasoned advice about the list of judges I had presented him with. My list, I think, may have looked different than that of some of my classmates because I had included every Black federal appellate court judge in the country. I specifically asked the professor about a few of these Black judges, and I remember him saying something like the following: “Most of the Black clerks in this country are hired by Black judges. Apply to them all.” Continue reading "A Better Understanding of How to Improve Demographic Diversity in Federal Appellate Law Clerk Hiring"
May 12, 2023 W. Bradley WendelLegal Profession
Andrew Perlman has made legal technology one of the themes of his successful deanship at Suffolk University Law School. He has also taken national leadership roles on law and technology issues, as the chief reporter of the ABA’s Commission on Ethics 20/20, with the charge of modernizing the Model Rules in light of globalization and digital technology, and as vice chair of the ABA Commission on the Future of Legal Services. He was selected as the inaugural chair of the governing council of the ABA’s Center for Innovation. Dean Perlman is therefore ideally positioned . . . to be replaced by a robot.
Many law professors have been playing around with ChatGPT, a chatbot released in November 2022. The developer, Open AI, an artificial intelligence research company, describes the chatbot on its website: ”We’ve trained a model called ChatGPT which interacts in a conversational way. The dialogue format makes it possible for ChatGPT to answer follow-up questions, admit its mistakes, challenge incorrect premises, and reject inappropriate requests.” One tweet, reproduced in an article on the technology, showed the output in response to the prompt, “Write a biblical verse in the style of the King James Bible explaining how to remove a peanut butter sandwich from a VCR.” I doubt that most humans – even a pretty good humor writer – could have done better. Anyone who follows law professors on Twitter has seen academics having a field day inputting their law school exams into ChatGPT or asking hard questions about technical areas of law to try to stump the system. In most cases, the chatbot has performed astonishingly well, providing not only technically correct answers but also demonstrating facility with style and rhetoric. ore ominously, a technology company CEO and a legal scholar had ChatGPT take the multiple-choice portion of the bar exam, the MBE, using the study questions published by the National Conference of Bar Examiners. The chatbot was correct on 50.3% of the questions, as compared with an average of 68% for human test-takers, and would have earned passing scores on the Torts and Evidence portions of the exam. Continue reading "The ChatBots are Coming!"
