Category Archives: Legal Profession
Apr 17, 2023 Francesca BartlettLegal Profession
The “baby boomers” of the English-speaking West are those born from the late 1940s to early 1960s, and, as the name suggests, there were a lot of them. Despite their advancing age, and recent COVID-19 threats, this generation remains the second-most numerous in the USA. In Australia—the subject of Angela Melville, Valerie Caines and Marcus Walker’s paper—the same generation dwarfed all others until very recently.Consequently, there are many aging lawyers leading to what has been described as an impending “senior tsunami.”
Melville, Caines, and Walker provide an analysis of the available data on the Australian legal profession to trace a range of intersecting concerns around its aging profession. This is the first analysis of its kind in Australia, and it is a clear and nuanced examination with some sensible recommendations. The study reflects the findings of the first and second Joint Committee on Aging Lawyers established by the National Organisation of Bar Counsel and the Association of Professional Responsibility Lawyers (NOBC-APRL), which noted:
there is a great number of lawyers with tremendous experience, insight and wisdom that can be shared with newer members of the bar. These same lawyers can devote themselves to valuable public service and improvement of the profession. The bad news is that there is an ever increasing risk of more lawyers with age-related impairments and insufficient preparation for transitioning away from practice before a crisis forces that transition. Continue reading "The Complex Picture of Aging Lawyers"
Mar 3, 2023 Amy SalyzynLegal Profession
- Cristie Ford & Quinn Ashkenazy, The Legal Innovation Sandbox, Am. J. Comp. L. (Forthcoming 2023), availible at SSRN.
- David Freeman Engstrom, Lucy Ricca, Graham Ambrose & Maddie Walsh, Legal Innovation After Reform: Evidence from Regulatory Change, Deborah L. Rhode Center for the Legal Profession, Stanford Law School (September 2022).
Legal innovation sandboxes have gained significant traction in North America over the last few years. In 2020, Utah was first to launch its legal regulatory sandbox and, in Canada, law societies in three provinces have subsequently launched sandbox initiatives in relatively quick succession (see, here, here and here). These developments follow earlier use of rule waivers and “innovation spaces” overseas by the Solicitors Regulation Authority (the regulator of solicitors in England and Wales) starting in 2016. All of this has taken place in the backdrop of sandbox use in other industries and professions, most notably in the financial technology (“fintech”) sector.
For readers not familiar with concept of a “sandbox”, the general idea is to offer opportunities for innovative providers to deliver services in a regulated industry in new ways. The sandbox model permits service delivery that would (or might) otherwise breach current rules due to, for example, a non-compliant business structure or means of delivery. Innovators generally participate in a pilot where they have the regulator’s permission to operate under certain specified conditions and with ongoing monitoring. Often, the regulator collects data during such pilots with the aim of informing future regulatory reform. Continue reading "What’s at Play? Learning about the Design and Impact of Legal Innovation Sandboxes"
Feb 1, 2023 Scott CummingsLegal Profession
Etienne Toussaint,
The Miseducation of Public Citizens, 29
Geo. J. Pov. L. & Pol’y 287 (2022), available at
SSRN.
In The Miseducation of Public Citizens, Professor Etienne Toussaint argues that, although the ABA’s Model Rules of Professional Conduct call for lawyers to be “public citizens” with a special responsibility to promote justice and protect the rule of law, the way that law is typically taught undermines these public goals. Specifically, he argues that the formalistic approach to teaching legal rules hides their role in creating and sustaining structural inequality in the legal profession and the broader society.
To counter this problem, Toussaint proposes new pedagogical principles designed to advance a justice-oriented conception of the lawyer’s public citizen role. In his words, for law schools to “engage the moral tensions between the lawyer’s professional role morality and the lawyer’s individual moral compass,” they must teach “public citizen lawyering” as a “countercultural vision of practice-readiness grounded by the normative responsibilities enshrined in the Model Rules.” (pp. 293-94.) These principles derive from the ethical rules—on candor, competence, legal reform, and communication—yet Toussaint reinterprets these ethical mandates to unlock the potential to equip students to fulfill their public citizen role. Continue reading "A Critical Approach to Legal Pedagogy"
Jan 3, 2023 Carole SilverLegal Profession
Juliet’s soliloquy notwithstanding, how naming happens and what you’re called matters in the legal academy. In Unentitled: The Power of Designation in the Legal Academy, Rachel López illuminates the ways in which faculty titles and their corresponding categories function as drivers of inequality – an inequality that is difficult to discern because it is presented as justifiable, enmeshed within a seemingly merit-based difference that in turn is framed by the regime of tenure. Titles reflect and create difference: they function as proxies for the hierarchy inherent in the world of legal academia, and at the same time structure expectations, interactions and opportunities while signaling status. Nevertheless, these same titles are at odds with the commonalities that increasingly cut across faculty categories, and they mask the impact of different policies and perceptions that fall particularly heavily on women of color, and women generally. (P. 924.) To address these effects, López offers several concrete suggestions for law schools pursuing an anti-racist agenda.
López’s positionality matters in making this case: she is a boundary crosser, having begun her career in a non-tenure clinical role and then purposefully moving into a tenure-line role, where, among other things, she has continued her involvement with clinical legal education through teaching and administration. This history of crossing categories enables her to perceive the “problem of academic exceptionalism in the legal academy—hierarchy and exclusion are others’ problems, not our own.” (P. 925.) The orientation in the legal academy towards preserving the power and centrality of tenure-line faculty, which extends from governance to resource allocation, can be blinding to those within the system who may not perceive inequalities embedded both in the functional differences attributed to particular faculty roles and in the notion of merit that is seen as the foundation of these categories. Continue reading "“What’s in a name?”: Titles and Entitlement in the Legal Academy"
Nov 18, 2022 Scott CummingsLegal Profession
New Legal Realism Goes to Law School is a chapter in a book on New Legal Realism (NLR)—a jurisprudential movement studying the role of law in everyday life through empirical methods—that takes on the specific question of how to advance the self-defined NLR aspiration to “integrate law and social science to form a truly interdisciplinary approach to law.” (P. 191.) In this piece, Taylor Poppe focuses on one possible way of advancing that goal: improving the teaching of empiricism (and interdisciplinarity through empiricism) in law school by not just training “empiricists to communicate with lawyers and legal scholars, but also…building the bridge from the other side.” (P. 192.) To do so, she argues that NLR “must convince legal scholars and practitioners of the value of interdisciplinarity and must ensure they are equipped with the skills and knowledge needed to engage with empirical data and analysis,” leading her to consider changing legal education through “the inclusion of training in empirical methods in the law school curriculum, the adoption of evidence-based inclusive pedagogy, and the integration of social science insights into the explication of legal doctrine.” (Id.)
Taylor Poppe begins by canvassing impediments to greater interdisciplinary integration. And this is something she is quite good at: crystallizing the existing landscape by pulling together different types of materials and showing how they work together to create interlocking barriers. For example, she lays aim at the ABA, which does not promote engagement with empiricism in its accreditation standards, and critiques “the formal and hidden curricula of law school and the dominant pedagogical techniques,” (P. 194) particularly the Socratic method and winner-take-all-exam, arguing that the “continued use of these methods despite awareness of their flaws represents a profound dismissal of empirical knowledge.” (P. 195.) This, along with the rejection of evidence-based policy analysis, results in law school teaching “future lawyers and legal scholars that law stands apart as a discipline, that conclusions about the functioning of law in the world do not require recourse to empirical evidence, and that neither law-making nor legal practice require fluency in methods of empirical analysis.” (Id.) Continue reading "A New Realist Perspective on How to Make Law School Better"
Oct 31, 2022 Nora Freeman EngstromLegal Profession
In Judges and the Deregulation of the Lawyer’s Monopoly, co-authors Jessica K. Steinberg, Anna E. Carpenter, Colleen F. Shanahan, and Alyx Mark make a surprising discovery, with significant implications for the current debate concerning the delivery of legal services.
To understand their paper—and why it’s so important—a bit of background is necessary.
Right now, across the United States, lawyers’ monopoly over the provision of legal services is getting overdue scrutiny—and, in some states, professional lines are in flux. Arizona, Washington, Minnesota, and Utah have licensed legal technicians, essentially nurse practitioners for law. In New York, a nonprofit provider called Upsolve has filed an innovative and well-coordinated legal challenge to curtail that state’s unauthorized practice of law restriction, insisting that the law, as applied, violates the First Amendment. And, in a number of other states, including California, Colorado, Michigan, and North Carolina, policymakers are exploring whether—and how—to welcome new legal service providers into the fold. Continue reading "Effective Deregulation: A Look Under the Hood of State Civil Courts"
Oct 19, 2022 Laurel TerryLegal Profession
In 2021, when the chair of the International Bar Association’s International Trade in Legal Services Committee (IBA ITILS) recommended that our committee prepare an information paper on climate change, my first reaction was, “isn’t this a bit far afield from lawyer regulation and ITILS topics?” After reading the available resources, including Professor Flatt’s article entitled Disclosing the Danger: State Attorney Ethics Rules Meet Climate Change, I became convinced that climate change is relevant to lawyer regulation and that this is a topic that legal ethics and legal profession scholars need to keep on their radar screens.
Professor Flatt, who is primarily an environmental law scholar, serves as the Co-Director of the University of Houston Law Center’s Environment, Energy, and Natural Resources Center. Disclosing the Danger reviews recent climate change developments and provides legal ethics scholars with important perspectives about the intersection of climate change and lawyer regulation issues. Continue reading "Is Climate Change Really a Lawyer Regulation Issue?"
Sep 19, 2022 Elizabeth ChamblissLegal Profession
Do lawyers engage in racial discrimination in client selection? This is the primary question Brian Libgober asks in his article, Getting a Lawyer While Black: A Field Experiment. The article presents a series of field experiments testing private practitioners’ responses to emails from potential clients with Black- and white-sounding names. In the first experiment, based on a sample of 96 criminal lawyers in California, the response rate to emails from Black-sounding clients seeking DUI representation was 19%, compared to 40% for white-sounding clients. (P. 76.) The quality of lawyers’ responses also varied in response to the client race signal. For instance, in response to otherwise identical requests, “Brad McCarthy” received an email describing California law, how it applied to his case, and possible legal strategies, whereas “Darnell Jackson” received one that said only “who referred you?” and another that said “Call our office at XXX-XXX-4DUI for an appointment. YOU HAVE JUST TEN DAYS TO CHALLENGE YOUR SUSPENSION.” (P. 78.)
Though race was the primary factor of interest, the first experiment also found significant differences in lawyers’ responses to client gender, with men receiving 50% more responses than women (37.5% versus 23%) and white men receiving the highest percentage of responses (50%). (PP. 76-77.) Interestingly, signals about client income (around $40,000 versus $80,000) were not significant in the overall sample; however, signaling higher income was significantly harmful for women. The response rate for higher-income women was only 16%, tied for lowest with Black women and Black, lower-income clients. (P. 77.) These income effects are “hard to view as a rational response to incentives.” (P. 79.) The lawyers in the first sample were “mostly white and male.” (Pp. 77-78.) Continue reading "Darnell, Latoya, Brad, and Laurie: Lawyers’ Responses to Email Requests for Representation"
Sep 19, 2022 Elizabeth ChamblissLegal Profession
Do lawyers engage in racial discrimination in client selection? This is the primary question Brian Libgober asks in his article, Getting a Lawyer While Black: A Field Experiment. The article presents a series of field experiments testing private practitioners’ responses to emails from potential clients with Black- and white-sounding names. In the first experiment, based on a sample of 96 criminal lawyers in California, the response rate to emails from Black-sounding clients seeking DUI representation was 19%, compared to 40% for white-sounding clients. (P. 76.) The quality of lawyers’ responses also varied in response to the client race signal. For instance, in response to otherwise identical requests, “Brad McCarthy” received an email describing California law, how it applied to his case, and possible legal strategies, whereas “Darnell Jackson” received one that said only “who referred you?” and another that said “Call our office at XXX-XXX-4DUI for an appointment. YOU HAVE JUST TEN DAYS TO CHALLENGE YOUR SUSPENSION.” (P. 78.)
Though race was the primary factor of interest, the first experiment also found significant differences in lawyers’ responses to client gender, with men receiving 50% more responses than women (37.5% versus 23%) and white men receiving the highest percentage of responses (50%). (PP. 76-77.) Interestingly, signals about client income (around $40,000 versus $80,000) were not significant in the overall sample; however, signaling higher income was significantly harmful for women. The response rate for higher-income women was only 16%, tied for lowest with Black women and Black, lower-income clients. (P. 77.) These income effects are “hard to view as a rational response to incentives.” (P. 79.) The lawyers in the first sample were “mostly white and male.” (Pp. 77-78.) Continue reading "Darnell, Latoya, Brad, and Laurie: Lawyers’ Responses to Email Requests for Representation"
Aug 5, 2022 Rebecca RoipheLegal Profession
Part of what makes David Luban so masterful is his ability to pose a critical question. After reading the first few sentences of his article, Complicity and Lesser Evils: A Tale of Two Lawyers, I immediately wanted the answer. Should lawyers participate in a corrupt or evil regime? Should they try to use their power to mitigate the damage or should they run in the opposite direction, knowing that obedience is support so no matter what they does they will end up responsible for the evil result? The answer to this question matters not only to give government lawyers guidance in the unlikely event that an evil regime takes over, but also to deepen understanding of the role of government lawyers in normal(ish) times.
Another thing that makes Luban so talented as a lawyer, academic, and philosopher is his ability to tell a story. Rather than answering the question he poses with philosophical rumination alone, he recounts the story of two lawyers who worked in the Third Reich. Some questions are hard to answer with logic and reason, citations to cases, or philosophical principle. This is one of them. The result of the story is that, when Luban does return to moral philosophy, its practical import is so clear, its human side so vivid that one hardly notices that it is, in fact, philosophy. Continue reading "Is Obedience Always Support? Government Lawyers in Evil Regimes"
