Category Archives: Legal Profession
Mar 19, 2020 W. Bradley WendelLegal Profession
Charles Yablon writes mostly in fields adjacent to Professional Responsibility, such as civil procedure and jurisprudence. However, as a junior associate at a big law firm in the mid-1990s, I found his article on discovery abuse to be refreshingly clear-eyed and unsanctimonious about an ethical problem that was pervasive in my own practice. Ever since then, I have considered him as a kind of honorary legal ethics scholar. It was therefore with considerable interest that I noticed his new paper on providing legal assistance to clients in activities he refers to as “not quite legal.”
Permissible legal assistance to businesses in the emerging cannabis industry is becoming a popular CLE topic (I am presenting a seminar this summer entitled “High above Cayuga’s Waters?”). The discussion is usually framed around Model Rule 1.2(d), which states that a lawyer may not “counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent.” Even in a state in which medical or recreational use of cannabis products is permitted under state law, a dispensary or other business is still committing a serious federal felony of possession and distribution of a controlled substance. The on-again, off-again practice by the Justice Department of turning a blind eye to marijuana-related offenses in legal-use states raises an interesting jurisprudential issue. Yablon argues that the formal legal prohibition on the possession or sale or marijuana “should not be treated as the sole dispositive fact” regarding its legality. (P. 345.) Continue reading "Disruptive Innovation Inside the Bounds of Law?"
Feb 20, 2020 Veronica Root MartinezLegal Profession
- Atinuke Adediran, The Relational Costs of Free Legal Services, 55 Harv. C.R.-C.L. Rev. __ (forthcoming, 2020), available at SSRN.
- Atinuke Adediran, Solving the Pro Bono Mismatch, __ U. Colo. L. Rev. __ (forthcoming, 2020), available at SSRN.
One of the things that struck me most early on in law school was the notion that some paths were considered more elite and desirable than others. I simply didn’t understand why my classmates were obsessed with particular opportunities. That was, until I attended a diversity reception at a large law firm during my first year, where someone mentioned the starting salary for lawyers (at the time $125,000). Suddenly, I understood why law students seemed so desperate to secure jobs at large law firms after graduation.
As it turns out, those running elite, large law firms understand that some law students experience a conflict when deciding on what path to take after graduation: pursue the money and perceived prestige associated with the work done by large law firms or fulfill a desire to help people without easy access to legal services. It is important, at least in part, for there to be strong pro bono initiatives at elite large law firms because they enable talented attorneys to pursue both goals in tandem. Atinuke Adediran’s recent work, however, challenges the efficacy of that narrative. Continue reading "Legal Elites Serving the Poor (or Not?)"
Jan 20, 2020 Melissa MortazaviLegal Profession
Legal scholarship that creates new avenues of inquiry is inherently appealing, but when it also reveals obscured narratives of power in American society, you have the makings of a truly important contribution. Shortlisted: Women in the Shadows of the Supreme Court, by Hannah Brenner Jonhson and Renee Knake Jefferson, is all that and an engaging read besides. In their book, Brenner and Knake resurrect the largely forgotten history of accomplished female lawyers nominated but not selected for the Supreme Court. As these narratives highlight the pitfalls of being shortlisted rather than selected, Brenner and Knake’s work queries whether the term “shortlisted” is pejorative rather than a boon for female candidates. The authors present the harm of historical obfuscation as compound: “it is not just that the women were denied positions of distinction, but that their tales have been subjugated…unfairly stifl[ing] national imagination.” (P. 133.) Compiling this history and bringing it forward alone would be enough to make the book worthwhile—but the project doesn’t stop there. Instead, Shortlisted also ambitiously engages with the question of how to sidestep such marginalization moving forward.
Throughout the book, stories of highly qualified female candidates who are summarily eliminated from contention or only facially considered for political cover pulls the distinction between consideration and appointment into stark relief. (One reporter quoted in the book notes, “The women…reflect another White House strategy: mentioning certain names to score political points, while not taking them seriously as contenders.”) (P. 122.) The book begins with a deep dive into the life of Florence Allen, a jurist “universally respected” for her work ethic and intellect, who was shortlisted by President Truman. She is not only the first person on the shortlist—in a way, she bookends Sandra Day O’Connor—but her downfall became Justice O’Connor’s entrée. Before nominating Judge Allen, Truman consulted with then-Chief Justice Fred Vinson about her potential nomination. Chief Justice Vinson negatively responded that the presence of a woman would inhibit needed deliberations amongst the men. As such, Judge Allen’s nomination stalled; she was shortlisted, more of an end game than a path forward. Only with this context, can one truly appreciate the weight that the law school friendship between Chief Justice Rehnquist and then-nominee Sandra Day O’Connor played in history. If the two hadn’t been friends, would history have been different? Continue reading "An Honor or a Curse? The Untold Story of Shortlisted Female Jurists"
Dec 20, 2019 Scott CummingsLegal Profession
The conventional wisdom has long been that law school, especially at the elite level, is a hostile place for students aspiring to pursue public interest careers—those whose professional goal is to serve a larger social cause, not just individual clients. The concept of public interest “drift,” coined by Robert Granfield in his seminal study of Harvard Law School students in the early 1990s, held that students who started on the public interest path dropped off in substantial numbers due to a range of law school factors. Key among them was the ideological transformation that occurred during the 1L year: when students were subtly taught to abandon their moral commitments in favor of a hired-gun professional ethos. Duncan Kennedy’s classic polemic, Legal Education and the Reproduction of Hierarchy, provided a nonempirical vision of this same phenomenon, identifying the pedagogical mechanisms through which 1Ls were asked to submit to a “double surrender” to the infantilizing 1L classroom experience of deference to the professor and to a more profound nihilism: that there is no right or wrong, only arguments to be made.
In a powerful new empirical analysis, From Idealists to Hired Guns? An Empirical Analysis of “Public Interest Drift” in Law School, John Bliss upends this conventional wisdom by showing how 1L public interest identity is more ill-defined and pliable than often thought and by placing more emphasis on the 2L hiring cycle than the 1L classroom experience as the crucible of assimilation. Methodologically, Bliss selects a different empirical design than previous “drift” research. Instead of using surveys to assess attitudinal change, he followed over 50 elite law school students during the first two years of law school: using interviews, ethnographic observations, and identity mapping (a technique in which he asked students to graphically depict the centrality of different identities to their sense of professional self). (P. 1990.) In addition to deploying a different methodology, Bliss also looked at the law school timeline through a different lens, assessing attitudinal change during the first two years of law school and focusing particular attention on the 2L summer hiring process. Four facets of his analysis stand out. Continue reading "How Does Law School Matter in the Pursuit of Public Interest Careers?"
Dec 6, 2019 Amy SalyzynLegal Profession
Elizabeth Chambliss,
Evidence-Based Lawyer Regulation, 97
Wash. U. L. Rev. 297 (2019), available at
SSRN.What should a modern legal service regulator look like? In some jurisdictions, like England and Wales, this question has resulted in dramatic reforms, such as taking the power of self-regulation away from lawyers. In contrast, much of the regulatory change in North America has involved relatively low-hanging fruit. Some new duties have been incorporated into codes of conducts, some economic restrictions have been lifted, and certain processes have been professionalized. There hasn’t been, however, any radical change.
For many years, the North American legal profession has defended this regulatory stasis with relatively simple appeals to broad concepts such as the “independence of the bar,” “the public interest,” and “professionalism.” In her recent article, Evidence-Based Lawyer Regulation, Elizabeth Chambliss argues that this approach is no longer sustainable and that “the profession’s authority over the regulation of legal services increasingly will require a commitment to evidence-based regulation.” In other words, if the legal profession wants to introduce—or even maintain—regulatory policies, it must offer convincing empirical data in support of such policies rather than simply lean on well-worn rhetoric. Continue reading "Building Better Lawyer Regulators"
Nov 12, 2019 Robert GordonLegal Profession
Richard Abel is the most prolific, as well as the most eminent, scholar of legal professions. Among many other books, he has written a detailed and moving study of the handful of courageous South African lawyers who challenged the apartheid regime. He has unearthed documents from lawyer disciplinary proceedings to uncover new lessons about lawyer deviance. And he has now completed two massive volumes on the Bush and Obama Administration’s anti-terrorism policies in the wake of the 9/11 attacks, the legal means employed to carry them out, and the legal responses to them. Law’s Wars deals with detention of suspected terrorists at the Iraqi prison of Abu Ghraib and at Guantanamo Bay, interrogation, electronic surveillance, and law of war on the battlefields of Iraq and Afghanistan. Law’s Trials covers many of the legal proceedings resulting from counter-terrorist measures: criminal prosecutions in ordinary courts, military commissions, and courts-martial (of U.S. personnel), and the various legal challenges to all of the above, such as habeas corpus petitions, civil damages actions, and civil liberties complaints.
The books are intended to be comprehensive, and they are. The genre that they most resemble is that of reports of Truth Commissions established after mass atrocities to give a meticulous account of events, perpetrators, and victims, to ensure that a record is made and that collective memory of events is preserved as an instruction and warning to later generations. See, e.g., Report of the Chilean National Commission on Truth and Reconciliation. Those reports, however, are typically the product of multi-member bodies employing large research staffs. Rick Abel is just one tireless, persistent Recording Angel. His chapters relate every relevant incident—in every relevant detail—of the events he covers, including not only records of proceedings and official reports, but contemporary comments by administration officials, politicians, leading newspapers, academics, and NGOs. His prose is undramatic yet sharp and crisp; the sentences as lucid as pebbles dropped into a clear mountain stream. For the most part, he adopts the role of objective reporter, but in concluding sections to every chapter, he discloses his own analysis and his own judgments. Continue reading "Lawfare in the “War on Terror”"
Oct 24, 2019 Carole SilverLegal Profession
The new Global 100 law firm ranking is out, and it reports that Big Law is thriving. Despite challenges and change experienced by elite law firms, there is a continuing—indeed growing—appetite for the work of Big Law’s global actors. For example, gross revenue for the firms on the list grew by more than 8% in 2018, “a step up from 2017’s already robust 6.7% growth and a showing that dwarfs the 2.8% and 3.1% growth from the two preceding years. These firms brought in a collective $114.2 billion, more than the 2018 gross domestic product of Ecuador, the 60th largest economy in the world.” And despite the turbulence over the last decade in the market for legal services in which Big Law participates, these law firms have deepened their footprint internationally: the firms on the Global 100 list have added nearly 200 additional offices outside of the U.S. and more than 6,600 lawyers during the decade ending in 2019.
But what does it mean to be a global “firm” for purposes of the Global 100? Most law firms on the Global 100 reflect an organizational structure that uses offices as the connective tissue of the firm, but the notion of a law firm as a coherent organization glosses over important differences that suggest the rankings of firms are as much about pretense as reality. Jing Li takes on this topic in a new article, All roads lead to Rome: Internationalization strategies of Chinese law firms, where she analyzed the websites of 123 China-based law firms in order to assess how their internationalization strategies compare to the expectation of the one-firm-integrated-office model. Continue reading "Global Rankings of Global Firms and the Distance between Formality and Reality"
Sep 17, 2019 Sida LiuLegal Profession
Law school graduation is a critical turning point in the early career of legal professionals. Going to the public sector or to private practice marks two distinct career tracks, in both common law and civil law jurisdictions. However, research on legal education and the legal profession usually focuses on either a lawyer’s law school experience or her legal career after graduation, with little effort to capture this key moment of transition. Even recent studies aimed at bridging the gap, such as the American Bar Foundation’s After the JD study or John Bliss’s research on the professional identity of law students, have not yet analyzed law students’ professional or political orientations at that crucial moment, right before their graduation.
Kathryn Hendley’s new article on Russian law graduates helps fill in this gap. Based on a 2016 survey of 2,176 prospective graduates from 163 law departments or faculties across the vast territories of Russia, Hendley shows that law students who plan to go to state service and private practice markedly differ in terms of their support of state policies, attitudes toward courts and lawyers, as well as opinions on political cases. This is a remarkable study, especially considering the difficulty in obtaining empirical data in authoritarian regimes like Russia. It suggests that lawyers’ professional identities, political orientations, and career choices have deep roots in their educational years. In other words, early career choices and professional/political values go hand in hand. Those law students who are more supportive of the regime and the courts are more likely to go into public service. By contrast, law students who choose to start their legal careers in private practice, such as law firms and in-house legal departments, often are more skeptical about the state as well as the moral standards of lawyers. Continue reading "From Russia with Law: Politics and Career Aspirations"
Aug 13, 2019 Susan FortneyLegal Profession
All lawyers in private practice must recognize the possibility of opening a summons and seeing their names listed as defendants. Many private practitioners are more concerned about malpractice than professional discipline. The Preface to the Restatement of Law Governing Lawyers captures the regulatory role of malpractice in stating that “the remedy of malpractice liability and the remedy of disqualification are practically of greater importance in most law practice than the risk of disciplinary proceedings.”
Despite the important role that malpractice plays in influencing lawyer conduct, only a small number of empirical scholars have studied legal malpractice claims. That is one reason why we should welcome the recent book by Herbert M. Kritzer and Neil Vidmar, When Lawyers Screw Up: Improving Access to Justice for Legal Malpractice Victims. As suggested by the book title, the book persuasively makes the case for change because a large percentage of victims are deprived of a meaningful remedy in pursuing legal malpractice claims. Continue reading "What Lawyers Can Learn from Their Mistakes: An Empirical Examination of Legal Malpractice"
Jul 15, 2019 Eli WaldLegal Profession
Over the past fifty years, the study of the legal profession has become a robust and exciting field, featuring rich doctrinal, empirical and theoretical inquiries as well as interdisciplinary insights. The growing body of scholarship includes globe-spanning comparative studies, ranging from the past and present of somewhat similar common law systems (several recent jots have covered fascinating regulatory trends and de-regulation developments in the UK), to more distinct legal professions.
Samuel Levine’s two-volume book, Jewish Law and American Law—A Comparative Study, makes an important contribution to comparative law studies of criminal and constitutional law (volume 1), and analyses of law and narrative, legal history and law and public policy (volume 2). Lawyers, law students, and scholars of the legal profession are likely to be particularly interested in Section Five of volume 1, consisting of five chapters comparing the Jewish and U.S. legal systems. In a concise and enlightening fashion, Professor Levine explores numerous legal profession topics, offering contextual insights and raising ideas for future analysis. Continue reading "Learning from Others: The U.S. Legal Profession and Comparative Law"
