Category Archives: Legal Profession
Jun 21, 2019 Elizabeth ChamblissLegal Profession
Why do people go to law school? For a while there, it began to seem like it was all about the money. Large law firm competition for associates in the late 1990s and 2000s—with firms offering six-figure starting salaries and extravagant signing bonuses—helped fuel a ten-year surge in law school enrollment, peaking in 2010-11. The recession changed all that, plunging associate hiring into a free fall and focusing sustained, critical attention on law school marketing, the student loan industry, and the negative return-on-investment for many law graduates. Between 2010-11 and 2017-18, law school enrollment fell 25 percent, to its lowest point in forty years. Several law schools failed and numerous others have been exposed for gaming the U.S. News rankings—or outright cheating—in efforts to pad their profiles in a hyper-competitive market. (Sound familiar, celebrity parents?)
But “law school is cool again,” according to the most recent numbers. Applications in 2018-19 were up nearly 11 percent. And while associate hiring also is up, at least part of the increase in law school applications appears to be a political response to recent assaults on civil rights, lawyer independence, and the rule of law—the so-called “Trump Bump.” This makes it a good time for soul-searching by law schools as well as potential applicants, with an eye toward professional commitments as well as economic returns. Christopher J. Ryan’s forthcoming study of law school choice provides an important and timely starting point. Continue reading "Location, Location, Vocation? Toward a Post-Recession Analysis of Law School Choice"
May 14, 2019 Rebecca RoipheLegal Profession
Anna Offit,
Prosecuting in the Shadow of the Jury, 133
Nw. U. L. Rev. _ (forthcoming, 2019), available at
SSRN.
Scholars often speculate about how prosecutors exercise their vast discretion. Most of these critics make well-founded conclusions based on educated guesses about how prosecutors make the critical decisions that affect the fate of individual defendants and more broadly shape the community and legal system as a whole. In Prosecuting in the Shadow of the Jury, Anna Offit conjures a rare bird—empirical evidence about how prosecutors make discretionary decisions. Her evidence shows that prosecutors frequently make decisions by invoking a hypothetical juror to test arguments and assess the fairness of their proposed actions.
Professor Offit bases her conclusions on 133 interviews with Assistant United States Attorneys over a five year period of time. Her work offers unique insight into the way prosecutors think and reason through their cases. She finds that prosecutors frequently consider the “jury appeal” of witnesses and evidence when they decide whether or not to charge an individual with a crime. By doing so, the prosecutor projects common sense sources of concern onto a hypothetical juror. For example, a slew of questions by confused grand jurors often lead Offit’s interviewees to consider difficulties in proving the case to an actual jury down the line. In assessing their police officer and cooperating witnesses’ credibility, the prosecutors frequently consider whether a juror would believe the witness. In doing so, they absolve themselves of the responsibility of criticizing their own witnesses by projecting their concerns on the imagined juror. Freeing themselves to be aggressive advocates and reasoned critics at the same time, this method ensures that prosecutors consider not only weaknesses in their cases, but also fairness and equity. They look at their cases not only through their own eyes but also through the eyes of a skeptical observer. Continue reading "Are Make Believe Juries as Good for Prosecutors as Real Ones?"
Apr 18, 2019 Laurel TerryLegal Profession
In July 2018, the State Bar of California authorized the formation of a Task Force on Access Through Innovation of Legal Services. This Task Force has been asked to identify possible regulatory changes to enhance the delivery of, and access to, legal services. It will address three broad topics: 1) the definition of unauthorized practice of law; 2) lawyer marketing, advertising, partnership, and fee-splitting rules; and 3) non-lawyer ownership and investment. The first sentence of the Task Force Fact Sheet states that “Too many Californians needing legal services cannot afford an attorney or don’t have meaningful access.” The second sentence of the Fact Sheet cites a 2018 Legal Market Landscape Report that was commissioned by the State Bar of California and written by Professor Bill Henderson.
Professor Henderson’s 2018 Legal Market Landscape Report is a document that all lawyers should read. It is jam-packed with data, and it provides the grounding for California’s ongoing conversations regarding the proper scope of lawyer regulation. Moreover, much of the information in the Report is not California-specific and thus is of interest to anyone who is concerned about access to legal services and the proper scope of lawyer regulation. Continue reading "Back to the Future (Again) Regarding the Regulation of Legal Services"
Mar 15, 2019 W. Bradley WendelLegal Profession
Stephen Gillers,
A Rule to Forbid Bias and Harassment in Law Practice: A Guide for State Courts Considering Model 8.4(g), 30
Geo. J. Legal Ethics 195 (2017), available at
SSRN.
A male lawyer is taking a deposition; a woman is defending. During the deposition, the man repeatedly makes sexist comments to opposing counsel, such as “I don’t have to talk to you, little lady” and “be quiet, little girl.” A lawyer represents the husband in a divorce action, and argues that the children are in danger because the wife had been seen around town in the presence of “a black male” or “the black guy.” At a deposition the lawyer representing the defendant said to his opposing counsel, a woman, “I don’t have a problem with you, babe,” and when the woman expressed surprise at the word babe, responded “at least I didn’t call you bimbo.”
Incidents such as these finally persuaded the ABA House of Delegates, after two decades of discussion and debate, to adopt a rule of professional conduct prohibiting bias, discrimination, and harassment in the practice of law. Model Rule 8.4(g) now provides that a lawyer is subject to discipline if he or she “engage[s] in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” In a recent article in the Georgetown Journal of Legal Ethics, Stephen Gillers recounts the story of the controversy over proposed anti-bias rules at the ABA and state levels, and also provides a guide to applying the new rule. Continue reading "Rule of Professional Conduct, Speech Code, or Both?"
Feb 7, 2019 Amy SalyzynLegal Profession
For legal ethics scholars, in-house lawyers are an irresistible and enduring subject of study. As lawyers who derive their living solely from one client and who are embedded in the culture and incentive structures internal to that client, in-house lawyers bring several “classic” legal ethics concerns into sharp focus: What does lawyer independence require? How should lawyers balance client and public interests? When should a lawyer say “no” to a client? There is also, of course, the fact that in-house lawyers have been the subject of multiple front-page scandals in recent decades. Although the query “where were the lawyers?” was first used, as I understand it, in the 1980s in relation to outside counsel in the U.S. savings and loan scandal, the question is being increasingly trained on in-house lawyers, who have risen significantly in number and status.
With In-House Lawyers’ Ethics, Moorhead, Vaughan, and Godinho add their own deft, distinct, and deep contribution to the literature on in-house lawyers. At the centre of their book is ambitious new empirical research on the role of in-house lawyers, drawing on interviews with 67 in-house lawyers and compliance personnel and surveys of 400 in-house lawyers. To be sure, thoughtful empirical research on in-house lawyers has been conducted by others before. However, Moorhead, Vaughan, and Godinho break fresh ground with their focus on legal risk management and their use of quantitative methods to explore concepts previously examined mostly in qualitative terms. Continue reading "Heroic Work on the Legal Profession’s “Quiet Heroes”"
Dec 6, 2018 Melissa MortazaviLegal Profession
Bruce Green and Rebecca Roiphe,
Can the President Control the Department of Justice?, ___
Ala. L. Rev. ___ (forthcoming), available at
SSRN.
One need look no further than Donald Trump’s tweets berating the Attorney General and Deputy Attorney General to view the pronounced tension between the oval office and the Department of Justice (“DOJ”). Not merely hypothetical or academic for this generation of scholars, the topic of executive power and its parameters has been thrust into the limelight. However, scholarly interest in executive power, usually stoked by fraught historical moments (Watergate, the Lewinsky affair, post-9/11 torture memos, and now the Russia investigations), rarely focuses on history itself. Much of the existing and growing body of work in the legal academy examines presidential power in constitutional and administrative terms. However, the question posed by this article, “Can the President Control the Department of Justice?” lives in a textualist’s wasteland bereft of guidance from these usual suspects. Neither the Constitution nor leg-reg provides an answer—instead, both are conspicuously silent.
Enter Green and Roiphe. Where others find a void, their article finds meaning in Congressional silence as it traces the power of professional institutional norms built incrementally over time. Starting with the originalist rationale for executive control over government lawyers, to the emergence of today’s federal bar and administrative state, Roiphe and Green craft a vivid picture of the modern legal profession generally, and prosecutors specifically. Drawing on historical sources ranging from public confirmation hearings and opinions to personal letters, this narrative reveals federal prosecutors to be a doggedly independent group, providing a check on partisan politics through professional commitments to rule of law and bureaucratic neutrality. As such, “prosecutors may not accept direction from the President but must make the ultimate decision about how to conduct individual investigations and prosecutions, even at risk of being fired for disobeying.” (P. 64.) In their telling, the modern prosecutor knows that politically motivated action is illegitimate, and therefore, in some cases, resignation is preferable to capitulation. Resignation leaves intact a culture of commitment to rule of law, bureaucratic neutrality, and independence. Continue reading "Professional Responsibility as a Limitation on Executive Power"
Nov 8, 2018 Carole SilverLegal Profession
Diversity, Hierarchy, and Fit in Legal Careers: Insights from Fifteen Years of Qualitative Interviews is a new article by Bryant Garth and Joyce Sterling about the challenges for diverse lawyers (here meaning women and non-whites) in navigating career paths that lead to satisfaction and success. This is a popular topic. Garth and Sterling’s article stands out because it speaks both to the broad scale difficulties reflected in frustratingly slow progress on an organizational level, and to the particular contexts that frame the experiences, opportunities, and choices of individual lawyers hoping to find fulfillment in their careers.
The article begins with a rich discussion of various theoretical approaches that scholars have used to explain the failure in the profession — and particularly with regard to the ranks of positions of power and influence in the largest and most elite law firms — to reflect the increasing diversity of law school graduating classes. Garth and Sterling begin by explaining the “capital assets theory,” which grounds their work: Continue reading "Diversity, Golf, and the Rules of the (Legal Career) Game"
Oct 5, 2018 Laurel TerryLegal Profession
In September 2018, Utah launched its small claims court online dispute resolution (ODR) system. Years in the making, a goal of Utah’s new ODR system is to provide greater access to justice for Utah’s citizens. The ODR system has been designed to provide “simple, quick, inexpensive and easily accessible justice” that includes “individualized assistance and information that is accessible across a multitude of electronic platforms.”
This description of Utah’s new ODR program comes from Utah Supreme Court Justice Deno Himonas’s article entitled Utah’s Online Dispute Resolution Program Justice Himonas’s article should be of particular interest to readers who followed the work of the ABA Commission on the Future of Legal Services or readers interested in developments such as Washington’s Limited License Legal Technician program (LLLT) or New York’s Court Navigator program. Continue reading "Look What’s New! Utah’s Groundbreaking Efforts to Use Online Dispute Resolution (ODR) to Increase Access to Justice"
Sep 17, 2018 Richard MoorheadLegal Profession
The fascinating case made by Yuval Feldman’s recent book is that most wrongdoing is done by good people who, too frequently, allow themselves to do wrong. We are egocentric; our brain works hard to promote self-interest whilst protecting the self-image that we are morally upright. And it does so quietly (my word, not Feldman’s); much of the decision-making is done subconsciously, intuitively – albeit sometimes, importantly, with glimmers of recognition.
Feldman classifies us into three types: deliberate wrongdoers; situational wrong doers, subject to this quiet egocentricity; and the genuinely good. Even the latter are prone to moral blindspots. Concerned about the prevalence of the last two groups, Feldman makes a strong case for taking situational ethics more seriously. This allows a psychological engagement with sociological questions of structure and agency. Situational ethics sees anxieties about bad apples and bad barrels as being better understood as a concern with bad decisions; we are located in webs of design and accident. What Feldman wants is for regulatory design and jurisprudence to take bad barrels and bad decisions more seriously. The normative judgements that drive ex post punishment as a regulatory strategy are superseded by seeking improvements in behaviour before wrongs can manifest. Intentionality, he suggests, is “outdated.” (P. 40.) Continue reading "Good People and the Ethics of Quiet Egocentricity"
Jul 26, 2018 Eli WaldLegal Profession
You Don’t Own Me is a colorful telling of the Bratz v. Barbie battle, a modern David and Goliath decade-long dispute fought by MGA Entertainment and toy giant Mattel. It is a story of competition, innovation and greed, economic espionage and corporate personalities larger than life, of creativity and its legal treatment, of dolls, and ultimately of American culture itself. In Professor Orly Lobel’s masterful hands this award-winning book effectively mixes legal analyses and business insights to offer a compelling read.
At the same time, if you dig a little deeper, You Don’t Own Me is also a fantastic account of the legal profession saga behind the toy story, examining the various roles legal actors–outside counsel, in-house lawyers, judges and jurors–played in the litigation, and their interactions with clients, related parties, and the general public. In particular, Part III, titled Warring Titans (Pp. 125-243), is a must read for lawyers and law students interested in contemporary law practice. Continue reading "The Legal Profession Saga Behind the Toy Story"
