Category: Law Practice


Beyond Open: Cultures of Challenge

One of the people I follow on Google+ posted the TED Talk by Margaret Heffernan. Her desire for better training on how to challenge authority is laudable, but I think misses that corporate and other institutional cultures often squash and punish those who speak out. Her basic point is strong: seeking out those who will challenge your views and avoiding echo chambers is the best way to ensure your ideas are solid. Dr. Heffernan tells about a researcher who managed to stand up to established medical practice and change it. She tells of a colleague who managed to voice concern at his biotech company who was worried about a new product but afraid to challenge the status quo. When he did, he found that others shared his belief. He was a hero whistleblower of sorts. The later example is quite rare. Just think of Enron and the host of other debacles. I agree that it takes courage to challenge, but a corporate culture that does not punish free thinkers is important too. As the literature on scenario planning shows, sustaining a group that is permitted to think about and challenge company goals is quite difficult. And that is for a group designed to advance corporate profits. Finding room those who would, out of loyalty to a company, ask questions about plans is a deeper problem. The current focus on teamwork, loyalty, execution, speed, and results no matter what the consequences, means that lip service to openness, out of the box thinking, and pick any other management cliche you want, rule so much that it is no surprise that 85% of managers fear speaking up as Dr. Heffernan notes. So I praise the idea, but think in addition to training people to challenge, we need to build a culture of questioning.


Stanford Law Review Online: Regulating Through Habeas

Stanford Law Review

The Stanford Law Review Online has just published a Note by Doug Lieb entitled Regulating Through Habeas: A Bad Incentive for Bad Lawyers?. The author discusses the potential pitfalls in a pending DOJ rule that provides for fast-track review of a state’s death row habeas petitions if the state implements certain sanctions for lawyers found to be legally ineffective:

The most important—and most heavily criticized—provisions of the Antiterrorism and Effective Death Penalty Act restricted federal courts’ ability to hear habeas petitions and grant relief to prisoners. But the 1996 law also included another procedural reform, now tucked away in a less-traveled corner of the federal habeas statute. It enables a state to receive fast-track review of its death row prisoners’ federal habeas petitions if the U.S. Attorney General certifies that the state provides capital prisoners with competent counsel in state postconviction proceedings.

Now, a pending Department of Justice (DOJ) rule sets forth extensive criteria for states’ certification for fast-track review. Piggybacking on a federal statute that does the same, the proposed DOJ rule encourages states to adopt a seemingly commonsense measure to weed out bad lawyers: if an attorney has been found legally ineffective, remove him or her from the list of qualified counsel eligible for appointment. Unfortunately, such removal provisions may do more harm than good by jeopardizing the interests of ineffective lawyers’ former clients. This Note explains why removal provisions can be counterproductive, argues that rewarding the implementation of these provisions with fast-track habeas review is especially unwise, and offers a few recommendations.

He concludes:

The lesson, at a minimum, is that policymakers should be wary of one-off regulatory interventions into indigent defense, considering the hydraulic pressure that a new requirement might exert elsewhere in the system. Leaders within the public defense bar might also wish to think carefully about their expressions of support for ineffective-attorney-removal provisions. And, while some scholars have considered the ethical obligations of predecessor counsel when faced with an ineffectiveness claim, rigorous empirical study of lawyers’ actual responses to allegations of ineffectiveness may be needed to develop sound policy. Do most attorneys actually understand themselves to owe continuing duties to former clients, or do most do what they can to protect their professional reputations against charges of deficient performance? (And are those with the latter attitude more likely to be ineffective in the first place?) The practical effect of regulatory interventions, including removal provisions, turns on the answer to these questions.

None of this is to suggest that it’s in any way acceptable for an ineffective lawyer, let alone an incorrigibly awful one, to represent a capital—or non-capital—defendant or prisoner. The point is the opposite. Even a well-intentioned patchwork of regulation through habeas is no substitute for an adequately funded system that trains, compensates, and screens counsel appropriately. If kicking ineffective lawyers off the list may do more harm than good, the goal should be keep them off the list to begin with.

Read the full article, Regulating Through Habeas: A Bad Incentive for Bad Lawyers? by Doug Lieb, at the Stanford Law Review Online.


Charles C. Burlingham

I just finished a biography of Charles C. Burlingham, who was a remarkable lawyer and civic activist in New York during the first half of the twentieth century.  Although the book wasn’t well-written (and I can’t find a good picture of him to post here), I was eager to read about Burlingham.  He keeps popping up in my research, even though he held public office only briefly on the New York City Board of Education.  Here are some of his accomplishments:

1.  He defended White Star against the admiralty suits that followed the sinking of the Titanic.

2.  He was influential in getting Learned Hand appointed to the Federal District Court in New York.

3.  He almost single-handedly convinced local politicians to nominate Benjamin Cardozo for his first judgeship.

4.  He corresponded regularly with Felix Frankfurter and Franklin D. Roosevelt about all sorts of issues.

5.  He was one of Fiorello LaGuardia’s closest (albeit informal) advisors when LaGuardia was the Mayor.

6.  He lived to 101.  (Seems remarkable to me.)

I find his story interesting, in part, because there are so few great practicioner-statesmen left.  Lloyd Cutler was probably the last one, though perhaps I’m overlooking someone.

UPDATE:  Here’s a great anecdote.  When Burlingham was 100, he went to an awards dinner and sat with Learned Hand, Felix Frankfurter, and Earl Warren.  A young lawyer drove him home and asked “Did you have a good time?”  Burlingham replied:  “Yes, but I had hoped to meet some new people.”


How Lawyers Feel About Their Work

David S. Lee, of LSE, is engaged in an interesting piece of research and asked me to post about it.  After taking the survey linked below (about 10 minutes) I agreed, and I think the underlying project worthwhile. His description follows:

“This survey is part of a research project to try and better understand how lawyers feel about their work. Based on the findings, hopefully meaningful ways to contribute to increased lawyer job/career satisfaction can be suggested.
Much of the literature examining how lawyers feel about their work has been essentially lawyers writing about their work using anecdotes sometimes mixed with surveys that are generally not nuanced enough to go beyond identifying broad themes.
To hopefully address this, I have prepared a survey instrument based on the Job Diagnostic Survey, which was developed by two well-known social psychologists. This survey looks at different psychological drivers that contribute to how one feels about their work with a focus on the intrinsic motivating nature of that work. By unpacking these individual drivers,   I believe constructive suggestions can be offered to improve the lawyer work experience.

As David notes, “the survey itself is taken anonymously and can be completed fairly quickly.”   Here is the link.


Louis Pollak (1922-2012)

From the federal courthouse comes the very sad news that Senior District Court Judge Louis Pollak has died.  Judge Pollak, a jurisprudential giant, mentor to many, and former dean of both Yale and Penn Law Schools, served on the bench from 1978 until his death.  He will be missed.


(Update: The Inquirer’s brief obituary is here, though obviously there is much more that could and will be said.)


An opening musing on legal education

Well, several days later than planned, here I am with my inaugural post as May’s guest blogger here at Concurring Opinions. Thanks to Gerard for the flattering invitation. This is my first venture as a blogger, so I’m not quite sure I’ll strike the right note. But here goes.
I’ve been thinking a good deal about the structure of American legal education lately. This bout of introspection has been prompted by the national mood of unease in the profession, and more personally, by Missouri’s three-year rollercoaster ride in the US News rankings — from 60-something to 100-something and now back up to 70-something — and by my work as chair of a curriculum committee debating whether we have to reinvent ourselves for our own and our students’ sakes.  Here, in short form suitable for the blogosphere, are some of my tentative conclusions:
1) So long as US News rankings remain the primary indicator of institutional quality in the eyes of student consumers, the top 20 or perhaps 30 law schools are at liberty to change or stand pat, as suits them. So long as they continue taking in and spending a lot of money per student on whatever it is they do, the combination of reputational inertia and a US News algorithm in which most of the supposed measures of educational quality are actually proxies for money, these schools will remain on top and free to deliver legal education however they like. Their high ranking will guarantee a constant stream of the statistically best students willing to pay top tuition dollar. The raw intellectual talent of their graduates (regardless of how well or badly they were educated) will guarantee employment of those graduates by the most elite employers. And so the cycle will continue, forever and ever. Amen.
2) This model cannot work for the rest of us. In a generally stagnant economy with a legal market offering fewer jobs at less pay, we cannot continue to compete with each other in what amounts to an endless race to drive up per-student costs. Legislatures will not fund perennial increases for state-supported schools like mine. For both public and private schools, philanthropic funding is not bottomless. And trying to fund our academic arms race with ever-rising tuition is neither economically sustainable nor, frankly, moral.
3) Exacerbating the stress on non-elite institutions is the emerging emphasis on producing more practice-ready graduates. I happen to favor this trend. Indeed, over thirty years ago I wrote my third-year paper at Harvard on how to restructure upper-division legal education to achieve this end. But any serious effort to enhance practice-readiness runs head-on into the economics and sociology of law schools:
      a) Increasing practice-readiness requires more training in the skills performed by actual lawyers. This in turn requires either more “experiential learning” (basically various forms of clinical education) or more in-house simulation-based skills training or some combination of both.
     b) Skills training, whether experiential or simulated, requires much lower teacher-student ratios than doctrinal courses. Therefore, at least if the law school is to maintain quality control and not simply farm the whole thing out to adjuncts, it is probably more expensive.
     c) I say that increasing skills training is “probably” more expensive if we conceive of the additional skills training capacity as an add-on to what we already do, and if we assume that the doctrinal faculty of law schools will continue to do what they now do in the same way they’ve grown accustomed to doing it. In other words, if law schools continue hiring the same number of doctrinal tenure-track faculty with the same set of entering qualifications, give them the same teaching loads, pay them in roughly the same way, and set the same standards for type and quantity of scholarship, then adding the staff and programs required to make graduates more practice-ready will necessarily increase the cost of legal education. And I’ve just argued that the vast majority of law schools can’t keep raising costs.
     d) There are only two obvious ways out of this box. Either we abandon the objective of making our graduates more practice-ready or we rethink the role of doctrinal tenure-track faculty.
The first option is not crazy. One could fairly argue that law schools should never have gotten into the skills training business in the first place. What was good enough for Langdell should be good enough for us. Teach ’em basic legal doctrine and the intellectual skill of legal analysis and leave the rest to the first years of practice. Or, less dogmatically, we’ve added a lot of skills training options over the last three decades (legal writing, clinics, trial advocacy) and what we have is enough.
But if you think we could and should do a better job of preparing our students for legal work, then that requires an uncomfortable self-analysis by the tenured and tenure-track class at the top of the law school hierarchy. As a conversation starter, let me suggest several changes in our comfortable lives that would make law schools better for our students, and for matter, for the legal communities of which law schools are a part:

  • Reverse the trend toward competing for faculty by offering ever-lower teaching loads to tenure-track professors. I like working less for more money as well as the next guy, but paying law professors premium salaries in relation to virtually everyone else in the university for teaching 11 or 10 or 9 hours per year is increasingly hard to justify. In the Bizzarro World of US News rankings, this practice makes weird sense because reducing professors’ teaching loads requires hiring more of them, which reduces the student-teacher ratio and increases the overall expenditures per student, which raises a school’s ranking. If, however, one is trying to increase skills training without cripplingly raising costs, an obvious means of doing so is by covering the curriculum with fewer faculty and thus freeing budgetary space for the additional staff required for more skills training.
  • Rethink the constellation of preferred qualifications for entry-level tenure-track law professors. Right now, we tend to hire young people with high grades from a handful of elite law schools whose work experience consists of a judicial clerkship and a couple of years at a fancy big-city law firm. With all these youngsters’ potential, in practice, no sensible senior lawyer would entrust them with unsupervised responsibility for any matter of real importance. But law schools confer on them the mantle of wisdom that comes with the title “professor” and not only ask them to educate students about a world they themselves have barely experienced, but also to write authoritative “scholarship” about that world. Because they are surpassingly talented people, newby law professors figure out their jobs, teach well enough (and sometimes brilliantly), and churn out law review articles as required. In a Langdellian model of legal education, this approach to hiring works well enough since the core subject matters are legal doctrine and legal reasoning, subjects those in our hiring pool have self-evidently mastered. And if the legal scholarship produced by professorial rookies is not profound, well, no one is much hurt. But if law schools are reimagined as institutions devoted to producing practice-ready graduates, then the practical inexperience of most of the professoriate becomes a problem. Professors with little real-world experience are ill-suited either to teach skills-rich courses themselves or to supervise or assess the content of such courses taught by others. 
  • Reconsider the role of “legal scholarship” in American law schools. An immediate (and horrified) objection to the suggestion of increased teaching loads will surely be the decreased time available for scholarship. And the idea of hiring more tenure-track faculty with real practice experience will surely be rejected by those who view exposure to the law in action as an irremediable pollution of the mind of the young scholar. To which I say, “Fiddlesticks!” There is far too much “legal scholarship” now. Most of it is mediocre or worse. Much of its mediocrity stems from the naivete of inexperienced professorial authors. Even if it were far better than it is, the sheer number of law review articles spewed forth each year means that only the tiniest fraction of them will ever be read by anyone other than their author’s immediate relatives or P&T committees. In saying this, I cast no aspersions on the talents of my academic fellows. To the contrary, law schools are brimming with brilliant minds, but the odd conventions of our trade often force them to opine too soon about subjects of which they know relatively little and to channel much of their creative energies into the writing of law review articles — an exercise customarily equal in practical effect to shouting down a well. As a class, law professors should probably write less, not more. If possible, they should write about subjects they have some practical familiarity with.  If professors come to the academy without such familiarity, they should find ways to gain it.  This means we should hire more people with more real-world experience and encourage those already hired to gain it, not only to assist in producing practice-ready graduates, but in order to improve legal scholarship. And, finally, we should most often write with a conscious view to influencing real-world legal actors.

In short, the move to restructure law schools so their graduates are better prepared to practice presents a fundamental challenge to the existing comfortable world of the tenure-track law professor. I think that is a good thing, one that would make our students and the legal profession a good deal better off. But I imagine others may differ…

Frank Bowman


Top Ten Lists

Building off that my last post, and engaging in the very temptation to look at school specific outcomes that I earlier resisted, here are a series of top-10 lists for various law school employment outcomes.  Each list is calculated by dividing the relevant category for each school by the total graduates of that school in 2011.  (I think that dividing the category by employed graduates is likely to be misleading.)  I eliminated schools with incomplete data.

Most Likely To Graduate and Lose Your Soul in a Super-Large (500+) Large Firm

  1. Cornell (60%)
  2. Columbia (59%)
  3. Chicago (52%)
  4. Penn (50%)
  5. Harvard (49%)
  6. NYU (48%)
  7. Stanford (44%)
  8. Berkeley (41%)
  9. Northwestern (40%)
  10. UVA (38%)

Most Likely to Graduate and Lose Your Soul in a Solo Practice

  1. Texas Southern (18%)
  2. Charlotte (11%)
  3. Faulkner (10%)
  4. St. Mary’s (11%)
  5. Williamette (11%)
  6. South Texas (11%)
  7. Florida A&M (10%)
  8. John Marshall (10%)
  9. Cooley (9% – but an astonishing 62 graduates!)
  10. Southern (9%)

Most Depressed Students, or Most Savvy Data Collectors [Highest Percent of Students Reporting They No Longer Are Seeking Employment]

  1. Santa Clara (18%)
  2. Chapman (15%)
  3. Texas Southern (12%)
  4. Williamette (12%)
  5. Colorado (10%)
  6. Pace (9%)
  7. Idaho (9%
  8. Widener-Harrisburg (8%)
  9. McGeorge (8%)
  10. Roger Williams (8%) Read More

Law School Employment Outcomes

The ABA’s just-released consolidated dataset on law school employment outcomes presents nice opportunities for data analysis. Unlike Bernie Burk, I’m not particularly interested in the relationship between bridge positions and USNWR rank: that seemed overdetermined to me.  (Bernie is also, unfortunately, using a noisy measure for resources.  Why not simply use the ABA-data on expenditures per student to predict bridge positions?  Here’s a hypothesis: the correlation will be much higher than USNWR rank.)  In any event, I imagine that everyone will be using these data to look at school-specific outcomes. Let’s do something different.

Much more interesting are columns BK-BQ, which detail where (geographically) students are placed.  What can we learn?

Almost all American Law Schools are Basically Homers. The ABA asks schools to identify the state where the highest number of their graduates are employed on graduation. By my hasty count, there are eight schools in the country where that first state is not the state where the school sits.  Duke (graduates go to D.C. or NYC); Harvard (graduates to go D.C. or N.Y.C.); Michigan (graduates go to N.Y.C. and California), UVA (graduates go to D.C. or N.Y.C.); Western New-England (graduates go to CT);  Widener-Delaware (graduates go to Pennsylvania); Penn (graduates go to N.Y.C.); and Yale (graduates go to N.Y.C. or D.C.).  That is, deciding where to go to law school goes a long way to picking the State where you will live after graduation.  What schools (apart from those just listed) produce the least number of graduates employed at home?  Vermont, Appalachian, Notre Dame, Vandy, Ave Maria, New Hampshire, Washington University, and Cooley.  Note how this list mixes schools with very bad job outcomes (i.e., a small percent of their class is employed in the home state because a small percent of the class is employed) and those with very good outcomes (i.e., a small percent of their class is employed in the home state because many are employed elsewhere).

Which States Are the Most Popular Runner-Ups?  Schools are also asked to identify the second and third most common destinations for their students.   New York, D.C., California, Illinois and New Jersey top the runner-up list.  New Jersey and D.C. are impressive, as they are the second choice as almost as many students as they are the first choice of others.  Or to put it differently: D.C. and New Jersey receive disproportionately more law students than other states, as a percentage of the national employment market. The third-runner-up market is similar, though Virginia and Massachusetts make an appearance in the list.  (As does Alaska, which is the primary and secondary destination category of exactly zero American law schools, but the tertiary destination of two.)

Which States Are the Most “Oversupplied” With Law Graduates?  Given these data, I assume that for most law students, job seeking begins at home. That enables me to ask: which states have the worst environments for incoming lawyers.  I estimate this answer by dividing total graduates per state by total jobs in each state (itself a product of adding together the first, second and third “choices” that law schools provide). I know that there are problems with this calculation, even assuming audited data. For example:

  • It ignores missing data on location, and schools where there a large number of graduates going to the “fourth” largest state destination;
  • It assumes that schools have correctly coded location data;
  • It assigns schools like Yale to a State (CT) where they do not in fact send the majority of their graduates.

We know that this missing and skewed data makes a difference. Schools reported that ~37K of ~43.5K, or 86%, of law students were employed in some capacity in this dataset.  But my location-based analysis finds state-specific jobs for only ~29K law students, or 66%.  This isn’t malfeasance by schools, and it isn’t evidence of conspiracy. Schools are required to report employment status for all graduates, but employment location for only the top three states.  (Tracking students in this way is, after all, expensive.) Nonetheless, we can learn something interesting from these data in aggregate.  Below the jump, I’m going to discuss the distribution of these geographically identified jobs.

Read More


The Yale Law Journal Online: “The Gang of Thirty-Three: Taking the Wrecking Ball to Client Loyalty” and “In Defense of a Reasoned Dialogue About Law Firms and Their Sophisticated Clients”

The Yale Law Journal Online has published two essays on legal ethics: The Gang of Thirty-Three: Taking the Wrecking Ball to Client Loyalty by Lawrence Fox, and In Defense of a Reasoned Dialogue About Law Firms and Their Sophisticated Clients, a response to Fox’s essay by James W. Jones and Anthony E. Davis.

In The Gang of Thirty-Three, Lawrence Fox reviews the proposed “sophisticated client” amendments to the Model Rules of Professional Conduct. Thirty-three General Counsels at AmLaw 100 law firms submitted the proposal to the American Bar Association, requesting that some Model Rules obligations be adjusted or lessened in relationships with “sophisticated clients.”  Fox examines the suggested changes and argues that they compromise the lawyer’s most important fiduciary duty to the client. As Fox writes, lawyers must safeguard their clients’ entitlements to loyalty if they “should be entitled” to call themselves professionals at all.

James W. Jones and Anthony E. Davis respond in In Defense of a Reasoned Dialogue About Law Firms and Their Clients, arguing that the current Model Rules are outdated and no longer reflect the needs of modern law firms and their increasingly global clientele. As people who were “directly involved in the preparation of the Law Firm Proposals,” Jones and Davis offer insight into the motivations for the proposals and respond to Fox’s critique.


Preferred citations:

Lawrence Fox, The Gang of Thirty-Three: Taking the Wrecking Ball to Client Loyalty, 121 YALE L.J. ONLINE 567 (2012),

James W. Jones & Anthony E. Davis, In Defense of a Reasoned Dialogue About Law Firms and Their Sophisticated Clients, 121 YALE L.J. ONLINE 589 (2012),


Greiner and Pattanayak: The Sequel

In a draft essay, Service Delivery, Resource Allocation and Access to Justice: Greiner and Pattanayak and the Research Imperative, Tony Alfieri, Jeanne Charn, Steve Wizner, and I reflect on Jim Greiner and Cassandra Pattanayak’s provocative article reporting the results of a randomized controlled trial evaluating legal assistance to low-income clients at the Harvard Legal Aid Bureau. (The Greiner and Pattanayak article was the subject of a Concurring Opinions symposium last March.) Studying the outcomes of appeals from initial denials of unemployment insurance benefit claims, Greiner and Pattanayak asked, what difference does legal representation make? Their answer is that “an offer of HLAB representation had no statistically significant effect on the probability that a claimant would prevail, but that the offer did delay the adjudicatory process.” That is, not only was an offer of legal assistance immaterial to the case outcome, it may have harmed clients’ interests.

The Greiner and Pattanayak findings challenge our intuition, experience and deeply-held professional belief that lawyer representation of indigent clients in civil matters is fundamental to the pursuit of justice. Our first reaction is that the study must have fatal conceptual or methodological flaws – the researchers studied the wrong thing in the wrong way. Even when we learn that the study is credible and well designed, we doubt that this kind of research is a worthwhile use of our time or money relative to serving needy clients. Finally, and perhaps most importantly, we worry that the published results will only serve as fodder for the decades-long political assault on legal services for the poor.

If replicated across venues, however, studies like Greiner and Pattanayak’s can tell us a great deal about individual representation, program design and systemic access to justice questions. In fact, we cannot make genuine progress in any of these areas – much less marshal the case for more robust legal aid investments and the right to counsel in some civil cases – without better evidence of when, where and for whom representation makes a difference. Fortunately, developments in law schools, the professions and a growing demand for evidence-driven policymaking provide support, infrastructure and incentive for such research. For these reasons, we urge legal services lawyers and clinical law professors to collaborate in an expansive, empirical research agenda.