Category: Law Practice

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FAN 199 (First Amendment News) SPECIAL ISSUE: 38 Women Who Argued First Amendment Free Expression Cases in the Supreme Court: 1880 -2018

Olive H. Rabe (credit: Boulder Daily Camera)

It was a Friday, April 12, 1929, when Olive Rabe, counsel for the appellant, entered the old Senate chamber with its grayish walls. She walked down the red carpet toward the bench, took her assigned seat at a mahogany table, and waited for the justices to enter the small chamber from the robing room across the Capitol corridor.

Only a few other women had done what she was about to do, argue a case before the Supreme Court — the first woman lawyer being Belva Ann Lockwood. (A couple of pro se women preceded her.)

There in that solemn chamber, with Chief Justice William Howard Taft in the center flanked by Oliver Wendell Holmes Jr. and Louis Brandeis and their brethren, Rabe (age 40) would make the case for another woman, Rosika Schwimmer (age 51). She would be the first woman to argue a “free speech” case in the high court. For any number of reasons, it was a rare moment in Supreme Court history. — Ronald Collins & David Hudson (May 26, 2008)

* * * *

Eleanor Holmes Norton

When it comes to the First Amendment, relatively little is known about the roles women played in the development of that body of law. While many may know of Justice Holmes’s oft-quoted free-speech dissent in U.S. v. Schwimmer (1929), how many are aware that Olive H. Rabe, a labor lawyer, represented the respondent in that case?  Schwimmer, however, was a free speech statutory interpretation case but not, strictly speaking, a First Amendment case. It would take another 24 years before a woman  (Florence Perlow Shientag) would argue a First Amendment free expression case —  Superior Films v. Dep’t of Education of Ohio (1953) (for respondent). Thereafter, it took  15 years before another woman would do likewise. That woman was Eleanor Holmes Norton, who successfully argued on behalf of the petitioner in Carroll v. President and Commissioners of Princess Ann (1968). Four years later Sophia H. Hall successfully argued on behalf of the appellant in Grayned v. City of Rockford (1972) (oral argument transcript here). The world was starting to change, but not fast or often enough.  

Barbara Underwood (credit: NY Daily News)

The list below consists of 38 women who  argued 43 First Amendment freedom of expression (speech, press and assembly) cases before the Supreme Court between 1880 and 2018.  Since the data bases I consulted started in 1880, my list begins there and continues through the 2018 line of Supreme Court cases.

The woman who argued the most such cases was Barbara D. Underwood (3 cases) followed by Patricia Millett (2 cases), Ann E. Beeson (2 cases), and Elena Kagan (2 cases). Pamela Karlan was the last woamn to argue a First Amendment free expression case — Lozman v. City of Riviera Beach, Florida  (2018).

To the best of my knowledge, the list below is complete though given the difficulty of identifying the lawyers and cases, it might be that I overlooked someone — if so, please inform me and I’ll update the list.

Related

_____________The 38 Women________________ Read More

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The Sound of Awkward Silence: Contract Social Responsibility (Part 6)

I wanted to start this, my final post, by thanking the keepers of CoOp for allowing me to blog here this month, as I try to sort out my thoughts about contract social responsibility (KSR), the idea that contracts might seek a form of social justice, e.g., eliminating slavery through supply chain agreements or racial discrimination through “inclusion riders” in movie production contracts.

My prior post suggested that KSR differs from the private, pre-political and bilateral contracts that dominate the contractualist imagination because it would use private ordering to achieve public and political goals.  I want to talk today about two analytic approaches that might supplement contractualism, institutionalism and relationalism.

Say what?!?

I also want to talk about the awkward silence that may follow asking hard questions about KSR at home.

But start with “institutionalism,” a broad and fancy term.  I mean by it the study of social organizations at a high level of generality, superstructures in which law is a constitutive but not necessarily defining element.  For my purposes, the variant that seems most tractable sometimes travels under the name “experimentalist new governance” (ENG), a literature often associated with Sabel and Simon.

As they and others have observed, states no longer use command-and-control mechanisms to achieve many public policy goals. Instead, social problems are often solved by public-private partnerships, quasi-autonomous standard-setting organizations, voluntary alliances, monitoring, and experimentation.  Examples include food certification, sustainable forestry, and environmental protection. Read More

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Why is Business Law Education So Bad?  Value-Creation by Law Professors

The question posed in the title of this post—why is business law education so bad?—was first asked in a famous and provocative 1984 paper by Stanford law professor Ronald Gilson, Value Creation by Lawyers.

That paper is best known for developing a micro-economic answer to a different—but ultimately related—question: Why would anybody pay for business transactional lawyering?  And, if no one would (or should) pay for those services, why should anyone pay (or be paid) to learn (or teach) them?

The price of bad education

Although the questions are not new, they have become more important as technology and markets transform the practice and study of law.

Gilson argued that there was an economic explanation: lawyers produce and verify information that brings the deal price closer to a hypothetical “true” market value.

Although this question—and Gilson’s answer—have received the most attention, Gilson also had important observations about legal education.  Boiled down, he suggested that law schools should: (1) expose students to the actual transactions in which they were likely to participate; and (2) teach them a legal theory that would help to explain both why these transactions occurred, and why (and how) lawyers would add value by performing services in them.

When Gilson wrote this, law schools struggled with both because, among other things, most legal academics had little transactional experience.  In the more than thirty years since Value Creation, however, law schools have exploded with courses that achieve the first goal, exposure.  It would be difficult today to find a law school that did not offer some form of skills training to prepare law students for careers as business lawyers.  A large and growing literature describes in exquisite detail how to design and teach these courses.

Yet, so far as I can tell, neither the courses nor the literature engage the second half of the problem as Gilson framed it, legal theory. (I put to one side clinics, which have their own literature, as well as skills supplements for traditional classes).  Rather, they focus on “transactional skills” qua skills, such as drafting and negotiating—admittedly vital functions—without considering how legal theory might explain, explore, enhance or critique them.  They have taken half of Gilson’s recommendation and declared victory.

This is a problem for two reasons. First, it seems indifferent (perhaps hostile) to the role that legal theory and scholarship could play here.  Transactional skills literature reads as a series of “recipes,” how-to-get-to-yes-guides insensible to the possibility that, in many deals, “no” may be better the answer. Read More

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FAN 128.1 (First Amendment News) Tribe & others form pro bono phalanx to defend against Trump’s threatened defamation lawsuits

It is about time that the use of lawsuit threats by a bully, like Trump, should be met, and met strongly. — Laurence Tribe 

Theodore Boutrous, Jr.

Theodore Boutrous, Jr.

It all began with Theodore Boutrous, Jr. According to Law Newz, “on October 13, Boutrous sent out a tweet promising to a pro bono defense to the Palm Beach Post newspaper after it published a story from one of Trump’s alleged accusers.” And then on October 22, he tweeted: “I repeat: I will represent pro bono anyone  sues for exercising their free speech rights. Many other lawyers have offered to join me.”

Shortly afterwards one of those who offered to form pro bono phalanx to defend against Trump’s threatened defamation lawsuits was  Harvard Professor Laurence Tribe.

Professor Laurence Tribe

Professor Laurence Tribe

Last evening Professor Tribe appeared on The Last Word with Lawrence O’Donnell (MSNBC). Tribe was on the program to talk about recent threats by Donald Trump to sue his sexual misconduct accusers: “All of these liars will be sued once the election is over,” Mr. Trump said at a rally in Gettysburg, Pennsylvania. “I look so forward to doing that.” (video here)

Here are some transcribed excerpts from Professor Tribe’s comments in response to that threat:

Offer of pro bono assistance

“Ted Boutrous and Ben Wittes, and many other leading lawyers, have [offered to represent pro bono those alleging sexual misconduct against Donald Trump]. And I did it because it is about time that the use of lawsuit threats by a bully, like Trump, should be met – and met strongly – because a lot of people, a lot of women, might be deterred by his threats even though he often doesn’t carry them out. They might be afraid to come forward; it’s not only them, it’s all kinds of groups. A group that I am also ready to defend pro bono, although it may sound a little bit strange, is the American Bar Association, which was frightened into suppressing its own report by a free-speech watchdog group, which concluded that Trump used the threats of libel suits to bully people into submission. And they ended up censoring themselves because they were afraid of being sued.” [See Adam Liptak, Fearing Trump, Bar Association Stifles Report Calling Him a ‘Libel Bully’, New York Times, Oct. 24, 2016; see also Susan E. Seager, Donald J. Trump Is A Libel Bully But Also A Libel Loser, Media Law Resource Center, Oct. 21, 2016]

“It’s really about time that people who know what they are talking about in the law tell this guy what an idiot he is and how unfair it is for him to use his power. . . . He says that he can just sue the hell out of anybody. [But] he’s gonna learn better than that when he tries. . . . “

“[T]he women who are afraid to come forward should know that lawyers like me are going to be willing to defend them and the journalists who reported their stories without charge. . . .”

Possible defamation suits against Trump

“All of the people [Trump] threatens to sue, without any real ground and in the face of the First Amendment, have strong grounds to sue him for deliberately and falsely labeling them as liars and as people who simply want – I think he called it — their ten minutes of fame . . . .”

Course of action if Trump wins

“Justice Brennan in a case called Garrison, pointed out that the way the Nazis, early in their rise to power, silenced their enemies and their opposition was to threating to use defamation lawsuits against them. But I do want to want to add, quite apart from these lawsuits, if Trump loses (as I hope he will) we won’t have to take the next step. But if he should happen to win (heaven forbid!) . . . then lawyers around the country, who are joining me in this effort, are going to do all we can, pro bono, to prevent him from abusing executive power by violating the First Amendment and much else in the Constitution. Because if he wins, he’s likely to take a Congress with him; he’s not likely to have the usual checks-and-balances. So, the legal profession has a challenge that I hope it can meet. I think that people who are lawyers . . . , in the best sense of the word, need to step up and call this tyrant for what he is.”

Coming: Tomorrow’s FAN post is titled: “A 10-year chronology: Trump’s lawsuits & threatened ones involving freedom of speech & press”

Complicating the Narrative of Legal Automation

Richard Susskind has been predicting “the end of lawyers” for years, and has doubled down in a recent book coauthored with his son (The Future of the Professions). That book is so sweeping in its claims—that all professions are on a path to near-complete automation–that it should actually come as a bit of a relief for lawyers. If everyone’s doomed to redundancy, law can’t be a particularly bad career choice. To paraphrase Monty Python: nobody expects the singularity.

On the other hand, experts on the professions are offering some cautions about the Susskinds’ approach. Howard Gardner led off an excellent issue of Daedalus on the professions about ten years ago. He offers this verdict on the Susskinds’ perfunctory response to objections to their position:

In a section of their book called “Objections,” they list the principal reasons why others might take issue with their analyses, predictions, and celebratory mood. This list of counter-arguments to their critique includes the trustworthiness of professionals; the moral limits of unregulated markets; the value of craft; the importance of empathy and personal interactions; and the pleasure and pride derived from carrying out what they term ‘good work.’ With respect to each objection, the Susskinds give a crisp response.

I was disappointed with this list of objections, each followed by refutation. For example, countering the claim that one needs extensive training to become an expert, the Susskinds call for the reinstatement of apprentices, who can learn ‘on the job.’ But from multiple studies in cognitive science, we know that it takes approximately a decade to become an expert in any domain—and presumably that decade includes plenty of field expertise. Apprentices cannot magically replace well-trained experts. In another section, countering the claim that we need to work with human beings whom we can trust, they cite the example of the teaching done online via Khan Academy. But Khan Academy is the brainchild of a very gifted educator who in fact has earned the trust of many students and indeed of many teachers; it remains to be seen whether online learning à la Khan suffices to help individuals—either professionals or their clients—make ‘complex technical and ethical decisions under conditions of uncertainty.’ The Susskinds recognize that the makers and purveyors of apps may have selfish or even illegal goals in mind. But as they state, “We recognize that there are many online resources that promote and enable a wide range of offenses. We do not underestimate their impact of threat, but they stand beyond the reach of this book” (p. 233).

Whether or not one goes along with specific objections and refutations, another feature of the Susskinds’ presentation should give one pause. The future that they limn seems almost entirely an exercise in rational deduction and accordingly devoid of historical and cultural considerations.

Experts with a bit more historical perspective differ on the real likelihood of pervasive legal automation. Some put the risk to lawyers at under 4%. Even the highly cited study by Carl Frey and Michael Osborne (The Future of Employment: How Susceptible Are Jobs to Automation) placed attorneys in the “low risk” category when it comes to replacement by software and robots. They suggest paralegals are in much more danger.

But empirical research by economist James Bessen has complicated even that assumption:“Since the late 1990s, electronic document discovery software for legal proceedings has grown into a billion dollar business doing work done by paralegals, but the number of paralegals has grown robustly.” Like MIT’s David Autor, Bessen calls automation a job creator, not a job destroyer. “The idea that automation kills jobs isn’t true historically,” Steve Lohr reports, and is still dubious. The real question is whether we reinforce policies designed to promote software and robotization that complements current workers’ skills, or slip into a regime of deskilling and substitution.

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Lawyers and Clients: The Absurd Reality for Indigent Clients Facing Execution

A Thought Experiment

Suppose that Facebook got sued for a privacy tort for hosting nonconsensual pornography and that Facebook’s lawyer told company executives that she did not intend to mount Facebook’s preferred response—a motion to dismiss on the grounds of Section 230 immunity. Executives explained to the lawyer that Section 230 of the federal Communications Decency Act is a knock out punch. An Internet intermediary can’t be held responsible for privacy-invading content created by a user. The lawyer, however, refused to listen to reason.

When Facebook tried to switch attorneys, its first lawyer told the court that Facebook should be forced to remain represented by that lawyer even though Facebook wanted a new one. In making that argument to the court, Facebook’s first lawyer told the court that she was doing a good job for Facebook and that her refusal to mount Facebook’s preferred defense was because Facebook had no Section 230 immunity. Facebook’s lawyer would not only be undermining her own client’s case, but would also be incorrectly representing the underlying issue to the court.

Facebook’s lawyer would be in flagrant violation of fiduciary duties to its client. Of course, clients with money can fire lawyers. Those lawyers certainly should not be permitted to undermine a client’s case in the course of trying to retain the representation—especially by inaccurately representing key features of a case. That sounds so obviously right: a contrary suggestion would surely be absurd.

Absurd Reality for Indigent Clients Facing Execution

For a reason that is hard to fathom, this is precisely what is allowed to happen in criminal cases affecting indigent clients facing execution. Apparently – at least in the Fifth Circuit – the relationship between client principals and lawyer agents is different.

This week, in Roberson v. Stephens, the Supreme Court will consider whether the execution of Robert L. Roberson should proceed even though his lawyers seem to have prioritized their own reputational interests at the expense of their client. Over at Balkanization, my colleague Mark Graber has a careful explanation of how Mr. Roberson’s lawyers seem more preoccupied with their reputations than with resuscitating a Sixth Amendment claim that might save his life.

At issue in Roberson is a failure of legal agency involving the same death penalty lawyers that a palpably displeased Justice Sotomayor rebuked on the eve of their client Raphael Holiday’s November 18 execution. The lawyers refused to file a clemency petition and opposed Mr. Holiday’s attempts to find a lawyer who would follow his wishes and file it. Forced to go along with the Court’s refusal to stay the execution because the attorneys filed a last-minute clemency petition, Justice Sotomayor nevertheless issued a powerful statement criticizing the lawyers for their behavior and the lower courts for failing to police it. She explained that the law does not permit “condemned men and women to be abandoned by their counsel at the last moment . . . [y]et this is exactly what happened here.”

Here again, the same lawyers have seemingly refused to listen to their client, Mr. Roberson, because doing so might require one of them to expose himself to a finding that the forfeiture of the Sixth Amendment claim was his own fault.

As briefing submitted in support of Supreme Court review explains: “In both Roberson and Holiday, the Fifth Circuit permitted the same pattern of conduct: CJA counsel’s refusal to pursue relief on the client’s behalf, followed by counsel’s inaccurate representations to courts about the constraints on seeking such relief, concluding with legal opposition to the very client they were appointed to represent. At base, both Roberson and Holiday express the Fifth Circuit’s view that [the statutory right to counsel] affords courts discretion to saddle inmates facing execution with lawyers who are not functioning as agents of their clients.”

The assessment of the ethics experts in the case is unequivocal. Yale Professor Lawrence Fox is the former Chair of the ABA Standing Committee on Ethics and Professional Responsibility, and the former Chair of the ABA Litigation Section. Professor Fox concluded “to a reasonable degree of a professional certainty that both lawyers are operating under profound conflicts of interest that prevent them from continuing the representation[.]” Charles Herring, a renown Texas ethics expert, explained: “James Volberding and Seth Kretzer have conflicts of interest that should prevent them from representing Mr. Roberson on the [Sixth Amendment issue in the case].”

I may not be a death penalty lawyer, but I know enough to understand that we should not be allowing attorneys to obstruct relief preferred by their own clients—particularly in cases where the attorneys seem to be engaged in obstruction as a means of protecting their own interests. If we would not allow counsel for Facebook to cling onto her job contrary to the interest of its client, we certainly should not do so in a case where the stakes are not just about money but about life and death.

 

Four Futures of Legal Automation

BarbicanThere are many gloom-and-doom narratives about the legal profession. One of the most persistent is “automation apocalypse.” In this scenario, computers will study past filings, determine what patterns of words work best, and then—poof!—software will eat the lawyer’s world.

Conditioned to be preoccupied by worst-case scenarios, many attorneys have panicked about robo-practitioners on the horizon. Meanwhile, experts differ on the real likelihood of pervasive legal automation. Some put the risk to lawyers at under 4%; others claim legal practice is fundamentally routinizable. I’ve recently co-authored an essay that helps explain why such radical uncertainty prevails.

While futurists affect the certainties of physicists, visions of society always reflect contestable political aspirations. Those predicting doom for future lawyers usually harbor ideological commitments that are not that friendly to lawyers of the present. Displacing the threat to lawyers to machines (rather than, say, the decisionmakers who can give machines’ doings the legal effect of what was once done by qualified persons) is a way of not merely rationalizing, but also speeding up, the hoped-for demise of an adversary. Just like the debate over killer robots can draw attention away from the persons who design and deploy them, so too can current controversy over robo-lawyering distract from the more important political and social trends that make automated dispute resolution so tempting to managers and bureaucrats.

It is easy to justify a decline in attorneys’ income or status by saying that software could easily do their work. It’s harder to explain why the many non-automatable aspects of current legal practice should be eliminated or uncompensated. That’s one reason why stale buzzwords like “disruption” crowd out serious reflection on the drivers of automation. A venture capitalist pushing robotic caregivers doesn’t want to kill investors’ buzz by reflecting on the economic forces promoting algorithmic selfhood. Similarly, #legaltech gurus know that a humane vision of legal automation, premised on software that increases quality and opportunities for professional judgment, isn’t an easy sell to investors keen on speed, scale, and speculation. Better instead to present lawyers as glorified elevator operators, replaceable with a sufficiently sophisticated user interface.

Our essay does not predict lawyers’ rise or fall. That may disappoint some readers. But our main point is to make the public conversation about the future of law a more open and honest one. Technology has shaped, and will continue to influence, legal practice. Yet its effect can be checked or channeled by law itself. Since different types of legal work are more or less susceptible to automation, and society can be more or less regulatory, we explore four potential future climates for the development of legal automation. We call them, in shorthand, Vestigial Legal Profession, Society of Control, Status Quo, and Second Great Compression. An abstract appears below.

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The Civilizing Effect of Legal Training

The cultural cognition project has a new article out on how motivated cognition interacts with professionalism:

This paper reports the results of a study on whether political predispositions influence judicial decisionmaking. The study was designed to overcome the two principal limitations on existing empirical studies that purport to find such an influence: the use of nonexperimental methods to assess the decisions of actual judges; and the failure to use actual judges in ideologically-biased-reasoning experiments. The study involved a sample of sitting judges (n = 253), who, like members of a general public sample (n = 800), were culturally polarized on climate change, marijuana legalization and other contested issues. When the study subjects were assigned to analyze statutory interpretation problems, however, only the responses of the general-public subjects and not those of the judges varied in patterns that reflected the subjects’ cultural values. The responses of a sample of lawyers (n = 217) were also uninfluenced by their cultural values; the responses of a sample of law students (n = 284), in contrast, displayed a level of cultural bias only modestly less pronounced than that observed in the general-public sample. Among the competing hypotheses tested in the study, the results most supported the position that professional judgment imparted by legal training and experience confers resistance to identity-protective cognition — a dynamic associated with politically biased information processing generally — but only for decisions that involve legal reasoning. The scholarly and practical implications of the findings are discussed.

Kahan and I have gone back and forth about how best to characterize the results of the study. He, modestly, seeks to constrain the inferences to the data and to a push back against the vulgar understanding of the judiciary as merely housing politicians in robes.  I think the study speaks to something larger still — the value of legal education & experience in producing situation sense, which enables lawyers and judges (and, to a lesser extent, law students) to agree on the results of legal outcomes notwithstanding their political and ideological priors. Such legal judgment is, after all, one of the practical skills that law school conveys, and which it ought to boast about.

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Buffett on Family Business: Beat the Third Generation Curse

warren buffettWarren Buffett is very good at spotting great family businesses. What does he look for? How can his filters help family businesses prosper?

For one, they can mitigate one of the greatest dangers: the third generation “curse.” This refers to how few family businesses survive beyond the third generation, let alone prosper.

An under-appreciated fact about Berkshire Hathaway, the conglomerate Buffett built: virtually all its family businesses boast second or third generation descendants who rival or outshine previous generations. That is rare among family businesses.

So while every family and business situation differs, Berkshire’s two dozen family companies are a good place to look for insight about multi-generational prosperity in the family business.

Studying Berkshire’s family businesses, I found that they are united by the following values. These values are important factors in their success, in the founding generation and subsequent ones.

Family business members, and their professional advisors, whether in law, accounting, or other fields, would do well to ponder these points.

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BOOK REVIEW: Linder & Levit, The Good Lawyer: Seeking Quality in the Practice of Law

happylawyer-levitReview of The Good Lawyer: Seeking Quality in the Practice of Law by Douglas O. Linder & Nancy Levit (Oxford University Press 2014)

Linder and Levit have – yet again – confronted some of the most challenging questions faced by lawyers who seek to find satisfaction in our careers. The Good Lawyer: Seeking Quality in the Practice of Law builds on the authors’ first book, The Happy Lawyer: Making a Good Life in the Law. One of the central questions posed in the first book—how do you become a happy lawyer—seems to be answered in part by the second book. Linder and Levit draw on numerous different disciplines that show a strong link between doing good work and being happy, between personal lives and professional roles.

The Good Lawyer emphasizes a set of qualities, skills, and attitudes shared by people the authors identify as “good lawyers.” As they note, lawyers who practice in different fields – intellectual property, securities fraud, employment discrimination – may need to develop distinct, and particularized, skills, but, regardless of their practice area, lawyers are proudest of themselves when they do meaningful work for clients about whom they care. Consequently, all lawyers, whether they work for private firms, the government, or in a public interest setting or as solo practitioners, can appreciate and use the particular attributes that Linder and Levit identify. Those attributes are addressed in nine of the book’s ten chapters, and they range from empathy to moral courage, cognitive skills, willpower, civility, honesty, and open-mindedness. As they explore the good lawyers’ attributes, the authors draw on behavioral economics, Tonglen Buddhism, cognitive psychology, and the law to support and explain their points.

While the book has some endnotes (under 30 pages, actually), it also has humor and even a checklist, although the checklist is primarily enumerated suggestions rather than a protocol. And it has lots of stories, which make the book even more of a joy to read. The stories provide context and drama. Linder and Levit visit courageous lawyers in the Jim Crow South, explore the psychodrama exercises Gerry Spence offers to trial lawyers at Thunderhead Ranch in Wyoming, introduce Lex Machina, a Stanford project to create a database that helps lawyers predict winning strategies, and probe the expert testimony in the trial of Sam Sheppard.

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