Category: Law Practice


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.

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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.



Book Review: Levin & Mather’s Lawyers in Practice: Ethical Decision Making in Context

Lawyers in Practice: Ethical Decision Making in Context, edited by Leslie C. Levin & Lynn Mather. University of Chicago Press: Chicago, 2012. pp. 370. $39.00

What is the best way to study the ethical world of lawyers? On a “top-down” approach, this study proceeds in two steps: first, we start with the rules of legal ethics (or, perhaps, the moral, legal or political principles that underlie those rules); second, we apply these rules and principles to particular cases that lawyers confront.

The infirmities of the top-down approach are a recurring theme of the essays collected in Lawyers in Practice. Most of the authors in this collection either champion or practice an alternative method, one that is inductive, or “bottom-up.” On this method, when studying the ethical world of lawyers, we should first examine how real-world lawyers confront real-life ethical challenges. In analyzing these responses, we should consider a variety of factors other than the rules or principles of legal ethics that drive lawyers to act in the ways that they do.

Thus, we can restate our opening question more precisely. When studying legal ethics, should we be top-downers, bottom-uppers, or both? Which is the more fundamental task: justifying the rules of legal ethics or explaining how lawyers behave when confronted with ethical challenges? Lawyers in Practice makes these broader questions salient. In this review, I want to offer a chastened case for a top-down approach, while recognizing the important (but ultimately complementary) role that bottom-up methods can play in studying the ethical world of lawyers.


Before exploring this broader topic, here are some vitals on the book. Lawyers in Practice is a collection of essays that were originally presented at a conference at the University of Buffalo Law School. Levin and Mather provide an introductory essay and short epilogue summarizing some main themes, and essays by David Wilkins and Elizabeth Chambliss explore some methodological issues for the sociolegal study of lawyers’ ethics.

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Original Habeas Writ

My brilliant colleague Lee Kovarsky is an expert on the theory and practice of habeas corpus.  He’s a wunderkind.  One can find him, in any given week, arguing habeas petitions before an appellate court, working on the first habeas casebook entitled Federal Habeas Corpus: Executive Detention and Post-Conviction Litigation with his co-author Brandon Garrett, and, as I imagine is true this week, grading civil procedure exams.  Professor Kovarsky is also writing ground-breaking articles.  Here is the abstract for his most recent work entitled Original Habeas Redux, published by the Virginia Law Review:

In Original Habeas Redux, I map the modern dimensions of the Supreme Court’s most exotic jurisdiction, the original habeas writ. The Court has not issued such relief since 1925 and, until recently, had not ordered a case transferred pursuant to that authority in over fifty years. In August 2009, by transferring a capital prisoner’s original habeas petition to a federal district court rather than dismissing it outright, In re Davis abruptly thrust this obscure power back into mainstream legal debate over both the death penalty and the Supreme Court’s appellate jurisdiction.

Scrambling to understand how the authority has evolved since its nineteenth-century heyday, commentators have been severely limited by the absence of any data reporting the attributes of the original petitions themselves. I have filled that empirical void by collecting and organizing the only modern original habeas data, and this Article presents those results for the first time. The data shows that the vast majority of original petitioners are criminally confined, but that they are not collaterally challenging that confinement in their initial habeas proceedings. Original writ procedure is now primarily a vehicle for litigating “successive” habeas corpus petitions that are otherwise subject to severe jurisdictional limits in the federal courts.

I argue that, in light of the writ’s history and the data I have compiled, Davis is not a blip in an otherwise constant state of original habeas inactivity. I observe that the availability of original habeas relief has historically exhibited two over-arching characteristics: (1) that the Supreme Court’s Article III appellate power to grant it is basically coextensive with Article III judicial power common to all federal courts; and (2) that the Court does not actually exercise that authority when it may avail itself of jurisdictional alternatives. I also present data confirming that the availability of conventional appellate jurisdiction exerts the dominant influence on the modern original habeas docket’s composition. I ultimately advance what I call the “capital safety valve paradigm”–the idea that original habeas should and likely will emerge as a means to ensure that the death penalty is not erroneously imposed.


Transactional Internships in the Summer after the First Year

A number of students have recently asked me about opportunities to work in transactional practice in the summer after their 1L year.   That kind of job search is challenging, as the typical kind of 1L practice revolves around planning for or resolving litigation (i.e., government agency litigation interns, judicial interns, public service interns).  Indeed, I imagine that a large plurality of law students who obtain a legal internship this summer (paid or not) will end up writing some kind of multi- or 50-state survey litigation memorandum.

However, there are transactional opportunities – at law firms (though these are hard to secure for 1Ls); in general counsel’s offices (same objection); in government; and, in particular, in tax and estate planning small practices.  I thought I’d open up a thread for folks to share ideas/experiences with transactional practice in the first summer.  If you had a great job, please tell us about it and what you did. If you’ve ideas for networking of job search, let’s make a public good of them.


The Usefulness of Legal Scholarship

A reader of my post about the N.Y. Times critique of legal education writes, in regard to the value of legal scholarship:

I happen to be on the editorial board of a T14 law school’s law review, so I have to cite check and read articles regularly. Of those I’ve read, I can’t think of a single one I thought would be useful to a practicing lawyer. The problem is, in my experience, most seem to advocate a fundamental change in philosophy to an area of law that diverges from what precedent would suggest. To me, this seems extremely unhelpful, because A. Lower courts aren’t likely to accept a grand new theory that seems to contradict what SCOTUS is saying, B. As far as I can tell SCOTUS seems not to usually change its theory either, and C. I don’t think most policymakers tend to read law review articles.

This leads me to be inclined to believe that most law review articles are useless. Are you saying my sample is unrepresentative of what’s out there? Or do I simply have a narrower definition of usefulness? Could you perhaps suggest some articles from the past year that in your mind represented useful legal scholarship?

This commentator assumes that usefulness is the equivalent of being accepted by the courts.  I quarrel with this view for many reasons:

1. An article can have an influence on cases, even if difficult to demonstrate.  Many courts don’t cite law review articles even when they rely on them.  Judges are notorious for not being particularly charitable with citations.  They often copy verbatim parts of briefs, for example.  If a law professor relies on a scholarly work even in a minor way, the professor will typically cite to the work.  Not so for courts.

2. Most articles will not change the law.  Changing the law is quite difficult, and if most law review articles changed the law, the law would be ridiculously more dynamic than it currently is.

3. No matter what discipline or area, most of the things produced are not going to be great.  Most inventions are flops.  Most books, songs, movies, TV shows, art works, architecture, or anything produced are quite forgettable and will likely be forgotten.  Great lasting works only come around infrequently, no matter what the field.

4. Most people are forgettable too.  In the law, most practitioners and judges have been forgotten.  Only a few great ones are remembered.  Of the judges who are most well-known, it is interesting that many were more theoretical in nature and had a major impact in changing the law — typically in ways law professors might change the law.  Think of Benjamin Cardozo, who wrote many articles and books and who radically changed the law.  Think of Felix Frankfurter, a former law professor.  Think of Louis Brandeis.  Think of Oliver Wendell Holmes.  These were jurists who were thinkers.  They were readers.  They were literary.  They were writers of scholarship too.  Maybe the forgettable practitioners and judges are the ones who ignore legal scholarship.

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“The first thing we do, let’s [train] all the lawyers.”

David Segal has a front-page, above-the-fold article in today’s New York Times, What They Don’t Teach Law Students: Lawyering.  Segal blasts legal education for failing to produce prêt-à-porter lawyers sized to fit the needs of everyone from Skadden Arps to solo practitioners.  Segal also denies the value of “pure” research — law review articles and other scholarly output that do not satisfy his requirements for immediate application to daily practice.  Gerard Magliocca and Alex Guerrero already commented on one of his examples.  As with Dick the Butcher’s suggestion in Shakespeare’s Henry VI, Part 2, Segal’s article is wrong on both teaching and research.

First, teaching.  I think that when law schools succeed at their mission they do produce graduates with skills ready for use in any legal environment.  It’s just that developing the skill set that Segal prioritizes (such as his opening example: filing a certificate of merger with a secretary of state) is not the sole, let alone primary, goal of legal education.  Those form-filling and filing skills are important, but best honed by firms that daily engage in those specialized, localized, and technical operations.  Law schools, in contrast, have the advantage in teaching the general skills and knowledge that firms of all sizes (as well as government agencies and corporations) have neither the time, inclination, nor resources to perfect.  But these organizations desperately need these things in the lawyers they hire: critical thinking, professional standards, ethical judgment, and historical perspective (to name a few).

Unlike medical schools and engineering programs, law schools do not set out to create technicians.  (I suspect that the best medical and engineering institutions don’t have this goal either, but this is the common comparison.)  Law schools, especially, should produce graduates comfortably inclined to question the status quo, challenge assumed truths, and think about the long-term implications of their actions as members of a learned profession.  Over time, one hopes that their training will combine with experience to produce in them judgment about when each skill should take a leading role.  Lawyers with these skills are needed in any age, but especially one that produced such colossal fails ranging from Enron to government-sanctioned torture.

Second, research.  I also reject Segal’s essentially anti-intellectual critique of research.  Last spring, I was asked by a high-level Russian official to write a report on a verdict in a criminal case.  That report explored the many departures from Russia’s obligations under the European Convention on Human Rights to be found in that verdict, but it also raised serious questions about fundamental aspects of Russian law.  The report could hardly qualify as research readily useful to the day-to-day activities of a practitioner at the bar of any American state or the present Russian one.  Nevertheless, I found that the research that I conducted, the exercise of drafting my report, and the report itself generated useful starting points for several discussions in classes that I teach on American law.  Those conversations ranged from an aspect of the famous Chenery case in my Administrative Law class to an editing exercise in a seminar on counterterrorism.  Needless to say, I hope it also makes a positive impact in Russia when it is released next month.

Those teaching moments were hard to foresee at the outset of my research.  But anyone who values knowledge for its own sake would not be surprised by the serendipity my Russian law work produced in my American law classrooms.  That the report led to invitations to speak to groups at universities and thinktanks in the U.S., U.K., Sweden, Norway, Finland, and Belgium also suggests that what counts as valuable research might benefit from a less cramped definition than Segal and company provide.


Suggested Reading (for Law Students and Profs): Open Book: Succeeding on Exams from the First Day of Law School

Barry Friedman and John C.P. Goldberg have a new book out on how to take law school exams called Open Book:  Succeeding on Exams from the First Day of Law School.  It is something different and really worth recommending.  Here are a few reasons why I would love my students to read the book and its online content.  First, the book imparts fabulous advice on why law profs give exams and how those exams directly connect to law practice and the whole law school endeavor.  Second, the website has so many practice exams (in all of the core areas) with marked up answers that explain the reasons behind the prof’s thinking and evaluation of the answers.  This is an incredible help: students learn what worked on the exam and why.  Third, the joy that the authors take from teaching and the practice of law leaps off the page — it’s so clear how wonderful they are as teachers and mentors.  Their enthusiasm and respect for what lawyers do is obvious and inspiring.  The pedagogy will appeal to law professors, and it is an entertaining read, nicely illustrated.  The website is full of useful content (those practice exams and feedback I talked about).  (Profs: to check it out, you need an access code to get to the premium content but can easily get one by writing them from the author contact page.)

Here’s the back-of-book blurb:

Open Book is the ultimate insider’s guide to succeeding on law school exams. The authors draw on decades of classroom teaching and student counseling to create a concise, lively book that imparts a method of law school exam-taking that maximizes your chances of success—and helps prepare you for the world of practice. Their Web site ( gives you access to valuable exam-related resources.



F.M. LaGuardia and Lawyers In the Way

As a law professor and lawyer, I like law and lawyering. But I hate as much as the next guy when lawyers get in the way of people trying to do business. 

In the past year, lawyers have poisoned three separate personal deals of mine, over matters neither I nor the other side needed to care about.  The lawyers were hurting not helping their clients. 

Lawyers need to know, and as a law professor I try to teach, the difference between legal matters and business issues. Lawyers must know the difference and stay out of the way of business matters. 

All this prompts me to reprint below a wonderful letter from the inimitable Mayor of New York, Fiorella La Guardia.  The letter, dated January 29, 1944, is addressed to the heads of various airlines, including American, Eastern, PanAm, and United. 

The  letter’s ultimate paragraph and final words speak volumes to my point, and the letter as a whole is vintage piece of written communication.  Read More