Category: Legal Profession

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FAN 160.1 (First Amendment News) Ballard Spahr and Levine Sullivan Koch & Schulz to Merge

Press ReleaseAm Law 100 firm Ballard Spahr and Levine Sullivan Koch & Schulz (LSKS)—the preeminent First Amendment and media law boutique in the United States—announced today that they have agreed to merge effective October 1, 2017. The powerhouse combination, which will retain the name Ballard Spahr, brings together two nationally renowned media law practices and creates a team that represents the biggest and most prominent names in the industry.

All 25 of LSKS’s lawyers, including all four of its name partners—Lee Levine, Michael D. Sullivan, Elizabeth C. Koch, and David A. Schulz—will join Ballard Spahr in its Washington, D.C., New York, Philadelphia, and Denver offices. LSKS is well known for its deep bench of top-tier First Amendment attorneys. Its lawyers, including Mr. Levine—who has been described in Chambers USA as “the greatest First Amendment attorney in the United States”—have argued landmark cases before the U.S. Supreme Court and in state and federal courts across the country.

Mark S. Stewart (Ballard Spahr) 

“We have made one outstanding addition after another to our Media and Entertainment Law Group—including Practice Leaders David Bodney and Chuck Tobin, who are recognized as among the very best in the business,” said Ballard Spahr Chair Mark Stewart. “With the arrival of LSKS, we will have one of the largest practices of its kind in the country. The LSKS lawyers are terrific people whose dedication to this critically important work mirrors ours. It is an exciting development for both firms.”

Media attorneys at Ballard Spahr and LSKS represent and counsel clients across platforms and industry sectors—news, entertainment, sports, publishing, advertising, and advocacy. They defend media clients in defamation, privacy, and First Amendment litigation; prosecute actions to secure open government and public access; defend journalists against civil, criminal, and grand jury subpoenas; advise reporters in their newsgathering; provide prepublication and prebroadcast counseling to a wide array of media; and help clients protect their intellectual property rights.

Jay Ward Brown (LSKS)

LSKS has been at the vanguard in representing the media in many of its most significant and consequential First Amendment cases in recent years. Last month, the firm achieved dismissal in federal court of a defamation suit brought against The New York Times by former vice presidential candidate Sarah Palin. LSKS also helped the Associated Press obtain the release of sealed documents in the Bill Cosby sexual assault cases; successfully defended NBCUniversal in a defamation suit brought by George Zimmerman, the man acquitted in the fatal shooting of Trayvon Martin; and succeeded in reversing a jury verdict against the estate of famed Navy SEAL Chris Kyle in a case brought by Jesse Ventura following the publication of Kyle’s best-selling book American Sniper: The Autobiography of the Most Lethal Sniper in U.S. Military History.

“We are more committed than ever to providing our clients with the strongest, most comprehensive representation possible,” said LSKS Managing Partner Jay Ward Brown. “We saw that same commitment in Ballard Spahr, and we knew that Ballard—with its practice depth and national platform —would support and strengthen our work. We share many of the same clients, and those clients have the highest regard for Ballard Spahr. Together, this team is second to none.”

‡ ‡ ‡ ‡  

 As with Levine Sullivan Koch & Schulz, Ballard Spahr will continue to host and support The First Amendment Salon.

‡ ‡ ‡ ‡ 

Ballard Spahr welcomes the following attorneys from LSKS:

  • Lee Levine
  • Michael D. Sullivan
  • Elizabeth C. Koch
  • David A. Schulz
  • Thomas B. Kelley
  • Celeste Phillips
  • Robert Penchina
  • Seth D. Berlin
  • Jay Ward Brown
  • Steven D. Zansberg
  • Michael Berry
  • Chad R. Bowman
  • Cameron Stracher
  • Ashley I. Kissinger
  • Alia L. Smith
  • Paul J. Safier
  • Elizabeth Seidlin Bernstein
  • Mara J. Gassmann
  • Dana R. Green
  • Matthew E. Kelley
  • Jeremy A. Kutner
  • Max Mishkin
  • Thomas B. Sullivan
  • Al-Amyn Sumar
  • Alexander I. Ziccardi

The LSKS merger is the second to be announced by Ballard Spahr. Last week, Ballard Spahr announced that it will join with Lindquist & Vennum—a Minneapolis-based law firm known as a leader in middle-market M&A and private equity dealmaking—effective January 1, 2018. The combination will extend Ballard Spahr’s national footprint into the Midwest, giving the firm offices in Minneapolis and Sioux Falls, SD, and an expanded presence in Denver. When the mergers are completed, Ballard Spahr will have more than 675 lawyers in 15 offices across the country.

About Ballard SpahrBallard Spahr LLP, an Am Law 100 law firm with more than 500 lawyers in 13 offices in the United States, provides a range of services in litigation, business and finance, real estate, intellectual property, and public finance. Our clients include Fortune 500 companies, financial institutions, life sciences and technology companies, health systems, investors and developers, government agencies, media companies, educational institutions, and nonprofit organizations. The firm combines a national scope of practice with strong regional market knowledge. For more information, please visit www.ballardspahr.com.

About LSKSLevine Sullivan Koch & Schulz is a national law firm dedicated to serving the legal needs of creators and providers of virtually every type of content in virtually every kind of media, both traditional and new. Its practice focuses exclusively on the field of media law, specializing in First Amendment, entertainment, and intellectual property law. With offices in Washington, D.C., New York, Philadelphia, and Denver, the firm provides counsel nationwide on defamation and privacy, access and freedom of information, content regulation, subpoena matters, and intellectual property rights.


 

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The “Shock and Awe” Response to Hillbilly Elegy: Pondering the Role of Race

In my prior posts about Hillbilly Elegy (here and here), I’ve noted some reasons for my struggle to understand the overwhelmingly positive response to J.D. Vance’s 2016 memoir.  Actually, positive is too general a descriptor.  There is often what I call a “shock and awe” character to the response, a “there are actually people like Vance and his family out there in America” response.  Who knew?  And who knew male seahorses gestate the offspring?  Who knew the Okavango River flows inland?  Who knew the Dutch are the tallest people in the world, excepting some small African tribes?  But I digress …

It’s not clear if this initial incredulity regards (1) the white socioeconomic disadvantage and dysfunction from whence Vance comes or (2) his meteoric rise from Appalachia to Yale Law School and on to Peter Thiel’s Mithril Capital.  I’ve already opined on why we should not be surprised by the former, so in this post I’ll say more about the latter.

First, however, to illustrate just how over the top the media response to Hillbilly Elegy has been, let me quote a few reviews.  Bloomberg identified the book as “the most popular choice for best book of 2016.”  Ok, well, popularity doesn’t necessarily equate to quality, but the venerable New York Times, my own media polestar, called the book a “a compassionate, discerning sociological analysis of the white underclass.”  I’ve already explained why I don’t see it as discerning.  As for compassionate?  Maybe in the vein of Bush’s “compassionate conservatism,” but that doesn’t seem to be a thing any more–if ever it was.  I assume that The Economist reviewer would agree with me on the (lack of) compassion point because he concludes that Vance is a “conservative in the oldest and best sense.”  It’s perhaps not surprising, then, that this reviewer opines that “you will not read a more important book this year.”  In short, the reviewer falls hook, line and sinker for Vance’s tough love, personal responsibility prescription, calling it a “bracing tonic.”

One reason I am surprised by the glowing reviews (especially among left-leaning outlets) and the “millions sold” is that I would not have expected 21C Americans–particularly among the chattering classes (and I know a shocking number of law professors who have read this book)–to be so interested in a story of white class migration.  I thought Horatio Alger characters were a creature of history, that American dream, up-by-your-bootstraps narratives were yesterday’s news.  Didn’t our attraction to such delusional thinking fade once we discovered/identified/named white privilege?

In the world in which I live and work, white privilege is often referenced as if a magic bullet, a miraculous cure-all that permits people with white skin to achieve any and all that their hearts desire.  I often hear phrases like “white people’s problems” and “you’re white, you’ll be alright” tossed about casually.  At a minimum, whiteness greases the proverbial skids on the road to success, though we often treat it as much more potent than that.

Broadly speaking, the academy is highly attuned to structural racism and bias based on race/ethnicity–and appropriately so, in my opinion.  Peggy McIntosh tells us that the invisible knapsack of white privilege means that whites “can be pretty sure of renting or purchasing housing in an area which [they] can afford and in which [they] would want to live.”  (“[W]hich they can afford” is a rather important qualifier, no?)  Bernie Sanders told us during the 2016 primary:

When you’re white, you don’t know what it’s like to be living in a ghetto.  You don’t know what it’s like to be poor.

But this isn’t accurate, and surely–somewhere in the deep recesses of our memories and minds–we are aware of this inaccuracy, this failure to see or acknowledge white poverty.  Yet it seems to have taken Hillbilly Elegy‘s publication to surface that reality, however opaquely.  Still, how many of you have made the connection between what (I hope) you know about the existence of white poverty and the economic landscape depicted in this bestseller?

A majority of those experiencing poverty self-identify as white.  Yet like the academy, the media very often conflate our racism problem with our poverty/inequality problem.  See here and here.  The suggestion is often that black people are poor because they’re black, and of course there’s truth to that.  Trina Jones expresses the phenomenon eloquently:

Somehow . . . race and class become mutually reinforcing. Blacks are poor because they are Black and Blackness gets constructed as poor. That is, poverty becomes a constitutive element of Blackness. Blacks are not only lazy [and] intellectually and morally inferior, they are also poor.

So if we have conflated blackness with dependency, have we conflated whiteness with affluence, well-being, and independence/agency?  Arguably, yes.  And if we have done that, where does that leave low-income, low-education whites?  (This is a H/YUUUGE topic, of which I barely scratch the surface in this post).  If they slump or find themselves downwardly mobile or otherwise fail, we look away, ignoring or “forgetting” them (consider the headlines here and here).  If, like Vance, they ultimately succeed–if they become like “us”–we often discount that success by attributing it to their white privilege.

Given that tendency, isn’t it interesting that we’re so captivated by Vance’s story?  (Further illustrating that intrigue, did you know the movie rights to Hillbilly Elegy have been purchased and Ron Howard will be involved in making the film.  I can’t help wonder/worry what combination of “Beverly Hillbillies,” “Dukes of Hazard,” “Honey Boo Boo” “Duck Dynasty” “Deliverance” and ???? will get depicted.  Plus, who’s going to play J.D.?  Sorry, digressing again).

Furthermore, would we feel the same about Hillbilly Elegy if Vance were our colleague?  (Btw, even friends and acquaintances who liked the book are telling me they are tired of seeing and hearing Vance on CNN; guessing it’s a good thing I don’t watch TV.)  What would it be like to have Vance on your law faculty?  Would that just be too awkward given how different he is from “us”?  What if he showed up, fresh out of Ohio State, as our law student?  (that’s a topic for a future post).  Maybe we relish Vance’s story, his success as a token and at a distance, but we can probably imagine what it would feel like to have him around in the flesh, too close for comfort.  We know he wouldn’t really fit in.  And maybe part of the reason legal academics (of all people) and other elites seem to savor the story is that Yale Law School is the ultimate icing on the educational cake.  Maybe we are attached to that “up by the bootstraps” narrative after all.  Maybe Vance affirms our desire to be engaged in–and to be the products of–a meritocratic enterprise.

And that brings me to another “race” question:  Would the Black/African American equivalent of Hillbilly Elegy have spent so many weeks on the New York Times bestseller list?   Or could/would such a hypothetical book–in an era when the Obamas’ autobiographies have been valued much more highly than prior U.S. presidents–leave Hillbilly Elegy in the dust?  Maybe so.  In fact, we may already have our answer to that question in Dreams from my Father:  A Story of Race and Inheritance.   

Oh, and for the record, I love that book.  Really love it, as reflected in some of my ponderings about it in 2009.  Barack Obama is not only a much finer writer than Vance, I found his reflections more thoughtful, mature, nuanced (and maybe he had a better editor because I don’t recall him going on and on and on).  But I admit that familiarity breeds contempt, and Obama told me a story and introduced me to a world I didn’t already know.  Sadly, I can’t say the same about Vance.

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From Prisoner to Professor: Shon Hopwood Joins Georgetown Law Faculty

I’m probably the only law professor in the country who has seen prison from the inside.

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When something positive happens in my life and people are quick to give me praise, I always remember the people that showed me kindness and the work they did to get me to this point. And I try to pass that kindness onto others.

Shon Hopwood 

If you have yet to hear the news, it’s now official: Shon Hopwood has accepted a position as an associate professor at Georgetown University Law School. Your can read about it in a news story by Katherine Long published recently in the Seattle Times. Here is the title of that story:

Former bank robber helped by Gates fund now professor at Georgetown Law School

It is a remarkable story of how a man turned his life around — a metaphorical turn-around jump shot to score big in the game of life (see video interview with Shon Hopwood, Bank Robber Finds Safer Way to Challenge the Legal System, CBN, 2013).

The Hopwoods (circa 2013. credit: Lincoln Journal Star)

That story is vividly recounted in Hopwood’s Law Man: My Story of Robbing Banks, Winning Supreme Court Cases, and Finding Redemption. Some of those who made this dream-come-true are:

  • Robert & Rebecca Hopwood (Shon’s parents who “never gave up on me”)
  • Ann Marie Hopwood (a remarkable woman who graced Shon with unselfish and unending support . .  . and then married him) (Shon on Ann Marie : “She gave me a second chance when few others would, and she saw something in me that nobody else did.”)
  • Seth Waxman (the former United States solicitor general who worked with Shon to win a Supreme Court case — Fellers v. United States (cert. petition prepared by Shon Hopwood here) (Seth Waxman: “It was probably one of the best cert. petitions I have ever read. It was just terrific.”)
  • Andy Cockle & Trish Billotte (the folks at the Cockle Law Brief Printing Co. who hired Shon after his release from prison)
  • Adam Liptak (the reporter who brought Shon’s story to national attention)
  • Eric Schnapper (the University of Washington Law professor who urged Shon to apply to law school) (Shon: “I decided to apply to the University of Washington School of Law after Professor Eric Schnapper called me.”)
  • Kellye Testy (the University of Washington Law School dean who worked to get Shon into law school, replete with a scholarship from the Gates Public Service Law Program)
  • and Circuit Judge Janice Rogers Brown (who believed in redemption — and excellence — enough to hire Shon as one of her law clerks) (Shon: “She never once treated me any differently from anyone else. If it’s not completely obvious, I adore her. I miss working for her.”)

To be sure, there are others, including some very special people at Georgetown who astutely realized Shon’s enormous potential, enough so as to invest in him even when lesser schools declined to interview him.

Shon is a terrific addition to the Georgetown faculty. He’s a great teacher, a top flight appellate advocate, a valued colleague, and a promising scholar. We’re delighted he’s joined our faculty.

                                                                                                                                             — David Vladeck 

I confess: I’m biased — Shon was one of my former students at U.W.

Bottom line: Keep your eyes on this guy and don’t be surprised if he moves a few more mountains . . . and with Ann Marie by his side!

Related

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(credit: Seattle Times)

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A Posner Cerebral Sampler for the Holidays

stock-photo-a-dusting-of-snow-on-pine-boughs-pine-cones-and-red-berries-creates-a-seasonal-bouquet-with-a-167943707What the holidays coming up, I thought some might like to have a Posner sampler of cerebral treats to savor at home, or at work, or as source of discussion at one of those otherwise dreadfully boring holiday parties. For example, after one or two martinis you might lean over to a friend and ask:

  • So, what do you think of the new Posner biography?

Or if you prefer downing Flying Dog brew, you might liven things up a bit by asking:

  • Has anyone seen the video of the First Amendment Salon that Posner did with Geof Stone? And what of the Judge’s views on Dennis v. United States

Or if you have friends over to the house, try gathering around a cracking fire and perking up the conversation with something like:

  • I gather Posner has some serious reservations about the Roberts Court — or is that putting it to kindly?

Then again, you might just want to snuggle up in bed and ponder the latest Posner book, or article, or judicial opinion. Or what about this? — take a Posner book to a high-end hotel bar and wait until some attractive person comes up and starts a conversation with you about that “Posner book you’re reading.” (Yes, it actually happened, and I did not have to wait long.)

So whatever your stripes — liberal, conservative, libertarian, Trumpian, anarchist, nihilist, atheist, etc. — here is a seasonal sampler for you, a little taste of Posner — Richard Posner, that is.

New & Forthcoming

Judge Posner is writing a new book; it is titled Strengths and Weaknesses of the Legal System (Harvard University Press, summer 2017).

→ What Is Obviously Wrong With the Federal Judiciary, Yet Eminently Curable, Part II, The Greenbag (2016) (Part 1 here) Reply: William Baude & Stephen E. Sachs, Originalism’s Bite, Green Bag 2d (forthcoming  20, #1, 2016)

Richard Posner & Eric Segall, Faux OriginalismThe Greenbag (forthcoming vol. 20, #1, 2016) (reply to Baude & Sachs, above)

imagesNew Opinions 

Illinois Transportation Trade Association v. City of Chicago (7th Cir., 2016) (Posner on Uber vs. taxis)

Culp v. Madigan (7th Cir., Oct. 20, 2016) (“So the Illinois law regulating the concealed-carry rights of nonresidents is imperfect. But we cannot say that it is un- reasonable, so imperfect as to justify the issuance of a preliminary injunction.  . .  . The critical problem presented by the plaintiffs’ demand—for which they offer no solution—is verification. A nonresident’s application for an Illinois concealed-carry license can- not be taken at face value. The assertions in it must be verified. And Illinois needs to receive reliable updates in order to confirm that license-holders remain qualified during the five-year term of the license. Yet its ability to verify is extremely limited unless the nonresident lives in one of the four states that have concealed-carry laws similar to Illinois’ law. A trial in this case may cast the facts in a different light, but the plaintiffs have not made a case for a preliminary injunction.”)

Somewhat new but “enticing”: Backpage.com v. Dart (Nov. 2015) (“Nor is Sheriff Dart on solid ground in suggesting that everything in the adult section of Backpage’s website is criminal, violent, or exploitive. Fetishism? Phone sex? Performances by striptease artists? (Vulgar is not violent.) One ad in the category ‘dom & fetish’ is for the services of a ‘professional dominatrix’—a woman who is paid to whip or otherwise humiliate a customer in order to arouse him sexually. See What It’s Actually Like Being A Dominatrix (According To One Dominatrix), www.xojane.com/sex/what-its-actually-like-being-a-dominatrix-according-to-one-dominatrix (visited November 27, 2015) (‘I make a living as a professional dominatrix. . . . I make a living by hitting, humiliating, dressing up, verbally attacking and otherwise fulfilling men’s weird fantasies about being dominated.”); see also Wikipedia, ‘Dominatrix,’ https://en.wikipedia.org/wiki/Dominatrix (visited the same day). It’s not obvious that such conduct endangers women or children or violates any laws, including laws against prostitution.’)

Salon Video: Posner on Free Speech 

Judge Richard Posner & Professor Geoffrey Stone)

Judge Richard Posner & Professor Geoffrey Stone

On May 16, 2016, The First Amendment Salon went on the road again, this time to the University of Chicago Law School. Geoffrey Stone (who serves on the Salon’s advisory board) interviewed Judge Richard Posner. The topic: “The Centrality of the First Amendment.” (Link to video below)

By all measures, it was a quite an evening as Stone engaged the dapper jurist, drawing him out time and again. The result: a rare display of candor on a variety of subjects ranging from the significance of the press clause to the display of confederate flags.

Speaking in measured tones sprinkled with occasional chuckles, Posner seldom held back as the turn of his mind ventured from one provocative thought to another. Stone asked him about everything from the Dennis v. U.S. ruling (RP: correctly decided), to the Pentagon Papers Case (RP: correctly decided), to the wisdom of extending First Amendment protection to Edward Snowden re the release of secret government documents (RP: not much simpatico here).

Along the dialogic way Posner, ever the maverick, occasionally answered Stone’s questions with a question only to have the Chicago professor up the conversational ante to tease out this or that point.

When the time came for questions from the audiences in New York and Washington, D.C. (via teleconferencing), the tenor remained composed yet spirited as the Judge replied with singular frankness concerning topics such as

Sometimes the discussion veered onto other topics such as:

  • executive power in wartime (RP: should be considerable with little or no interference from the courts)
  • the Second Amendment and the individual right to bear arms (RP: critical)

Among other things, Posner also leveled a hearty blow at Roger Taney, this for his 1861 opinion in Ex ParteMerryman in which the Chief Justice took constitutional exception to President Lincoln’s suspension of the writ of habeas corpus. Pure folly by Posner’s jurisprudential measure.

All in all, everyone remained relaxed even as eyebrows raised. It made for a memorable evening. There was, of course more, much more. But I’ll stop there for now, if only because the video is far better.

Video here

unknown9-199x300 The “Provocative” Posner

That is the word used in the New York Times book review of the new biography of Judge Posner by William Domnarski. Here is how John Fabian Witt opened his review: “Once in every great while, nature and nurture combine in a single person the qualities of erratic genius, herculean work ethic and irrepressible ambition. Think of Picasso in art, Ali in boxing or Roth in literature. Add a penchant for provocation untethered to the constraints of conventional human interaction and you get, in the law, Judge Richard Posner of the United States Court of Appeals for the Seventh Circuit in Chicago.”

See David Lat, Interview with William Domnarski, Above the Law, August 25, 2016

Ronald Collins, The Promethean Posner – An Interview with the Judge’s Biographer, Concurring Opinions, December 29, 2015

Posner: “I think the Supreme Court is awful. I think it’s reached a real nadir.”

If you want to read more about why Judge Posner said that, check out his Seminary Co-op Bookstore discussion with Mr. Domnarski and Professor Tom Ginsburg.

Prof. Ginsburg,Judge Posner & Mr. Domnarski

Prof. Ginsburg, Judge Posner & Mr. Domnarski

In a subsequent comment to David Lat over at Above the Law, Judge Posner declared: “I sometimes ask myself: whether the nine current Supreme Court Justices (I’m restoring Scalia to life for this purpose) are the nine best-qualified lawyers to be Justices. Obviously not. Are they nine of the best 100? Obviously not. Nine of the best 1,000? I don’t think so. Nine of the best 10,000? I’ll give them that.”

Posner on Professors (& Professors on Posner) 

 Divergent Paths: The Academy and the Judiciary (Harvard University Press, 2015)

→ Jeff Berkowitz, Video Interview with Judge Posner, Public Affairs, June 1, 2016 (discussing, among other things, Posner’s Divergent Paths) (also: video of Posner’s chambers) (Part 2 here)

University of Chicago Law School: Symposium on Richard Posner’s Divergent Paths: The Academy and the Judiciary, May 3, 2016

Posner on The Blue Book

images Debra Cassens Weiss, Posner says Bluebook is ‘560 pages of rubbish,’ suggests changes to improve jury trials, American Bar Association Journal, March 29, 2016 (“Posner also dislikes The Bluebook. He has his own instructions on citation format, consisting of two pages in an office manual he gives to his law clerks.’The first thing to do,’ Posner writes, ‘is burn all copies of the Bluebook, in its latest edition 560 pages of rubbish, a terrible time waster for law clerks employed by judges who insist, as many do, that the citations in their opinions conform to the Bluebook.'”)

  • David Ziff, The Worst System of Citation Except for All the Others, Journal of Legal Education (forthcoming 2016) (“Even The Bluebook’s harshest critics, such as Judge Richard Posner, rely on The Bluebook’s system of rules much more than they like to admit. . . . Judge Posner . . .  has suggested that ‘[a] week after all the copies of the Bluebook were burned, their absence would not be noticed.’ Provocative. But let’s play the hypothetical forward. To the extent lawyers, judges, students, and academics in a post-Bluebook world endeavored to communicate their references in a reasonable and clear manner, The Bluebook would still exert its influence, because efficient communication requires a baseline of shared understanding among writers and readers. Of course, that shared understanding could be based on a system of rules other than The Bluebook. But some baseline is necessary.”)

Finale: The Complete Posner on Posner

posner-720x340

 Ronald Collins, The Complete Posner on Posner Series, Concurring Opinions, Nov. 24, 2015 – Jan. 5, 2015 (12 posts)

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Empowering Law Students in a Time of Trouble

The presidential election of 2016 ended with a stunning upset. The result left many people concerned about the future. As a law professor, I think I have a special responsibility to think about those concerns, because my students are becoming lawyers at a time when our nation may need lawyers more than ever.

This fall, I’ve taught a small group of first-year students. We’ve worked on much more than civil procedure doctrine; we’ve worked on lawyering.   Students have to attempt uncomfortable arguments, analyze in unaccustomed ways, write “like lawyers,” and attend to details of facts and procedure.

Before the election, I’m not sure I’d explained why lawyering matters. As John Adams said in 1780, this is “a government of laws and not of men,” that is, a government of laws and not of individuals. If, as many fear, President-Elect Donald Trump acts as though he does not understand what a government of laws means, we can despair, or we can do what lawyers do: use our power to keep government within the law and not use government power in pursuit of individual gain or to injure some groups while helping others.

Law students sometimes lack an appreciation for the primacy of law. When we examine the Constitution, some are surprised that Article I is about the Congress, the body charged with enacting laws. Article II concerns the executive branch, which is charged with carrying out the laws. While students (and many lawyers) think the courts are more important, we only hear about them in Article III.   The creation of law comes first; execution, interpretation and enforcement come later.

The idea that federal government officials use their power solely as authorized by the Constitution and by laws enacted by Congress is plainly an aspiration and not always the reality. The smaller the gap, the more confident people feel that we are protected from government going awry.

Students in civil procedure read many cases in which government goes awry, starting with Pennoyer v. Neff. The Supreme Court said no when a court allowed a plaintiff to use government power to limit a defendant’s rights in his property without giving the defendant notice in advance. Even a court is not permitted to use power except consistently with the law. No government official or government institution is permitted to act illegally – not the president, not the Congress, not a judge, and not a police officer.

Over the course of my career, my colleagues and I have frequently had to insist that government officials act legally. Some of these officials have been Democrats and some have been Republicans, but all are subject to the law. We’ve argued and won child custody and family violence cases by demanding that the judge decide the case based on the law and not out of gender bias. We’ve persuaded courts not to convict a defendant unless the state has demonstrated beyond a reasonable doubt that the defendant is guilty of a crime. We’ve forced state government agencies not to deprive poor people of Medicaid when federal law says that Medicaid is due.

Because we are a government of laws and not of individuals, people can be asked to believe that government officials try to act within legal boundaries. When government fails, people have the right to demand an end to illegality.

What do law students need to know about lawyers, law and power? My students learned from Buffalo Creek that residents of a flooded valley believed they would never be compensated for their devastating losses. They were convinced that the coal company which caused the flood possessed all the power and that they would be denied justice.

Some residents asked a lawyer to help. Why a lawyer and not a minister or a legislator? Because the lawyer’s job is to make the system work for all, to insist that we have a government of laws, not of individuals. That kind of government is fair and unbiased. Under that kind of government, a coal company cannot make courts to do whatever is good for the company, regardless of law and facts. With the help of a lawyer and his firm, the residents won, and the coal company lost.

Imagine that you are an African-American who has concluded from this presidential campaign that nobody is standing up for you. When you say that racism is behind police killings in your community and that your right to vote is attacked because of racism, you are told that only racists accuse people of racism. Imagine that you are an immigrant or a refugee. You are told you don’t belong here, and you are told that you will be thrown out. Imagine that you are a woman who objects to being groped and demeaned. You are told you are overly sensitive and that nobody does those things; they just talk about them. Imagine that you are Jewish or Moslem. You are told that you cause more trouble than you are worth to this society. Imagine that you are disabled. You are told that you are a freak who can be mocked with impunity.

I am not imagining these threats. What prevents people from concluding that our next group of government officials will not be scrupulous about fighting the threats and complying with the law? What hope do people under attack have in the aspiration that this is a government of laws and not individuals?

As lawyers-to-be, my students need to understand that they will have power to share. As lawyers, we are entrusted with knowing the law. We see when government officials are overstepping their boundaries. We can help educate the public, we can offer help, and we can put our knowledge and skills to work. I hope my students have learned some lawyering this semester. Even more important, I hope they appreciate the power of lawyers to enhance the lives of others who need our nation to have a government of laws and not a government of individuals.

Social Media for Scholars

For about a year now, Nic Terry and I have been hosting “The Week in Health Law” podcast. (We did miss a few weeks–so we’re actually more like “This 8.3 Days in Health Law”–but we’re pretty reliable!) We interview law professors, social scientists, and other experts, mainly from the US, though with some international presence. We recently convened a “meta-podcast” with 3 past show guests (and the editor of Pharmalot, an influential pharma industry blog) on the importance of social media presence for engaged academics. Our show notes also link to some good guides from other scholars. Like the “No Jargon” podcast of the Scholars Strategy Network, we try to bring informed commentary on complex ideas (like agency guidance on wellness programs) to a broad audience. We’ve received positive feedback from around the world, and I’m often surprised by the range of people who are tuning in (from hospital administrators to bar leaders to general counsel).

I just wanted to add one cautionary note to the emerging commentary on engaged scholarship and social media. I often see participation in blogs, podcasts, or Twitter framed in corporate or neoliberal discourse–the need to “build a brand,” “increase citations,” “leverage a network,” and so on. Even I engage in that in the podcast when I discuss altmetrics. But at its core, the scholarly identity is a very different one than the metricized self of performance optimization. Our best conversations feature a critical distance from the topics at hand and even from the ever more voluminous research apparatus around them. They highlight, rather than gloss over, inevitable conflicts of values that emerge once once tries to apply banalities like the “triple aim” in specific settings. There is a deep interest in an empirical research, and a sober awareness of its limits. (Our discussion with Scott Burris on policies like bike helmet laws is one very good example of this.)

The best moments of the podcast (contrasted with the impoverished neoliberal discourse often used to justify participation in engaged scholarship) highlight two very different meanings of “professionalism” now at work in our culture. The professionalized scholar is often a cite-generator and grant-grubber, more concerned with the external indicia of achievement than the intrinsic value of research they are meant to merely validate or support. But if we consider the academy as a profession, we realize the extraordinary importance of its partial autonomy from both market and state. It exists to create a space for research and conversations that are impossible to monetize immediately (or maybe ever), and which have not been specifically approved by political institutions.

As the state increasingly becomes a cat’s paw of market forces, and market forces themselves are engineered by a shrinking and short-sighted financial elite, preserving the residual autonomy of professions is more important than ever. I hope that future discussions of engaged scholarship focus more on its potential to advance solidarity among those committed to an independent academy–not one keen on ever-preciser rankings of its members, or defensive about proving its value in economic terms that are themselves of questionable utility.

The UK’s “Democratization” of the Professions: Case Studies

Read a few techno-utopian pieces on the future of US legal practice, and you’ll see, again and again, “lessons from Britain.” The UK “legal industry” is lauded for its bold innovation and deregulatory verve. Unfortunately, it appears that in its enthusiasm to make a neoliberal omelette, the green and pleasant land is breaking a few eggs:

Gap-year students are being recruited by the Home Office to make potentially life or death decisions on asylum claims, the Observer has learned. The students receive only five weeks’ training. . . . Immigration lawyers and asylum seekers have condemned the practice, pointing out that, after completing a degree, immigration lawyers undergo a further four years’ training. . . .

A health professional from west Africa who was granted refugee status last year said his claim was initially refused and it took four years of appeals to win his refugee status. “I attempted suicide after my asylum claim was refused because I knew my life would be in danger if I was forcibly returned home,” he said. “I became friendly with a family where the son had taken a gap year during his university degree to work as a Home Office decision-maker. I could not believe that he was making these life and death decisions about complex cases like mine. I am not sure that students are capable of the complex level of critical analysis required to make asylum decisions.”

Meanwhile, the British Health Secretary is telling parents that, hey, Dr. Google may be just as good as a regular physician. Expect to see the new “democratization of the professions” accelerate fastest among those without the resources to resist.

The State of Legal Scholarship: A View from Health Law

Based on Ron Collins’ post below, I read the interview with Judge Edwards. The judge states:

In order for legal scholarship to be relevant outside the legal academy, law professors should balance abstract scholarship with scholarly works that are of interest and use to lawyers, legislators, judges, and regulators who serve society through legal arguments, decision-making, regulatory initiatives, and enforcement actions.

Fortunately, every legal academic that Nicolas Terry and I have hosted in our 41 episodes of The Week in Health Law has done so. Perhaps that’s a biased sample. But it’s undoubtedly better than the sampling practiced by Justice Breyer, another critic of legal scholarship.

For now, I will take some comfort that, about a year into our podcasting, we have heard from general counsels, attorneys, regulators, and journalists who are big fans of the show–which primarily focuses on the work of legal academics. And I will remain dubious of generalized critiques of legal scholarship, which fail to analyze the merits of particular fields.

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.

Worker Replaceability: A Question of Values

One reason I decided to write on law practice technology was because of a general unease about the shape of debates on automation. Technologists and journalists tend to look at jobs from the outside, presume that they are routine, and predict they’ll be further routinized by machines. But some reality checks are important here.

As David Rotman observes, “there is not much evidence on how even today’s automation is affecting employment.” Many economists believe that technology will create more jobs than it destroys. MIT’s David Autor, writing for the Federal Reserve Bank of Kansas City’s economic policy symposium on “Reevaluating Labor Market Dynamics,” states that “journalists and expert commentators overstate the extent of machine substitution for human labor and ignore the strong complementarities”—in other words, the ways that automation can increase, rather than decrease, the value of human labor. Consider, for instance, the use of voice recognition software: it may put transcriptionists out of work, but increases the value of the labor of a person who can now, say, transcribe what they’ve dictated 24 hours a day, rather than just when the transcriptionist is near. The selfie-stick may have a similar effect on cameramen and journalists. Legal tech may put some lawyers out of a job, while creating jobs for others.

It’s also easy to overestimate the scope of automation. Autor gives a sobering example of windshield repair:

Most automated systems lack flexibility—they are brittle. Modern automobile plants, for example, employ industrial robots to install windshields on new vehicles as they move through the assembly line. But aftermarket windshield replacement companies employ technicians, not robots, to install replacement windshields. Why not robots? Because removing a broken windshield, preparing the windshield frame to accept a replacement, and fitting a replacement into that frame demand far more real-time adaptability than any contemporary robot can
approach.

The distinction between assembly line production and the in-situ repair highlights the role of environmental control in enabling automation. While machines cannot generally operate autonomously in unpredictable environments, engineers can in some cases radically simplify the environment in which machines work to enable autonomous operation.

Admittedly, the “society of control” scenario discussed here, or even milder versions of the “smart city,” may lead to far more controllable environments. But they also raise critical questions about privacy, fair data practices, and liberty.

There are also conflicts over values at stake in worker replacement. Osborn & Frey’s study The Future Of Employment: How Susceptible Are Jobs To Computerisation? tries to rank order 702 positions on the degree of likelihood of their automation. They characterize recreational therapists as least automatable, and title examiners and searchers as the second most automatable. But many video games offer forms of therapy, and therapeutic jobs (like masseur) and even higher-touch jobs could, in principle, be computerized. Furthermore, at least in the United States in the wake of MERS, there has been a loss of “confidence in real property recording systems.” Title insurance may hinge on legal questions that are still up in the air in certain states. Yes, further automation and recognition of things like MERS might “cut the Gordian knot,” but that solution would also inevitably trench on other values of legal regularity and due process.

In summary: automation anxieties could be as overblown now as they were in the 1960s. And the automation of each occupation, and tasks within occupations, will inevitably create conflicts over values and social priorities. Far from a purely technical question, robotization always implicates values. The future of automation is ours to master. Respecting workers, rather than assuming their replaceability of, would be a great start.