Category: Sociology of Law


Is “Gay” Over?

The most recent edition of The Advocate features an interesting article by Adam B. Vary entitled, “Is gay over?” The thesis of the article is that, “gay in all its meanings — personal, communal, cultural, political — seems to be going through its own identity crisis.” In the piece, one commentator suggests that “gay as an identity . . . may be pretty much at an end,” and that “people are thinking of their sexuality in a much more diffuse way.” The article notes that this is particularly true with respect to young people. Vary observes that, “along with feeling more free to come out in high school or sooner, many people in their teens and early 20’s are also free to reject gay as an identity. Instead, they’re defining their sexuality as queer or open or opting for no label at all.”

One response to the article might be to argue that it could only have been written by someone living on one of the two coasts — the magazine identifies Vary as a “Los Angeles-based writer” — where life as a gay person is often quite different than in many other areas of the United States. Thus, one argument is that the article reflects more than a little bit of geographic elitism. But my response to the piece is somewhat different.

In the article, Vary pinpoints April 1997 as the moment when gay as an identity started to evolve and become more fluid. It was during that month that Ellen DeGeneres came out on the cover of Time Magazine and famously proclaimed “Yep, I’m Gay.” According to Vary, that moment was a “major cultural touchstone,” ushering in an era of unprecedented LGBT visibility. But from my perspective, there is another more recent moment that was perhaps even more significant in forming a post-gay identity: the Supreme Court’s decision in Lawrence v. Texas. Simply put, it is really only possible to question the nature and basis of one’s sexuality once the most basic expression of the sexuality has been de-criminalized.


Setting the Bar, and the Limits of Empirical Research

Larry Ribstein and Jonathan Wilson are debating the merits of a strong, exclusionary, state bar.

Wilson’s position is pro-Bar:

Deregulating lawyers as punishment or retribution for a profession that has lost its way would be a recipe for disaster. Deregulating the practice of law would open the floodgates to fraud of every conceivable variety and would only compound the problems that the readers of these pages see in our civil justice system.

Ribstein, naturally, is pro-market:

Big law firms provide a strong reputational “bond” . . . Lawyers can be certified by private organizations, including existing bar associations, which can compete with each other by earning reputations for reliability. . . .We could have stricter pleading rules, or require losers to pay winners’ fees. Or how about this: let anybody into court, but adopt a loser pays rule for parties that come into court represented by anything less than a lawyer with the highest possible trial certificate . . . Even if only licensing would effectively deal with this problem, the licensing scheme should be designed specifically to protect the courts. Instead of requiring the same all-purpose license to handle a real estate transaction and to prosecute a billion-dollar class action, we could have a special licensing law for courtroom practice, backed by tight regulation of trial lawyers’ conduct – something like the traditional barrister/solicitor distinction in the UK.

Josh Wright has picked up the thread of the discussion at TOTM, and suggests that empirical evidence would inform this debate. Unfortunately, as both Larry and he note, there is a paucity of useful studies on point:

If I recall, the Federal Trade Commission has recently been involved in some advocacy efforts in favor of limiting the scope of unauthorized practice of law statutes. My sense is that a number of states must have relaxed unauthorized practice of law restrictions (I think Arizona is one), or similarly relaxed restrictions on lawyer licensing, such that one could directly test the impact of these restrictions on consumers in terms of prices and quality of service. There must be work on this somewhere.

Solove and I have gone around on this question before (see here for the powerful pro-licensing position, and here and here for Solove’s “response”).

Generally, I like Josh’s intuition. It would be quite useful to look to Arizona, or other natural experiments, to help us to answer the problem of the utility of the Bar Exam and other licensing barriers. Surely, there is no reason in the abstract to preserve an ancient system that keeps lawyer fees artificially high, diverts millions of dollars from law students to Barbri, and causes no end of mental anguish simply because it provides a new jurisprudential lens!

But I’m quite skeptical that this is an answerable question, at least in the short term. My thinking is informed somewhat by the new Malcolm Gladwell New Yorker essay about basketball. Although Gladwell extols the virtues of statistical analysis (instead of anecdote, judgment, and valuing the joy of watching Allen Iverson triumph despite his height), the lesson I took from the piece was that:

Most tasks that professionals perform . . . are surprisingly hard to evaluate. Suppose that we wanted to measure something in the real world, like the relative skill of New York City’s heart surgeons. One obvious way would be to compare the mortality rates of the patients on whom they operate—except that substandard care isn’t necessarily fatal, so a more accurate measure might be how quickly patients get better or how few complications they have after surgery. But recovery time is a function as well of how a patient is treated in the intensive-care unit, which reflects the capabilities not just of the doctor but of the nurses in the I.C.U. So now we have to adjust for nurse quality in our assessment of surgeon quality. We’d also better adjust for how sick the patients were in the first place, and since well-regarded surgeons often treat the most difficult cases, the best surgeons might well have the poorest patient recovery rates. In order to measure something you thought was fairly straightforward, you really have to take into account a series of things that aren’t so straightforward.

I know how I would test the direct cost of legal service in Pennsylvania, and I’ve no doubt that it would go down if I (by fiat) abolished the state bar. But I have no good idea of how we can measure lawyer “quality”. To take something as obvious as criminal defense, some really good public defenders will lose every case for a year, but take comfort in having not lost on the top count of a single indictment. Saying that a public defender who went 0 for 50 in 2005 was a less “good” attorney than a prosecutor who went 50-0 would be a real problem. Facts drive litigation, and make empirical investigation of lawyer quality as a quantitative matter hard. And that is for attorneys who perform in public. How do you evaluate the relative strength of deal counsel on a gross level? Count the typos in the document? Talk with the business folks, and ask who got in the way less? [Obviously, deal counsel can be very good and very bad: the point is we need metrics that are easily coded by, say, research assistants.]

So here is the question for our readers. Can you design an empirical project that measures both litigation and transactional practice quality as a function of licensing?


Nominally Empirical Evidence of Unraveling in the Law Review Market

book21a.jpgIn a previous post, I observed that “the time for submitting law review articles is creeping backwards.” I then hypothesized that “we are experiencing what Alvin Roth called the ‘unraveling’ of a sorting market.” This is bad news:

Authors may not be able to get any sense at all of the “market value” of their article (loosely reflected, the myth goes, by multiple offers at a variety of journals). Conversely, journals feeling pressure to move quickly will increasingly resort to proxies for quality like letterhead, prior publication, and the eminences listed in the article’s first footnote (which tell you who an author’s friends and professional contacts are).

At the end of that post, I promised to “explore empirical evidence that this is in fact an unraveling market problem (as opposed to anecdote, to the extent possible).” As it turns out, this was a hard promise to deliver on. There simply isn’t data out there – at least that I’ve been able to find, that collects historical information about the submission processes to law reviews. This is somewhat surprising. Law professors are insular, interested in navel gazing, and well-motivated to do anything other than grading. Moreover, the process of submission is an economically consequential activity. But only recently, in two works-in-progress, has there have been any attempt made to systematically get at this problem. See here, and here.

I thought I’d make a modest contribution to the field by contributing some data from Temple in this recent submission season, and ask our readers to contribute with their experience as well. The sample size is tiny; the respondents self-selecting. This is, therefore, Co-Op’s second “very non-scientific survey” this week. It’s a trend! The data is not meant to suggest any definite conclusions, but rather help researchers with hypothesis formation. But I’ll offer some grand thoughts at the end of this post anyway.

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We Can All Say We Knew Him When

Todd Kim, my former co-clerk, has just been appointed to be the first ever Solicitor General of the District of Columbia, and he’s part of a notable trend in state SG personnel. Two Jones Day appellate lawyers have left that firm’s schmancy appellate practice to become state SGs, as have a number of other ambitious Washingtonian types eager for Supreme Court arguments. The job offers interesting exit options as well: Greg Coleman left Texas’ post to become a commerical litigator with a Supreme Court practice at Weil Gotshal; Jeffrey Sutton went from being the Ohio SG to being a judge on the Sixth Circuit. So while everyone’s bursting with pride about Todd, we’re all wondering what’s in his future. Will Todd decide to be a judge or a millionaire? It’s something of a catch-22, and so I hope we can all sympathize with him during this no-doubt difficult time.


More On Serendipitous Research

I’ve been giving more thought to my earlier post describing my alter ego as a stack rat. I noted that one downside to the digitization of libraries is that researchers will have fewer serendipitous moments. When one searches out a book with a given call number, he or she almost inevitably confronts related (or simply interesting) volumes that live nearby. I can think of many times when this process led me to useful books that I’d never heard of before. As more and more research is done online in our offices (or perhaps in our den/guest room – you know, the rooms where Barbies and My Little Ponies inexplicably like to congregate despite instructions to the contrary), we no longer happen upon these accidental wonders.

But things are bound to improve. With digitization comes the potential for new serendipities. It’s all in the hypertext. Think about Lexis and Westlaw. When I research a case, a large portion of an opinion’s references can be found with a click. Most commonly, these links take us to cases and articles. But what if their materials also included weblinks?

Of course, a large portion of scholarship outside of law (particularly articles) is also available digitally through JSTOR, Academic Search Premier, and the like. The problem is that, for now, these materals don’t contain hyperlinks. These PDF documents look nice, but they are digital dead ends. But what if these documents also included hypertext links? And what if all the new digital books did as well?

Imagine the fun! Every time I came upon an interesting citation, I could charge off into a fresh diversion. One curious quote, one odd source, and with a single mouse click – BAM – I am back in the deepest corner of the stacks exploring unexpected treasures. We’re not there yet. We’re actually in an unfortunate middle period. Increasingly we abandon the physical library, doing our research at our computer. Yet this wonderful technology has not advanced quite far enough to provide us with new serendipitous moments. But for those people who dream of the day that they can do all their research without ever moving their sedentary buttocks, buck up! Serendipity awaits.


Reading List

There’s a lot of information out there, but lots to learn. As Judge Posner reminds us, “intelligence data are collected” among other ways, “by scrutiny of publicly available … materials such as newspapers, magazines, the Web, and scientific and technical journals.” We already know about Liptak, Glater, Lithwick, and Leiter. Who else can provide us with crucial open source intel? I’m reading this and this, to keep up with the kids. I’m enjoying the new law beat lady’s work in the Observer. And jd2b is my one stop source for a random collection of press releases from law schools. When they get an editor, that site is gonna be huge.

Dedicated Ventilators?


Imagine that bird flu hits the United States, and you’re a doctor at a hospital filled with 700 infected patients who all need ventilators to help them breathe. You have 100 ventilators. How do you allocate them? To the sickest? the youngest? the oldest? the most likely to live? the ones most likely to die without one?

The choices would be unthinkable, as Bernard Williams and Martha Nussbaum have suggested. We should be doing much more to avoid them, or at least make them less stark. But as this article from the NYT shows, we are instead doing very little:

Right now, there are 105,000 ventilators, and even during a regular flu season, about 100,000 are in use. In a worst-case human pandemic, according to the national preparedness plan issued by President Bush in November, the country would need as many as 742,500. To some experts, the ventilator shortage is the most glaring example of the country’s lack of readiness for a pandemic.

Now aren’t you happy that market forces got rid of all that “excess hospital capacity” in the 80s and 90s? According to one doctor from the Mayo Medical School, “Families are going to be told, ‘We have to take your loved one off the ventilator even though, if we could keep him on it for a week, he might be fine.'”

Given various budgetary crises, we can’t expect much help from government. Is there any creative solution? I’d like to suggest one: Let individuals buy ventilators to dedicate for themselves and their families (at nearby hospitals), in exchange for their donation of one ventilator for each one they dedicate. Here’s some “figures”….

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From Gradgrind to Glaeser

Economic analysis is often illuminating, but sometimes it just seems to provide cover for new Gradgrinds to ply reductionist utilitarianism. Case in point: the NYT Magazine has a glowing profile of Edward Glaeser, an economist from Harvard. As a patrician, provocateur, and polymath, Glaeser is reported to have single handedly revived the field of urban economics. Here are some of his prescriptions (as reported by Jon Gertner):

1) Don’t rebuild much of New Orleans— just let hard-pressed residents move somewhere else (and expect our exceedingly eleemosynary Congress to cut checks to each resident for $200,000, since that’s what they were planning to spend on infrastructure!). And don’t try to revive struggling rust-belt cities like Detroit, either.

2) “Car-based cities” are great; they “enable residents to buy cheaper, bigger houses,” and “the average car commute is about 24 minutes; on public transportation, it is around 48 minutes.”

I have a few questions for Glaeser. First, does his model value stability at all? Let’s say that this process of dispersion in search of better jobs leaves very few nuclear families with extended families nearby to help with child and elder care. Is the resultant need to hire day care workers and visiting nurses a boon to the economy, because unpaid labor to that end wouldn’t count in the GDP? Just how parsimonious are his models?

I have some personal experience with the “exodus from the Rustbelt” that Glaeser finds so appealing…

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How Not to Turn Down a Law Job Offer

social-networks1.gifDianna Abdala, a young law school graduate, was about to start working for William Korman, a criminal defense attorney. Shortly before she was to start, Korman told Abdala that he had also decided to hire another attorney, and as a result, had to adjust her salary lower. She sent him the following email:

At this time, I am writing to inform you that I will not be accepting your offer. After careful consideration, I have come to the conclusion that the pay you are offering would neither fulfill me nor support the lifestyle I am living in light of the work I would be doing for you. I have decided instead to work for myself, and reap 100% of the benefits that I sew [sic]. Thank you for the interviews.

Korman called and left a message to Abdala to discuss, but Abdala left a voicemail turning down the offer again. Korman wrote to Abdala:

Given that you had two interviews, were offered and accepted the job (indeed, you had a definite start date), I am surprised that you chose an e-mail and a 9:30 p.m. voicemail message to convey this

information to me. It smacks of immaturity and is quite unprofessional. Indeed, I did rely upon your acceptance by ordering stationary and business cards with your name, reformatting a computer and setting up both internal and external e-mails for you here at the office. While I do not quarrel with your reasoning, I am extremely disappointed in the way this played out. I sincerely wish you the best of luck in your future endeavors.

Abdala responded with this email:

A real lawyer would have put the contract into writing and not exercised any such reliance

until he did so. Again, thank you.

Korman responded:

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Confessions of a Stack Rat

stacks small-thumb.jpgI’ve been thinking a lot, recently, about the purposes of law libraries. In part that’s because of Dave Hoffman’s insightful post about these institutions. The bigger reason is that I’m on the library director search committee for one of the two law schools Dave mentions: the nascent Drexel University College of Law. (Reading between the lines: I will be joining Drexel Law this fall as an inaugural faculty member.) In this context, I’ve confronted an issue that is front and center for librarians – the rise of the digital collection.

I have mixed feelings about digital libraries. On the one hand, there is the nasty truth of the matter: I do most of my research on my computer. I rely on Westlaw and Lexis for most case and law review research. I use the many other fabulous databases to uncover articles in other disciplines. And then there is the world’s easiest (if not always most reliable) way to learn stuff: Google. The ABA, however, rightfully requires a core collection of materials for those without access to digital collections, and I think there are good pedagogical reasons to train law students to do book research. Also, while this will change, today’s fully digital library has a gaping hole in the area of treatises and monographs.

And what about serendipity as research method? How many of us have discovered important books simply by browsing through a call number? John Searle’s Speech Acts may be off the shelves (presumably relaxing in the cluttered office of an English professor), but what of the other 200 books adjacent to B840 .S4 1977x? We lose access to valuable knowledge when we lose the Eureka moment of the unexpected book discovery.

For a stack rat like me, more is at stake though.

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