Blawg Roundup #3

This week's spin around a few blawgs is full of great critiques of law, law school, and law professors, plus a note about two upcoming public interest conferences. Blawg reading time is very limited these days, but this is the best of the little bit I've been able to read in the past week. First up, Buffalo Wings & Vodka's attempt to find a sponsor for his blog via eBay has ended. Since the reserve for the auction was not met, you can still sponsor BW&V through private negotiation. Next, Bad Glacier is dishing out the good stuff early over at his new home, so get on over and check out the strippergrams he got from the University of Michigan Law School admissions office (sorry, no pictures, just a mention). A little more seriously, he has an interesting little taxonomy of how different top-tier schools approach the admissions process, from Michigan's “we love you!” to Yale's “screw you” (I'm paraphrasing), it's a bit of insight into the workings of the upper echelon for those of us lower down the food chain. Dave! of Preaching to the Perverted, guest--posts on Notes from the (Legal) Underground, offering 6 tips for law professors. It's a great post, as are Dave!'s responses in the comments. Sticking with the critical theme, Musclehead emerges from hibernation with two excellent critiques of law school and the legal profession. In What's Wrong With Law School, Musclehead writes:

in general, law school does a very good job at putting blinders on its students, getting them to focus on micro issues of black letter law to the detriment of dialogue about whether a particular law is just or efficient or equitable.

And in What's Wrong With the Law?, Musclehead's thesis is that the legal profession has gone too far in placing the wishes of its clients above all other values:

I would argue that our problem is with our priorities. We place far too much emphasis on the primacy of clients to the detriment of our obligation to our profession, our society and ourselves. No other profession requires such allegiance to a client- doctors can refuse to perform a procedure they feel unnecessary to the patient, accountants can end their work for a client they believe is bending the rules of GAAP, teachers can teach evolution even if a parent demands creationism, etc.

Good stuff, Musclehead! Finally, two public interest law conferences for law students are coming up very soon: Reblaw 11, February 18-20 at Yale, and the Robert M. Cover Retreat, March 4-6 on Long Island. The Reblaw registration fee is a slim $30, and the conference will feature GW's very own Paul Butler as keynote speaker. The Cover Retreat I know less about, mostly because it costs $125 and what public interest law student has that kind of freaking money?

Posted 08:37 AM | Comments (2) | law school

Kill the Billable Hour

Apropos of this post the other day about taking the money out of law, Bruce at Adam Smith, Esq. offers some great comments from an economist's perspective on why the billable hour has stuck around, and why it should go away. Bruce's comments are a response to a recent cover story in The Washington Lawyer on The Tyranny of the Billable Hour. That article basically concludes that there's little we can do about the problems of the billable hour, but Bruce protests:

As they say, I respectfully dissent:  The answer—fixed fees, or value billing—is staring us in the face.  We in the profession are too smart not to do better.  As the article drolly notes, even “plumbers and accountants” quote fixed fees.  (And may I point out that firms that have the traction to pursue value billing, a la Wachtell, are not exactly hurting.)  Are we that insecure not to attempt the same? But, you object, the value of legal counsel is ineffable:  Who can put a firm price on it in advance?  The short answer is that, everywhere else in our roiling economy, reasonable people readily agree on “price” vs. “value.”  And I'm not just talking about haircuts and taxi rides:  Is deciding what's a fair price for a home (or, in my case a co-op apartment) simple?  Rationally, there are almost too many factors to consider:  Location, layout, neighborhood, condition, size, design, school district, property tax rates, outdoor space, geographical orientation, “amenities,” etc.  But we quickly arrive at a gut feel, and the home market is highly liquid. The market for legal services does not exist in its own sui generis bubble exempt from all the familiar economic considerations that govern other markets.  It is not a counsel of exceptionalism to think it does, it is a counsel of despair.

Listen to Bruce, brothers and sisters. The truth will set you free UPDATE: More on the billable hour from Yale Law School. [Link via The Prejudicial Effect via Notes from the (Legal) Underground]

Posted 08:07 AM | Comments (1) | 2L law general

MT 3.15 upgrade

If you run a Movable Type installation, be sure to upgrade to version 3.15 or at least install the patch it includes (which is what I did). Otherwise, it appears spammers could be using your MT software to spam people. Or something. I don't understand the details, but the patch took all of 30 seconds to apply, so it can't hurt.

Posted 06:40 AM | meta-blogging

The New Fourth Amendment

The SCOTUS decision in Illinois v. Caballes has sparked some sharp criticism. For example, here's what it basically does to the Fourth Amendment, according to Grits for Breakfast:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized if an officer is looking for illegal contraband.

Many more links and great criticism where that came from. I don't have time to read around for more impressions; I have to hurry up and read about Fourth Amendment law in a CrimPro textbook that doesn't know Caballes exists. Oh, but you don't need Cabelles for Fourth Amendment law to seem pretty sad. First, Katz said the test for a “search” is whether you had a “reasonable expectation of privacy” in the thing or place or whatever that was searched, and whether society recognizes that as a legitimate expectation. So:

As Professor Amsterdam has put it, under the Katz expectation test, the government could control the extent of privacy interests simply by announcing “that we were all forthwith beng placed under comprehensive electronic surveillance.” (43)

Amsterdam, “Perspectives on the Fourth Amendment,” 58 Minn. L. Rev. 349, 384 (1974), quoted in Saltzburg and Capra, American Criminal Procedure. Can you say “TIPS Program”? The line of cases following Katz have constricted the scope of the Fourth Amendment in a predictable manner—the court has basically unlimited discretion to determine what counts as a “reasonable” and/or “legitimate” expectation of privacy. Oh, and according to Saltzburg and Capra, the “warrant clause” of the Fourth Amendment (the second part about warrants) has basically already been rewritten to say:

A search and seizure in some circumstances is presumed to be unconstitutional if no prior warrant is obtained, but in other circumstances the prior warrant is unnecessary to justify a search and seizure. (86)

So, hey, it looks likeGrits for Breakfast is right on the money w/that revised Fourth Amendment (above). My CrimPro textbook says so!

Posted 06:55 AM | Comments (5) | 2L meta-blogging

BlawgCoop News: Welcome Bad Glacier!

Blawgcoop, the co-op for law-related blogs, continues to grow be eeps and zounds. Please take a minute to stop by and say hello to the 'coop's newest member, Bad Glacier. BG took advantage of the divine angst-inspired “get your own domain but host with blawgcoop” plan, and is also the first user to choose WordPress as blog tool of choice. This has given me reason to play around a little w/WP, and I'm liking it more and more. In other blawgcoop news, half-cocked has a spiffy new design for our viewing pleasure—“now with extra monochrome!” It apparently isn't quite finished yet, but it's pretty spiffy, nonetheless. Elsewhere, Legal Fictions seems to have hit something of a blogging wall—the last post was in December about finals frustration. Perhaps LF could use the advice from Professor Yin, which is the subject of the latest update at Blawg Wisdom.

Posted 07:20 AM | meta-blogging

Percentage Contingency Fees

From Professional Responsibility reading:

Even though the same amount of work is involved, the whiplash verdict might be $4,500, for a fee of $50 per hour, while the amputation verdict might be $200,000, providing a fee of more than $6,000 per hour. ... [The author notes that fees can be even more disproportionate to work done by the lawyer in cases that settle before trial, which is the vast majority.] Surely there is much to be said for providing a means to permit indigent persons to engage counsel to press meritorious suits. ... [But t]he problem, it seems to me, is that we have regarded the “one third contingent fee” arrangement as applicable to all cases invovling personal injuries, without paying enough attention to the facts of the particular case and the needs of the particular client.

Thomas D. Morgan & Ronald D. Rotunda, Professional Responsibility, 5th ed. 105, quoting John F. Grady, “Some Ethical Questions About Percentage Fees,” 2 Litigation 20 (Summer, 1976.). No wonder there are so many personal injury lawyers advertising on tv! Questions prompted by these readings:

• What would our society be like if lawyers made little to no money, or if a career as a lawyer only made average money, instead of above average (on average)?
• How could we make this happen? How could we take the money out of the practice of law?
• In a “free market” for legal services, would there be an excess of lawyers and a shortage of work?
• In what ways is the current market for legal services not “free”?
• Would fixed fees for routine (or even non-routine) services make the legal market more competitive (and drive down prices for consumers)?

See also: Writings by Lisa G. Lerman on unethical billing practices by lawyers (focused primarily on the billable hour). Patrick J. Schiltz, “On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession,” 52 Vand. L. Rev. 871 (1999).

Posted 07:04 AM | Comments (5) | 2L

Law Classes Pass/Fail

Dear law professors, hiring attorneys, fellow law students, and other knowledgeable types, I have a very busy semester, and I'm considering taking Fed Courts pass/fail. Do you have any thoughts on the pros or cons of such a plan? FYI: The class is small, and the professor has high expectations for our level of participation, so I will have to read and be prepared regardless of whether I'm concerned about my grade. This may mean that I will not really get much benefit from taking the class pass/fail, but it would also ensure that I will learn the material, despite decreased grade pressures. If I were going to, say, be a public defender, would taking fed courts pass/fail somehow be a red flag against me when potential employers looked at my transcript? How about if I wanted a judicial clerkship (federal or otherwise)—would this pass/fail thing be a red flag in that context? Can you think of any other contexts where taking Fed Courts pass/fail might be viewed negatively by people whose opinions I should credit? Any thoughts would certainly be appreciated. Sincerely, -ambimb

Posted 07:32 AM | Comments (3) | 2L advice

$ Blow $

From CrimPro reading:

There are trace amounts of cocaine on almost all of the money supply in America (62).

Stephen A. Saltzburg and Daniel J. Capra, American Criminal Procedure: Cases and Commentary, 7th ed. So everyone who says they don't care about declines in civil liberties, because they've got nothing to hide, well, you can just put that in your pipes and smoke it. (Sorry I couldn't resist.) Of course, this doesn't seem to matter to the SCOTUS, which yesterday said in Illinois v. Caballes (PDF) that during a lawful traffic stop the police can have a dog sniff search your car (on the outside, anyway) because the only thing the dog could find would be something no one has a right to possess. Sniff. Sniff. I wonder if the ruling would change if the police held you for half an hour while they waited for the dog to arrive...

Posted 06:24 AM | Comments (3) | 2L

ACS Blog Bye

The ACS Blog Writing Contest ends January 31st, which means you still have a week to write 250-750 words on “ a legal issue of national significance or interest.” Winners of the contest will be offered a position as “Editor-At-Large” for the blog, which means you'll get to write an article/column every two weeks on a topic of your choice. I did it last semester and enjoyed it except for the small problem that it often required serious work to find good sources and present my topics in the appropriate 501(c)(3) manner. Now, due to being seriously overcommitted, I have given up my position with the blog. But hey, that only means there's more opportunity for you!

I don't think I ever really linked to any of the posts I wrote for the ACS, but I will do so now before they are lost in the mists of time. They were:

• Trial Lawyers and Tort Reform: McJustice v. Public Protection—A sort of overview of different perspectives on what the Bush administration, HMOs, and much of corporate America would like to call “tort reform”; might make a good intro to the topic if you don't already understand it very well (this was republished by a Texas Bar Association, I believe).
• The Battle Over Prescription Drug Importation—Surveyed the states that were already importing drugs from Canada and discussed the reasons the federal government has not officially endorsed the practice.
• Health Care Costs and Drug Companies: Who Profits?—This was a followup to the above piece; was sparked by a great book on the subject.
• Job Security v Homeland Security?—Discussed some ways the Homeland Security Administration has used fear of terrorism to bust federal unions.
• Death and Justice for All?—A look at the incredible rate of state executions in Texas, focused on evidence that the law enforcement agencies in the county that sends the most people to death row are incompetent and untrustworthy.
• In Clarence Thomas' America, Many More People Are Executed—A rather lengthy mini-history of recent death penalty jurisprudence in order to explain why Justice Thomas thinks the court should overrule Penry v. Lynaugh (part of the Clarence Thomas' America series).
• The Peterson Case: Did Juror Removal Manipulate the Verdict?—A look at the rules governing judicial discretion in the removal of jurors after the controversial removals in the Scott Peterson trial.
• A Time To Be Thankful—Three legal things I'm thankful for (obviously I only wrote my small contribution, which mostly quotes other sources of inspiration).
• In re Disney: A not so Magical Spectacle—An overview of the derivative (shareholder) suit against Disney's Board of Directors after the multi-million dollar debacle that was the brief Michael Ovitz tenure as president of the company.

I still think the ACS Blog is a great idea, and that more organizations should do something similar. The ACS Blog went from nothing to a pretty considerable readership in just a few months, which suggests that there's an interest in a form of legal analysis that's somewhere between that found on personal blawgs and what you'll find in journals or books. Writing ACS posts I often felt I was basically just collecting resources on a topic so that people who wanted to know more about that topic would have those resources at their disposal. It was often an attempt at producing a sort of synthesis of topics that had fallen by the wayside or received only scattered attention in other, larger media. Blogs are a great mechanism for shining light in dark places, and the ACS blog does that with many legal issues. However, it ignores or gives scant attention to many others (for various reasons, including its 501(c)(3) status, its ideological preferences, a simple limit on the amount of time and resources it has available, etc.), leaving room for peers to help fill in the gaps.

At any rate, I'm glad I did it, I wish I could continue to do it, but I can't. In addition to cutting this extracurricular, I've also cut my part-time job from 20 hours/week to about 11, so now it should just be class and clinic (oh, and finding a job!) for the next few months. Mountains of reading beckon....

Posted 07:17 AM | 2L

Mo' Grade Blues Defending Criminals in Fed Courts

Speaking of grades (which I was a bit yesterday), Energy Spatula basically summed up how a lot of us feel about them right now. The huge comment thread on that post is like a communal outlet for grade angst. I especially love this comment:

Law school is a sad, sad, pathetic excuse for an educational program. In no other form of graduate education in the US does *anyone* think that the appropriate means for teaching sophisticated reasoning is the large lecture class based on idiotically-edited primary materials, or that the appropriate means for measuring mastery is a single time-limited evaluation. It's a factory mass-production system designed solely to sort the students with the minimal degree of credibility required to satisfy the firms through the exertion of the most limited amount of effort by the professors.

Absolutely true, at least as far as I know (I don't have exhaustive knowledge of every other form of graduate education in the U.S., but I can't think of another that uses the law school large-lecture model so extensively). From this perspective, the “legal profession” looks more like a house of cards than some distinguished and rigorous life calling, but everyone tiptoes around this fact just so the whole thing won't come tumbling down. I'm sure many law professors would disagree, as would many hiring partners at firms, as would the ABA, etc. They're all invested in the illusion of meaning that grades represent, hence the tip-toeing that they do, inculcating law law students with the finer points of the tip-toe until we all internalize the illusion and begin the “grades are meaningful” dance ourselves. (At the risk of overloading my own metaphor, the legal profession house of cards rests on more than the illusion of grades as meaningful measures, but I'll save those other illusions for another day.) Anyway, if your grades did not rock your world (and I've already noted that mine did not—and the worst is probably yet to come), you should go read Favorable Dicta. To quote The Oracle: “I promise, by the time you're done eating it, you'll feel right as rain.” Although I read Favorable Dicta as often as I can (E. Spatula is a superhero!) I actual came across the above post thanks to Res Ipsa Loquitur, a new-to-me blawg. (Not to be confused with other iterations of Res Ipsa Loquitur. Seems to be a popular little blog name.) This Res Ipsa Loquitur also has a recent interesting post about the importance of criminal defense attorneys to the justice system that includes a great, heartwrenching criminal defense scenario from tv. As I contemplate a possible/likely career in criminal defense myself, hypothetical situations like this—where a defense attorney basically has to defend a monster who is clearly guilty—are troublesome, certainly. Unfortunately, I continue to learn of so many real situations in which law enforcement agents (by which I mean cops, federal agents, prosecutors, and sometimes judges) violate the rights of both the innocent and the probably-guilty so egregiously that they prove the old maxim true over and over again: It's better that ten guilty people go free than that one innocent person suffers. (But why “ten”? For more on that, see Alexander Volokh, “n Guilty Men” (1997).) For the record, Res Ipsa's post is a response to one by Deviant Lawyer (another new-to-me-blawg) in which he laments having to defend a crooked cop. (This is for a law school assignment, not for real.) And since I'm just jumping from topic to topic here, for some reason, Favorable Dicta lead me Legal Quandary who noted that Fed Courts isn't as bad as she'd thought, as classes go. As you may recall, I was unsure whether to stick with Fed Courts myself, but I've had the same impression as Legal Quandary: Very interesting material, but totally unreasonable amounts of reading in a frustratingly large and obscure book. Professor Althouse has some thoughts on the Hart and Wechsler's, noting that the book seems to beg professors to assign way more reading than is necessary, even though much of its content is arcane details that are not very important to the major goals of a course in federal courts. My own Prof Fed Courts said that this book was the “bible” of Fed Courts, which is too bad because that probably contributes to the subject continuing to seem much more complicated than it needs to be (at least for the neophyte). Or maybe not. So far I've appreciated the book's organization, but what's maddening is the authors' habit of posing everything possible as a series of questions rather than trying to clearly explain different schools of thought on controversial issues. I mean, I realize that much of the subject matter is open to debate (i.e., Can Congress completely eliminate federal appellate jurisdiction over any one type of case or controversy?), but as far as I'm concerned, presenting such issues as a series of questions is just not the most helpful way to help people understand them. Oh, and in addition to being arcane, bloated, and unnecessarily obtuse, the book and supplement together cost me $107.75, and that's just freaking ridiculous! Finally, JCA of Sua Sponte turned 30 last week. I don't get over to visit Sua Sponte much, but it was one of the first blawgs I ever read, so I owe JCA a debt of gratitude for being part of the inspiration for ai. (ai also continues to receive a substantial number of referrals from Sua Sponte, which surprises me since it seems to me the tone and substance of our posts is rather different. Maybe it isn't, or maybe that would be why people read both?) But, and so, happy (late) birthday, JCA! May year 30 bring you health, wealth, and a continued accumulation of wisdom and good fortune!

Posted 11:21 AM | Comments (4) | 2L meta-blogging

Courtroom Voyeuring

If you are fascinated by real life courtroom drama and don't get enough already from Court TV, Judge James Kembler of the Medina, Ohio, County Court of Common Pleas wants you to know what's going on in his courtroom. In fact, you can watch recent cases tried in Judge Kembler's court online! You can also subscribe to receive email updates from Judge Kembler. Before you do, you might want to see what you'd be getting, but unfortunately the archive of messages for that list doesn't seem to be working at the moment. I like the idea of making the machinery of justice more accessible to the public, but are there any potential drawbacks to making video of cases accessible worldwide? [Note: I first heard about this story on NPR sometime last week.]

Posted 10:02 AM | law general