April 20, 2014

UNT College of Law's Rock-Bottom Tuition

The Huffington Post has an intriguing article on the forthcoming University of North Texas College of Law. In a nutshell, this new law school intends to graduate practice-ready lawyers who can devote themselves to underserved communities by keeping tuition low.

I am skeptical that Texas needs yet another law school. I am even more skeptical of the notion that law schools can impart practical skills while still providing the basline theoretical background necessary to practice law.

But what grabbed my attention here is the reduced tuition. There is no question that the tuition at this new school is far less than the norm. For a resident full-time student living on one's own, UNT College of Law estimates an annual cost of attendance of $28,518. By comparison, the University of Texas School of Law estimates the annual cost of attendance for a full-time student to be $53,536. That is a huge difference to be sure. But is it enough?

By UNT College of Law's own estimate, its graduates will leave at least $85,554 in debt (assuming no significant scholarships). This, of course, does not account for whatever undergraduate debt or consumer debt its students might have incurred. Can one take a position devoted to serving underserved communities with even this amount of debt? Perhaps. But I do not think this is a foregone conclusion.

(Story via Above the Law.)
Posted by Curmudgeonly Ex-Clerk at 02:10 PM | Comments (0)

April 19, 2014

Lawyers and Legal "Housework"

Debra Cassens Weiss writes in an article in the ABA Journal:
Too often, female lawyers and other professional women are expected to do office "housework," according to University of California at Hastings law professor Joan Williams, who is director of the school’s Center for WorkLife Law.

Professional women interviewed for Williams' new book, What Works for Women at Work, were disproportionately given administrative tasks, menial jobs and undervalued assignments. "They were expected to plan parties, order food, take notes in meetings and join thankless committees at far greater rates than their male peers were," Williams writes in this column for the Washington Post.
Of course, I have no idea whether this claim has a basis in fact. I am glad, however, that it does not at all match my professional experience.

Given my experience, it does not ring true to me. I have been assigned any number of entirely thankless administrative tasks. It is life.

I confess no one ever has expected me to bake cupcakes. But I attribute this more to good judgment about my (lack of) baking skills and concern for public health than sexism.
Posted by Curmudgeonly Ex-Clerk at 12:40 PM | Comments (0)

April 18, 2014

Can One Plagiarize A Legal Brief?

Gerard Magliocca asks "why attorneys have such a laid back view of plagiarism in briefs." On reflection, I think several non-exclusive factors are in play:
  1. The way in which lawyers organize and write a brief can involve a fair amount of creativity, but the material is unoriginal to some extent. For example, though some advocate against extensive quotation, briefs frequently do so. And, given the role authority plays in legal writing, even when briefs are not directly quoting other sources their authors are drawing on and attributing their ideas to these sources.

  2. The role of legal authorities also constrains the degree to which legal writing can be creative and original to some extent. There are only so many ways that one can express that the controlling legal standard is abuse of discretion, or that the circuit has articulated a four-factor test for the exercise of the court's discretion in a particular context. Lawyers doubtless write the same or similar things, because the law limits what can be said.

  3. Lawyers often are not writing on a clean slate in another key way: they freely borrow from the prior work of colleagues within their firms or other lawyers with whom they are cooperating. While most briefing requires individual analysis and writing, lawyers cut and paste from prior documents authored within a firm or by co-counsel. This is encouraged both to save time and money, but also to ensure consistency of positions advanced in the context of mass torts or repeat litigation.

  4. In a firm setting, the signatories often have little to do with the actual writing. I have written many, many briefs that do not bear my name. While someone has reviewed or edited many of these briefs to one degree or another, the actual signatories seldom have done much actual research or writing. It would take a fair amount of chutzpah for them to take offense at someone else borrowing my words. Phrased differently, they may well not consider it their brief in any meaningful sense, given that it was written by someone else on behalf of a client.

  5. Assuming intellectual property rights inhere in briefing, which is not clear, who owns them: the lead attorney, everyone in the signature block collectively, or the firm? Does the nature of the firm affect this inquiry (e.g., partnership versus professional corporation)? Does it matter whether the signatories are principals or mere employees of the entity?
Indeed, I think these factors suggest that there simply is no such thing as plagiarism in legal briefing. Has any legal ethicist or specialist in intellectual property law argued otherwise in detail?

I am aware of one article that arguably might be understood to suggest that plagiarism can occur in this context. Douglas E. Abrams, Plagiarism in Lawyer’s Advocacy: Imposing Discipline for Conduct Prejudicial to the Administration of Justice, 47 Wake Forest L. Rev. 921 (2012). But it is not clear to me that even Abrams would go so far, and others clearly would not. See Peter A. Joy & Kevin C. McMunigal, The Problems Of Plagiarism As An Ethics Offense, ABA Criminal Justice (2011). I think the naysayers have the better of the argument in this context.
Posted by Curmudgeonly Ex-Clerk at 12:02 AM | Comments (0)

April 17, 2014

Private Universities, Public Funds

Eugene Volokh is right about the law as a descriptive matter; but, as a normative matter, I dissent. Private universities should not be able to obtain substantial taxpayer funds while denying employees and students constitutional rights that otherwise would prevail at public universities.
Posted by Curmudgeonly Ex-Clerk at 12:00 AM | Comments (0)

Judge Etta Mullin Is An Idiot

The Honorable Etta Mullin is the (Democratic) incumbent of Dallas County Criminal Court No. 5. She recently forbade an attorney to appear in relaxed attire despite a medical excuse. One could say that she mindlessly elevated form over substance, but that unnecessarily dignifies her conduct. Multiple attorneys who have appeared in her court have expressed complaints about the judge. Before ascending to the bench, the judge reportedly earned a significant sum (more than $195,000 in one fiscal year) via criminal appointments from a judge who described her as "a very close personal friend." With any luck, voters will jettison her in the next election.

(Tip 'o the hat to Jonathan Turley.)
Posted by Curmudgeonly Ex-Clerk at 12:00 AM | Comments (0)

April 16, 2014

Are All Lawyers Blameless Advocates? Re-Re-Revisited

I previously have suggested that lawyers are not inevitably to be regarded as the blameless agents of their clients. This suggestion has been greeted with skepticism.

Forbes has a story on Mayer Brown's representation of clients who seek to have a comfort-women memorial removed. Skeptics: please explain why the firm is not blameworthy.
Posted by Curmudgeonly Ex-Clerk at 08:48 PM | Comments (0)

April 15, 2014

What Should Every Lawyer Know?

Assuming a first-year curriculum that covers civil procedure, constitutional law, contracts, criminal law, property, and torts, I think a well-rounded legal professional also needs coursework in:
  • business associations;
  • consumer protection law;
  • first amendment law;
  • evidence;
  • family law;
  • intellectual property:
  • jurisprudence;
  • legal ethics;
  • legal research and writing;
  • remedies;
  • secured transactions;
  • federal courts;
  • federal taxation; and
  • wills and estates.
My alma mater requires 86 credit hours to graduate from law school. So my proposed core courses account for the majority of that time. This assumes most courses are 3 credit hours. Constitutional law would be a full-year six-credit course. Some courses, like federal courts, likely would be four hours.

Other courses that are less important, but still valuable are:
  • accounting for lawyers;
  • administrative law;
  • bankruptcy;
  • civil rights litigation;
  • employment law; and
  • national security law.
Obviously, mine is a fairly traditionalist curriculum. Many of the electives offered in law school are not worthwhile either for well-rounded legal professionals or practicing lawyers. Perhaps, the most controversial choice on my list is jurisprudence (philosophy of the law). But it is very underrated in terms of the education of well-rounded lawyers.
Posted by Curmudgeonly Ex-Clerk at 11:16 PM | Comments (0)

April 14, 2014

The Sea World Decision

A couple of questions about the appellate decision in the Sea World case:

1. With respect to Judge Kavanaugh's dissent, when did Internet diction become acceptable in judicial opinions?
Many sports events and entertainment shows can be extremely dangerous for the participants. Football. Ice hockey. Downhill skiing. Air shows. The circus. Horse racing. Tiger taming. Standing in the batter's box against a 95 mile per hour fastball. Bull riding at the rodeo. Skydiving into the stadium before a football game. Daredevil motorcycle jumps. Stock car racing. Cheerleading vaults. Boxing. The balance beam. The ironman triathlon. Animal trainer shows. Movie stunts. The list goes on.
Staccato sentence fragments. An increasingly common trend in legal writing. Not attractive.

2. Per the story, the Court of Appeals apparently held that there was substantial evidence "that SeaWorld recognized working with killer whales was dangerous." Did the deceased trainer of killer whales not recognize this danger as well? Of course she did. I no doubt am reflecting my bias as a defense lawyer, but it seems to me that this country would be better off if Congress and state legislatures took a crack at reviving the doctrine of assumption of the risk.

(Hat tip to Howard "Blackfish" Bashman.)
Posted by Curmudgeonly Ex-Clerk at 12:01 AM | Comments (0)

April 13, 2014

Citizens United And Politicization Of The Corporation

Gerard Magliocca and Stephen Bainbridge echo a sentiment akin to one expressed by Matt Bodie. Really, is there anyone who is not the distinguished occupant of such-and-such chair at the prestigious university of so-and-so school of law that believes this nonsense? Which likely better explains the Brendan Eich affair: (a) a supposedly rationale response to a 2010 U.S. Supreme Court decision the holding of which most of the public could not accurately summarize; or (b) the public's entirely irrational and overheated approach to the hot-button issue of gay marriage? For the benefit of academia, that is a rhetorical question.
Posted by Curmudgeonly Ex-Clerk at 10:26 PM | Comments (0)

April 11, 2014

The State Cannot Disentangle Itself From Marriage

Libertarians have suggested that, rather than worry about extending marital rights to groups currently excluded from the definition of marriage, we should just get the state out of the institution altogether (i.e., the law should be blind to marriage). Eugene Volokh argues that this proposal is impractical because "many important legal benefits attached to marriage," including:
  1. Immigration rights: "a spouse of a U.S. citizen is eligible for citizenship; a mere friend or business partner is not";

  2. Evidentiary privileges: "a person may refuse to testify against a spouse, but must testify against others"; and

  3. Gift and estate tax exemptions: "people can transfer property to their spouses free of gift tax or estate tax."
Volokh pitches his argument as a Burkean one, arguing that "one shouldn’t jettison central institutions of society unless there’s a really good reason for it." I am even more amenable to Burkean arguments than he is, and I am amply convinced. Indeed, I think the "get the state out of marriage" refrain demonstrates that, whatever the merits of their various critiques, libertarians are unprepared to govern.

The reality is that marriage has been a central institution of American society for so long that disentangling it from state and society is well-nigh impossible at this juncture. At the very least, it is complicated enough that the "get the state out of marriage" mantra is far less practicable than libertarians appreciate. Consider, for example, the following additional examples in which marriage intersects with other legal rights:
  1. Income tax treatment: joint filing of income taxes and treatment of spouses as a unit for purposes of federal taxation;

  2. Probate and inheritance: many die without a will, and intestacy statutes incorporate marriage—and surviving spouses often enjoy priority in estate administration; and

  3. Personal injury rights: wrongful death statutes generally confer a rights on surviving spouses (among others), and they have consortium claims for non-fatal injuries to spouses.
Note how widely the fact of marriage is incorporated into other aspects of the law. Doubtless, there are many other examples. These merely are the ones that occur to me off the top of my head.

Federalism also greatly complicates the task of disentangling marriage from the law. Marriage largely is a matter of state law. So the "get the state out of marriage" project would require broad consensus indeed. And, possibly, the task may be rendered even more complicated by the Full Faith and Credit Clause of the Constitution.
Posted by Curmudgeonly Ex-Clerk at 12:00 AM | Comments (0)

April 10, 2014

$9 Billion Verdict Is An Absurdity

The American Tort Reform Foundation has identified Louisiana as a judicial hellhole. A recent $9 billion punitive damages award supplies some confirmation of this unfavorable assessment. It obviously will not withstand judicial scrutiny, given that the compensatory damages were a mere $1.5 million. But, on its face, a punitive damages award of this size is so unreasonable that it calls the remainder of the verdict into question; it smacks of irrationality.

UPDATE: Without adopting his analysis of the issue, plaintiffs' personal injury lawyer Eric Turkewitz thinks it is conceivable that a punitive damages award of around $150 million would pass muster in this case. To state Turkewitz's conclusion somewhat differently, even he thinks that the present verdict of $9 billion is approximately 60 times what is constitutionally permissible (9,000,000,000 / 150,000,000). That is, even by the rather generous measuring stick that the plaintiffs' bar would use, the jury's award is grossly excessive.
Posted by Curmudgeonly Ex-Clerk at 12:10 AM | Comments (0)

Cell Phones In Court A No-No

This story reminded me of a cell-phone incident from my clerkship. Because the court I clerked for was in a small-ish town and the commute was short, we clerks were known to rush in at the last minute on days in which there was an early morning setting.

Once, my co-clerk had to board and disembark a slow-moving train that was blocking access to the courthouse in order to arrive on time. That is another story. But it fairly illustrates how closely we tended to cut it.

In accord with our custom, I showed up so close to a setting one morning that I rushed into the courtroom without a thought given to my cell phone. So, of course, it began ringing shortly after court had been called to order. The judge (who is the most even-keeled gentleman I have had the privilege of knowing) just frowned and instructed me to turn it off. I sheepishly apologized. Counsel seemed bemused by my shortcomings as a clerk.

Afterward, I drafted a proposed order fining me $100 and advised that it be posted in the hall as a warning to my fellow scofflaws. Thankfully for my wallet, the judge demurred. I had the impression that he thought my rhadamanthine proposal amounted to an invitation for him to join me in looking like a jerk.
Posted by Curmudgeonly Ex-Clerk at 12:00 AM | Comments (0)

April 09, 2014

Matt Bodie on Corporate Speech

Matt Bodie opines that the fate of former Mozilla CEO Brendan Eich signals the risk of increased politicization of the corporation, if corporations are deemed to possess and exercise speech rights to inveigh about matters outside their core business. I think this ostensible connection is dubious at best.

Eich was pilloried for making a private contribution to a political cause years prior to becoming CEO. Whereas Hobby Lobby, an example cited by Bodie, is seeking to vindicate a political position on behalf of the corporation. The two episodes are distinct from one another in an elementary way. So why does Bodie think the latter accounts for the former and is a harbinger of more to come? Bodie writes:
If corporations have speech protections and can play an active role in ideological debates of all stripes, then it matters if the CEO takes a different political position than the majority of stakeholders in the enterprise. The CEO controls the company and speaks for the company. So it is not suprising that stakeholders would be concerned about a CEO that did not reflect their values.
This judgment, however, depends upon an undiscriminating and needless rejection of the distinction between personal and professional conduct and acts taken in one's personal capacity and acts taken on behalf of the business. As Bodie himself once observed:
[Corporate Social Responsibility] should be based on what the company actually does—not the unrelated views of one of its owners or executives.
When I asked Bodie how he reconciled his current argument with his former observation, he replied:
I reconcile the claims because one is a "should" and one is an "is." Companies should focus their expressive activity either on their own businesses or on noncontroversial charitable activity. But companies haven't always done that—Chick-fil-A is an example. So employees, customers, and other stakeholders are rightly concerned that their company will be dragooned into supporting an unrelated, controversial cause because of the views of the owners or executives who control the company.
But this explanation fails to explain. Bodie effectively continues to deny any reasonable distinction between personal and corporate conduct, and he offers no basis for this disregard other than an adverb: "rightly." And this adverb highlights that distinguishing "ought" from "is" does not begin reconcile his positions. Both depend on normative premises, hence his use of words like "should" and "rightly."

Consumers and others ought to distinguish between the actions of officers taken outside of their corporate roles for personal ends on the one hand and the positions staked out by corporate officers in their position as representaives of the corporation on the other. As a factual matter, the former seldom has much to do with the latter; and, as a legal matter, this distinction is deeply embedded in corporate law. Mozilla's ostensible stakeholders were not right to be concerned about whether Eich reflected their values on gay marriage in light of Hobby Lobby. Quite apart from the fact that their concerns had a a poor basis in reality, their rejection of the distinction between Eich and the entity disregarded one of the fundamentals of corporate personhood.

Corporate law also suggests that Chick-fil-A and Hobby Lobby are poor comparators. Both of these corporations are privately owned and closely held entities. As Professor Bainbridge repeatedly has argued, close corporations effectively are indistinguishable from their limited number of owners in important respects. It hardly is surprising that these entities would reflect the views of their limited ownership. And this fact provides a narrow ground for decision in the Hobby Lobby litigation that largely does not implicate the concerns Bodie raises.
Posted by Curmudgeonly Ex-Clerk at 12:46 PM | Comments (0)

The Stupid Party And Its Supporters

So, assuming that one's opponents incessantly advance the trope that one is engaged in a war on women, does it make sense to then sexualize and degrade a female opponent for advertising purposes? The answer from cretins who cannot distinguish SNL from an organization that seeks to be taken seriously as a source of news commentary is an emphatic "yes!" Does the left also engage in this sort of thing too? Yes. But isn't the answer to point this out when it occurs? The problem here is an old one: the left deserves to lose, but the right really does not deserve to win.
Posted by Curmudgeonly Ex-Clerk at 12:02 AM | Comments (0)

April 08, 2014

Intellectual Modesty , Expertise, And The Academy

Why does David Post think he knows much about the Fourth Amendment? Nothing in his resume suggests he has any expertise in this area. But this does not keep him from matter-of-factly opining on the constitutionality of airport security:
But even worse is this: while waiting on the hoi polloi line, I started watching the TSA video that was running on the monitors overhead, and I was struck when the narrator said: "Once you enter the screening area, you will not be permitted to leave without TSA permission." Really?! Actually, I am permitted to leave without TSA permission, whether they like it or not, because the Fourth Amendment's prohibition on "unreasonable . . . seizures" gives me that permission. We have a word for this, too, in the law, when government agents don’t allow us to leave freely: "being in custody." And the government cannot put me in custody when they have absolutely no reason to believe that I have broken the law – the 4th Amendment prohibits that. Nor can they say "you've consented to being in custody when you go to the airport," any more than they can say "you’ve consented to being in custody whenever you leave your home, so we can grab you and hold you whenever we damn please."
Of course, as actual Fourth Amendment expert Orin Kerr points out, Post does not really know what he is talking about. It turns out that federal appellate courts repeatedly have addressed this issue and have done so in ways inconsistent with Post's contentions.

It is one thing to identify contrary authority but maintain that the cases are wrongly decided. It is quite another to not know of the contrary authority, or to disregard it for purposes of polemic. As Kerr observes:
I recognize that some readers will contend that the cases are irrelevant to what the law truly is. If the cases say that, they will reason, then it just shows how the judges don’t understand what the Constitution truly means. Perhaps. But at the very least, the appellate caselaw explains why the TSA thinks its policy is constitutional.
And, if law professors cannot provide, or cannot be bothered to provide, an accurate descriptive account of the law in conjunction with their normative critiques, they provide the public with little value. After all, anyone can opine: "ZOMG, TSA policy so unconstitutional!! Amirite!?" Though not just anyone can do so at the Volokh Conspiracy and/or Washington Post. But that is another matter.

This episode illustrates why I think academics (and other public intellectuals) ought to be cautious when addressing matters outside of their expertise. Doing so preserves respect for their expertise and facilitates thoughtful public consideration of their views. Many academics, however, seem not to appreciate the virtue of intellectual modesty. Consider, for example, the unseemly phenomenon of academics who join amicus briefs that discuss subjects about which they are ignorant. If academics decline to acknowledge the limits of their expertise, then the public must discount them to some extent. I heavily discount Post's opinions.
Posted by Curmudgeonly Ex-Clerk at 10:53 PM | Comments (0)

April 06, 2014

Registered Trademarks In Legal Writing

Over the last several years, I have encountered an unfortunate trend in the legal briefs of large national defense firms that ought to know better: use of the registered trademark symbol—®—each and every time their clients' prescription drugs are referenced. Why is this?

As Bryan Garner notes, this use of intellectual-property symbols is an unnecessary eyesore.
6.6 Do not use a trademark or copyright symbol in text.

(a) Purpose. The purpose of intellectual-property symbols is to let the owner put the public on notice that the work is protected. There is no legal requirement that the symbol be reproduced every time the protected mark appears in copy, and to do so would be distracting. The trademarked word should be capitalized, but no symbol should be used.
Bryan A. Garner, The Redbook: A Manual On Legal Style 102 (2d ed. 2002).

And, even if were to be used in legal briefs, the symbol would need be used but a single time. As the International Trademark Association advises:
Generally, demarcation is not necessary for every occurrence of a trademark or service mark in an article, press release, advertisement or on a website, etc; however, at a minimum, this identification should occur at least once in each piece, either the first time the mark is used or with the most prominent use of the mark.
Admittedly, the International Trademark Association also advises one to over-mark when in doubt, but what possible doubt could require use of the registered trademark symbol each and every time a prescription drug name appears in a legal brief? None that I can identify.
Posted by Curmudgeonly Ex-Clerk at 05:02 PM | Comments (0)

Money, Politics, and Leviathan

Reminding me why I never regret his defeat in 2008, John McCain disapproves of McCutcheon:"There's too much money washing around." And why is there "too much money"? Because, when government is this big and powerful, investment in those who wield its levers pays dividends. If one wants to reduce money in politics, the only way to do so is to reduce the role of government. Pass whatever campaign finance laws you prefer, money inevitably will find its way around these. And what has John McCain done to reduce the size and power of government? About as much as the rest of the GOP establishment.
Posted by Curmudgeonly Ex-Clerk at 04:37 PM | Comments (0)