The Volokh Conspiracy

Bridget Crawford wonders why practicing lawyers don’t much like legal academics. Professor Bainbridge offers an explanation. Rick Garnett responds with some qualifications.

UPDATE: More at Legal Ethics Forum.

Some New Jersey state troopers got law degrees with the help of a state-sponsored loan repayment program.  Then sought to practice law on the side — doing wills, real estate closings, etc.  Then the State Ethics Commission for the Department of Law and Public Safety decided that it was unethical for troopers to engage in the private practice of law.  The troopers sued, alleging (among other things) that the prohibition violated their rights under the 14th Amendment.  Alas, their case did not get far, as the U.S. Court of Appeals upheld the restriction, finding that the state had a rational basis for concluding the rule would prevent some potential conflicts of interest.

(Hat tip: John Steele)

I was thinking recently, after teaching a first-year law class, that one of the key aspects of “thinking like a lawyer” is understanding institutional roles. The law often breaks down power among different institutions, with each institution getting one part of a broader problem. That means that each institution only has limited power, and the question of how that institution is supposed to act is limited by the specific grant of power given to that particular institution. Of course, the lines won’t always be clear as to exactly what powers are given to each institution: Sometimes the lines are murky. But the basic idea of thinking of each institution based on its role is an important part of thinking like a lawyer.

Consider a routine criminal case. The investigator has one role: Determine if a crime has been committed and who committed it while complying with the relevant constitutional and statutory rules for gathering evidence. The prosecutor has a second role: Determine if the evidence is sufficient to prove the case beyond a reasonable doubt and if justice will be served by a prosecution. The grand jury has a third role: Determine if there is probable cause to permit charges to be brought. The defense attorney has a fourth role: Fight like hell, within the ethical rules, to defend the client. The trial judge has a fifth role: Make appropriate evidentiary rulings, ensure a fair trial, instruct the jury properly on the law, and, if the jury convicts, determine the appropriate sentence under the relevant sentencing scheme. The trial jury has a sixth role: Determine if there is proof of the elements of the crime beyond a reasonable doubt. On appeal, the appellate court has a seventh role: Review the lower court judgments under the appropriate standard of review. Each institution has its role, its appropriate job based on the breakdown of power among the different institutions created by and regulated under the law. It’s a big part about how lawyers think.

This understanding of institutional roles provides a source of endless frustration among non-lawyers. For non-lawyers, thinking about institutional roles can seem utterly ridiculous. It can come off as hiding behind technicalities and an almost pathological aversion to the common sense and the justice of the situation. But to lawyers, it’s just about how we think: It all reflects our background understanding, so intuitive after a while that we rarely consciously see it, that the law often distributes power among different institutions.

Congratulations to Judge Diarmuid O’Scannlain of the 9th Circuit, who has been named chair of the Judicial Conference Committee on International Judicial Relations by Chief Justice Roberts.  It is a three-year term, and Judge O’Scannlain is a terrific choice to chair it.  The 9th Circuit announcement notes that the Committee was

formed in 1993 to respond to increasing demand from newly emerging democracies and developing countries for information about judicial independence, legal traditions and effective court administration in the United States. Assisted by staff of the Administrative Office of the U.S. Courts in Washington, D.C., the committee is currently involved in activities in Africa, Asia and the Pacific Basin, Latin America and the Caribbean, the Middle East, Europe, and Eurasia …  the Committee on International Judicial Relations works with the U.S. State Department, the U.S. Agency for International Development, the U.S. Department of Justice, the World Bank, the Federal Judicial Center, other committees of the Judicial Conference of the United States, and various non-governmental organizations.

The BLT reports:

A massive study of billing rates shows that law firm partners in Washington charge the second-highest hourly rate in the nation. On average, partners here bill just over $600 an hour, second only to New York City, where partners charge close to $700 an hour, according to the study by CT TyMetrix Inc. and The Corporate Executive Board Co.

To arrive at the numbers, the companies looked at bills sent to 36 large corporate clients between 2007 and 2009—$4.1 billion worth of invoices from more than 3,500 law firms and 90,000 individual billers. Associates in Washington are a relative bargain, the study found, billing about $375 an hour on average—a bit less than those in Los Angeles and a hair more than in San Francisco.

Perhaps if you spend that stint in the Southern District of New York in Manhattan. Over at the Glom, David Zaring reports on his effort to identify what former federal prosecutors in Manhattan are doing these days. Out of 150 former federal prosecutors, he reports, “the large majority . . . are partners in white shoe firms in New York.” Zaring comments:

My guess is that a gig in the Southern District is the greatest path to wealth maximization in the federal government that there is – I say this impressionistically, of course, but the fact is that the financial regulators rarely get picked up by investment banks, and the SEC enforcer to partner rate is pretty low. And I think lobbyist salaries don’t match New York law firm salaries, while Pentagon procurement officials have far too difficult a tournament to win to get the payday of a job with Boeing. Which makes white collar the straightest path to law firm style riches.

That right there is pretty interesting, since crime never used to pay, either for the defendants or their lawyers. My suspicion is that the renumeration due to SDNY attorneys is a function of beefed up white collar enforcement, including the explosion of FCPA, and honest services fraud actions. It would be interesting to track the paydays of former prosecutors over time by the number of cases brought against corporate executives (was it lower in the 60s? did a Supreme Court opinion broadening fraud rules contribute to the future bottom line of Manhattan prosecutors? &c.). Indeed, though I don’t believe this could be the case, new kinds of financial enforcement could simply be examples of SDNY lawyers feathering their future nests. If you have views on this, since I’m noodling around on the issue, I’d love to hear them.

My guess is that these numbers don’t reflect beefed up white collar enforcement as much as the realities of who the SDNY tends to hire. The U.S. Attorney’s Office in the SDNY is very competitive, and it tends to draw a lot of high-powered litigation associates from top New York firms. Those lawyers come to the SDNY and spend a few years to get trial experience. But they know that living on a government salary over the long term would require a pretty big shift in their lifestyles given the very high costs of living in or near Manhattan. So after they hit their minimum year commitment (3 or 4 years, if I recall), they cycle back to major law firms in more senior positions (either senior counsel or partner) and start earning serious coin.

It’s an interesting aspect of the SDNY: In my experience, the AUSAs there generally stay for a much shorter time than AUSAs in most other districts. Whereas AUSAs in other districts often stick around for a long time, AUSAs in the SDNY often do the minimum stint and then return to more lucrative practices. That’s my impression, at least.

There are a couple of academic business law blogs I read regularly – particularly The Conglomerate and Truth on the Market.  So I was flattered to see that Larry Ribstein, at Truth on the Market, put up a short comment on a short essay of mine that appeared last semester in my school’s short-form essay journal, Business Law Brief, “Do Lawyers and Law Professors Have Any Comparative Advantages in Opining on Financial Regulatory Reform?”  My essay is only 5000 words, and is a not much revised version of a brown bag lunch talk I gave to (dismayed and depressed) business law students last term at my school, a pep talk on what I think are lawyerly comparative advantages, despite everything.  It’s not a deep academic work, that is, and needs to be read that way.  But I have always liked it, and was glad to see it published in reasonably short and readable form.

Professor Ribstein is one of the leading scholars in business law, and in a couple of distinct-yet-related areas. They include the law of unincorporated business entities – his book The Rise of the Uncorporation is outstanding, one that I assigned to my private equity class this past term with good results.  But he is also a leading commentator on the business model of the law firm and Big Law – including (not insignificantly for my essay, aimed in part at law students trying to figure out the new realities of the law job market) the implications of the changes in the broader legal market for legal education.  And add to that a subject increasingly dear to my heart – the nature of fiduciary duty in a world in which the nature of business entities is shifting.

The Truth on the Market post is titled “Why Lawyers?”:

Anderson wonders whether “the skills of the lawyer and law professor are, at most, those of scribe seeking clearly to write down policy positions necessarily reached elsewhere?” He argues that there are two important things lawyers and law professors know.

First, as he says in the abstract, “a particular disciplinary appreciation in the law for the ‘thick’ relationships of agency, fiduciary, loyalty, and care that bind together institutions far more than the simplification of ‘nexus of contracts’ can capture.”

Second, and perhaps more importantly, Anderson says … “lawyers have a better appreciation than other disciplines of the ways in which financial instruments used in markets as though they were economic equivalents are not actually legal equivalents[.]”  The essay discusses the lawyer concept of repos as more than just the financial equivalent of a secured loan but, legally, a spot sale and contract to repurchase. Under ordinary circumstances the financial idea may be good enough. But under conditions of stress – that is, in a financial crisis – the lawyer’s concept comes to the fore. And then only lawyers can provide the critical information that helps the market put a value on the contingency.

But Professor Ribstein then turns to point out that figuring out this comparative advantage for lawyers, if such it genuinely is, requires some urgent thinking, by lawyers and by legal educators.  He would disagree with parts of the analysis in the essay – in part about the idea that the nexus of contracts improperly obscures rather than clarifies duties in the new business structures, and perhaps as well with the specific example I use concerning repos.  But as he says, if legal education does not figure out its intellectual competitive advantages, and not just those of guild-privileged access of being lawyers with a license, then law as a field will discover that it has been overtaken by others.  ”Why lawyers?” in other words, as Professor Ribstein concludes, is a way of asking the classic question of legal education, what does it mean to “think like a lawyer?”

There has been much grousing in the legal profession and blogosphere about the recent National Association of Law Placement report finding that recent law graduates have a “bimodal” pay distribution: while those who get jobs in big firms have starting salaries around $160,000 per year, few others top $75,000. No doubt, this finding will lead to renewed claims that lawyer salaries are too low, and that we need to restrict the supply of lawyers further. I previously criticized such arguments here.

There is no doubt that only a minority of new lawyers will get 160K starting salaries and that most will earn a great deal less than that. This is not a new finding by any means. Still, the NALP data does not change the fact that most lawyers earn quite impressive incomes. It is important to remember several key points that have been absent from most of the discussion of the data so far.

First, these are merely entry-level first year salaries. In law, as in most professions, pay increases with years of experience. Data on overall lawyers’ salaries compiled by the Labor Department shows that the median lawyer makes some $113,000 per year (meaning that 50% of lawyers make that much or more). Even lawyers at the 25th percentile of pay in the profession make about $76,000 per year. You have to go to the bottom 10% of the profession to find lawyers making under $55,000 per year. Thus, claims that most lawyers can expect to earn “somewhere between $30,000 and $60,000 a year” are misleading at best.

Second, the data for the Class of 2009 are taken from a year that saw the worst economic downturn in some 30 years. In such a period, employment prospects and salaries tend to be down in almost every profession. The relevant time horizon for lawyers, however, is the entire 30 to 40 year period of their expected career. On that score, it is difficult to make any precise forecasts. Still, the continued growth in the scope and complexity of law suggest that the demand for legal services is likely to rise. The demand for lawyers is inevitably closely tied to the growth of government and law.

Furthermore, the NALP data for the class of 2009 show that the median graduate has a salary of about $72,000; in other words, 50% of first year lawyers can expect to make that much or more. Even if you adjust the figure downward a little to reflect reporting rates skewed in favor of large firms, you still get a level of perhaps $65,000 based on the formula that NALP used to recalculate the mean salary (reducing the initial estimate by about 9%). That’s not bad for an entry level salary in the middle of a deep recession.

I certainly don’t wish to suggest that law is the best career path for everyone, or even for more than a minority of college graduates. Some can certainly make more money elsewhere, though there are not many professions that offer comparable salaries to liberal arts graduates with few or no math and science skills. Even among those who can’t earn as much in a different field, it might be reasonable to go into a profession that has more interesting work or shorter hours. In my view, too many people choose law school as a sort of default option without fully considering the alternatives. That said, recent complaints about lawyer pay are overblown, and the NALP data does not change that fact.

Since I am a law professor, some will be tempted to dismiss my comments on this issue on the ground that I have a self-interest in encouraging more people to go to law school. Perhaps so. But I have advocated many policy reforms that are not in the interest of either lawyers or law professors, including reducing the size and complexity of government (which would depress demand for both lawyers and legal academics) and abolishing the legal requirement that people must attend law school before entering the legal profession. In any event, the validity of any argument is independent of advocates’ motives for making it.

UPDATE: I should note that the NALP and Labor Department data do not account for lawyers who are unemployed. Unfortunately, neither these sources nor others I have looked at have shown anything approaching a good estimate of the unemployment rate among lawyers. However, it seems unlikely that there is large Marxian “reserve army” of unemployed lawyers out there. If there were, one would expect lawyer salaries to drop substantially as competition from the unemployed drives down the pay of those who have jobs, especially at the lower ends of the distribution (e.g. – the 10th and 25th percentiles noted in the post). Yet the Labor Department data shows lawyer salaries holding fairly steady. For example, today’s 10th percentile salary of $55,000 per year is actually slightly higher than the prerecession 2007 figure. That would be highly improbable if there were large-scale unemployment among lawyers.

In a thoughtful response to my recent post on the bar exam, prominent criminal lawyer Nathaniel Burney agrees with my view that the current bar exam system is flawed, but argues that the best solution is to adopt a new and better exam:

We are not fans of the bar exam, either, but we think the solution is not to abolish the exam, but more and better bar exams…. Nobody in their right mind believes that the bar exam is a reliable indicator of who is going to make a good lawyer. It doesn’t test judgment, reasoning or understanding. More importantly, it doesn’t test actual skills that lawyers need to know….

Instead, the bar exam should be replaced with a series of exams for something along the lines of board certification in medicine. You want to practice criminal law? Someone’s life and liberty is going to be on the line. You’d better prove you know what you’re doing, and get bar-certified to stand up in a criminal courtroom. Or you say you want to be a transactional lawyer? People’s assets and livelihoods will be at stake. You’d better be able to prove you know how to put together a deal that does what the client needs, and get bar-certified.

Burney’s proposed exam system might well be better than the status quo. But I see no reason to believe that bar associations would ever adopt a system whose goal is to protect consumers rather than advance the interests of incumbent lawyers. Even if the bar exam were written by a more objective body, it would still be vulnerable to “capture” by lawyers, and still likely to be inferior to market mechanisms as a means of weeding out bad attorneys.

I. Why Bar Associations Can’t be Trusted to Run Mandatory Bar Exams.

As Burney points out, bar associations are not neutral experts on law. Rather, they are interest groups representing currently licensed lawyers who have a strong incentive to try to reduce competition by making entry into the profession difficult. This helps explain why the bar exam requires applicants to memorize thousands of rules that most lawyers will never use. This approach weeds out people who lack the time, patience, or talent for memorization needed to learn all that arcana. In Burney’s words “[t]he legal profession is a cartel … [W]e have absolute control over entry into our ranks, the rules by which we operate, and even the laws that would apply to us and their enforcement.” Like any other cartel, it’s no surprise that we lawyers use our monopoly power to try to reduce competition and increase our own incomes.

It’s possible that bar association leaders will suddenly decide to prioritize the public interest ahead of their members’ interests. But I wouldn’t bet on it. As Burney puts it, “We need to make sure that the members of our profession are up to the task. Weed out the incompetent. We’re not doing that now. We’ve never really done that.” [emphasis added]. If “we’ve never really done that” in the hundred year history of bar exams, it seems highly unlikely that we are going to start now.

II. The Independent Regulatory Agency Alternative.

One possible alternative to bar exams administered by bar associations are exams developed by independent regulatory agencies. In theory, they could be free of control by lawyers and thus more likely to focus on protecting consumers. But even an independent bar exam agency is likely to be “captured” by lawyers through lobbying. Because of collective action problems and rational political ignorance, the general public is unlikely to effectively monitor the bar exam agency. Lawyers, by contrast, are a well-organized interest group with a strong incentive to flex their lobbying muscle over this issue. Extensive research shows that it is common for independent occupational licensing agencies to be captured by the professions they seek to regulate. Morris Kleiner’s recent book has a good summary of the relevant evidence. Still, an independent bar exam agency would be at least somewhat better than just handing over control to lawyers. It might, for example, be marginally more open to influence by consumer groups.

Even if the independent regulatory agency could be completely insulated from lobbying by lawyers, its tests are still likely to have important shortcomings. One is that lawyer “competence” is not a binary variable in which either you’re competent or you’re not. Rather, there are different degrees of competence. Some low-quality lawyers lack the skill needed to handle complex cases and transactions, but are knowledgeable enough to handle very simple ones. Many such people could well end up failing even a well-designed bar exam. Yet keeping them out of the market would harm consumers by driving up the cost of the simple but important basic legal services they can provide. This is a crucial point, since one of the main flaws of the current system is the very high cost of simple legal services, which is especially damaging to the poor.

Second and related, consumers in many markets are willing to trade off quality for price. Only the individual consumer himself can really know how much he values the one relative to the other. A poor quality lawyer who flunks a well-designed bar exam may still be better than no lawyer at all; and some clients could reasonably prefer to hire him at a low price relative to hiring a better practitioner that costs more. No regulatory agency can really know how a variety of different consumers would make such tradeoffs, especially since there will be great variation in preferences. Inability to take account of varying consumer preferences is a standard flaw of paternalistic policies.

III. Market Competition and Voluntary Certification.

The main fear that many have about abolishing the bar exam is that consumers will have no way of assessing lawyer quality without becoming legal experts themselves. Most clients don’t know much about law, after all.

However, markets have numerous tools for dealing with this problem without resorting to government-mandated licensing. The most obvious is reputation. Clients can’t directly assess a lawyer’s competence. But they can learn about his reputation from other lawyers, previous clients, and others. Law firm brand names are also useful. If I hire Wachtel or Cravath, I may not know much about the individual lawyers who will work on my case. But I do know that the firm has a strong reputation overall, and that they have powerful incentives to hire lawyers who will uphold it. Less sophisticated clients can also piggyback on the knowledge of better-informed ones.

Voluntary certification is another useful tool for consumers. If state-mandated bar exams were abolished, both bar associations and other private groups would still be free to certify lawyers using either tests or other standards they deem appropriate. If lawyers certified by the bar association are generally more competent than others, sophisticated clients will soon realize that, and the knowledge will quickly trickle down to less sophisticated ones. Over time, lawyers certified by the bar association will command higher salaries and enjoy more prestige than those who are not.

Superficially, voluntary certification seems little different from the old bar exam system. After all, lawyers would still have incentives to meet standards established by some professional organization. However, there are three big differences. First, abolishing state-mandated exams allows different certification systems to compete against each other. This stimulates improvement in standards over time and also increases consumer choice. Second, since no certifying body will have a monopoly, these groups will have strong incentives to improve the quality of their certification systems. If the bar association’s certification system turn out to be inferior to that of the Better Business Bureau, for example, fewer consumers will pay attention to it, and fewer lawyers will pay to take the bar association’s test. For this reason, a bar association that didn’t have a legal monopoly on certification is likely to produce a better test than one that does.

Finally, with multiple certification systems, we would no longer have to have a “one size fits all” system that sets standards for all lawyers and all clients. It could well be that Certification A better meets the needs of some clients, while others have reason to prefer B, and still others need no certification system at all.

Market competition and voluntary certification might not be able to eliminate all need for regulation of lawyer quality. For example, there is the issue of what to do in situations where clients have no real choice, as in the case of court-appointed lawyers for indigent criminal defendants. However, it does obviate the need for crude licensing regimes such as the bar exam that completely block access to the profession to anyone who doesn’t pass.

UPDATE: Some commenters doubt that bar exams really keep out a significant number of would-be lawyers. However, the National Council of Bar Examiners reports that 32% of bar exam takers failed in 2009. And that doesn’t count people who chose not to attend law school or take the bar exam in the first place because they knew they lack the talent for memorization needed to pass and therefore don’t want to waste time and money trying.

Richard Epstein and John Yoo have responded to Elizabeth Wurtzel’s critique of the bar exam, which I previously commented on here. Surprisingly, Epstein comes to the defense of the bar exam:

There is a good reason why some Yale Law School graduates fail the bar. They do not learn enough law in law school to carry them through the tedium of the bar examination. It is a real black mark against my alma mater (class of 1968) that so many of its students do not take enough core courses to know law. It is also a mistake to think of the law as a set of senseless rules. The students who fail the bar can’t work with any set of rules. There are virtually no students at the top of the class who don’t pass the bar.

John Yoo disputes Epstein’s position:

[J]ust because Yale doesn’t train practicing lawyers doesn’t mean that a) law schools in general are good at it, or b) that the bar exam has any real relationship to one’s success as a lawyer. Most students no matter where they go, I believe, pay thousands of dollars after graduation to attend cram courses to prepare for the bar exam. Only a hardy (or foolhardy) few, I bet, dare take the bar based on what they learned in school….

[The bar exam] has little to do with whether someone will make a good lawyer. I knew someone in law school with a photographic memory — he could recite exactly the text of a case after reading it once (or, more importantly, the pages from a cliff notes summary of the case). But he couldn’t adapt that memorized rule to a new set of facts, which is what law practice will require; his mind didn’t work that way. So even if Liz Wurtzel failed the bar exam, I bet it has little predictive value for her lawyer skills.

This is one of those rare instances where I agree more with Yoo than with Epstein. It is simply not true that “students who fail the bar can’t work with any set of rules.” The bar exam doesn’t test your ability to “work with rules” in any serious way. Rather, it is primarily a test of memorization skills. To pass, you must memorize thousands of arcane rules, most of which you will never again use as a practicing lawyer. True, the exam sometimes makes you apply the rules to very simple fact patterns. But I suspect that most of those who fail the bar did so not because they couldn’t apply rules they knew, but because they simply couldn’t remember what some of the rules were. As I pointed out in this post, most successful practicing lawyers could not pass the bar if forced to take it again without spending many hours studying.

Many people who aren’t good at memorization can still work with rules effectively in law practice. And, as Yoo notes, some people who pass the exam easily because they are excellent memorizers will turn out to be poor lawyers. Epstein may be right that “[t]here are virtually no students at the top of the class who don’t pass the bar.” But many students from the middle or bottom of the class do fail, and many of them could still have been reasonably competent lawyers, even if they are poor memorizers.

It is also worth noting that law is a profession with a great deal of specialization. Few if any lawyers ever deal with more than a fraction of the many subjects covered on the bar exam. A person who lacks the memorization skills or the patience to learn by heart thousands of rules across many areas of law can still master a specific area of law well enough to give good legal advice in that field.

Finally, I should perhaps mention that I passed the bar with little difficulty, without taking a prep course. That was in part because I’m very good at memorization. But I soon saw that my skill at memorizing large numbers of legal rules wasn’t especially useful either in my work as a law professor or in the various pro bono and consulting projects I did in practice. It did help somewhat, but only very modestly. As a practical matter, modern technology makes it easy to look up any relevant arcane rules I may have forgotten. And it would be foolish to rely on memory alone anyway, since there’s always a small chance that I remembered something incorrectly. Being a good memorizer did little to make me a good lawyer. Conversely, bad memorizers aren’t necessarily bad lawyers.

A test of memorization skills is therefore a poor way to weed out the wheat from the chaff among would-be lawyers. It’s certainly not likely to be nearly as effective as market competition. In the unlikely event that passing the bar really were a strong predictor of legal competence, there would be no reason for government to mandate it. Consumers of legal services would demand it anyway, or at least pay a premium for lawyers who have that credential relative to those who don’t.

At the Brennan Center for Justice, Elizabeth Wurtzel makes the case for abolishing the bar exam:

In 2005, Kathleen Sullivan, then dean of Stanford Law School, took and failed the California bar exam. After many years in legal academia—Ms. Sullivan literally wrote the book on constitutional law—she was going to practice law and needed a license. Ms. Sullivan has since passed the bar and is a very successful appellate attorney…. If the bar exam was meant to be more than an empty and painful ritual, if the American Bar Association was anything more than an absurd and fusty guild, when Kathleen Sullivan failed the bar, bar administrators might have used Sullivan’s failure to pass the test as the occasion to ask whether, perhaps, something is wrong with the exam and process of bar admission. After all, if the results of the bar exam were meant to matter—if it were meant to predict the likelihood of success as a lawyer—the failure of a great legal mind ought to alarm the people in charge….

But nothing changed.

And there’s a long, proud tradition of gifted attorneys who failed the bar, at least on their first try. Hillary Clinton, Michelle Obama, Franklin D. Roosevelt, Jerry Brown—who is now California’s attorney general—all screwed up once, as I discovered when I myself failed. Both Pete Wilson, the former governor of California, and Antonio Villaraigosa, the current mayor of Los Angeles, took the bar four times; Benjamin Cardozo, one of the greatest justices of the Supreme Court, sat for it six times. Harold Ford Jr. still has not managed to pass the bar in Tennessee—a State in which the curve cannot be terribly dangerous—but that didn’t keep him out of Congress, though he’s been less lucky with the Senate.

Given this simple data point—that many gifted people fail the bar exam while plenty of plucky idiots who you wouldn’t trust to haggle over a parking ticket in White Plains traffic court get through the test with the greatest of ease—it is curious that it endures.

I agree with Wurtzel’s point that the bar exam is primarily a test of memorization that covers huge amounts of material most lawyers won’t need. For this reason, among others, I’m all in favor of abolishing the bar exam myself. If we retain the exam, it at the very least should not be administered by bar associations, which have a vested interest in reducing the number of lawyers so as to increase the demand for their members’ services.

I’m not sure, however, that I agree with all of Wurtzel’s argument. Most of the “gifted people” she mentions had their greatest successes as politicians, not lawyers. It’s perfectly possible to be a great politician while also being a poor lawyer. Moreover, it’s hard to evaluate a system that tests thousands of applicants on the basis of a few individual cases that could be atypical.

I also disagree with Wurtzel’s view that government needs to adopt various policies to reduce the number of lawyers (which of course is the main real function of bar exams):

There are many better ways that the ABA could keep the numbers down in the profession: for instance, while there are only 130 accredited medical schools, there are nearly 250 law schools that have been approved by either the ABA or a state equivalent….. And there are many more students in a law school than a medical school, given the lack of need for cadavers and the like: for instance, the entering class at Harvard Medical School has 165 slots, whereas the 1L class at Harvard Law School contains 550 people. Plainly, the population of legal academia is excessive.

I see no reason why the number of medical schools should have any bearing on the number of law schools, especially since the former is also artificially restricted by regulation. These are two different professions that face different market conditions. More importantly, I think that the high salaries of lawyers combined with the high cost of even very basic legal services show that we have too few lawyers rather than too many, and that the best way to determine the “right” number of lawyers is through market competition, not government mandate. To that end, I would abolish ABA accreditation of law schools as well as the bar exam. As law school faculty and administrators who have gone through the ABA accreditation process know, many of the ABA’s requirements add nothing to the quality of legal education, and are just as ridiculous as the more arcane questions on the bar exam.

Both the ABA and state bar associations have strong incentives to regulate the profession in ways that reduce competition for their members rather than benefit consumers of legal services. If we must have government-mandated accreditation and licensing (which I doubt), it should at least be conducted by independent agencies insulated as much as possible from lobbying by the organized bar. Giving lawyers the power to exclude potential new members of their profession is much like giving Ford and GM the power to exclude new car manufacturers from the market.

Via TaxProf, I learn that the ABA Section of Legal Education & Admission to the Bar seeks comments on proposed changes to the law school accreditation standards. I blogged about one of these proposed standards in December, the one that requires law school graduates to have a “knowledge and understanding of … the legal profession’s values of justice, fairness, candor, honesty, integrity, professionalism, respect for diversity and respect for the rule of law.”

I wrote then,

there’s nothing inherently wrong with “respect for diversity,” if this means “respecting and treating fairly all clients and colleagues regardless of their background.” Indeed, this is praiseworthy.

However, given the past record of ABA accreditation committees, who have rather loosely interpreted ABA guidelines to try to enforce a political agenda on law schools–for example, requiring strong affirmative action preferences in admissions when there was no textual basis in the accreditation guidelines for such a requirement–one could easily imagine this language being misused in the future. Teaching “respect for diversity” could easily be interpreted as teaching that law schools, law firms, etc., should and must engage in affirmative action preferences.

Without further clarification, the ABA could easily threaten the accreditation of a law school if a substantial percentage of the faculty signed a brief opposing Grutter–like diversity admissions; or if students interviewed by the accreditation people complained that the faculty seems to them insufficiently supportive of “diversity” (i.e., affirmative action) in its teaching; or if professors assigned academic papers arguing that homogeneous organizations or societies function better than heterogeneous ones; or if the law school failed to discipline students who undertook a satirical “affirmative action bake sale”; and so forth. After all, any of these hypotheticals could arguably decrease students’ “respect for diversity,” depending on how this phrase is interpreted.

I suggested at the time that the Section clarify that this provision “does not obligate a law school or any of its constituents to take any given position on the desirability of affirmative action preferences, or any other political position.” The Section failed to do so.

Comments are due tomorrow to Becky Stretch, stretchc@staff.abanet.org.

Over at The Chronicle, there’s a report on a new study, published in the journal Psychology, Public Policy, and Law, that purports to show that lawyers consistently over-estimate their chances of succeeding in litigation. [The original paper can be viewed and dowloaded here]. From the abstract:

Lawyers’ litigation forecasts play an integral role in the justice system. In the course of
litigation, lawyers constantly make strategic decisions and/or advise their clients on the
basis of their perceptions and predictions of case outcomes. The study investigated the
realism in predictions by a sample of attorneys (n = 481) across the United States who
specified a minimum goal to achieve in a case set for trial. They estimated their chances
of meeting this goal by providing a confidence estimate. After the cases were resolved,
case outcomes were compared with the predictions. Overall, lawyers were overconfident
in their predictions, and calibration did not increase with years of legal experience.
Female lawyers were slightly better calibrated than their male counterparts and showed
evidence of less overconfidence. In an attempt to reduce overconfidence, some lawyers
were asked to generate reasons why they might not achieve their stated goals. This
manipulation did not improve calibration.

It’s not all that surprising, unfortunately, and squares with my experience (though it’s interesting to see it confirmed empirically) — I’m constantly amazed, given the obvious fact that half of all litigants are holding losing hands, at how easily most lawyers can persuade themselves of the rightness of their client’s cause.

[Thanks to Thomas Bartlett for the pointer]

The New York Times reports that law school legal clinics continue to spark controversy and political backlash, particularly (though not exclusively) at state-supported schools.  The story keys on efforts by some Maryland legislators to defund the clinic at the University of Maryland law school unless the clinic turns over information about its clients and its finances.  This might seem like no big deal — the fact of client representation is not privileged and the legislature has a right, if not obligation, to know how state money is spent — but the request appears to have been a politically motivated respoonse to clinic lawsuits against Perdue, a major  employer within the state.  Maryland legislators did not seem to care what the clinic did until it challenged a powerful local corporation.

Law clinics at other universities — from New Jersey to Michigan to Louisiana — are facing similar challenges. And legal experts say the attacks jeopardize the work of the clinics, which not only train students with hands-on courtroom experience at more than 200 law schools but also have taken on more cases against companies and government agencies in recent years.“We’re seeing a very strong pushback from deep-pocket interests, and that pushback is creating a chilling effect on many clinics,” said Robert R. Kuehn, a law professor at Washington University in St. Louis, citing a recent survey he conducted that found that more than a third of faculty members at legal clinics expressed fears about university or state reaction to their casework and that a sixth said they had turned down unpopular clients because of these concerns.

But critics say law clinics are costly, unaccountable and often counterproductive to states’ interests, especially as they have broadened the scope of their work. The debate has raised larger questions about academic freedom at state-financed law schools and the role lawmakers should have over decisions at those schools.

The excitement over the AQ7 ad put out by Liz Cheney’s organization has died down, but Ben Wittes has this very interesting piece up in The New Republic extending discussion of the letter that he drafted, signed by a group of conservative and centrist folks criticizing it.  I was one of the signers, and wound up sticking up my own very lengthy comment about it here at Volokh.

I suppose the key point for Ben and me, in somewhat different ways, is that we have each received much praise from folks on the left for defending Obama lawyers such as Neal Katyal or Jen Daskal.  No one objects to praise, or at least I don’t, but much of it was a little misplaced.  The praise tended to be as though, in order to defend the Obama lawyers, we had somehow changed our minds about the Bush lawyers.  Whereas, for Ben and for me, each in somewhat different ways, the issue was the same.  We defended Katyal and Daskal because we had defended the Bush lawyers and thought the same principle applied.  I also followed up with an response to conservatives such as Andy McCarthy who attacked the Wittes letter.  What with health care reform, and lots of other things on the agenda, the discussion is moving on, but it has been an important one, and at least among conservatives, a clarifying one.

From the opening of Ben Wittes’s essay:

Continue reading ‘Benjamin Wittes Comments on His AQ7 Letter at The New Republic’ »

Above the Law has a very interesting post summarizing a talk given by the Dean of Northwestern Law School, David Van Zandt, at a PLI conference on law firm management – Dean Van Zandt talks about the model of law school education and tries to approximate the median starting salary for a lawyer to make legal education pay.  His conclusion is – $65,000.

ATL has some discussion of that number, what it reflects and how derived, as well as other models that suggest the figure is much higher.  But equally interesting is the discussion of changes in the teaching model at law schools, including the introduction of a 2 year degree, and curricular changes.

[W]hat salary would you have to earn upon graduation in order to make going to law school an economically rational decision?  Van Zandt and some of his Northwestern colleagues did a study to determine the added value of a J.D. degree. They concluded that the break-even starting salary for a law school graduate is $65,000. Put another way, going to a law school with a median salary upon graduation that’s below $65,000 is not a wise investment.

Schools with median starting salaries under $65,000, which generally land somewhere in the 70s in the U.S. News & World Report rankings, are not good values. They need to either lower their cost to students and/or improve job opportunities for their graduates, according to Van Zandt.

(A break-even point of $65K seems low to [ATL], given high law school tuition, the borrowing costs associated with student loans, and the opportunity cost of going to law school when you could be earning a salary in some other industry. We’ve reached out to Dean Van Zandt to ask for more detail about the data he utilized and the assumptions he made in reaching his conclusion. Another academic, Herwig Schlunk of Vanderbilt Law, believes that the break-even point is much higher.)

The Wall Street Journal’s Dorothy Rabinowitz has an op-ed today reminding readers of the inglorious role that Martha Coakley played in one of – certainly in my view – the greatest miscarriages of justice of the past twenty years in the United States, the persecution in Massachusetts of the Amirault family on prosecutor-contrived charges of child abuse.  (I use the indicative entirely here because I do not believe there is anyone serious left who does not by now believe this was a set of charges trumped up by prosecutors.)  (Update: Agreeing with commenter Denver below, I am pulling some of this language as unrelated to the legal ethics question but preserving it below in the comments.)

As it happens, those prosecutors – late in the game, as saner judges were starting to take hold of the process – included the then-Middlesex County prosecutor, Martha Coakley.  According to Rabinowitz’s account, before agreeing under great pressure from judges and the public to agree to reduce Cheryl Amirault’s sentence to time served, Coakley

asked the Amiraults’ attorney, James Sultan, to pledge—in exchange—that he would stop representing Gerald and undertake no further legal action on his behalf. She had evidently concluded that with Sultan gone—Sultan, whose mastery of the case was complete—any further effort by Gerald to win freedom would be doomed. Mr. Sultan, of course, refused.

Assume that this account is correct.  I am not an expert in legal ethics, not being any kind of litigator, and although I suppose this kind of question is obvious enough that lawyers generally ought to know the required ethical answer, I don’t.  Is it ethical under Massachusetts ethics rules for a prosecutor to ask, as a condition of doing something for one defendant (or the same, for that matter), to ask in exchange that the attorney representing a criminal defendant step aside?  It seems ethically weird to me that it would be permissible for a prosecutor to seek to affect a criminal defendant’s choice of attorney, more so in exchange for something, and even weirder in exchange for something in relation to another criminal defendant.  And, according to Rabinowitz’s account, apparently as a request/offer to the attorney involved (hard to tell if this was meant to be conveyed to the client or not).  Can someone knowledgeable explain to me what the situation is under standard legal ethics rules, assuming the facts as expressed above?  Assuming these facts, is this okay?

Attorney Mark Greenbaum has a widely quoted column in the LA Times arguing that there is a glut of lawyers in the marketplace, and that the American Bar Association should combat this trend by reducing the number of accredited law schools:

Remember the old joke about 20,000 lawyers at the bottom of the sea being “a good start”? Well, in an interesting twist, thousands of lawyers now find themselves drowning in the unemployment line as the legal sector is being badly saturated with attorneys.

Part of the problem can be traced to the American Bar Assn., which continues to allow unneeded new schools to open and refuses to properly regulate the schools, many of which release numbers that paint an overly rosy picture of employment prospects for their recent graduates. There is a finite number of jobs for lawyers, and this continual flood of graduates only suppresses wages. Because the ABA has repeatedly signaled its unwillingness to adapt to this changing reality, the federal government should consider taking steps to stop the rapid flow of attorneys into a marketplace that cannot sustain them.

From 2004 through 2008, the field grew less than 1% per year on average, going from 735,000 people making a living as attorneys to just 760,000, with the Bureau of Labor Statistics postulating that the field will grow at the same rate through 2016. Taking into account retirements, deaths and that the bureau’s data is pre-recession, the number of new positions is likely to be fewer than 30,000 per year. That is far fewer than what’s needed to accommodate the 45,000 juris doctors graduating from U.S. law schools each year….

The U.S. Department of Education should strip the ABA of its accreditor status and give the authority to an organization that is free of conflicts of interest, such as the Assn. of American Law Schools or a new group. Although the AALS is made up of law schools, it is an independent, nonprofit, academic — not professional — group, which could be expected to maintain the viability and status of the profession, properly regulate law schools, curtail the opening of new programs and perhaps even shut down unneeded schools.

I. The Data on Lawyers’ Wages.

Pity the poor lawyers whose wages are being “suppressed.” Based on Greenbaum’s account, one might think that many lawyers are scraping to get by at best. According to the Labor Department, however, the median annual salary of lawyers was over $110,000 in 2008, and even lawyers at the 25th percentile of pay in the profession made some $74,000 per year. Despite the recession (which began just before 2008), this is up slightly up in inflation-adjusted terms compared to the median in 2000 ($88,000, which translates to about $109,000 in 2008 dollars). Note that these are median salaries, not means, so the figures aren’t being inflated by the very high pay of a few elite lawyers at the top of the distribution.

Even if lawyers’ pay were to go down significantly, they would still be near the top of the income distribution, and would still be making more money than liberal arts graduates without science, engineering, or math skills could earn in most other fields. Obviously, the present recession has lowered wages and increased unemployment among lawyers. But the same can be said for virtually every other profession. The bottom line is that most lawyers are extremely well off, and don’t need any special government assistance to prop up their incomes.

II. The Demand and Supply of Lawyers is Not Fixed.

Greenbaum’s argument also relies on several economic fallacies. First, he assumes that the number of jobs for lawyers is fixed and insensitive to price. In reality, of course, an increasing number of lawyers will, other things equal, lead to a decline in pay, which in turn would lead to increased hiring. Of course, other things may not be equal. After all, the demand for lawyers is driven by the scope and complexity of law. Given the growth of government, the expansion of regulation of many types, and the increasing complexity of most areas of law, it is likely that the clients will have more need of legal services over time. Thus, it’s possible that the number of lawyers could increase significantly even as lawyer pay continues to rise.

Greenbaum’s second error is his implicit assumption that potential law school applicants are indifferent to expected costs and benefits. If the return to legal education drops, it is likely that fewer people will apply to law school, and some current lawyers will leave the profession. As with most other fields, market prices give people roughly accurate information on the demand and supply of labor. There is no need for the ABA or the federal government to try to regulate the supply of lawyers. Market competition will do that (and would do an even better job if not for the legal restrictions on entry into the profession discussed below). Indeed, ABA or federal government planners will probably do a far worse job than the market in trying to determine how many lawyers we need. Central planning of the legal profession is likely to encounter the same information problems that bedevil other types of central planning.

III. The ABA Seeks to Reduce the Number of Lawyers, not Increase it.

Finally, Greenbaum contends that the ABA has a “conflict of interest” that leads it to accredit too many law schools. The truth is the exact opposite. The ABA is an interest group representing lawyers. Like members of other professions, lawyers have an incentive to limit entry into their field in order restrict competition and increase their own pay. To say that the ABA has an interest in increasing the number of lawyers is much like saying that UAW workers at GM and Ford have an interest in increasing the number of imported Japanese cars. And indeed, the ABA imposes dubious accreditation requirements that make it very hard to start new law schools. At the state level, bar associations restrict entry into the profession by forcing would-be lawyers to pass bar exams that test enormous amounts of information that most lawyers don’t actually need to know to do their jobs. It’s also worth mentioning that the ABA and state bar associations artificially reduce the number of lawyers by requiring lawyers to spend 3 years at an ABA-accredited law school in the first place. Many lawyers could probably perform reasonably well even after just one or two years of legal education, or after an apprenticeship with a firm. The latter was the standard path into the legal profession in the 19th and early 20th century. Abraham Lincoln was one of many who entered the profession by that route, even though he had almost no formal education of any kind.

For very similar reasons, Greenbaum is wrong to assume that the AALS is free of conflicts of interest. After all, the AALS is an organization composed of existing law schools, most of which don’t want to see new competitors enter the industry.

Far from accrediting too many law schools, the ABA and state bar associations are running a cartel system that has the effect of driving up the cost of legal services. The poor especially often find it difficult to pay for basic legal services.

It’s understandable that lawyers would like to reduce competition in their field so that their pay might go up. People in most other professions probably feel the same way. The rest of us, however, should take a skeptical view of such special pleading (actually, the rest of you, since I’m a lawyer myself).

CONFLICT OF INTEREST WATCH: I’m sure someone will argue that I’m just saying this because, as a law professor, it’s in my interest for people to believe that going to law school is a good deal. Maybe so. But note that I advocate several reforms that are definitely not in the interest of law professors, such as allowing people to join the profession through apprenticeships, eliminating the legal requirement of spending 3 years in law school, and so on. More broadly, I favor greatly reducing scope and complexity of American law, which cuts against the longterm interests of both lawyers and law professors. As I argued back in October, the best way to safely reduce the number of lawyers is to reduce the number of laws.

(Update:  Thank you Instapundit)

David Brooks has a piece up today in the Times attracting much comment. I am no populist, except perhaps by David Frum’s unexacting standards, but let’s just say I think that Brooks somewhere along the way lost the marvelous tuning that made him the true heir of Veblen.  I think it was the need at the Times to do politics rather than Bobo culture and “comic sociology.”  As for me, well, how much of an elitist am I?  An editor of the TLS once told me, “Ken, you have almost exquisite taste.  It would be flawless, too, except for your fondness for the novels of AA Gill.”

Here is my response to David Brooks, en passant, taken with some editing from the conclusion of an essay of mine in the Columbia Law Review in 1996, reviewing books on lawyers, elites, and the therapeutic New Class.

A New Class of Lawyers: The Therapeutic as Rights Talk (96 Columbia Law Review 1092 (May 1996).) (SSRN link)

The old elites wanted to be the top of the communities in which they had grown up; whether to lead or dominate, to serve communities or exploit them, at least they understood themselves as having a place in them. The new elites, by contrast, want no connection; they understand that power is elsewhere, money is elsewhere, and mobility is everything; if indeed they have to live somewhere, it will be if at all possible in a wholly private, gated community. Yet simultaneously they want to dominate.

The New Class pushes its mobility to absolute limits, launching itself into what it imagines is a global society conducted in the jet stream, made weightless by the complete mobility of capital, but with devastating consequences for those left behind on the ground. For those who cannot fly, there is first, the administration of life by these same elites and their hirelings, the authoritarian, bureaucratic formations which, to be sure, express themselves alternately in soothingly therapeutic psycho-babble or communitarian slogans of the common good or assertions of new and endless rights and, second, economic insecurity in the midst of being urged to greater self-esteem …

In this unforgiving light, the unhappiness of lawyers looks rather less like professionals experiencing the loss of fulfillment that accompanies losing “ownership” of the social ends of the legal profession and rather more like the unhappiness of experts who, having established to their own satisfaction the certainty of ends not open for argument by non-experts, wonder why they are not also loved.

The issue of the New Class and its lawyers is authoritarianism. In an age when the therapeutic has appropriated rights talk, and with it lawyers, turning it and them into agents of New Class authoritarianism and social control, the real question that needs to be answered is why there exists the continued “hegemony within the public culture of an essentially indeterminate and at the same time absolutist discourse of rights.” It predominates because, far from being merely a language of individual liberty or even unbridled individual license (as, for example, the communitarians would have us believe) it is today a language of state authority, a language of therapeutic paternalism; those who actually dream of being “liberals” will not reclaim rights talk any time soon. Its appropriation is at the core of the process by which the state today controls, as the late Christopher Lasch wrote, “not merely [the individual's] . . . outer but his inner life as well; not merely the public realm but the darkest corners of private life, formerly inaccessible to political domination.”

Lawyers are deeply complicit in this colonization of the language of rights by the culture of therapy. They participate because it serves the agenda of a class that, unfamiliar with democracy except as an impediment to its social engineering, is incapable of any form of discourse that is not directed from the top to the bottom. Expertise, particularly in the social sciences, is a language of hierarchy and social control, and lawyers today, as a professional formation within the New Class, deploy the language of rights to the end of making the therapeutic coercive in the public sphere.

It is not a glorious profession because it is not a glorious class, and lawyers are right to be unhappy.

Taxprof notes:

The Standards Review Committee of the ABA Section of Legal Education and Admissions to the Bar has proposed revising accreditation standard chapter 3 (Program of Legal Education) to incorporate ”Student Learning Outcomes.”  The committee will discuss the proposed standards as part of the AALS Annual Meeting Program on Friday January 8, 2010, from 4:00 p.m. – 5:45 p.m. in the Napoleon Ballroom on the third floor of the Hilton New Orleans Riverside.

Looking at the proposal, we find that “the learning outcomes shall include”:

(3) knowledge and understanding of:
(ii) the legal profession’s values of justice, fairness, candor, honesty, integrity, professionalism, respect for diversity and respect for the rule of law;

No further explanation is provided as to what “knowledge and understanding of … respect for diversity” entails.   My suspicion is that this is just p.c. pablum inserted to satisfy constituencies that demand it.  And there’s nothing inherently wrong with “respect for diversity,” if this means “respecting and treating fairly all clients and colleagues regardless of their background.”  Indeed, this is praiseworthy.

However, given the past record of ABA accreditation committees, who have rather loosely interpreted ABA guidelines to try to enforce a political agenda on law schools–for example, requiring strong affirmative action preferences in admissions when there was no textual basis in the accreditation guidelines for such a requirement–one could easily imagine this language being misused in the future.   Teaching “respect for diversity” could easily be interpreted as teaching that law schools, law firms, etc., should and must engage in affirmative action preferences.

Without further clarification, the ABA could easily threaten the accreditation of a law school if a substantial percentage of the faculty signed a brief opposing Grutter-like diversity admissions; or if students interviewed by the accreditation people complained that the faculty seems to them insufficiently supportive of “diversity” (i.e., affirmative action) in its teaching; or if professors assigned academic papers arguing that homogenous organizations or societies function better than heterogeneous ones; or if the law school failed to discipline students who undertook a satirical “affirmative action bake sale”; and so forth.  After all, any of these hypotheticals could arguably decrease students’ “respect for diversity,” depending on how this phrase is interpreted.

I won’t be attending the committee meeting, but I hope someone who does attend raises these concerns, and asks the committee to clarify the guidelines such that they make clear that teaching “respect for diversity” does not obligate a law school or any of its constituents to take any given position on the desirability of affirmative action preferences, or any other political position (such as the pluses or minuses of homogenous and heterogeneous organizations).

J. Robert Brown considers the potential effect of legal blogging on judicial decisions.  Any such influence would be difficult to quantify. Even when a judicial decision cites a blog, it is hard to know whether the blog in question actually influenced the case’s outcome.  Nonetheless, there are occasional instances in which it is quite probable blogging influenced judicial behavior.

Fifth installment of a five-part series on Silverglate’s book, Three Felonies a Day: How the Feds Target the Innocent.

This week, I’ve had the pleasure of guest-blogging on the Conspiracy and expanding upon discussions from my book, Three Felonies a Day: How the Feds Target the Innocent. I’ve examined the Supreme Court’s skepticism toward honest services fraud; aggressive prosecutors using malleable terrorism laws to target unpopular lawful expression; unwary businessmen becoming financial scapegoats; and the lack of media scrutiny over the Justice Department’s overreach. And this barely scratches the surface of the problems caused by investigations and prosecutions based on vague federal criminal statutes and regulati­ons that encompass much ordinary and innocent activity.

A Heritage Foundation study published in June 2008 found that over 4,450 federal crimes exist, and there’s no doubt that number has increased since. (Recall the three separate federal statutes criminalizing “material support” of terrorism, and the joint NACDL-Federalist Society letter (PDF) pointing out to Congress the statutory redundancy of the Fraud Enforcement and Recovery Act of 2009.) With many of these statutes near-impossible for the average citizen (or, I might add, the above-average lawyer) to understand, and many lacking important “mens rea,” or intent requirements that are common to state but not federal law, the average professional going about his or her daily business could become the target of federal authorities.

How do I know this? For one thing, because it nearly happened to me.

In the early 1980s, the Boston United States Attorney’s office launched a top-to-bottom corruption probe into the administration of Boston Mayor Kevin H. White. It was obvious that then-U.S. attorney William F. Weld—who would later serve in both appointed and elected high offices—was gunning for the scalps of as many city hall officials as he could gather, in the hope of “climbing the ladder” and eventually reaching the mayor himself. In Three Felonies a Day, I tell the tale of Weld’s stretch of federal money laundering laws intended to ensnare White’s friend—and my client—Theodore Anzalone for a series of transactions that did not  clearly violate federal statutes and regulations as they existed at the time. The goal was to pressure Anzalone to “sing” and land his friend—the great White—in federal prison. (Details of this sordid tale can be found in a book excerpt published by the Boston Herald.)

As Weld’s investigation unfolded, lawyers for various potential witnesses and targets would get together for weekly meetings to compare notes, discuss what we believed subpoenaed witnesses were saying to federal agents or to the grand jury, and determine what it all portended for our clients. At one of these meetings, a lawyer with intact ties to the U. S. attorney’s office told the group that he had received informal word that the government viewed our meetings as possibly constituting an “obstruction of justice.” Our goal, after all, appeared to be—and, indeed, was—to prevent prosecutions or, if prosecutions eventuated, then to defeat them.

Thinly-veiled intimations of an investigation and perhaps prosecution of the lawyers were in the air. I became volcanic and suggested that the bearer of these tidings convey back to his source that I, for one, would be happy to test the contours of the federal obstruction of justice statute under the facts at hand.

The threat—if it was in fact a threat, which seemed fairly likely to me—did not go any further. Yet subsequent developments in federal criminal law, some of which I describe in Three Felonies a Day, have made me rethink my youthful bravado.

In Boston, for example, attorney William Cintolo was indicted in 1984 for obstruction in connection with his representation of a number of figures in Boston’s organized crime underground. Members of the defense bar were shocked that Cintolo’s performance of his duties during the grand jury investigation was transmogrified by federal prosecutors into an obstruction, and we got together to file an amicus brief on his behalf. Our effort failed in both the District Court and the Court of Appeals for the First Circuit. Suddenly, defense tactics that we deemed perfectly reasonable were declared a crime, and Cintolo was sentenced to prison and disbarred. (He was quickly re-admitted after he emerged from prison, perhaps a sign that the Supreme Judicial Court of Massachusetts saw through the prosecution in a manner that the First Circuit did not.)

In 2006, another Boston lawyer, Michael Greco, while president of the American Bar Association, was threatened with criminal contempt for the ABA’s arguable failure to implement, in every detail, a consent decree in an anti-trust case. The ABA’s conduct was arguably justified, even correct, but the feds sought to achieve their ends by threatening indictment rather than by seeking a clarification from the court.

And in a 2007 case arising in Greenwich, Connecticut, the feds indicted a respected local lawyer, Philip Russell, for obstruction. During the course of his representation of the venerable Christ Church, he destroyed the hard drive of a church-owned computer onto which the church’s music director had placed images of child pornography. Since child pornography is considered “contraband” in federal law—material that it is not lawful for a private party to possess under any circumstances—Russell did what I and many other lawyers would have done. The alternatives all would likely have resulted in either the Church or lawyer Russell committing an ongoing federal possessory felony. Besides, the computer was not yet the subject of a subpoena, and Russell had no reason to believe that any criminal investigation was underway.

When I undertook to finally write the book after nearly two decades of taking notes, I was struck by the broad sweep of the federal power to indict even the innocent, as well as their lawyers, by resort to vague fraud and obstruction statutes. Since virtually everybody was at risk— physicians, investment bankers, journalists, accountants, lobbyists, performance artists, and public officials, to name a few—I felt that this cause just might initiate a rare coalition across civil society, sweeping from the left to the right of the political spectrum: Liberals, conservatives, libertarians, and all shades in between.

Thus far, I’ve been elated, and sometimes even a bit surprised, at the reception it has drawn across the political spectrum.

I have had only one major prior experience where disparate political factions have come together to fight for liberty. In 1998, Professor Alan Charles Kors and I co-authored our book, The Shadow University: The Betrayal of Liberty on America’s Campuses (The Free Press, now in paperback from HarperPerennial). The book was an exposé of a new regime that began to arise on American college campuses in the mid-1980s (about the same time I noticed the change in culture at the Department of Justice), characterized by campus speech codes and kangaroo courts to “try” students. A year later, as aggrieved students and even professors started to come out of the woodwork, we created The Foundation for Individual Rights in Education (FIRE), a tax-exempt foundation dedicated to the restoration of liberty, fairness, and academic freedom in higher education. While for some years FIRE was accused on the left of being part of some vast right-wing conspiracy to bash liberal academic institutions, administrators and faculty (liberals, after all, do have a far stronger toe-hold in higher education than conservatives), FIRE has in recent years come into its own and has been recognized as the utterly non-partisan civil liberties organization that it always has been.

It is my hope that a similar nonpartisan effort will result from Three Felonies a Day and from all of the other recent reporting and writing being directed to the phenomenon and its victims. The problems described in the book, and expanded upon in these blog posts, certainly cry out for coordinated action. And the seeds sown thus far have been encouraging; recognition that this movement has no ideological allegiances other than the preservation of liberty is a pivotal first step.

Perhaps more daunting, though, is the feds potential response. Reading the obstruction of justice statute again—making a potential felon out of anyone who “corruptly…influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice”—in light of the feds’ recent interpretations and Congress’ emendations, I have an ominous sense that, this time, an indictment would be no idle threat. The horror stories chronicled in Three Felonies a Day (not to mention the manuscript’s out-takes) give me ample cause for concern.

But that’s a risk all Americans engaging in this fight must be willing to take. After all, if you’re going to commit three arguable felonies each day, they might as well be socially and politically worthwhile.

The Florida Judicial Ethics Committee has issued an opinion forbidding judges to be Facebook “friends” with lawyers who may appear before them:

Judges and lawyers in Florida can no longer be Facebook friends.

In a recent opinion, the state’s Judicial Ethics Advisory Committee decided it was time to set limits on judicial behavior online. When judges “friend” lawyers who may appear before them, the committee said, it creates the appearance of a conflict of interest, since it “reasonably conveys to others the impression that these lawyer ‘friends’ are in a special position to influence the judge.”

In practice, of course, actual friends and Facebook friends can be as different as leather and pleather, and the committee did recognize that online friends were not the same as friends in the traditional sense. A minority of the panel would have allowed Facebook friendship, which it characterized as more like “a contact or acquaintance” without conveying the notion of “feelings of affection or personal regard.”

But the committee’s majority concluded that the possibility of the appearance of impropriety required that they recommend against friending, said Judge T. Michael Jones of the First Judicial Circuit Court, a committee member. He emphasized that the committee’s role was advisory, and that the opinion “does not have the force of a Supreme Court opinion” in Florida.

The opinion itself is available here.

At first glance, it might seem as if the opinion reflects a generational divide. The older members of the Committee may simply not understand how Facebook and other social networking sites work, and therefore don’t realize that a Facebook “friendship” doesn’t necessarily signal any kind of close relationship. Indeed, many Facebook friends don’t know each other in the real world at all. Only those ignorant of the way these sites function would assume that a Facebook friend is likely to be “in a special position to influence the judge.”

The problem goes deeper than that, however. As far as I know, both Florida and most other states don’t forbid judges to be real-world friends with lawyers who may appear before them. A judge who shows favoritism to a lawyer who is a personal friend may be sanctioned, as notorious federal district Judge Samuel B. Kent was (Kent was later forced to resign because of unrelated criminal charges). But the mere existence of a friendship between lawyer and judge is not considered to be a violation of judicial ethics in and of itself. So the Florida Committee’s approach actually treats Facebook friendship between lawyers and judges as a more serious breach of judicial etiquette than a genuinely close friendship between the two. I could understand the logic of a rule that forbade all social fraternization between judges and lawyers who might appear before them. Such a rule would be unduly harsh. Yet it would at least be consistent. But I can’t understand the justification for a rule that bans essentially innocuous Facebook “friendships” but turns a blind eye to real friendships.

UPDATE: I discussed the related issue of Facebook friendships between professors and students here and here. My general policy is that I accept “friend” requests from students, but do not initiate them, so that students will not feel pressured to reveal personal information to me. I don’t worry that people will think that I am somehow favoring students who are Facebook “friends,” because most interested observers will understand that Facebook friendship is not actually any kind of genuinely close relationship.

The ongoing discussion over the law firm partner who decided to reject all job applicants with Federalist Society membership raises the question of how common discrimination against Federalist Society members really is in the law firm world. The only real way to get a definitive answer to this question is to look at systematic data comparing the success of job applicants who reveal their Fed Soc membership with that of applicants who have similar credentials, but are not Fed Soc members (or conceal their membership). In the absence of such data, all we have are conjectures. Here are mine:

Overall, I doubt that Fed Soc membership is a big obstacle to getting law firm jobs. This is likely to be so for three reasons. First, law firm partners are usually focused on the bottom line. If they reject good conservative or libertarian applicants in favor of inferior liberal ones, their pocketbook is likely to suffer. Anyone who has ever worked at a big law firm knows that partners hate it when that happens. Those few who are indifferent to profits are unlikely to stay in business for long. Second, surprising as it may be, many practicing lawyers simply don’t care about politics as intensely as academics and political activists do. They may have political opinions, but those opinions aren’t a major part of their lives. For such people, hiring associates who disagree with their political views isn’t a big deal because they don’t care about politics that much in the first place. Of course this isn’t true at all law firms. There are some that are intensely political, especially here in Washington. But it’s true of enough of them that the applicant with unpopular political views will still have a wide range of firms to choose from.

It’s also worth noting that there are some firms where Federalist Society membership might actually be an advantage. After all, many partners at prominent law firms are Fed Soc members themselves. These people are unlikely to prefer weak Fed Soc applicants to clearly superior liberal ones; after all, they care about the bottom line too. But Fed Soc membership could sway them in a close case. More generally, there are lots of conservative and libertarian practicing lawyers, enough that those firms where liberals predominate are likely to be roughly offset by the ones where right of center types hold sway.

When I was in law school, I put the Federalist Society on my law firm resume, as did many of my classmates who were also members. It didn’t seem to hurt. As a second year, I got a job as a summer associate at an overwhelmingly liberal New York law firm where no one seemed to care much about my politics one way or the other. The only time ideology came up in a negative way during numerous interviews with big-name New York and DC firms was when a conservative partner grilled me about the fact that I had been an RA for liberal Yale professor Bruce Ackerman (an exchange that didn’t end up costing me the offer, though I did get rejected on the grounds that the hiring committee thought I was too likely to become an academic, as also happened at several other firms).

By contrast, both liberal and conservative law professors warned me not to put the Fed Soc on my CV for the academic job market, where ideological discrimination is likely to be greater because academia is far more ideologically homogenous than the law firm world, (see also here), there is little or no equivalent to the constraint imposed by the profit motive, and academics tend to care about politics far more than practicing lawyers do.

These personal experiences aren’t necessarily typical. Only systematic data can really settle the issue. But they are similar to those of other Fed Soc members I know in the law firm and academic worlds (and I know a great many in both). It’s not unusual for people to put Fed Soc membership on their law firm resumes, while the conventional wisdom is strongly against doing so on academic CVs.

Even if I am correct as a general matter, there are certainly likely to be individual cases of ideological discrimination against Fed Soc members in law firm hiring. But I doubt that the private sector job prospects of law school grads who are Fed Soc members are systematically worse than the chances of those who are not.

N.Y. Times:

A spokesman for Senator Max Baucus, Democrat of Montana, said early Saturday that the senator nominated his girlfriend, a lawyer who worked for him at the time, for a United States attorney position last March.

The girlfriend, Melodee Hanes, worked for Mr. Baucus as his state office director and as a field director between 2003 and 2009.

Baucus eventually withdrew Hanes’ name from consideration.  Because he thought better of his obvious ethical lapse? Hardly.

Mr. Baucus and Ms. Hanes then decided that she should withdraw her name from consideration because the couple wanted to live together in Washington, Mr. Matsdorf said.

Matsdorf, it should be noted, is Baucus’s spokesman, and that’s the best he could do!

In his statement, Mr. Matsdorf said Ms. Hanes was recommended for the United States attorney position solely on the basis of her credentials.

“With an extensive background as a prosecutor and extensive legal experience, Ms. Hanes submitted her name for consideration for the U.S. Attorney position from Montana,” he said. “Her name was one of six that was submitted for review by Senator Baucus to an independent, highly respected Montana attorney who reviewed the applications. After an

extensive evaluation of all the applicants’ qualifications, Ms. Hanes was one of three applicants the third-party reviewer recommended for consideration.”

I don’t know anything about Hanes’s background, nor do I know how “independent” the third-party reviewer was. But spending the last six years working as a Senator’s field office and state office director (i.e., not even working as a lawyer) hardly seems like the kind of credentials one expects from a U.S. attorney candidate, and certainly not one purportedly recommended “solely on the basis of her credentials.”

And even if Hanes was the single most qualified individual in Montana for the position, it’s obvious that Baucus should have had no part in nominating his girlfriend to a U.S. attorney position. (The fact that Baucus and Hanes were both married (but separated) at the time is getting much of the attention in newspaper headlines, but is hardly the core of the public scandal.)

Baucus has abused his position and the public trust, and has proven himself unworthy of being a Senator.  He should resign.  Unfortunately, the voters won’t have a chance to kick him out until 2014.

UPDATE: Credit goes to the website Main Justice for breaking the story and forcing Baucus’s admission.  Hanes’s c.v. can be found here.  And there is this nugget: “‘She was recommended for the position because of a very close and personal relationship with Max Baucus and she withdrew because of a very close and personal relationship with Max Baucus,’ Thomas Bennett, Hanes’ ex-husband, told Main Justice.”

FURTHER UPDATE: The Daily Kos reviews Hanes’ background, and concludes that she and Bennett “left Iowa in disgrace.”  The Eighth Circuit later wrote about one of Hanes’s cases:

Every court that has reviewed this case has been struck by certain aspects of the trial and actions of prosecutors that violate the fundamental notions of fair play on which our legal system is based. For example, the Iowa District Court for Polk County, addressing Morales’s application for post-conviction relief, found prosecutor Hanes’s instruction to withhold medical records from the defense team prior to the second autopsy “suspicious at best” ….

The treating surgeon has now recanted his trial testimony, at least to the extent of placing any reliance on the opinions of the Medical Examiner [Bennett, Hanes's then-husband]. Defense counsel failed … to make an adequate offer of proof regarding the romantic relationship between a prosecutor [Hanes] and the Medical Examiner [Bennett].

Finally, fwiw, Hanes lists herself on her c.v. as an adjunct professor at Drake Law School from “1990-present.”  Seems odd to me that someone living in Montana could be an active adjunct professor in Des Moines, and a search of Drake’s website retrieves no results for “Hanes,” nor do the classes she purports to teach appear in Drake’s course list.

ANOTHER UPDATE: Some commenters think I’m being too harsh on Baucus, given that Senatorial appointments are full of conflicts of interest, personal favors, favoritism to friends, relatives, political allies, donors, friends and relatives of donors, etc.  Perhaps.  But I suspect that if I knew more of what went on behind closed doors in the Senate, my reaction would not be that this absolves Baucus, but that more Senators should resign, not that Baucus should be off the hook.