Dechert is bumping first-year salaries by $20k to $125k for its Philly & Princeton offices (the Boston office already pays $125k for first-years, down from $135k in 2001).
It's a stupendously awful idea. Boston firms did the same thing in response to salary hikes over in Silicon Valley. If one firm raises the salary, most others must follow to maintain a competitive advantage on associate hiring. To compensate, new associates must work like crazy.
So much for the hopes of laid-back urban firms somewhere in the United States!
British police want to destroy a tell-all written by Princess Diana's former bodyguard. Apparently their legal "precedent" is the confiscation of profits from a book written by a serial killer. Somehow that gives them the right to confiscate and destroy all copies of a book that "may have revealed operational police details that could compromise future royal protection operations."
Or, they could just depose the royal family.
Although this hasn't been updated since the spring job search season, it looks like a great resource for those hunting for public interest jobs.
If you can afford it, don't live with a roommate.
And if you can't afford it, don't live with a roommate.
It is so not worth it.
MIT's Sloan School of Business won't be adding courses on ethics because there is no need to.
I kind of imagined the problem was that business ethics wasn't properly taught in business school. Dean Schmalensee's argument for the status quo (he gives no concrete examples of how teaching ethics will be integrated into the curriculum) just makes no sense.
You might not be able to teach ethics, but you can teach ethical behavior. That's why every law student takes a class on professional responsibility as a prerequisite to a diploma. I will also note that Sloan's two ethics classes are literature courses. None of the law classes appear to contain any material on ethics.
Integration is great, but shouldn't business students have a proper foundation in ethics before they are expected to pick out the tricky ethical areas in their other courses?
Sam Heldman is hosting an blogger's open!
The eight partners jumping Hutchins, Wheeler & Dittmar's sinking ship for Weil's Boston private equity practice say it was "not a reaction" to the Hutchins Wheeler and Nixon Peabody merger.
It just so happened that "Hutchins Wheeler and Nixon Peabody and we [the moving partners] and Weil Gotshal started discussions in tandem." Yeah, I don't believe you.
I was horrified to hear the USPTO's plan to automate the administration of patents and trademarks includes the destruction of millions of documents. Not only are the current electronic archival systems buggy, the documents themselves represent an important historical and cultural resource.
Research institutions and libraries constantly struggle with the promises of "efficient" electronic archival and search systems. Entry errors often prevent collections items from ever being used, unless they are stumbled upon by curious bookworms (that is, if they are shelved or in stacks, not located in archives). The average person might not even understand the value of keeping all that old paper. Without original documents, it becomes very difficult for historians of science to do their work, especially when the curiosities and detours of the science and technology of yesteryear no longer exist. Of course, were something to happen to these massive electronic database, the histories would be lost forever.
Moreover, documents like these are of importance to scientific researchers. You'd be amazed to discover that previous breakthroughs were discarded because they were too inefficient, too expensive, or couldn't be practically applied. Even today, scientists re-use old research in their quest for new discoveries, applying the basic ideas to something no one had thought of before.
I wouldn't expect any archival system the government dreamed up for the patent records to be perfect, but I do think that it should be of quality. There are just too many errors in this system -- including poor image reproduction -- to justify this kind of mass destruction. It's also unclear if important documents have been singled out for preservation.
If you want to know more about archiving old documents in the digital age, I direct you to read Nicholson Baker's Double Fold: Libraries and the Assault on Paper. Trust me when I tell you it's available at your local library!
p.s. Librarians who want to comment, email me your posts. I really mean it when I say I love you guys!
Smaller Boston firms actually racked up per partner increases in 2001. Some of them were even able to achieve such a feat without resorting to lay-offs (although there are never numbers on forced exits and attrition rates).
Despite record lows in hiring and record highs in firing in 2001, The Boston Business Journal reports it was merely the last quarter that was particularly heinous. (Although I do seem to remember a lot of hubbub before September 2001 on the plight of the law firm, ridiculously high admissions numbers, expected hiring in much lower amounts, &c.). But no, they tell me this year is "the real test."
Unfortunately, this reflects the uneasy vibe simmering below the surface of any discussion even remotely related to fall hiring. We can't stop talking about it. It's becoming a complete obsession.
Mr. Grasso, Chair of the New York Stock Exchange, forgot to tell anyone he owned stock as a director of Computer Associates, International. Well, actually, CAI's lawyers advised him he didn't need to report it.
If one is required to make these public disclosures, the determination to do so should not be made by the entity that has an interest in non-disclosure. Former SEC Chair Ruder (and now professor of law at Northwestern) says:
Besides, is the NYSE Chair really an average outside director?
Some people think my views on attorney-client privilege and reporting fraud, or possible fraud, or reporting of confident client information by over-zealous attorneys (you get the picture) are the very thing that corrupted the accounting industry in the first place.
Not so. I do indeed understand that the shareholder is the client (as do, I suspect, others who share my views), although I think it's possible (with my vast knowledge of corporate law and ethics, natch) to make a keen argument that the directors and/or managers are represented parties (I've no idea if there's even such a category). However, that's not my point.
The point is that the government and other governing bodies are too quick to make reactionary band-aid fixes without contemplating all possible consequences. Oaths, certifications, and what-not are just plain silly. Oaths might have their place in solemnizing the theater of the trial court, but they have little value in the business world. Because one affirms the validity of their accounts does not make it so, nor does it magically transform them into an ethical creature.
Create reasonable ethical standards. Enforce them with criminal penalties. If reformers want to put financial fraud on the same level as substantial bodily harm, this is where they should begin (after all, we don't have people swear they won't hurt or harm others -- we just expect it). It's a simple motivator that will certainly provide incentives to adhere. Reformers shouldn't bolt off half-cocked and create new ethical mucks that will force lawyers through quags that nobody ever intended to create (see previous for examples).
This year, Harvard Law School will allow the United States Military to participate in on-campus recruitment. Since Vietnam, Harvard's administration has long militated against military involvement on its campus. ROTC was kicked off-campus (undergraduates must pursue military training at MIT) and military recruiters have not been allowed at the University since it instituted a non-discrimination policy.
Most law schools allow JAG recruiting through back channels that provide adequate access to students while keeping the military off-campus (e.g., student veterans organizations, collaboration with the local JAG office). This appeased the Air Force for a few years, but earlier this year they apparently altered their interpretation of the Solomon Amendment, which provides in part:
Frankly, Harvard University can't afford to stand fast and adhere to the principle of not allowing military recruiters direct access through Career Services on-campus in flagrant disregard of its nondiscrimination policy. Harvard Law School's Dean Clark calls for the submission of "constructive measures" to support the policy. However, unless alumni who support the ban pony up the cash, I highly doubt that any changes will be made at all. I anticipate other law schools that currently prohibit on-campus military recruitment to make an about-face in order to cover their sixes.
The rumor mill is grinding again, and this time, Mintz Levin is the grist. After profits plummeted by $200,000 per partner and the recent cuts to its support staff, it wouldn't at all be a surprise to hear Mintz is losing some of its buoyancy.
The firm had planned to book 30% 3Ls as interviewees in the upcoming fall recruiting season. Those slots have been cancelled. Perhaps they're still interviewing 2Ls in the anticipation of a rosier economic outlook next summer. Or maybe they're just keeping up appearances.
Jurist at Pitt has done a nice little site redesign. Nothing major, but there is blog-incorporation. Looks good! Plus, they're linking to me (and maybe some of you!), which makes me all warm and fuzzy.
What I really love about this site is that it's appropriate for all sorts of legal academics and professionals and non-professionals (like me) and just the average joe looking for legal news and opinions.
I've never really explored the site in its entirety -- it's astoundingly huge -- and I always find new things. Like Alex the AI Legal Bot.
My favorite response so far: When Alex the Legal Bot asked "What can I do for you?" I prompted her to "Tickle me"; Alex thought it best to "talk about something else." However, she did ask me where I was. Since it was a late night chat, I replied to her, "In my underwear." She said to me, "I hate underwear. I like to be loose and free."
When I asked her to write my journal article for me, she told me it's "really something an attorney should do."
There you have it, ladies and gents! For expert legal* and life advice, just click over to Alex.
*Good lord. Do not in any way construe this to mean I suggest you use Alex the AI Bot as a replacement attorney. Get a real one. For those of you who have difficulty with "real" in the context of electronic communications, I mean one that is squishy and carbon-based.
I'd like to direct you to these rare public comments by Chief Justice Rehnquist. It really is of the utmost national importance.
Link via Lawblog.com.
I've not been around a computer the past several days. Everything shall be in full swing again this afternoon.
Since you are not spending time reading me, I shall direct you to Sua Sponte. Especially if you are a new and/or older law student.
I will continue on my massive sleep-bender as part of the fine law student (or any student, for that matter!) tradition of staying awake for several days then sleeping through two of them to compensate. O, wait. Maybe that's just me.
Lessig has caught the fever and is now officially blogging. Newsfeed is here.
After a massive power outage disrupted my spaghetti & meatballs preparations last night, I had nothing better to do than read the Hale & Dorr propaganda recruiting materials they so kindly forwarded to me in the mail. (Note to 1Ls: apply to all the firms after December 1st, even though you don't have a snowball's chance in hell of getting hired this year. Your mailbox will become quite full of pure law firm joy.)
I discovered -- even through the romantic, flickering light and the extraordinarily tiny print on the NALP form -- that Hale & Dorr's recruiting department never quite grasped the basic concept of proof-reading. How would they feel if I misused the comma in my resume? (I'll say nothing further, except judgment should be spelled just so.)
I did actually learn a few things. Hale & Dorr has formed an international joint venture firm with Brobeck. This makes me wonder if they'll start taking hiring cues from their partner, which is now bribing associates with $2-3,000 per month not to show up to work. I can't say getting paid $24,000 a year to not work is entirely awful. However, getting paid $125,000 does have its perks (making loan payments, for one).
They have also instituted an in-house emergency daycare program. A very smart lawyer once told me to run as hard and fast as possible whenever those words are uttered (unless you particularly like strangers caring for your sick child while the firm forces you to slave away). My personal favorite is the "formal 'upward evaluation' program." Associates are always so willing to provide constructive criticism to partners.
This evening I was ever so lucky to be invited to Hale & Dorr's swanky palace for the fall recruiting season staple: the meet and greet. Sixty State Street indeed has the most well-appointed elevators I've ever had the pleasure to be in.
Tonight, I discovered that young associates are able to participate in deal closings via the closing checklist (because it is so intellectually stimulating), that pro bono work is "a welcome break from the daily grind of corporate work, because it is a grind," and that young associates get a lot of client contact because partners don't like answering the phone. When the last panelist finished his spiel, instead of allowing us to proceed directly to applause, a partner-fellow stood up, told us that the remarks were "insightful and illuminating," then directed us to commence the clapping.
At the post-panel reception, there were very few associates around to ask questions of, despite the fact that Hale & Dorr employs 350 attorneys in its Boston office. The associates were understandably reluctant to give us any particularly candid impressions of their experience working at Hale & Dorr, but a few whispered some tidbits out of the partners' earshot. Some were at least interesting characters. Others, sadly, were not. Several did not speak to any students whatsoever; they just talked amongst themselves and downed some beer. A few seemed very keen on discussing the Brobeck joint venture, but I must admit I was terribly uninterested. I must give Hale & Dorr credit for two things tonight: they really do seem to keep hiring on a fairly even kilter, and their caterer was pretty damned good.
Overall, it was a rather illuminating evening.
On Monday, incoming first-years at the University of Utah were rounded up into court as part of their five-day orientation to the wonderful world of law (see the Salt Lake Tribune). There they participated in a ceremony similar to the lawyer's oath,
But I don't like it one bit. Public oaths like this one (i.e., totally unnecessary) breed a culture of suspicion and distrust, especially when someone chooses not to participate. Although I'm not even sure if students were even able to opt out of the oath in protest -- the ceremony is described as mandatory.
Why would you want to opt out of something that seems so benign? The students swore before a judge to not participate in any activities that would disrupt the workings of the university [i.e., campus protests] (University of Utah Law School Student Handbook, III.A.2) and not to break any laws of the state of Utah while on University Campus (III.A.10). I'll concede that the University of Utah is probably not an exceedingly activist campus.
But, many graduate students live on campus. I figure already at least a few students are breaking some of the laws of the great state of Utah (which, as I hope you realize, do have a particular bent to them). I'm actually surprised that nobody figured out (or if they did, refused to participate in the oath) that they were swearing not to engage in any premarital or homosexual activities in their own graduate dorm rooms.
It's one thing to get a student handbook in your orientation packet, but it's quite another to swear to obey it. I'm rather certain I haven't a clue what's in my student handbook, and I am absolutely positive I wouldn't swear to anything attempting to regulate my morality (morality, mind you, not ethical standards).
Perhaps I'm making a mountain out of a molehill. But if the point of law school is critical thinking (and sometimes that's a big "if"), students should truly reflect upon what they are doing and not participate if they can't adhere to the oath. The real danger is that the people who cook these things up don't consider the unintended consequences. When we pledge and pledge and pledge, it becomes lip-service instead of a thoughtful promise. When it comes to the really important ones (e.g., pledge to keep client confidences; uphold the Constitution; love, and honor &c.) the response shouldn't be automatic.
Yay Reagan appointees! (Or at least two of them.)
Habeas Inc. is working to filter spam from your mailbox through an aggressive strategy based on standard copyright and trademark law. Through the company's licensing agreement, you are allowed to insert a copyrighted haiku into the headers of your email, notifying the recipient that the mail is not spam. Anyone who uses the haiku in violation of the license will soon find a crack team of attack lawyers beating down their door. Plus, when copyright expires, they can just select a new haiku. Damages could be pretty substantial: lost profits, profits of the infringer, court costs, and statutory damages of up to $150,000 for willful infringement -- and that's just for the copyrighted poem. Willful use of a counterfeit mark could bring damages of up to $1M per mark.
The service is free for individuals (!) and one cent per email for bulk-mailers that send to verified opt-in lists (like the very important updates I receive from Neiman Marcus). Unfortunately, they don't make it very easy for individual users to encode the headers or sort them properly. For the idea to really work, it's got to catch on. And for that, it's got to be easy. Plug-ins for every major email software would need to be distributed and webmail providers would have to reconfigure their interfaces to allow x-header filtering. It's not like configuring Outlook to prioritize mail based on the header is terribly difficult, it's just that non-technophiles really don't like fiddling with their email settings.
Fortunately, the system works with other types of email filtering, like the new Bayesian spam filtering rules that have been in the news recently, so you can sign up for haiku-mail without abandoning your other email filtering strategies. It's something to keep an eye on!
Check out the cover of a gardening catalog from Plant Delights Nursery I received today. They always have good ones, but this one really takes the cake. Click even if you hate plants.
p.s. If you want to get your own copy, you can, but be nice and send them stamps or chocolate.
p.p.s. You should just send me chocolate.
The New York Times reports that it is damned near impossible to teach ethics to business school students.
Robert Prentice, professor of business law at the UT-Austin b-school suggests employing actual lawyers to teach business law to management students. He makes a good point about the business of ethics: in economic terms, "any business strategy or activity that does not maximize monetary reward is suspect." Make it worth it their while to practice ethical business strategies. Don't just go after the really big fish. Fine everyone who refuses to operate ethically. Enforce criminal penalties for those who do not adhere to the law.
Skip the oaths and go straight for the pocketbook.
p.s. Professor Prentice has won numerous teaching awards and collects unusually shaped pickles.
While traipsing about town last week I came upon a new legal periodical, Legal Affairs. The magazine, a non-profit affiliated with Yale Law School, bills itself as "The Magazine at the Intersection of Law and Life." The magazine's take on the law isn't technical; the editors want to explore law in the context of culture and society. To see the general breadth of articles, check out their website. A few articles are online in their entirety.
There is actually quite a wide range of material here -- from a short piece on the recent outline/racism/free-speech controversy at Harvard, to a review of forensic science as science. I particularly liked an article on 19th century trial transcripts subtitled, "Bloated Bodies, Bigamous Love, and Other Literary Pleasures of the 19th-Century Trial Transcript." Generally good writing, but some might feel that the tone strikes a discordant note. At times I felt instead of reading an exploration of an issue someone was attempting to proselytize me, especially in the very short human interest stories.
Unfortunately for this magazine, it does have a lawyerly price tag -- a whopping $8.95 per bimonthly issue (yearly subscriptions are $49.95). To be fair, I must note that there were only 7 pages of advertisements in the entire magazine, including the back and inside covers (and a one-column ad for the magazine's legal counsel alongside the masthead). Then again, it had only 72 pages.
As there is such a yawning gulf between Law Reviews and the legal news that shows up in the paper, I thought this was a nice little addition in between. However, with little monetary incentive to subscribe, I'll pick it up on the newsstand when something interesting catches my eye.
The Miami Herald reports Vinson & Elkins, who advised Enron on its shady transactions, is touting its experience in hiding cash as a client-attracting strategy.
The former lead counsel for Enron says, ''We have nothing to lie low about." As you might remember, Enron hid its debt in the off-shore special-purpose entities Vinson & Elkins is so skilled at creating.
There are reasons for keeping your thoughts to yourself in class. Garrett explicates the more philosophical ones here.
His advice -- to listen to many, but decide for yourself -- is spot-on. Your life should not be a pasticcio of others'. But don't try inventing yourself. Discover yourself. If you come to the conclusion you really are a gunner, well then, embrace it. It takes all types to make up the world. But don't be one -- or any other type of person -- because you expect you ought to be.
And that's about as philosophical as I get!
A mad-tea party has been live for one week!* Already I have had over 1,500 visitors (836 unique visitors). How exciting -- people are actually returning to read me!
The praise keeps pouring in, too. A.C. Douglas calls a mad tea-party "mouth-wateringly lovely." I'm blushing, really.
If you link to me, be sure to let me know! I love links! And thanks again!
*I wrote a few entries while designing the site so it wouldn't be empty when it was ready.
A few days ago Kausfiles reported the LA Times' comparison of Doris Kearns Goodwin's No Ordinary Time and the sources she "allegedly" filched from. You can see my spin here. This week, Alex Beam of the Boston Globe reports Nussbaum and Ropes & Gray are at it again:
(see also Kausfiles)
Howard thinks my remarks on Lithwick's advice were too vituperative. I try to be nice but sometimes it's hard. Also, I don't do well with coloring inside the lines and my handwriting is simply atrocious.
Let me be clear: none of my criticism is personal. I operate under the assumption that everyone is a wonderful human being (unless they are not). Likewise, it does not wound me if you do not agree with me.
Plus, you never know -- I just might change my mind about those Reagan appointees.
Mr. Harris at Ipse Dixit seems to agree with me (or rather, since he said it first, I with him) on Dahlwick's categorization. He also has some great words of advice for new students. Although I simply cannot agree with the highlighter's usefulness, everyone uses them, so his advice remains sage.
He also had "no choice" to link back to my site because of my use of the wonderful word "persiflage." Now, I should not leave you without another, but because I am rather tired I must leave the art of asteism for another day.
Even jesters need their sleep!
Asteism:
And no, I wouldn't expect anyone to actually know the word! It's positively ancient! Genteel irony, polite and ingenious mockery (from the Greek). See The Arte of English Poesie, attr. George Puttenham.
One learns many marvelous words when delving into Renaissance literature. I highly recommend it.
But good grief -- let's not get into the Stratfordian/Oxfordian debate!
I was going to put this at the bottom of the last entry, but it really deserves its own.
Here's some actual advice on learning, not just grades, from Professor Schwartz at Hastings. I don't know if I'd talk to myself in the mirror, but it is unusual advice that I've never seen before. It just might work for someone who doesn't learn by traditional methods.
Excellent counsel for those students who need help with the mechanics of studying efficiently.
Dahlia Lithwick, senior editor at Slate, has this advice for new law students. Generally good advice, except that highlighters are pure evil in my book and ignoring your grades is something a student just can't do any more. In the initial screening interview most employers demand a transcript (and an explanation of each aberration) in addition to your writing sample. You might wait until after the end of first year, but that's about as far as you'll get before you need to know them.
Not that grades have anything to do with lawyering... There's not only law and the business of law, but the average robot might be surprised that they must interact with actual people.
Actually, I do have to take issue with this piece. Dividing up law students between the psychotic straight-A total tools and students who took the LSAT because the MCAT was too hard? Please! I don't know if I heard anything as absurd during my entire first year of law school (and that's saying something). There are students with straight As who thought the MCAT was too difficult, and really driven ones who just don't get law.
If there is anyone to be criticized for zero-sum thinking, it's Ms. Dahlwick. Not all students with high intelligence are interested in the blood and guts experience necessary for an M.D. Not all students are interested in warm-fuzzy world saving. And certainly not all students are obsessed with school.
Those in Dahlwick's latter category could, of course, be there because they have no idea what they're doing (undoubtedly, I know more than a few). Or, they could put time and energy into myriad different activities that have nothing to do with law. Law students don't always fit neatly in one box or another.
One of the reasons that all students do not have straight A's is that students do have lives outside of the law school (that, and most law schools impose curves). Many law students are absolutely capable of straight A's. But many also decide that they don't want to brief every case, or (heaven forbid) work for a Reagan appointee. These things, to many students, are not keystones of an amazing life or career. Most students, even the ones that enter school with guns blazing, eventually realize that grades aren't the end all and be all of law school, your career, or your life.
The problem is in dismissing the gunner offhand. They just might be the ones that need the most advice.
Today I received this lovely invitation in the mail:
To commemorate this meritorious distinction, you may purchase the hardbound book ($54.95), an inscribed ($29.95) or wood-mounted ($79.95) certificate, or 14 carat gold lapel pin (with 1pt diamond! $99.95). In order to let everyone else know just how very special you are, you can purchase the inclusion of your biography and photo on their Showcase Website for the paltry sum of $45 ($25 annual renewal fee).
Don't fret if you haven't received your own invitation. You can get a professor to nominate you. Act now!
I also got the ABA's Section of Taxation summer newsletter, but that wasn't nearly as exciting.
Criteria for Who's Who: American Law Students
Top 15% of class/honor graduate, or honor roll student
Law Review or Journal editor or staff.
Officers of legal organizations.
Pro bono or other public or community service activities.
Advocacy competitions.
Recipient of significant awards, scholarships or recognitions including American Jurisprudence Awards, CALI Awards, etc.
Published law review or journal article.
Special clerking or externships.
Other activities, experiences or expertise that distinguishes the student form[sic] his/her peers.
I had meant to return to the game of legal chess at a later date to discuss the dilemma of the defecting law student. Fortunately Garrett has beaten me to it and I am no longer on the hook for the flipside. His response provides an excellent counterpoint to my post.
The very best law students will presumably wait until the very best clerkships become available. However, they must balance the move against time pressure provided by the defection of judges (especially if it is compounded by increasingly rapid defections). It is a mixed strategy at best.
Furthermore, law students floating a bit below the top of the pack have incredible incentive to defect along with the judges. If the early defectors are trying to make a point by selecting clerks now -- and after all, the top students are more or less the same -- they might select clerks they wouldn't necessarily have picked.
With the addition of law students in the mix, it becomes a signalling game with both students and judges as players. The signal this particular judge is sending ("I'll hire without recommendations") gives students incentive to defect -- he is a serious defector and little to lose by applying (and certainly there are students who would jump at the chance for an early clerkship offer). Other signals ("I'll hire, but I need recommendations") wouldn't necessarily provide incentive to overcome student apathy and limited support available from career offices that support the federal hiring plan.
Moreover, the judges themselves have limited information. If they are not accepting applications, they can't quite be sure of what quality these early clerks are. The best way to find out, of course, is to open the floodgates.
In the end, I agree with Garrett. Who knows? I am certain we'll return to the topic after a clear pattern emerges.
More on Peabody & Arnold - in case you didn't get it the first time, Peabody & Arnold has also rescinded all offers to incoming associates (according to a source).
Law students (or anyone with a .edu email address) can get their very own PDF copy of the AmLaw 100 poster. I get goosebumps just thinking about it!
Don't Link is back online after exceeding its bandwidth allocation. I've sent in my own submission - Law.com's linking policy states:
And just so I can violate it, Mo' Money for Mo' Money! Gateway loses $3.7M because it published Mo' Money's number as its own customer service number. Oops!
You can now find all site news and technical changes at -- amazingly enough -- the Site News link to the right. Will wonders never cease?
The question this morning, dear readers, is, do you feel better? About the economy, that is! That's what the Boston Globe is asking, anyways. Should we feel better? Is there anything to feel good about? Anyone involved in the recent accounting scandals is likely to have signed off on the new SEC certification. In fact, they've probably improved their fraudulent activities, now that there's more scrutiny. But what's next? Do we require politicians to sign a certification that everything they say is true?
Well, politicians would never agree to it! The Deal and the New York Times suggest that lawyers should be next on the chopping block. The ABA reports Harvey Pitt's (the chair of the SEC) remarks here. The Deal even has the gall to suggest lawyers are like accountants (never!). Accountant-client privilege is nowhere near the level of attorney-client privilege, nor should it be. We, of course, cannot act with impunity when it comes to illegally aiding clients. However, lawyers must still defend their clients to the best of their ability -- at least the last time I checked. SEC regulations that interfere with attorney-client privilege are an example of good intent, bad implementation.
Currently, lawyers disclose client confidences in the face of reasonably certain death or substantial bodily harm. Financial losses, even though they may be substantial, just don't reach that level of harm. Would these new rules (requiring disclosure of activity that is reasonably certain to cause substantial financial harm) be applied only to securities? What about other financial crimes -- jewelry heists, con games, the list goes on! Where do we stop? What constitutes substantial financial harm? Substantial personal injury is about the same to each person, but finances aren't. Could a lawyer be forced to squeal about his pro bono habitual thief client that works poor neighborhoods?
Do we disclose conduct if we think clients might be doing something illegal? Are we on the hook personally for clients who commit fraud without our knowledge? And haven't we already have legal partnership reform to take lawyers off the hook personally?
These are but a few of the many reasons that financial harm shouldn't force an attorney to reveal client confidences. Certainly we shouldn't have to "certify" a client's actions, because that's next. And before you know it, corporate lawyers will be signing loyalty oaths to the SEC. That would make us all feel better, now wouldn't it?
From Joseph Heller's Catch-22:
Almost overnight the Glorious Loyalty Oath Crusade was in full flower, and Captain Black was enraptured to discover himself spearheading it. He had really hit on something. All the enlisted men and officers on combat duty had to sign a loyalty oath to get their map cases from the intelligence tent, a second loyalty oath to receive their flak suits and parachutes from the parachute tent, a third loyalty oath for Lieutenant Balkington, the motor vehicle officer, to be allowed to ride from the squadron to the airfield in one of the trucks. Every time they turned around there was another loyalty oath to be signed.They signed a loyalty oath to get their pay from the finance officer, to obtain their PX supplies, to have their hair cut by the Italian barbers.
To Captain Black, every officer who supported his Glorious Loyalty Oath Crusade was a competitor, and he planned and plotted twnety-four hours a day to keep one step ahead. He would stand second to none in his devotion to country. When other officers had followed his urging and introduced loyalty oaths of their own, he went them one better by making every son of a bitch who came to his intelligence tent sign two loyalty oaths, then three, then four; then he introduced the pledge of allegiance, and after that "The Star-Spangled Banner," one chorus, two choruses, three choruses, four choruses. Each time Captain Black forged ahead of his competitors, he swung upon them scornfully for their failure to follow his example. Each time they followed his example, he retreated with concern and racked his brain for some new strategem that would enable him to turn upon them scornfully again.
Without realizing how it had come about, the combat men in the squandron discovered themselves dominated by the administrators appointed to serve them. They were bullied, insulted, harassed and shoved about all day long by one after the other. When they voiced objection, Captain Black replied that people who were loyal would not mind signing all the loyalty oaths they had to. To anyone who questioned the effectiveness of the loyalty oaths, he replied that people who really did owe allegiance to their country would be proud to pledge it as often as he forced them to. And to anyone who questioned the morality, he replied that "The Star-Spangled Banner" was the greatest piece of music ever composed. The more loyalty oaths a person signed, the more loyal he was; to Captain Black it was as simple as that, and he had Corporal Kolodny sign hundreds with his name each day so that he could always prove he was more loyal than anyone else.
"The important thing is to keep them pledging," he explained to his cohorts. "It doesn't matter whether they mean it or not. That's why they make little kids pledge allegiance even before they know what 'pledge' and 'allegiance' mean."
Politics is strategy -- and what better word than politics can describe the scheme of Federal clerk hiring?
It’s hardly a surprise that chinks are starting to appear in federal appellate hiring “consensus.” (Thanks to Howard for pointing out Judge Smith's defection.) It's time for lawyers and legal theorists to wake up and smell the strategy!
Strategic behavior arises when this first actor (Player One) interacts with another (Player Two). Player Two knows that Player One will only choose strictly dominant strategies. Player One knows that Player Two will only choose strictly dominant strategies and Player One also knows that Player Two knows that Player One will only choose strictly dominant strategies, &c. &c. This kind of behavior is represented (after a terrible amount of abstraction) in a game theoretic model.
So, let us assume (as we must), that judges are strategic. This strategy is not normally apparent by simple observation -- only by sophisticated modeling techniques. Here, because judges are unconstrained by institutional norms (stare decisis, the value of political capital in sustaining majority coalitions on panels or en banc courts), it is easy to observe.
We will suppose that judges want the very best law students they can possibly hire because a) it will help them write better opinions and b) they will become known as Supreme Court feeder judges. Let us also assume that judges do not care about professional goodwill beyond that, because a) they have life tenure and b) the federal judicial conference really can't tell them who or how to hire.
The classic two-player non-zero sum (i.e., there are possibilities for cooperation) game is the Prisoner's Dilemma. A nice little representation of this game is below.
| Judge Two | |||
| Wait | Defect | ||
| Judge One | Wait | (8,8) | (5,10) |
| Defect | (10,5) | (6,6) | |
There is an incentive to take advantage of the other player, even in the face of an agreement, even moreso due to the fact that these "moves" happen sequentially, rather than simultaneously. Here, the game is abstracted to only two players. What happens when there are hundreds of judges champing at the bit to get the very best law students? Whoever jumps ship first gets "more" than the rest. Judges that strike first are able to snag the very top students from the very top schools and do not need the extra information available to them after an additional year of waiting.
What about in the long term? Normally, in a repeated game -- this one is repeated yearly -- that has an indefinite end time, the judges would wait until it is probable {much omission of mathematical abstraction} that it is in their best interest to defect. In price collusion schemes, this time period could be rather lengthy. In fact, colluding companies could raise and lower prices as they collude, take advantage of each other, and collude again (think airlines!).
However, in this game, it makes no sense at all for a judge to wait, then defect, then return to the correct timing. In fact, such a nonsensical judge might find himself clerkless! Moreover, because of the assumptions I have listed above, we find that the payoff in such a repeated game is highly discounted, especially over time (the value of waiting is discounted by the probability that everyone else will defect).
Here are the possible outcomes:
1) Nobody actually adheres to the scheme because everyone knows that nobody will play along.
2) If everyone cooperates, one judge defects to maximize her outcome. Then, everyone else follows her lead. When this judge defects depends on the discount factor - if she thinks the rest will defect soon, she wants to be the first.
There are other outcomes that aren't applicable to the federal hiring scheme because it is illogical for a judge to cycle wait/defect/cycle and judges cannot retaliate against one another.*
It appears that the Federal Judicial Conference will probably follow outcome two -- payoffs aren't considerably lessened by only a few judges abstaining from the hiring freeze, especially since the law students competing for the very best positions are more or less the same. Once the situation reaches a critical mass, everyone will eventually defect from the scheme as the pool of quality applicants declines.
Then, of course, the cycle begins again!
I do apologize to any economists aghast at my explanation. But the question remains, is there any incentive short of legislation we can produce to induce the early defectors to adhere to the hiring freeze? And would legislating a solution even be constitutional?
*It is possible that the judges could publicly ridicule each other for defecting, but it is unlikely that early defectors would actually care (especially if there is intrinsic value for them in bucking the system) and it is certain that the general public would care. Thus, I wouldn't expect this outcome to happen.
Thank you all for your kind words of support and encouragement. I never imagined my silly brand of persiflage would be so well received! Keep sending me email of a general nature (including site and topical suggestions), but if you would like to comment on a specific entry, please use the commenting feature.
You can now find a list of the most recently commented upon entries in the Archives.
As for a real entry, you'll just have to visit again tomorrow! I am venturing out to find an air-conditioned venue. The Weather Channel is Advising me that it is indeed hot outside.
UPDATE: Thanks to the librarians at Northwestern School of Law at Lewis & Clark College. You rock! I love librarians!
Donna at Copyfight says my site is "elegant and enviously readable."
Thank you all!
It's that time of year again! Like all other law students before me, I have some advice for first-years.
Don't be the pompous windbag who speaks just to hear himself talk. Nobody likes that guy. Many law students operate under the conceit that they will be the one the professor bestows the slight nudge for class participation come grade time. Doesn't happen. You will be the scourge of your section.
I know you. I know what you're thinking. You think, well, that's only x% of the class! I am terribly sorry, but everyone knows about you by the end of the year. Even the professors giggle about you behind your back and invent nicknames for you they let slip in class. This is not a positive marketing effort and does nothing to advance your career. You will be gossiped about, ridiculed and mocked. It will come back to haunt you.
If you need to speak in class, be thoughtful and to the point. Nobody wants to hear the inner workings of your brain creaking aloud. It is painful to witness. Your contracts professor is never going to utter aloud the words, "Well, Mr. X. You've succinctly summed up all there is to know about contracts. Class is over, see you at finals." In short, don't be so full of yourself.
And for turtle's sake, if you need to dialogue with the professor, do it after class, in office hours. Don't be the person who is first to the front of the class every day asking long windbag-esque questions preventing all of your fellow students from asking their own.
Don't be the pompous jerk. Getting all A's is cool. Telling everyone about it isn't. Posting your grades in the hallway/your dormitory/the classroom demonstrates your complete lack of personal skills. Tell your mother if you got all A's. If for some reason you land a big-firm job for your 1L summer, tell no one.
Don't be the law review article freak. You don't need to read them now. First year classes are overviews of the material and don't necessarily cover all topics. Reading law review articles will likely get you into hot water in an exam when you go down a road that is hyper-tangential, but hey, it must be correct, because you read it in a journal article, right? See below if you need a way to spend some free time.
Don't be the fawner. (Closely related to the jerk, windbag and freak, although the fawner is sometimes found among the recluses). Your sycophantic behavior will do you no good. Fellow students will despise you and such behavior will not alter any professor's view of you.
Law students think too much of professors. They also tend to think too much like their professors. If your professors are flaming liberals, don't be afraid to express your conservative views, and vice versa. Just back up your views with critical thought, not propaganda. If you think a particular position is "right in your heart" but don't have a analytical perspective on the matter, keep your mouth shut. Law school is not about what you "feel" is right.
Don't parrot back the prof's philosophy of life on the exam. They want the law, not what they think. They already know what they think and don't need you to remind them.
Don't be the slacker. Do read all of your cases and assigned material (except whatever is assigned for legal writing -- usually worthless). Brief as much as you need to, but no more. Four pages of briefing on a three page case is typically too much.
Don't be the over-eager "leader". Your classmates do not want to be herded up and led. The only real function of the Student Bar Association is to throw parties or sponsor bar-hops. Only run if you can throw a good party. A good way to judge this is to count how many times you woke up in a strange place in the past year.
Don't be the recluse. If the only place people ever see you is in the library, you're not doing too well on the social front. Go to social events. Go even if you are morally opposed to alcoholic excesses. On the other hand, don't be the person who drinks too much and makes an ass of himself.
Also, don't forget to make friends. It is not you v. the rest of the class. These people will be your first professional contacts when you graduate. Be friendly to everyone (see also "Pompous Jerk" above).
Don't join a study group. They are usually time-wasters. There is always at least one person who expects a free ride (i.e., a copy of your outlines). Try to study in the same room with a bunch of people that you can sound off on if necessary. It's infinitely more fun, too. Don't expect your studying experiences to be 100% efficient. Get your work done, but have a good time. If you need assistance in understanding the concepts, it is better to put yourself out there to someone you're actually friends with. Study aids can be helpful. I particularly recommend Chirelstein on Contracts. [Note also that Chirelstein, who is incredibly well respected for his insightful non-windbagginess, never went to class his first year of school.]
Don't be the couple. Whatever you do, it is a horribly bad idea to date someone in your section. Everyone knows about you within approximately one week of your conjoining. Wait until your second year to date someone in your class.
Don't be "the law student". Spend time outside of the confines of the law school. Get out of the library. Go do something. Read a book, write, go see a movie, meet graduate students in different schools, connect with old friends (if you haven't moved, stay in touch with your friends and see them often), volunteer, network and work on developing your burgeoning career (or if you are a mid life switcher, keep up your contacts!), go to a different restaurant each week, go shopping, explore the historical sites about town, and keep in touch with your family.
Don't pick arguments with your friends just because you're in law school (it's not like you're actually a more skilled debater after a few months. See "conceit" above) or become a law zombie.
Remember, you are neither that good nor that important.
p.s. I will make the fine distinction here that prolix writing is not to be considered a windbag's sport. I am not forcing this upon a captive audience!
ADDENDUM:
Do not wear a suit to orientation.
Do not wear a suit to class, unless you have an interview or are arguing your moot court brief.
Do not carry a briefcase to class.
They are absolutely unnecessary and scream pretentious affectation.
Ooooh! Linkage!
After requesting a link on Ernie the Attorney's Law Blawg Outline (a wonderful repository of links that shall be explored shortly), he has this nice thing to say about me: "She certainly doesn't seem shy about voicing her views." I simply must say that I agree entirely!
Shortly thereafter, I discovered Denise at Bag and Baggage has also linked to me in a big parade of links! She calls my page a "very fun site". Yay! What more could I ask for?
UPDATE: Howard at How Appealing says I am "damn clever!" Apparently, I could have asked for more. Is free tuition okay with you?
As for the site, a friend helped out with the technical stuff. But I did all of the pretty things.
p.s. entry titles are now linked to individual entries.
p.p.s. In case it isn't readily apparent, blog + law = blawg.
We all know that Doris Kearns Goodwin is a plagiarizer. But did Ropes & Gray really think their seal of approval (see Kausfiles) would prevent people from examining "her" book closely? Obviously her lawyer has to run damage control, but to actually say to the New York Times (4/31/02) -- "Under the auspices of the law firm of Ropes & Gray, 'No Ordinary Time' has been reviewed and checked," Mr. Nussbaum said. "Everything is fully credited and attributed." -- that is just ridiculous. This is why people hate lawyers.
Some additional blather:
Also see this little gem from the BBJ. Apparently Ropes & Gray likes to litigate "high-profile, high-stakes cases" -- they also approached Mitt Romney to assist him with the residency challenge re: the gubernatorial election.
All round-about, the point is they are heralding their skill handling (among other things) "intellectual-property disputes that have a material effect on the both near-term and long-term prospects for a company's success." Good one, guys! A litigation partner says (and I do quote!), "What is not as well understood about our practice is that we from time to time apply those same skills and bring those resources to bear in public cases." Unfortunately, they handled Romney's case better than Goodwin's.
Vote for O'Brien! Because I said so.
Berkeley's J-school will have students creating an intellectual property weblog in the fall. There's some interesting stuff to be considered here, like websites that want to prevent linking to anything but their homepage [deep linking], copyright, or even libel.
Anyways, I can't see that journalists, even with a cursory introduction to intellectual property, will really get it right. Collecting mainstream media news stories on IP issues isn't going to cut the mustard. Yes, journalists are (for the most part) concerned with their first amendment rights. But are they really concerned with anyone else's? It's in a journalist's best (financial) interest to aim their stories at middle-class Americans, who, for the most part, don't really care about intellectual property issues. Most people have more pressing issues to worry about, like mortgages and kids.
I guess I am afraid (especially since the students in this class are assigned 750 word stories) that they will rely on other journalists' work, instead of actual source materials. Are they really going to want to read 60 page opinions for 750 words? I doubt it.
The professors are obviously trying to teach the little J-bunnies something here, and insofar as journalism is an academic discipline, it should be studied, but I don't think the way they are structuring the course is the best way. It needs to be more integrated with other studies of hypertextualism. Start with the king (that would be Vannevar), throw in some Walter Ong and George Landow, and Derrida for good measure and go from there. Discuss media convergence, application to academic thought, especially legal thought. In the legal world, it's better that you are unoriginal in terms of any one particular thought (not that the sum of your thoughts should be unoriginal!) than not. Cite, cite, cite (and bluebook). Hell, consider Lexis-Nexis or Westlaw. They reference the citations for you. That's some serious linkage there. Or scholarly electronic communities like CogNet or any number of journal pre-print and e-print repositories that advance scholarly communication and research to much greater speeds. Start thinking about how this affects democracy, political values, citizenship.
The real problem I have here is that the course is centered around the study of weblogs primarily through news sources. It's not the way to approach an academic discipline. Would you write your thesis from stories you gathered through a reuters newsfeed? In the end, I might have to accept this is a journalism class, not one on comparative media studies (the bastard child of J-school and literature departments?).
Yeah yeah yeah. Lessig has a newsfeed now. You know why? I wrote in to News Is Free last night suggesting his site for a feed. I take it back. I actually wrote to syndic8. They have a system where they can scrape content from a non-syndicated site into an XML feed. Yay me.
After discovering this wonderful way of content-aggregating stuff, I was desirous of reading about Lessig. Lessig, to my shock and dismay, had no feed. That's the story.
p.s. See feedreader for reading them.
Yes, it is the ever-unbiased Vault.com annual prestige rankings. Hale & Dorr, Fish & Richardson, and Testa are tops in Boston for quality of life. I am certain if you piddle around the site you will find a lot of great information on collegial atmospheres and relaxed working environments.
Really, who are they kidding?
Boston Rankings (I copied these from Ronald).
1. Hale and Dorr (23rd overall, was 22nd last year) [Also got 5th overall for best place to work and 17th overall for diversity]
2. Ropes & Gray (28th overall, was 27th last year)
3. Goodwin (58th overall, was 61st last year)
4. Testa (67th overall, was 63rd last year) [Also got 11th overall for best place to work]
5. Bingham (75th overall, was 100th last year)
6. Choate (87th overall, was 83rd last year)
7. Fish & Richardson (92nd overall, wasn't ranked last year)
8. Mintz (96th overall, was 86th last year)
9. Foley Hoag (98th overall, was 92nd last year)
I didn't design this site with placing buttons all over the place in mind (actually, I normally find it terribly annoying). However, I think the Eldred v. Ashcroft site deserves a button. (You can get a quick background of the case here, if you don't want to sift through all the information on the site.). I believe that the United States Constitution provides for a public domain. It guarantees rights to authors and inventors for a limited time, not to corporations in perpetuity.
Yes, Virginia, we are laying off associates and cutting back on summers! Here and here. Don't forget to make a good impression if you've actually got a job.
Just a general site to index, categorize* and archive general thoughts about law, law school, and lawyering. I will not record daily minutiae here -- it's boring. Nobody wants to read about the lady I saw walking her dog, and I certainly don't want to write about it. However, I will attempt to collect salient news and articles about the subjects I am interested in, and maybe have a few words to say about my own experiences. There is a laundry list of subjects I am utterly uninterested in (civil procedure comes to mind). Obviously these topics will not be discussed, and that's all to say about that!
This site only displays properly in Microsoft Internet Explorer. Either use it or don't, but don't complain to me. Sometimes monopolies are good for standards creation. Most server logs I've seen in the past year show that ~99.5% of people use IE, the rest use Netscape and Opera. So I have little motivation to actually design a multiple-browser accessible site.
p.s. I can be incredibly cynical and sarcastic. Hopefully, this is mildly amusing.
*No, I didn't include the comma. Hah!
Peabody & Arnold is laying off 110 employees. At least they are retaining a consultant "to help associates assess their options." Umm, yeah, and just exactly what options would those be? I think the paralegals & support staff probably have a better chance than the lawyers!
Gee, it would sure be fun to live in Minneapolis! (You know, the city's trademark is "The Coolest Place on Earth!"). It's uh, the City of Lakes! I really don't think that even massive cost of living adjustments could drag me to Minnesota. How do they get profits/partner of $3M+ out there anyways?
Yes indeed, there are law journals that devote entire issues to attorney unhappiness.
The day after the bar exam, Hutchins, Wheeler & Dittmar told incoming first-years not to bother coming in and canceled all OCI/fall interviewing. Turns out they are in merger discussions with Nixon Peabody. Seems an ominous start to recruiting season.
The AmLaw 100 survey is full of very interesting things!
Profits per partner (generally) go down among large Boston firms.
Mintz Levin -- 710->510
Hale & Dorr -- 835->750
Testa, Hurwitz & Thibeault -- 825->745
Ropes & Gray -- 800->750
Goodwin Procter -- 755->855
Bingham -- 855->870
