Sep 25, 2025 Eli Wald
According to the American Bar Association Model Rules of Profesisonal Conduct, a lawyer is “a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.” As Deborah Rhode has astutely pointed out, however, lawyers’ duties as public citizens have long been more of a rhetorical ploy than an actual commitment, in need of elaboration and exposition. In the twenty-first century, lawyers have been forced to come to terms with their asserted role as public citizens in the face of the #MeToo and the Black Lives Matter movements, reform calls for the deregulation of the legal profession designed to increase access to legal services for those who cannot afford to pay for them, and attacks on the rule of law. Professor Robert Katz’ new casebook, Antisemitism and the Law, constitutes an important contribution sure to help those aiming to understand the obligations of lawyers to pursue justice and combat discrimination.
Antisemitism and the Law is organized thoughtfully and effectively. It begins with two introductory sections. Part I lays out a legal foundation, introducing anti-discrimination law and explaining, in particular, how laws designed to combat racial discrimination against non-whites have gradually been construed to apply to groups not defined by race, such as Latinos and Jews. Part II then turns to antisemitism or anti-Judaism by exploring the meaning and definition of Jewish identity, namely who is Jew, from both Jewish and non-Jewish perspectives. It establishes that Judaism is a religion with cultural and ethnoreligious underpinnings, but not a racial category. Read together, Parts I and II compellingly show why legally (as opposed to by other means—more on that below) antisemitism could and should be addressed by vigorously enforcing anti-discrimination laws. With these fundamental building blocks in place, Part III and IV, respectively, study antisemitic speech and antisemitic activities as well as legal responses to them. Part V concludes on a high note of sorts, studying secular and religious allies, their relevance, and importance in the ongoing battle against antisemitism.
Of the book’s many well-written chapters, I found chapter 12 on campus antisemitism particularly intriguing and timely. Following the manuscript’s sensible overall approach of grounding itself in anti-discrimination law before turning to examine instances of antisemitism, the chapter begins by explaining how Title VI of the Civil Rights Act of 1964 has been construed to protect Jewish students from antisemitic harassment on campuses, despite not explicitly mentioning religion-based discrimination. It then presents a case study, examining the anti-Jewish environment and culture at the University of Vermont in the early 2020s. The case study reveals the complexity of defining, debating and combating discrimination. Success depends not only on the availability of applicable laws and courts willing to enforce them, but also on the dedication and persistence of courageous plaintiffs committed to airing the wrongs, and on actions (and inactions) of other actors on campus, including administrators tasked with creating inclusive and welcoming culture for all students and vigorously investigating allegations of hostile environment and abuse, see, for example, here.
Moreover, as Katz, Professor of Law and John S. Grimes Fellow at Indiana University McKinney School of Law and Founder and Director of the Center for the Study of Law and Antisemitism, thoughtfully explains, battling campus discrimination necessitates distinguishing between antisemitism and anti-Zionism and acknowledging the tension between combatting antisemitic harassment on campus and protecting the free speech rights of anti-Zionist activists. Striking this important and delicate balance has gotten even more challenging now that the federal government has become an active actor in the debate through impending settlements with leading universities over their handling of campus protests following the October 7, 2023, Hamas-led attack on Israel and the Israeli government’s response in Gaza.
Chapter 13, in Part V, titled Émile Zola: Antisemitism Is Antithetical to Liberal Democracy, is another must-read. A detailed reexamination of the Dreyfus Affair, in which a high-ranking Jewish officer in the French army was wrongfully convicted of treason based on forged evidence, it demonstrates convincingly that law, legal action, and lawyers alone are unlikely to defeat discrimination. Exactly because antisemitism and other forms of discrimination are fueled by societal ignorance and deep-seeded bias and hatred, a successful campaign to overcome them will be a long-term project which will depend on the formation of a diverse coalition of allies and contributions by brave supporters drawn from a cross-section of society, like Émile Zola, a leading author and public intellectual who famously defended Dreyfus in an op-ed piece titled J’accuse! (I accuse!). Whereas Parts I-IV allow readers to immerse themselves in the multifaceted relationship between the law, equality, and discrimination, Part V, which also includes a fascinating chapter on the relationship between Jews and the Roman Catholic church especially in the twentieth century, serves as an important reminder to lawyers that we cannot and should not attempt to solve difficult societal problem by legal means alone.
Katz explains that Antisemitism and the Law’s goal is to make the subject of antisemitism and the law widely known, accessible within the legal community and beyond it.” He accurately and modestly suggests using selected chapters to “augment courses on race and the law, the First Amendment, cyberlaw, trusts and estates, torts, criminal law, international human rights law, comparative law, education law, law and religion, and Catholic law” (xvii). I suggest adding professional responsibility and legal ethics classes to the mix. Lawyers are public citizens, who have a special responsibility for the quality of justice. Yet, it is hard to understand the meaning of justice in the abstract, let alone articulate specific obligations to it, without appreciating the meaning of injustice and discrimination in context. Antisemitism and the Law is an essential reading in this regard – a manuscript which can help law students (and lawyers) understand a complex problem, its history, causes, possible legal solutions, as well as their limitations.
Aug 27, 2025 Sida Liu
Jedidiah J. Kroncke,
Legal Complicity in an Age of Resurgent Authoritarianism, 38
Geo. J. Legal Ethics ___ (forthcoming 2025), available at
SSRN (Feb. 24, 2024).
As authoritarianism gains momentum globally, the rule-of-law ideal is increasingly compromised. Lawyers are confronting a wave of attacks, ranging from the persecution of human rights advocates and the restriction of criminal defenders to the suppression of corporate law firms, including some of the most prestigious ones worldwide. Recent actions by the U.S. government against elite law firms like Paul Weiss and Perkins Coie, along with the consequential deals struck by some firms, exemplify the daunting circumstances that lawyers encounter in today’s world.
In this context, Jedidiah Kroncke’s new article on legal complicity is particularly compelling. Written a year before Donald J. Trump’s return to power, Kroncke could not have anticipated the subsequent aggressive actions against U.S. law firms. His primary focus is the ethical dilemmas faced by American lawyers practicing abroad, especially in authoritarian regimes like Russia and China. He critically examines modernization theory, a prevalent late 20th-century view among law and development scholars that posits a connection between economic development and democratization or political liberalization. Nonetheless, the phenomena he observes and the arguments he presents are remarkably pertinent to today’s discussion of legal ethics in both democratic and authoritarian settings.
Kroncke opens his discussion with a classic proposition in legal ethics: the amorality of a lawyer’s civic virtue. He draws upon the theory of French sociologist Émile Durkheim, who viewed professions as distinct groups tasked with upholding public values within their work, shielded from the influence and control of market forces. This autonomy is maintained not by the state, but by the profession itself, through a set of collective norms. Within the common law tradition, there has been a longstanding argument that lawyers should self-regulate to preserve their independence. This self-regulation enables them to “inject liberal ideals and a special fidelity to the law into their practice without coercion by the state and without being beholden to raw commercialism.” (P. 9.) The amorality of legal ethics, as Kroncke highlights, is epitomized by Justice Oliver Wendell Holmes Jr.’s influential discussion of the “bad man” who “manipulates the law as an amoral technician, guided solely by his client’s objectives.” (Pp. 9-10.) This perspective has shaped the ethical framework of the legal profession for over a century and continues to exert considerable influence today.
In recent decades, two alternative perspectives on legal ethics have gained prominence. The first, advocated by legal historians like Jerold Auerbach and Richard Abel, challenges the idea of a liberal and altruistic legal practice within the American legal profession. They contend that the profession functions as a self-interested group, using its professional autonomy and market monopoly to boost the income and status of its members. This orientation has been further reinforced by the increasing commercialization of corporate legal practice in recent years. The second perspective, exemplified by the “empirical turn in Canadian legal ethics” (P. 18), advocates for the imposition of more substantial social responsibilities on Canadian lawyers. Similar appeals for enhanced social duties are also evident in other common law jurisdictions, including Australia, New Zealand, and the U.K.
In the era of globalization, legal ethics underwent another transformation, as Kroncke argues. American lawyers venturing abroad to support the expansion of the United States’s global economic influence became increasingly aligned with the law and development agenda, which is rooted in modernization theory. This agenda views legal reform as a pivotal tool for achieving development objectives and promoting the rule of law worldwide. For instance, in China, since its reform and opening up in the 1980s, American lawyers and firms have not only assisted their clients with investments and cross-border transactions but have also actively contributed to rule-of-law initiatives such as legal clinics, judicial training programs, and legislative reforms, all aimed at making Chinese governance more rules-based and democratic.
This is where the concept of legal complicity becomes relevant. After four decades, it is evident that China has evolved into a more rules-based society, yet its governance remains highly authoritarian. In other words, the development of a more mature and functional legal system has not led to democratization, at least not in the Western sense. On the contrary, as the Chinese state has grown more powerful and resourceful in its governing capabilities, foreign lawyers working in China have become less outspoken in their criticism of Chinese governance. For the Chinese government, lawyers are expected to act as market facilitators rather than champions of democracy. When Chinese human rights activists were arrested and persecuted, there was scarcely any response from international law firms in Beijing, Shanghai, or even Hong Kong. According to Kroncke, this silence is a clear indication of the complicity of these foreign lawyers, including Americans, in supporting authoritarianism.
Legal complicity is closely linked to another concept, legal hypocrisy, which Kroncke adopts from Ekow Yankah. Legal hypocrisy refers to situations where the legal system becomes a scarcely concealed instrument of power, thereby eroding the rule of law and exacerbating concerns about the fidelity of lawyers, who are increasingly driven by market imperatives. With the global surge in authoritarianism in recent years, legal hypocrisy has taken on various forms across the world, from legislation and constitutional amendments aimed at consolidating power in China to the manipulation of trade and immigration laws under the banner of “Make America Great Again.” Laws are increasingly utilized instrumentally for the pursuit of political power and national interests. In this new era of anti-globalization and democratic backsliding, international law firms and their lawyers are no longer united by “a collective understanding that we are heading towards a more just world.” (P. 36.) Instead, they might find themselves better suited to serving merely as “sanctifiers” of corporate transactions – a role identified by John Flood two decades ago during the peak of economic globalization.
Kroncke views this development as an ethical dilemma for transnational lawyering, noting that for American lawyers, it represents “not just a loss of their special status at home, but also a loss of the special status they have enjoyed in the international world for most of modern history” (p. 40). However, the notion that American lawyers hold an exceptional global role as both market facilitators and champions of political liberalism has always been fraught with hypocrisy. Even during the height of globalization, elite corporate law firms primarily focused on facilitating capital investments and corporate transactions. The responsibility for advancing human rights and the rule of law fell to other lawyers, those who resisted the core principles of corporate law.
In other words, the argument of legal complicity does not fully recognize the substantial internal divide within the American legal profession, where commercial lawyering and political lawyering have long operated as separate spheres, both domestically and internationally. Indeed, much of the criticism directed at Paul Weiss for its recent dealings with the Trump administration stems from an unrealistic – and arguably hypocritical – expectation of elite corporate law firms: that they should serve not only as business champions but also as defenders of the rule of law. Personally, I have never subscribed to the latter part of this belief. Big Law firms may undertake pro bono work, but typically only when it does not conflict with their business interests.
Instead of accusing corporate law firms of complicity with authoritarianism, whether at home or abroad, it may be more impactful to channel resources and reinforce capacities in other areas of the legal profession, specifically among lawyers guided by distinct political ideals and ethical principles. Corporate lawyers, now entrenched within the global corporate elite alongside investment bankers, accountants, and business consultants, are unlikely to shift from their increasingly commercialized roles. Faced with the stark choice between business and the rule of law, it is hardly surprising that they put business first. Consequently, questioning their legal ethics seems like a futile dream of resistance.
Jul 9, 2025 Nora Freeman Engstrom
Todd Venook,
Enterprise Justice: Tyler Technologies and the Privatizing Court, available at
SSRN. (June 4, 2025).
In Enterprise Justice: Tyler Technologies and the Privatizing Court, forthcoming in the Yale Law Journal, Todd Venook pulls back the curtain on Tyler Technology, an obscure company headquartered in Plano, Texas that provides the technology to the courts that serve a majority of Americans.
Todd begins by explaining that, however belatedly, courts have entered the digital age, and, faced with a classic “make-or-buy” decision when it comes to building out their data infrastructure, courts have mostly opted for the latter. Having done so, hundreds of courts have inked contracts with Tyler—and, pursuant to these contracts, Tyler performs a range of functions, central to courthouse operations. Tyler’s tools facilitate e-filing, manage calendars, accept payments, store filings, and even (sometimes) run online dispute resolution (“ODR”) platforms. In 2025, in the majority of states, justice is delivered (or not) through Tyler’s tools.
After cataloging the products that Tyler offers and inventorying Tyler’s grip over the relevant marketplace, Todd considers the implications of Tyler’s dominance. Filings—which is to say, pleadings, motions, judgments—are courts’ lifeblood. They are the grist for the courthouse mill. And Tyler, Todd shows, controls these filings. What follows?
Todd raises several concerns—but here I’ll highlight four. One of these is fully fleshed out in Enterprise Justice. The others, I think, would benefit from somewhat further study.
The first involves market concentration. Tyler has cornered the market on courthouse technology, and, as any user of Google or Apple well knows, that cornering is, itself, concerning. As Tyler eclipses competitors, courts that are in the market for case management and filing systems have fewer options to choose from, and that reality brings with it a host of problems that typically flow from monopoly status. Consumers (here, courts) may ultimately face higher prices and lower quality. Without competition to drive innovation, Tyler may become complacent and less incentivized to invest in R&D. And we ought to worry about entrenchment. Given Tyler’s stranglehold, will new competitors be able to get a foot in the door?
Bundling exacerbates this concentration concern. As Todd shows, Tyler combines its market-dominating case-management software with other offerings, such as its ODR platform. But where those other offerings are not profit centers, they remain woefully underdeveloped, even while their very presence stymies other would-be providers.
A second concern involves what Todd calls “homogenization.” Todd explains that Tyler “serves as a hub of a hub-and-spoke policy replication mechanism, created through individual contracts.” (P. 64.) And this, Todd points out, results in a striking “convergence of policy across state courts.” Id.
This convergence, Todd suggests, is worrisome. He points out that, under the hoary “laboratories of democracy” idea, state-level experimentation is supposed to spur smart innovation because state X can look over state Y’s shoulder, see what works and what doesn’t, and learn from past mistakes. However, when states just contract with a single provider, those federalism advantages dissipate. The result, Todd says, is similarity across states, without “concomitant shared oversight or purposeful unity.” (P. 66.)
This concern is powerful, as far as he goes, but, in future work, Todd might spend a bit more time studying the benefit side of the coin. After all, state-level experimentation isn’t inevitably beneficial; instead, it has a “Jekyll-and-Hyde” quality. After all, some state efforts to go it alone fizzle.
More importantly, one person’s worrying homogenization is another person’s salutary standardization. And particularly when it comes to court filing systems, standardization comes with various benefits. Indeed, we at Stanford Law School’s Rhode Center launched the Filing Fairness Project in 2021, at least in part, to promote standardization between state court filing systems—reckoning that, only once there’s sufficient inter-state standardization can tech providers achieve the scale they need to invest in high-quality offerings. Thus, this story, like so many others, is a tale of tradeoffs, and the question becomes whether the resulting standardization is on balance troublesome or beneficial.
A third concern involves accountability. Litigants in a number of jurisdictions have reported problems caused by failures in Tyler’s products, including glitches that have led to wrongful rearrests, prolonged incarceration, and leaks of attorney disciplinary records.
In one notable 2016 case, for instance, plaintiffs in Shelby County, Tennessee claimed that, thanks to a Tyler Tech snafu—specifically, Tyler’s botched installation of a program to track “inmates’ posting of bond, pretrial probable cause determinations, and the release of arrestees”—they were unlawfully detained “beyond the dates set for their release.” The court denied Tyler’s motion to dismiss, finding that “Tyler could reasonably have foreseen that negligently installing, designing, or integrating [its] . . . software would lead to inmates being detained beyond their proper term.
Todd points out that someone should answer for this egregious oversight. But who? Tyler? How about the court that delegated key tasks to a government contractor? If Tyler is on the hook, is the company akin to a state actor, entitled to government immunity for certain tort claims? If so, what kind of immunity?
This accountability point brings up a final—and broader—issue that Todd does not zero in on, but might, in future work. Here, I’m referencing the fact that Tyler’s court takeover isn’t just important in its own right. It also fits into, and enriches, a broader literature concerning governmental contracting and private entities’ incursions into (previously) public domains.
Recent decades have seen an explosion in private contracting, as governmental actors now contract out a wide range of governance tasks and services that were previously performed in-house. Nowadays, it is frequently private contractors (not public employees) who pick up our trash, police our communities, run our prisons, and even fight our wars.
Much ink has been spilled evaluating the benefits and costs of this delegation, and the cost side of the ledger reflects a wide range of concerns. Some scholars worry about responsibility—that “legal and moral norms can never be fully imposed on private contractors because private firms lack the democratic accountability of public agencies.” Others fret about transparency—the fact that, because contractors operate in a FOIA-free zone, “[t]he more government work is taken over by private contractors, the less accessible project information is to the public.” Still others home in on conflicts—the fact that, “[w]hile government employees are subject to strict ethical standards, most of these standards do not apply to contractor personnel.” Sitting atop many of these concerns is a final and more general worry well-articulated by Martha Minow: As civil servants are systematically replaced by private employees, ultimately answerable to corporate shareholders, a steady “dilution of public values” results.
What unites this broad literature is that scholars tend to write about contractors who have stepped in for—and are doing the work of—the executive branch. What Todd is zeroing in on, however, is subtly different. Tyler Tech does not contract with the executive. It’s doing the work of courts. Now, it could be that this wrinkle isn’t meaningful—that, whether for the executive or judiciary, the risks of privatization remain similar. But I think that, in future work, Todd would benefit from considering Tyler Tech’s rise to dominance through this particular lens.
Enterprise Justice is beautifully written, deeply researched, and richly generative. In it, Todd reveals something important, that had, until now, been hiding in plain sight.
Jun 16, 2025 Kevin Woodson
The scholarship on criminal justice disparities has often cast prosecutors in a harsh light. Prosecutors are among the most powerful actors in the criminal legal process, due to their vast discretion in deciding whether and how to proceed with cases, and researchers have found that they use this discretion in ways that produce racially disparate outcomes, to the detriment of Black defendants. Studies have described prosecutors’ offices with bias-laden cultures that breed contempt and callousness toward poor Black defendants and indifference to systemic racial inequities. Against this backdrop, scholars and other reformers have championed strategies to limit prosecutorial discretion in charging decisions, including by “colorblinding” their cases, to reduce racial disparities in case outcomes.
Though well-intentioned, these reforms may be counterproductive and the underlying understanding of prosecutorial discretion outdated. In her important new article, Prosecutors, Race, and the Criminal Pipeline, law professor Hannah Shaffer demonstrates that limiting prosecutorial discretion may not only fail to alleviate racial disparities but may actually make them much worse. Through evidence from her original empirical research project, a 2020 survey capturing 203 North Carolina prosecutors’ views about criminal justice disparities that Shaffer links to comprehensive data from their real-life cases from 2010 to 2019, Shaffer reveals that prosecutors who attribute racial sentencing disparities to racial bias are significantly less likely to incarcerate Black defendants compared to White defendants with similar criminal records. In other words, prosecutors use their discretion to discount the prior convictions of Black defendants—records that may be inflated as a result of discriminatory policing practices—and thereby reduce racial disparities in sentencing outcomes. And this tendency is not just limited to attorneys working in progressive prosecutors’ offices: Shaffer’s findings hold across different types of jurisdictions—conservative and liberal, urban and rural, and for politically liberal and conservative prosecutors alike. Further, between 2010-2019 prosecutors increasingly gave less weight to Black defendants’ prior records, suggesting that their race-conscious decisionmaking may be an enduring and growing source of racial progress. The fact that newer cohorts of prosecutors express far greater awareness of racial bias in the criminal legal process also bodes well for the racially equitable use of prosecutorial discretion in the future.
While the article is dense with empiricism, it is clearly written and highly accessible. Shaffer does not wax poetic about the criminal legal system or advance provocative theoretical claims about the racial disparities therein. Instead, she uses careful language to precisely describe her research methodology and analyses in great detail, both in the text and, helpfully, in extensive online appendices. Impressively, Shaffer anticipates and addresses a wide variety of possible alternative explanations for her findings and runs additional analyses that confirm that her conclusions are robust. Although the research is based solely on data from one state, Shaffer makes the case that the results very likely apply elsewhere and are probably not artifacts of any state-specific dynamics. Still, one hopes that future researchers will confirm that this is so by conducting similarly rigorous studies using data from other states and jurisdictions.
The article’s implications are not only significant for reform efforts that would limit prosecutorial discretion, but also for racial-justice-minded lawyers and law students who might pursue careers in prosecution and for those of us who teach them. Some scholars in the past have argued that “good people” and people who care about racial justice ought not to take jobs as line prosecutors on the view that these lower-level prosecutors, no matter their values and intentions, face constraints that render them powerless to effect meaningful change. This article challenges that view. It affirms instead that line prosecutors can, and in many cases do, use their positions to reduce the over-incarceration of Black people. For law professors, this article’s findings sustain our hope that we may be able to play some small, indirect role in fighting criminal justice disparities by educating lawyers and students about sources of racial inequities in the criminal legal process and means of combating them. This article is essential reading for anyone interested in better understanding prosecutorial behavior and its impact on case outcomes, as well as for anyone concerned about racial disparities in the criminal justice system more broadly. It is a model of rigorous empirical scholarship that contributes meaningfully to academic discourse while informing criminal justice policy and practice.
May 16, 2025 Scott Cummings
Adam Chilton, Jacob Goldin, Kyle Rozema, & Sarath Sanga,
Occupational Licensing and Labor Market Mobility: Evidence from the Legal Profession (Aug. 23, 2024), available at
SSRN.
In Occupational Licensing and Labor Market Mobility: Evidence from the Legal Profession, Adam Chilton, Jacob Goldin, Kyle Rozema, and Sarath Sanga investigate the tradeoffs of state bar licensing requirements through the lens of bar exam waiver policies. These policies permit lawyers with a threshold level of experience to obtain a state bar license without having to sit for the bar examination, effectively “waiving in.” The authors use variation in state waiver policies as a natural experiment permitting empirical analysis of whether states allowing entry through waiver experience a decline in lawyer quality, measured in relation to metrics of lawyer discipline and law school status. The variation in policies arises because some states, like California, categorically do not permit waiver, while waiver states include those that are more restrictive (with “Reciprocity” policies requiring reciprocal waiver from the originating state) and less restrictive (with “Admission on Motion” policies permitting waiver without reciprocity).
The authors conceptualize waiver policies as creating “corridors” between states that are either closed or open and codes corridors based on waiver policies from 1983 to 2019. They examine lawyer bar admissions through these corridors based on Martindale-Hubbell directory information on the state and year in which each listed lawyer obtained license(s) (1.7 million observations through 2019). They then fold in data on lawyer quality, derived from a dataset of all lawyers for whom public discipline records are available during the relevant time frame (from a total of 37 states), added to which is information on law school attended (available for roughly 90 percent of lawyers in the dataset). The authors put in an impressive amount of work assembling these datasets and demonstrates ingenuity in using waiver policy variation to conduct the experiment.
The big empirical takeaways are interesting, important, and nuanced. As one might expect, when states implement bar waiver policies, they increase experienced lawyers’ “labor market mobility” (measured as obtaining a second license) to those states (by 38 percent), with bigger effects for more popular states with harder bar examinations. With this increase comes declining quality, shown in a larger percentage of experienced lawyers entering bar waiver states subject to discipline during their careers versus similar lawyers entering states without waivers. Additionally, lawyers who enter with a waiver are slightly more likely (by 12 percent) to graduate from law schools outside the top 100. (There are minor findings that are also interesting, such as the fact that state bars have become more liberal over time, with increasing proportions of states using waivers of both types.)
The main findings on lawyer quality are important and speak directly to significant policy debates within the field. Bar admissions policies are justified as ensuring quality control (as opposed to being simply economically protectionist) and the authors’ data appear to buttress this justification. The paper does not delve deeply into the policy dimensions of quality tradeoffs insofar as the observed decline in quality, such as it is, could be outweighed by an increase in other public goods, including access to lawyers.
One limitation of the study, which the authors acknowledge, is that the number of lawyers who move in any one year is quite small: 58 percent of corridors have flows of no more than 1 lawyer per year and overall the estimated effect of a state’s bar waiver policy is to induce less than one lawyer per year to enter. Although there are substantial numbers of experienced lawyers who obtain second licenses each year, only a fraction of these move to waiver states.
This matters in how we assess the importance of the findings for lawyer quality. An important finding of the paper is that lawyers who enter waiver states are more likely to be disciplined (2.1 percent) than those who enter nonwaiver states (1.6 percent). However, based on the average number of second licenses per year (5383), this would amount to a difference in roughly 30 sanctioned lawyers nationwide. Given this limited impact, it isn’t entirely clear how to substantively assess the quality concern. In addition, if the question is what impact the bar has on quality, it is notable that the discipline rate for lawyers who do not obtain a second license is roughly one percentage point higher than those who do so by waiver (3.0 percent versus 2.1 percent). While it is fair to say that entry by waiver decreases quality relative to entry by nonwaiver, it seems to increase quality relative to the existing pool of lawyers.
There are other questions that the data raise. From the analysis of disciplined lawyers, it is not clear when the discipline occurred, whether before or after the second license. This is relevant because if bars are admitting lawyers who have already been disciplined, then they seem to be making a policy choice in favor of access and/or may have assessed the disciplinary violation to be not significant enough to deny entry. On the other hand, if the discipline is after entry, then the argument for quality control has more force. Moreover, it is not clear there is a consistent definition of public sanction across states. This could be an issue because some states may publicize different forms of discipline (e.g., some may report reprimands and sanctions while others only suspensions and disbarments). This could skew outcomes depending on which states the lawyers are entering.
Overall, this paper should give ample food for thought to anyone who was ever curious about bar waiver policies and their tradeoffs. It is important to know that waiver policies can potentially reduce the quality of lawyers in a jurisdiction, though how much to make of this reduction is something that requires more study. Partly, how we assess this issue will depend on what the lawyers who enter by waiver are doing and whether it makes a dent in access to justice. Perhaps, in this regard, it would be useful for states with waiver policies to impose higher pro bono requirements on lawyers who waive in to ensure that the policy has a public benefit and does not simply permit lawyers to monetized more liberal entry rules.
Cite as: Scott Cummings,
Do Bar Exam Waivers Hurt Lawyer Quality?, JOTWELL
(May 16, 2025) (reviewing Adam Chilton, Jacob Goldin, Kyle Rozema, & Sarath Sanga,
Occupational Licensing and Labor Market Mobility: Evidence from the Legal Profession (Aug. 23, 2024), available at SSRN),
https://legalpro.jotwell.com/do-bar-exam-waivers-hurt-lawyer-quality/.
Apr 16, 2025 Rebecca Roiphe
Maya Steinitz,
Zombie Litigation: Claim Aggregation, Litigant Autonomy, and Funders’ Intermeddling, __
Cornell L. Rev. __ (forthcoming, 2025), available at
SSRN (Nov. 1, 2024).
There has been so much enthusiasm for litigation funding. Scholars have sung its praises: it will solve the access to justice problem; it is no different from insurance; if you find yourself balking at litigation funding it is probably because you secretly want big powerful corporations to get away with misconduct. I was always one of those shamed observers who had inchoate concerns about litigation funding but felt embarrassed to take the side of Goliath over David. In Zombie Litigation: Claim Aggregation, Litigant Autonomy, and Funder’s Intermeddling, Maya Steinitz has skillfully articulated these concerns and explained how the litigation funders themselves are often the Goliath, not the defendants whom they sue.
The profession has watched as litigation funding has changed the civil justice system, the market for legal services, and the attorney-client relationship. According to one recent study, there are about forty litigation funders worth about ten billion dollars in capital. By creating a market in claims that can be bundled and sold, more people and entities can bring lawsuits, law more closely resembles other commodities, the attorney-client relationship loses its centrality, and judges are increasingly marginalized. Some of these changes are good but others are more concerning. In this article, Steinitz argues that litigation funding and portfolio aggregation, which involves gathering a number of claims together into one funding vehicle, results in clients’ loss of autonomy over their cases. Litigation becomes another market commodity, like the bundled mortgages that contributed to the financial collapse in 2008, with lawyers as brokers and managers. This, Steinitz argues, is not in the interest of the public and inconsistent with core principles of the profession.
Employing a masterful and evocative term, Steinitz begins by defining “zombie litigation” as litigation that a plaintiff no longer wants to pursue but continues to make its way through the justice system for the benefit of the funder and lawyer. For instance, a business sues its suppliers for alleged anti-trust violations but eventually wishes to settle for a reasonably small amount because of its interest in maintaining a good working relationship with its suppliers. The business has secured litigation financing and signed away its right to make settlement decisions. The lawyer and funder both want to continue the litigation because they stand to make more money and would like to create legal precedent favorable to similar clients. Thus, the litigation continues despite the fact that the plaintiff no longer wants to pursue it.
Steinitz then explains how funders have an even greater incentive to pursue such claims because they are allowed to aggregate and trade in litigation. Steinitz details the cost of this sort of financialization of litigation to the courts, the attorney-client relationship, and defendants. Zombie litigation may have no useful purpose, may in fact be destructive, but nonetheless has a life of its own.
First, there are potential conflicts of interest that negatively affect clients because the law firm’s interest is aligned with the funder rather than the plaintiff. Typically, the law firm receives more repeat business from the funder than the client so has a financial incentive to please the funder. While the funder’s interest may align with the client’s, that is not always the case. The plaintiff may have non-financial interest in settling its case for less while the funder, who likely has many similar cases and has a long-term interest in developing the law and precedent in a way that benefits future cases, may want to pursue the case more aggressively. The ability to sell off the risk compounds the problem.
Many litigation funding agreements allow funders a veto over settlement decisions. This means that a litigation funder could force a plaintiff to continue a litigation over its objection. The finance agreements also typically have an arbitration clause so disputes never reach a court. Thus, the judicial system and defendants are also casualties of this arrangement since they too are forced to continue in a litigation without an opportunity to object. Defendants who would want to settle are unable to do so despite being willing to reach a resolution that would be acceptable to the plaintiff. And the judicial system, which has an interest in efficient settlement, similarly has no say due to the arbitration clauses.
Steinitz explains that even when the agreements contain no explicit provision giving the funder control over settlement decisions, they often exercise that power indirectly by including a right to choose the lawyer, replace the lawyer, and exit the funding agreement mid-litigation. Portfolios present even greater problems because they involve the same potential conflicts as class actions but without the court supervision that protects clients. In fact, the conflicts can be far more extensive because the rules governing claim aggregation and class actions do not apply to portfolios. The financial device is therefore susceptible to more far-reaching conflicts with little or no supervision.
Further, lawyers are able to shift risk to funders, who in turn pass it on to investors. Intentionally using the language from the mortgage crisis in 2008, Steinitz explains the moral hazard involved as the chance that “subprime” claims will be bundled with meritorious ones. The risk is that lawyers will cease to serve clients and betray their obligation to courts and instead become originators of these portfolios for investors. The incentive to serve the best interest of clients is watered down if not eliminated by a business model focused on wealth production. The cost is borne by clients who may have different interests from the investors and the courts themselves, which bear the burden of frivolous cases. The arrangement undermines the lawyer’s fiduciary duty to the client and replaces the funder as the de facto beneficiary. Steinitz warns that the model for litigation is similar to health care, where patient interests are eclipsed by the financial interest of hospitals and insurance companies.
Not only do these sorts of finance agreements threaten the central tenets of the attorney-client relationship by wresting control over settlement decisions from the client, they also undermine the public purpose of courts. Courts are designed to resolve disputes, develop the law, and administer justice. But litigation funding has turned them into a kind of clearinghouse for a financial instrument that is essentially a derivative of lawsuits, which allows powerful actors to speculate in law claims and distort the justice system so it no longer serves its public purpose.
Defendants’ due process rights are also compromised when funders control the settlement decision. Their interest may align with that of the plaintiffs’ but they cannot achieve a resolution because funders stand in their way. The funders prevent defendants from knowing the nature of the legal confrontation and launching an effective response. The costs of litigation increase due to the prolonged nature of the litigation and mediation often fails because there is an undisclosed party whose interests are obscure.
After explaining the problems inherent in these sorts of litigation finance agreements, Steinitz notes that there is little regulation and almost no court supervision because the contracts typically include arbitration clauses. She offers several possible solutions, all aimed at restoring plaintiff control over litigation. One possibility is to rehabilitate doctrines, like champerty, that have been subject to criticism by scholars who have asserted that that they impede access to justice. There is an interest in ensuring that plaintiffs exercise at least some control over their lawsuits to prevent against abuse of the justice system.
Despite a growing acceptance of litigation in the second part of the twentieth century, some courts and bar associations have maintained a commitment to ensuring that injured parties control their suits, which prevents non-parties from speculating in cases, supporting frivolous litigation, extorting defendants, and abusing the system.
What is so refreshing about Steinitz’s article is she recognizes the need for litigation funding because it serves as an effective market solution to the access to justice problem without getting blinded by the enthusiasm. While some jurisdictions abandoned champerty because it was too blunt a tool, unconscionability, equity, and declaring contracts void because they contravene public policy are also up to the task of protecting defendants, courts, and clients from funders whose interest in making money can have negative effects on all three.
Beyond the available doctrines, Steinitz concludes by suggesting some ways to address the problems inherent in these sorts of arrangements. She argues for imposing fiduciary obligations on third-party funders. This can be accomplished in a number of ways. First, judges can supervise portfolio funding by treating it as analogous to claim aggregation, which courts have traditionally policed in order to preserve the judicial process. They can also achieve this end by granting discovery requests and entertaining motions challenging funding agreements. Some jurisdictions have introduced court rules to facilitate this sort of supervision. By understanding the tactics of the funders, Steinitz helps prevent the zombie litigation apocalypse before it happens.
Cite as: Rebecca Roiphe,
Stopping the Zombie Apocalypse, JOTWELL
(April 16, 2025) (reviewing Maya Steinitz,
Zombie Litigation: Claim Aggregation, Litigant Autonomy, and Funders’ Intermeddling, __
Cornell L. Rev. __ (forthcoming, 2025), available at SSRN (Nov. 1, 2024)),
https://legalpro.jotwell.com/stopping-the-zombie-apocalypse/.
Mar 17, 2025 Carole Silver
International students have been a significant presence on U.S. campuses and in U.S. law schools for decades. They have accounted for 5% or more of overall enrollment in U.S. higher education each year since 2015 (with the exception of the 1st year of the pandemic) and 3% or more since 1992. While trends in the law school context are difficult to discern (more about this below), it is clear that international students have been an important element in U.S. legal education since at least the late-1990s, when schools began to increase the number and size of degree programs aimed at international students. Between 2012 and 2021, for example, nearly 60,000 unique individuals obtained a visa to study in an ABA-approved law school. It is not clear what impact the second Trump administration will have on this dynamic, particularly because of visa delays and uncertainty about OPT, but the rhetoric against international individuals in the first Trump administration did not substantially dampen mobility into the U.S. for law school until the pandemic.
While law schools and universities have grown reliant on the contributions of international students to the intellectual life of their institutions, to their financial well-being and to their global reputations, there is very little understanding of the identities and experiences of these students, including where they’re from, who pays for their education, their bar exam aspirations (much less results) and even the number of international students studying in particular law schools.
Kathryn Hendley and Alexander Straka aim to shed light on these issues in their new article, International Students from the Perspective of U.S. Law Schools. The article analyzes data they collected from 81 law schools during the spring of 2019 (that is, just as law schools and universities were shifting to online classes because of COVID) by surveying the administrators managing international students. (P. 61.) Their focus is on international students enrolled in LLM and other non-JD degree programs as well as non-degree students such as visitors. (P. 68.) The LLM remains the degree program that attracts the largest share of international students. Hendley and Straka found that “[w]ell over half [of the responding law schools] told us that…[LLM programs] accounted for 80 percent or more of their foreign students.”
The article addresses five key questions: where international law students are from, which U.S. law schools host international students, how students pay for their U.S. legal education, whether they take a bar exam, and their participation as alumni. Each of these is taken up briefly below.
Where are international students from? The largest cohort of students at most of the responding schools were from East Asian countries; this is consistent with the trend for all levels of U.S. higher education. One particularly interesting finding was that public law schools tended to host larger numbers of students from East Asia as well as students from Latin and South America, while private law schools tended to host larger cohorts of European students. (P. 74.) The authors did not explain the reasons for these trends. Perhaps they reflect reputational differences in the home countries of certain students, or differences in funding, for example. Along with exploring these enrollment differences, future work also could address what it means to be “from” a particular country or region. Is this a student’s birth country? Their country of citizenship? The place they lived when they were applying to law school? And how do these distinctions matter, if at all?
Which law schools host international students? Hendley and Straka found that both ranking and size of a law school’s overall student body correlated with hosting more international students, particularly in specially-designed degree programs aimed directly at the international student population, like the LLM program. (P. 63.) In contrast, unranked law schools were less likely to host international students outside of the JD program. (P. 64.)
Larger law schools (more than 600 students) were more likely to offer an LLM or other degree designed specifically for international students. (P. 64.) International recruiting also factored into attracting more students, and larger law schools were more likely to support this than smaller schools. (P. 65.) Interestingly, Hendley and Straka also found that certain law school characteristics—like being located in a state where international LLM graduates could sit for the bar exam, or being situated in an urban environment or in a major legal market—did not have a significant impact on whether a school had a special program for international students. (Pp. 65 n. 22, 66.) This is somewhat surprising based on the way international students describe the importance of bar eligibility and proximity to international legal markets like New York, and it stands as an important finding of their work that could lead to useful follow-up research.
Do law schools contribute to funding international students? As far as I know, no study of international law students has ever gathered information from law schools about the financial support schools offer these students. Hendley and Straka included this topic in their survey and, while only a subgroup of their respondents answered questions about funding, insights from these are quite interesting. (Pp. 74, 78.) For example, overall, only 4.6% of the 37 schools that provided substantive responses about funding indicated that they provide no funding to international students (P. 75), while nearly 14% indicated that none of their students pay full tuition. Both of these statements are relevant to the conversation around why law schools court international law students—it isn’t only about the money they contribute but also about their contributions to the intellectual life of the law school, to efforts to enroll a diverse class and to the competition for prestige that accompanies a global reputation for both the law school and its university (which goes to faculty recruitment, partnerships and research, too).
Equally interesting are Hendley and Straka’s findings about which law schools provide financial support. First, more public law schools offered some funding for all of their international students than did private law schools. Second, while “private schools seem to expect students to contribute,” they also provided some support. For example, law schools that were private, large in terms of the overall student body, or highly-ranked reported that they offered international students funding that would cover something less than half of the full tuition costs (which Hendley and Straka defined as tuition plus living expenses. (Pp. 74 n.52, 75.) Third, “[i]t is the smaller and lower-ranked schools, as well as some state schools, that press their foreign students for full tuition.” (P. 75.)
Do international students aspire to take a U.S. bar exam? Law schools have been skittish about sharing information regarding international students’ experiences with a U.S. state bar exam; they are not required to report bar pass rates, for example, and because pass rates are considerably lower for international students generally, this typically is not something they choose to report voluntarily. At the same time, the intention to take a bar exam can have an important influence on course selection for international students, and it also may provide insight into why particular students find U.S. legal education valuable. In recent years, bar prep courses have been developed specifically for international students, and certain law schools make a point of supporting international students in their bar preparation activities.
Nearly every responding law school reported that at least some of their international students sat for a U.S. bar exam (P. 83), but this was more common for schools ranked in the top 30, or those with large student bodies. Relatedly, regulation matters and schools in jurisdictions that permit LLM graduates to sit for their bar also were more likely to report that some students pursued this route. (P. 83.) Students were more likely to sit for a bar exam if their international cohort included 20% or more of students from Europe, or if they were at a law school with a larger cohort of international students. (Pp. 83-84.) It’s not clear why Europeans would influence interest in the bar exam, but Hendley and Straka attribute the relationship to law school size to a “herd mentality” influence. (P. 83.)
Do international students participate as alumni? One of the most fascinating topics pursued by Hendley and Straka is participation in alumni activities. This is something that has not been emphasized in research on international students, and in fact is mostly lacking in research on legal education generally. Anecdotally, international law graduates are actively engaged alumni at some law schools and mostly absent in others—explaining this could be useful to both international graduates and to the law schools.
Hendley and Straka found that alumni engagement is more likely in large law schools and in highly-ranked schools. It is not particularly surprising that ranking correlates with alumni engagement, as the social capital inherent in these interactions is likely to be seen as valuable. Law school size might reflect overall resources, and Hendley and Straka found that “[a]ll of the law schools that characterized their foreign students as very active alumni fall into the subset of schools that send their staff members abroad to recruit students.” (P. 85.) Sending staff overseas allows for engagement on the home turf of alumni, but at the same time, it is not sufficient: according to Hendley and Straka, “[o]ver 85 percent of the schools that told us their foreign students were not very active had sent staff abroad.” (P. 85.) I wonder about differences in investment by law schools devoted to generating alumni engagement, and the extent to which law schools convey to their international alumni that they value their perspectives and advice.
Overall, this article shines a light on the issue of who comes to the United States to study law, not to mention what experiences they have here. While certain of Hendley and Straka’s results are not entirely surprising (international students prefer law schools that are highly ranked, have large student bodies, and offer programs designed specifically for them), others open new areas of inquiry for further research (which law schools devote financial resources to attract these students, and which have active international alumni). The questions addressed by Hendley and Straka reflect the way that the United States, its universities and its legal profession, including law practice organizations, fit into the hierarchies of international students’ home countries. This is fluid, and while it is impossible to know with certainty how the policies and rhetoric of the current Administration will affect assessments of U.S. law and lawyers in ways that may undermine interest in U.S. legal education, it is likely that the way the Administration is attempting to quash the exercise of free speech by individuals with international identities and statuses will be considered by prospective students contemplating the value they might gain from studying in a US law school.
Hendley and Straka’s work comes at a time when information about international students will be even more limited than in the past because the ABA recently eliminated the mandate that law schools report on the number of international students in their JD programs, thus eliminating the sole reporting requirement related to international students. While it is astounding to me that international legal education in the United States remains shrouded in mystery, the work of Hendley and Straka provides insight and raises important questions for future research.
Feb 20, 2025 Melissa Mortazavi
“Civil lawsuits—especially class actions and multidistrict litigation (MDL)—can be messy and complicated,” (P. 49) Professor Seth Endo begins his lucid article, Ethical Guardrails to Unbounded Procedure, which is anything but messy and provides a deceptively simple solution to a complicated area of law. Here, Professor Endo sinks his teeth into the question of how judges should approach areas of civil procedure where the Federal Rules of Civil Procedure (FRCP) provide little guidance, biting off a meaty chunk of the beast that is the wild west of MDL complex litigation as his primary illustrative example. His solution? To give teeth to a body of legal authorities already in existence and largely previously ratified by the courts: that of professional-conduct rules.
Professor Endo sets his target on “common-benefit” fees, specific fees afforded to a subset of lawyers in MDL who are members of plaintiffs’ steering committees (PSC), to compensate them for litigation coordination. These fees spring from a void left in procedural rules and statutes. These fees are highly controversial, both for affording attorneys’ fees that are disproportionately high compared to plaintiffs’ recovery and because the composition of MDL leadership positions has often been under representative of both the demographic composition of the bar and the plaintiffs. As an example, Professor Endo highlights the Propulsid litigation against Johnson & Johnson where common benefit fees amounted to approximately twenty-seven million dollars in contrast to plaintiffs’ recovery at under seven million dollars. (P. 52.) In that case, the seven member PSC was entirely composed of white men despite a “disproportionately large percentage” of the plaintiffs being female. (P. 53.) These types of facts, coupled with the courts’ underutilization of traditional forms of lawyer sanctioning in MDL cases, gives the damning impression that courts use these fee structures and lucrative appointments at best to control and manipulate lawyer conduct to privilege expediency and out of court resolution of claims, and at worst to fall prey to bias and reward powerful lawyers at the expense of injured clients and less well-connected attorneys.
Professor Endo provides a straightforward path to avoiding such skewed outcomes and ugly allegations: using professional conduct rules as gap fillers. Over the course of the Article, Professor Endo illustrates how deploying the ABA Model Rules of Professional Conduct (ABA Model Rules) not only supports longstanding legal principles tethering attorney’s fees to concepts of proportionality and reasonableness but also more effectively motivates plaintiffs’ lawyers to focus on client recovery. He begins by establishing that the FRCP often leave open broad swaths of judicial discretion, and that MDL litigation is a particularly salient example of these “unbounded” judicial spaces. Having dispensed with setting the stage, the Article proceeds to the meat of its contribution—making the descriptive and normative assertions that the law governing lawyers should pick up in guiding judicial action where the rules of civil procedure leave off. This starts with a robust outline of how the FRCP have numerous subject matter synergies with the ABA Model Rules and continues by showing the courts’ longstanding role in managing the conduct of attorneys. Having garnered the low-hanging fruit, now Professor Endo reaches towards the more interesting assertion: that through their inherent power to engage in local rulemaking, federal district courts’ ubiquitous adoption of rules aligning with the ABA Model Rules have rendered these rules positive procedural law. (Pp. 71, 102.)
But his point is not just that the law governing lawyers is substantively aligned with civil procedure and a source of law in and of itself (although this alone appears to be news to some)—it is that this area of law reflects a unique locus of deliberative input within positive law and procedure. (Pp. 81-82.) Not only have these rules gone through deliberation at the ABA level, and then locally through state bar deliberations when adopted, but the local rules of federal courts are then subject to FRCP 83, which compels public notice and comment for adoption of local rules. Each of these areas provides a touchpoint for the public. This broadens not only substantive inputs to rulemaking, but claims to transparency, predictability, and neutrality which buttress procedural legitimacy.
The fact that Professor Endo must point out the availability of these authorities speaks to the tacit disenfranchisement of professional responsibility and legal ethics in the minds of courts, academics, and practitioners. I must admit, part of my love for this article stems from the straightforward—yet apparently not obvious—assertion that the law governing lawyers and professional ethics in fact matter, are helpful, and reflect well-thought through rigorous analysis, complete with a rich legislative history. By placing these sources of law on the same playing field as Civil Procedure, Professor Endo reasserts not only their relevance but highlights their underlying centrality to MDL and perhaps all legal practice. While lawyers may practice all types of law, they always are practicing that law within the confines of their professional obligations. Professor Endo’s piece reminds us that courts can, and should, use those guardrails to their advantage and in doing so, better serve our clients, the public, and the currently flailing cause of judicial legitimacy.
Jan 29, 2025 Amy Salyzyn
New kid on the block. Legal ethics, as a scholarly discipline, has long been referenced in relation its youth—and, fair enough, given its relatively recent emergence in the United States in 1970s and even later arrival in other countries. But another story about legal ethics also exists. This is a discipline that has, over the last several decades, clearly come of age. We now have an extensive body of scholarship full of rich, diverse writings and lively conversations. While the full breadth of legal ethics is beyond any one book, we are fortunate to get a captivating snapshot of the field in the recently published Leading Works in Legal Ethics, edited by Julian Webb.
Leading Works aims not to identify “canonical” works but rather to allow scholars to explore what they personally view as a “leading work.” The result is a vibrant tapestry. Individual chapter authors bring their own unique threads to the collection—some of anticipated hues, while others wholly unexpected.
The collection is divided into two parts. Part I, “Philosophies Revisited,” explores the “philosophical strand” of legal ethics scholarship. In this part, the spectre of the Standard Conception of lawyers’ ethics, looms large, as it does in legal ethics scholarship generally. One of the leading proponents of a modified Standard Conception, Brad Wendel, considers in his chapter how the early writings of Tom Shaffer pose an “important challenge to those of us who see the lawyer’s ethical role as primarily linked with the legal institutions in a democratic society. . .[on the grounds that] it does not do enough to foster civic virtue or solidarity.” (P. 28.) For his part, Rob Atkinson chooses three modification proponents—Tim Dare, Brad Wendel, and Daniel Markovits—for his “three-way tie” for leading works in legal ethics. Atkinson’s perspective is admiring yet unapologetically critical, contending that “three of the best minds in legal ethics have built a model for our millennium that is bold and brilliant, but, alas, bad, and bad both ethically and politically.” (P. 88.) In their two chapters, Reid Mortensen and Julian Webb focus not on the modification camp but instead on those who have put forth alternatives to the Standard Conception. Mortensen examines Anthony Kronman’s use of Aristotelian virtue ethics in The Lost Lawyer: Failing Ideals of the Legal Profession, while Webb reviews David Luban’s dignity-based framing of the lawyer’s role. Rounding out Part I are chapters by Iris van Domselaar and Tim Dare, each taking us into more unexpected yet delightful territory. Van Domselaar does a deep dive into Martha Nussbaum’s The Fragility of Goodness: Luck and Ethics in Greek Tragedy and Philosophy. Dare enters the debate about how Atticus Finch, the “lawyer-hero” of Harper Lee’s 1960 To Kill a Mockingbird, should be viewed in light of Lee’s Go Set a Watchman, a novel that was written prior but only released in 2015 and in which Finch also appears but in much darker form, as “a segregationist, fighting to slow civil rights reform.” (P. 134.)
The contributions in Part I reflect several impressive strengths of this collection. First, not only do the chapter authors skillfully highlight their choices for “leading works”, they also thoughtfully offer some enticing glimpses as to where the field might go. To take just one example, in his chapter, Webb uses Luban’s dignitarian legal ethics as a base from which to advance a “Leviansian (re)evaluation” rooted in a dignitarian “ethic of service.” Second, the freedom to self-define “leading works” leads to some truly creative explorations. Dare, for example, in his interrogation of Atticus Finch, introduces “the aesthetic notion of pentimento, a term typically applied to an image or forms or strokes that have been painted over by the artist” (P. 144) to advance an argument that Finch, as presented in Watchman, should not be considered the same character as Finch, as presented in Mockingbird. What we see in Watchman should be considered, according to Dare, as a pentimento that Lee painted over when writing Mockingbird. Third, while each chapter pursues a new subject matter in a unique voice, the chapters are, collectively, conversational. For example, we not only hear from Wendel himself about how past scholarship poses challenges to his positivist modification to the Standard Conception but also have Atkinson directly take up Wendel’s (and Dare’s and Markovits’) accounts and advocate for a more ambitious path forward more squarely aimed at “big justice.” (P. 111.) In her chapter, van Domselaar engages not only Wendel’s work but also other foundational scholarship featured in the collection, including Luban’s and Dare’s, in her sketch of “a luck-sensitive neo-Aristotelian to approach to legal ethics.” (P. 114.) That the chapters thread together in such interesting ways results in a rewarding read and reflects the maturity of the field. This is a discipline with sophisticated, shared inquiries and passionate, ongoing dialogue.
The conversation continues in Part II, which moves towards accounts more squarely rooted in empiricism. Rebecca Roiphe opens with her review of three book-length histories of the legal profession authored by J. Willard Hurst, Jerold Auerbach, and Richard Abel. Roiphe’s chapter provides an engaging transition between the two parts, offering insights about how these accounts might help us consider the viability of philosophical framings of the lawyer’s role, as explored in Part I. Next, Richard Moorhead and Steven Vaughan provide a wonderful tribute to the work of Deborah Rhode, using “recent approaches to [non-disclosure agreements] in England and Wales as a vehicle for showing both the ongoing salience of the problems [in lawyer regulation] Rhode spoke to 20 years ago and the (partly) successful attempts to give more professional salience to the public interest.” (P. 175.) Allan Hutchinson then takes us more directly to questions of identity in his review of David Wilkins’ 1998 article “Identities and Roles: Race, Recognition, and Professional Responsibility.” Hutchinson queries whether, contra Wilkins’ more optimistic view, the “traditional professional model” may be irredeemable and it might be “preferable to throw out the baby with the bathwater.” (P. 206.) A pair of chapters—one by Tigran Eldred and another co-authored by Justine Rogers and Hugh Breakey—take on the field of behavioral legal ethics, exploring, respectively, Stanley Milgram’s Obedience to Authority and James Rest’s four component model (FCM). The final chapter of the book—a look at Richard Susskind’s End of Lawyers by Renee Knake Jefferson and Russell Pearce—examines the influence that technology has brought to bear on the legal profession and its regulation, noting that “these developments are only the beginning.” (P. 270.) Written in a pre-ChatGPT context, Jefferson and Pearce’s contribution is particularly prescient.
In Part II, the chapter authors continue to sketch paths forward and bridges to broader conversations in the discipline. Rogers’ and Breakey’s contribution offers a particularly interesting bridging moment insofar as they detail how a behavioral legal ethics framework can integrate, and, indeed, prioritize, legal ethics theory. Part II is also very interdisciplinary, including work not only from historians and sociologists of the legal profession but also from psychologists Milgram and Rest and futurist Richard Susskind. This interdisciplinarity helps to highlight the dynamism and breadth of legal ethics as a field.
To be sure, Leading Works doesn’t represent the totality of legal ethics. The book itself acknowledges that, while offering contributions from several countries, the collection is “still not that international” and there are “some plausible gaps among the texts that many would consider leading.” (P. 23.) Within less than 300 pages, however, the book does accomplish something remarkable—the reader is taken on an eclectic, yet coherent, journey into the past and future of legal ethics through the profiling of a large amount of diverse scholarship. In providing opportunities to reflect, Leading Works is timely—its publication comes on the heels of a great loss (the book is dedicated to Deborah Rhode, an unboundedly generous giant in the field, who passed in 2021) and also at a time worthy of great celebration (in 2024, the International Legal Ethics Conference, co-founded by Webb, had its 20th anniversary). The enthusiasm and promise for legal ethics found in the book are also opportune as we find ourselves in a time of alarming political and ecological instability. The challenges that the world, and by extension, the legal profession, is likely to face in the coming years are profound. Pushing forward on engaged, thoughtful scholarship in legal ethics is urgent.
Informative, inspiring and ambitious, Leading Works is a landmark work in legal ethics. The care and effort put in by Webb, as editor, and the chapter authors shines through. The wide-ranging and thought-provoking territory that the book covers make it an invaluable resource to both newcomers and established contributors to the field alike.
Dec 12, 2024 Robert Gordon
A Senator or editorial or public personality or group of protestors expresses outrage that a lawyer or law firm undertakes to represent bad people or corporations pursuing bad ends. Bradley Wendel, the eminent legal-ethics scholar and legal philosopher, notes that “lawyers patiently…respond that representing apparently-evil or distasteful clients is what lawyers do” and should do. He adds: “This [response] happens every. single. time.” (P. vi.) The response expresses what legal ethics scholars call the “nonaccountability principle.” So long as lawyers represent their clients competently and within the boundaries of the law and legal ethics rules, they should be beyond criticism and reproach. The principle usually is accompanied by an instrumental rationale: If lawyers are tainted by their clients’ apparent moral failings, they will be less willing to take on unpopular clients and causes, and justice and the common good will suffer. In Canceling Lawyers, Wendel brings a sharp analytic intelligence, a clear and engaging prose style, and a repertoire of hundreds of examples and case studies to bear on the standard response. He finds the response severely wanting, yet ends up at a pretty similar bottom line.
Readers will find all the familiar cases here: The Cravath firm lawyers who represented Credit Suisse in litigation against heirs of Jews who claimed the bank had laundered treasures looted from their families by Nazis. The Harvard housemaster who volunteered to help defend Harvey Weinstein from rape charges. The Black ACLU attorney who defended the KKK against compelled disclosure of its membership list. The Gibson Dunn firm that represented an oil company alleged to be polluting indigenous land and peoples in Ecuador. The Kirkland & Ellis firm that gave up representing gun manufacturers in the face of pressure from other clients, against the objections of a partner who left the firm in protest. The law student boycott of the Paul Weiss firm for its representation of ExxonMobil. The government lawyers who justified torturing suspected terrorists in the Bush (Jr.) Administration. And many, many more.
Wendel’s treatment of this problem is complex and nuanced. To begin with, he rejects any categorical principle of nonaccountability. He is skeptical of lawyers’ standard claim that they must be unaccountable to ensure that unpopular clients are represented. That didn’t help Black criminal defendants or plaintiffs suing whites in the Jim Crow South, or people accused of being Communists during the Red Scare, few of whom could find counsel. Wendel acknowledges these lapses by the bar, but thinks them exceptional, since really notorious pariah clients can usually find a lawyer attracted by the attending publicity.
His major claim is that it is fair to ask anyone apparently helping bad people do bad things why they are doing that and to insist on an adequate response. He insists, however, that demanding accountability is not the same thing as concluding that the lawyer has done something wrong. Sometimes a fully adequate explanation for taking on apparently-horrible clients is relatively easy, as in the case of criminal defense: lawyers who protect defendants’ rights to immunity from unlawful searches-and-seizures and coercive interrogations and put prosecutors to the burden of proving guilt beyond a reasonable doubt are protecting us all from an abusive police state, and anyway, even moral reprobates have rights and dignity worth protecting.
More generally, Wendel discerns defensible grounds for taking on a client or cause simply in the fact that the asserted bad behavior is arguably legal. His major thesis emerges in Chapter 5, “Boycotts of Law Firms and the Ethics of Informal Social Sanctions,” where he discusses law students’ attempts to organize boycotts of law firms that represent fossil fuel companies. Readers familiar with Wendel’s legal ethics work will recognize this argument from his Lawyers and Fidelity to Law (2010). The core of the argument is that the positive law of a polity (anyway a plausibly democratic polity such as the USA) expresses a provisional social settlement of many controverted public policy issues, on which different groups have contending views and interests. If the existing law gives ExxonMobil a plausible license to engage in activities that accelerate climate change, or at colorable arguments that it has such license, lawyers have a mostly adequate reason to press its claims and further its interests.
Wendel has always recognized serious problems with this argument. Positive law is heavily tilted in favor of powerful interests, which have their thumbs on the scale of pluralist-democratic lawmaking. Boycotts are weapons of the relatively weak, hoping (usually futilely) to offset such power. Furthermore, conventional legal ethics require only that lawyers’ advice be plausibly legal under current or creatively imaginable revisions of positive law, which means that a good deal of such advice can enable clients to skate around regulations of their conduct. (See, among innumerable other examples, the arguments that Donald Trump’s lawyers were willing to make to try to nullify the results of the 2020 election.)
Wendel’s argument is serious and well-made. But I can’t help thinking that it understates the gravity of the case that inequalities in representation pose to conventional legal ethics. The adversary-system ideology that justifies lawyers in aggressively representing any clients who can hire them presupposes that people who are harmed by the actions of such interests can hire their own lawyers. But they can’t afford to, as demonstrated by the fact that about 80% of parties to civil ligation (mostly debtors facing collection, or tenants facing eviction) are unrepresented.
Nonetheless, I welcome Wendel’s insistence that lawyers’ decisions about what clients to represent are not immune from moral questioning and critique, but rather require justification. Even Monroe Freedman, a stalwart defender of aggressive adversary lawyering, agrees that the most important choices lawyers make are choices about whom they will represent and what they will help those clients do. Some distinctions I think Wendel might have explored in more detail are distinctions between a (1) one-off one-time representation of a socially destructive client and (2) a continuous representation, involving the construction of elaborate schemes to conceal wrongdoing, foil regulators, and run up costs and obstacles to adversaries, to immunize that client from legal accountability. That is the difference between representing John Gotti defending against a murder charge or a tobacco company defending a civil suit for damages, on the one hand; and acting as consigliere for the Gotti family or general counsel for the tobacco industry, on the other. There are surely also useful distinctions to be made between an entire career devoted to making the rich and powerful wealthier and stronger and a career with intervals (penances or indulgences) for pro bono practice, government service, law reforms increasing access to justice, and aid to legal-services organizations.
Anyone who teaches legal ethics or thinks seriously about this subject should look at this book. Its wonderful store of case studies—each of them lucidly and helpfully analyzed from different points of view—is alone worth the price of admission.
