Apr 17, 2023 Francesca Bartlett
The “baby boomers” of the English-speaking West are those born from the late 1940s to early 1960s, and, as the name suggests, there were a lot of them. Despite their advancing age, and recent COVID-19 threats, this generation remains the second-most numerous in the USA. In Australia—the subject of Angela Melville, Valerie Caines and Marcus Walker’s paper—the same generation dwarfed all others until very recently.Consequently, there are many aging lawyers leading to what has been described as an impending “senior tsunami.”
Melville, Caines, and Walker provide an analysis of the available data on the Australian legal profession to trace a range of intersecting concerns around its aging profession. This is the first analysis of its kind in Australia, and it is a clear and nuanced examination with some sensible recommendations. The study reflects the findings of the first and second Joint Committee on Aging Lawyers established by the National Organisation of Bar Counsel and the Association of Professional Responsibility Lawyers (NOBC-APRL), which noted:
there is a great number of lawyers with tremendous experience, insight and wisdom that can be shared with newer members of the bar. These same lawyers can devote themselves to valuable public service and improvement of the profession. The bad news is that there is an ever increasing risk of more lawyers with age-related impairments and insufficient preparation for transitioning away from practice before a crisis forces that transition.
The Committee’s recommendations included a call to gather demographic information to construct a database and to study the challenges of an aging lawyer population. Melville, Caines, and Walker respond to this call. To begin, they find that Australian lawyers are aging—the proportion of solicitors 60 years and above has been increasing. Unsurprisingly, older Australian lawyers are overwhelmingly male: 13% of male solicitors are over 65 as compared to only 2% of female solicitors.
Melville, Caines, and Walker consider the likely causes of an aging lawyer population, including increasing life expectancy (still the case in Australia despite the pandemic), decisions to delay retirement associated with access to pensions and economic hardship concerns, and an enduring sense of identity and fulfilment in work.
The authors then turn to the consequences. Age-related cognitive impairment has received attention from scholars and regulators in the U.S. While there is an increasing focus on mental illness, age-related cognitive decline is not much discussed in the Australian profession. Melville, Caines, and Walker do not explain why the Australian profession differs on this account but speculate on why lawyers in both countries might continue to ignore competence concerns. It might be hard to detect when they are slowly developing symptoms. Lawyers value intellectual prowess above all else. Where decline occurs, lawyers might find it hard to ask for health accommodations for fear of stigmatization and other professionals unwilling to “have those difficult conversations” with a declining colleague.Melville, Caines, and Walker consider studies of lawyer discipline which support a possible thesis of age-related decline—the average lawyer in the dock is an older male. They sensibly do not conclude that this is proof of age-related decline but rather consider other age-related factors contributing to misconduct. For instance, older lawyers might struggle with new technology. Older lawyers predominate in solo or small practices. Leslie Levin has described the range of complex structural and cultural factors that might lead to lawyers in these firms being more subject to complaint.
The article also provides an excellent discussion of the differing impacts of aging for male and female lawyers. As women lawyers age they do not have wage parity and consequently as large of a savings for retirement. Baby boomer women lawyers, while they are more likely to have experienced interrupted careers, might feel a sense of loss and grief in relinquishing a hard-fought-for career. Finally, the authors reflect on the largely unspoken impact of menopause on women lawyers. These are all factors that require further study and consideration by the profession.
So what to do about negative implications of an aging workforce? Melville, Caines, and Walker consider potential regulatory responses to age-related cognitive decline, such as mandatory reporting. Unlike Australia, mandatory reporting of ethical misconduct, including that caused by mental impairment, has long been in place for many U.S. and Canadian lawyers. Yet, as they concede, commentators have documented a range of flaws of this system including being reactive and a lack of compliance. This is therefore not offered as a complete solution. Mass retirement is also not recommended but they urge reimagining careers to support professional regeneration and public orientation through mentoring and development of emeritus pro bono programs. They draw on data documenting a lack of succession planning in many legal practices and point to the urgency of redressing this problem.
Melville, Caines, and Walker’s article is recent, but their data is largely pre-pandemic. Yet, this does not detract from the importance of their work to sound an alarm and call for action. While the article focuses on the negatives, they also suggest the importance of recognising that older lawyers have much to give to the profession if we adequately plan to better capitalise on these strengths.
Mar 3, 2023 Amy Salyzyn
- Cristie Ford & Quinn Ashkenazy, The Legal Innovation Sandbox, Am. J. Comp. L. (Forthcoming 2023), availible at SSRN.
- David Freeman Engstrom, Lucy Ricca, Graham Ambrose & Maddie Walsh, Legal Innovation After Reform: Evidence from Regulatory Change, Deborah L. Rhode Center for the Legal Profession, Stanford Law School (September 2022).
Legal innovation sandboxes have gained significant traction in North America over the last few years. In 2020, Utah was first to launch its legal regulatory sandbox and, in Canada, law societies in three provinces have subsequently launched sandbox initiatives in relatively quick succession (see, here, here and here). These developments follow earlier use of rule waivers and “innovation spaces” overseas by the Solicitors Regulation Authority (the regulator of solicitors in England and Wales) starting in 2016. All of this has taken place in the backdrop of sandbox use in other industries and professions, most notably in the financial technology (“fintech”) sector.
For readers not familiar with concept of a “sandbox”, the general idea is to offer opportunities for innovative providers to deliver services in a regulated industry in new ways. The sandbox model permits service delivery that would (or might) otherwise breach current rules due to, for example, a non-compliant business structure or means of delivery. Innovators generally participate in a pilot where they have the regulator’s permission to operate under certain specified conditions and with ongoing monitoring. Often, the regulator collects data during such pilots with the aim of informing future regulatory reform.
As they grow in number and progress in their operations, North American legal innovation sandboxes are attracting interest among lawyers, academics, and law students. To date, most information about legal innovation sandboxes has been located on their respective websites or presented in short online commentary. More detailed analysis has been elusive. Thankfully, two new publications have emerged to fill this gap.
In their forthcoming article, The Legal Innovation Sandbox, Cristie Ford and Quinn Ashkenazy provide a comprehensive account of the development and operation of legal innovation sandboxes. They trace the background of these reform initiatives, break down their design elements and discuss best practices in legal innovation sandbox design. Complementing this analysis is a recent report on legal regulatory reform from Stanford’s Rhode Center on the Legal Profession, Legal Innovation After Reform: Evidence from Regulatory Change, which shifts the focus away from questions of construction and centers on analyzing outcomes. In this report, David Freeman Engstrom, Lucy Ricca, Graham Ambrose, and Maddie Walsh provide a detailed empirical analysis of new legal services entities that have emerged in response to certain regulatory reforms, including Utah’s legal innovation sandbox.
Together, the Ford and Ashkenazy article and the Stanford report provide a wide-ranging account of legal innovation sandbox use in North America. Individually, they each bring unique and important contributions to the literature.
The detailed, nuanced and comparative approach of Ford and Ashkenazy’s design discussion makes their article a rich text for those interested in legal innovation sandbox design and regulatory design more generally. Among other things, they outline important considerations and options in relation to application criteria, application evaluation, risk minimization, as well as monitoring and reporting requirements. Throughout their article, Ford and Ashkenazy draw not only on the experiences of North American legal innovation sandboxes but also on sandbox design in the fintech sector. For example, on the topic of monitoring, they note that participants in the United Kingdom’s Financial Conduct Authority’s fintech sandbox “are assigned a dedicated case officer to support the success of the pilot, to assist with navigating the regulatory framework, and to ensure that the appropriate safeguards are in place” (p. 46). This example helps to highlight how sandbox experimentation can be infused with ongoing communication and cooperation. The authors’ use of comparative material in the article can hopefully stand as a model and motivator for more comparative work in legal profession scholarship, which has generally been too reluctant to draw on experiences from other professional contexts.
Ford and Ashkenazy are also helpfully clear-eyed about the regulatory trade-offs present in the legal innovation sandbox context. For example, they note that while “lawyers are trained to aim for perfection”, aiming to design the “perfect” sandbox before launching can lead to too much rigidity and a missed opportunity to benefit from continual, iterative design improvements (p. 51). The challenges associated with undertaking optimal consultation processes, acting within resource constraints and developing appropriate evaluation models are also highlighted.
Complementing Ford and Ashkenazy’s design-focused analysis is the Stanford report’s examination of outputs. The report explores two questions: (1) if the rules governing legal service delivery are relaxed, what types of innovation are likely to result? (2) who will be served by such innovations? To answer these questions, the report looks at the data relating to 57 new legal services entities that were authorized in Utah and Arizona as of June 30, 2022. The researchers supplemented this analysis with interviews from innovative legal services providers in Utah and Arizona, as well as in England and Wales. The report touts itself, I think fairly, as providing “a first-of-its-kind, grounded, and data-driven analysis of what regulatory reforms might achieve in the U.S. legal context” (p. 9).
Notably, the Stanford report does not limit its focus to legal innovation sandboxes – while it does look at Utah’s sandbox, the Arizonian reforms explored are fundamentally distinct. As explained in the report:
[T]he two states’ reforms vary in their target—that is, which of the rules are relaxed. Utah’s approach allows entities to seek waivers of Rule 5.4, UPL, or both—an approach we call the “ABS+UPL” approach….Arizona, in contrast, relaxed only Rule 5.4—an approach we call the “ABS-only” approach. The states also vary in terms of their lever—that is, how those rules are relaxed. Utah created a sandbox, which is a space within which legal services providers can seek waivers of UPL, Rule 5.4, or both, subject to ongoing oversight by a regulator. The sandbox is currently authorized for seven years. Arizona made an ex ante change to its rules—and, in particular, its Rule 5.4 equivalent—and then created an application process for entities seeking ABS status (p. 10)
By comparing and contrasting the Utah legal innovation sandbox against the different approach taken in Arizona, the report aims to draw inferences about how regulatory reform choices might yield different results. For example, the report finds:
[T]he contrasting reform approaches in Utah and Arizona appear to be generating very different types of innovation in terms of how legal services are delivered and who is served. In particular, because of Arizona’s narrower, ABS-only approach, only Utah’s reforms are yielding innovation in the use of nonlawyers and technology to deliver legal services. And, perhaps relatedly, only Utah is seeing innovation in the nonprofit and community-based sector and in the development of new delivery models that serve low- and middle-income populations.
The authors are appropriately reluctant to draw strong conclusions from such comparisons, noting several caveats and limitations: (1) the relative newness of the reforms; (2) the reality that legal markets differ across jurisdictions, which can result in different consequences even if similar reforms are instituted (e.g. market size can influence which innovators might want to operate within any particular state); (3) the presence of competing design elements—while Utah’s reforms are more expansive in scope, this reform effort is also time limited in contrast to Arizona’s permanent rule revision; the rule waivers being permitted in Utah might yield even more expansive legal innovation if they were in the form of permanent rule changes; and (4) the outcomes may be impacted by parallel paraprofessional reforms in each jurisdiction (i.e. newly authorized paraprofessionals may be filling needs that might otherwise be the focus of initiatives taken pursuant to the reforms studied).
Another valuable contribution of the Stanford report is its articulation of a novel taxonomy of different types of legal innovation that can result from reform efforts. The authors “identify and illustrate five stylized innovation types: (a) traditional law firms making changes to their capital or business structure or service model; (b) ‘law companies’ practicing law; (c) ‘non-law companies’ as new entrants to the legal sector; (d) intermediary platforms; and (e) entities using nonlawyers and technology to practice law” (p. 43).
One insight that this taxonomy yields is the significant degree to which lawyers are involved in innovation efforts – for example, 35% of the emerging entities studied were classified as being in the form of “traditional law firms” with another 35% classified as “law companies practicing law” that generally used the reforms to incorporate lawyers into their service delivery. For lawyers, this is perhaps a reassuring signal that innovation in legal service delivery won’t render them obsolete.
Presumably, lawyer involvement also brings with it a certain type of baked-in quality control that has a public benefit. At the same time, however, one might also question the degree to which reform initiatives are optimally innovative absent more involvement from a diversity of actors. Are more efforts needed to ensure everyone feels welcome to “play” in the sandbox? On their part, Ford and Ashkenazy highlight the importance of broad consultation and the value of some degree of independence in sandbox operations given the “potential vested interest in the existing legal services provision” by legal regulators (p. 55).
Time will tell how legal innovation sandboxes will affect legal service delivery in North America. Both the Ford and Ashkenazy article and Stanford report provide important foundation for further work regarding effective sandbox design and evaluation of sandbox outputs.
Amy Salyzyn, What's at Play? Learning about the Design and Impact of Legal Innovation Sandboxes, JOTWELL (March 2, 2023) (reviewing Cristie Ford and Quinn Ashkenazy, The Legal Innovation Sandbox, American Journal of Comparative Law (Forthcoming 2023); David Freeman Engstrom, Lucy Ricca, Graham Ambrose, and Maddie Walsh, Legal Innovation After Reform: Evidence from Regulatory Change, Deborah L. Rhode Center for the Legal Profession, (2022)), https://legalpro.jotwell.com/?p=1924&preview=true.
Feb 1, 2023 Scott Cummings
Etienne Toussaint,
The Miseducation of Public Citizens, 29
Geo. J. Pov. L. & Pol’y 287 (2022), available at
SSRN.
In The Miseducation of Public Citizens, Professor Etienne Toussaint argues that, although the ABA’s Model Rules of Professional Conduct call for lawyers to be “public citizens” with a special responsibility to promote justice and protect the rule of law, the way that law is typically taught undermines these public goals. Specifically, he argues that the formalistic approach to teaching legal rules hides their role in creating and sustaining structural inequality in the legal profession and the broader society.
To counter this problem, Toussaint proposes new pedagogical principles designed to advance a justice-oriented conception of the lawyer’s public citizen role. In his words, for law schools to “engage the moral tensions between the lawyer’s professional role morality and the lawyer’s individual moral compass,” they must teach “public citizen lawyering” as a “countercultural vision of practice-readiness grounded by the normative responsibilities enshrined in the Model Rules.” (pp. 293-94.) These principles derive from the ethical rules—on candor, competence, legal reform, and communication—yet Toussaint reinterprets these ethical mandates to unlock the potential to equip students to fulfill their public citizen role.
To arrive at these principles, Toussaint first lays out deficiencies of the current approach, starting with his own story as a law student encountering the case of Bernard Goetz, a white man who shot four unarmed Black teenagers on a New York subway in the 1980s. His elegant and powerful treatment of his personal reaction as a Black student in a mostly white classroom sets the stakes for his subsequent analysis, which suggests how pedagogical reframing might yield more critical and inclusive conversations.
To build the case for this reframing, he begins by canvassing the existing literature on the lawyer’s role as “public citizen” in a synthetic and authoritative review. Spotlighting the crucial debate over whether lawyers owe loyalty to system values beyond client interests, Toussaint proposes law teachers should seek to overcome the tension between role and ordinary morality through a new pedagogical vision in which lawyers are trained to maintain fidelity to “legal integrity” defined as practical judgment in service of the public good (p 306). His key contribution is to present a new pedagogy of public citizenship designed to prepare law students to occupy their role with justice in mind.
This pedagogy consists of four critical elements, which Toussaint illustrates by suggesting how their application might have changed the conversation he experienced in the Goetz case.
First, Toussaint calls for “deconstructive framing,” premised on the ethical duty of candor, according to which law professors should “disclose to their law students the full scope of legal authorities that purport to clarify the meaning of a case’s material facts” (Pp. 316-17). Following this principle, Toussaint advocates for teachers to analyze the role of lawyers in perpetuating injustice, while using critical outsider jurisprudence, democratic theory, and other theoretical frames to evaluate cases like that of Goetz.
The second principle is “ethical reposturing” grounded in the duty of competence that guides professors to engage the moral, economic, political, and social dimensions of cases, highlighting the limits of zealous advocacy and the role of social movements in shaping law (p. 323).
Third, “reconstructive ordering” demands that lawyers seek improvement of law through redefining professional identity, highlighting how identity-based difference influences the rule of law, and pushing lawyers to develop a critical posture to better frame clients’ worldviews (p. 327).
Finally, Toussaint advocates that law schools teach “liberatory lawyering” focusing on aspects of law practice that transcend “strictly legal questions” (p. 331), prioritizing collaborative thinking and creative problem solving with clients, and assessing nonlegal solutions with a critical lens. Applying this principle to the Goetz case, Toussaint suggests, for example, that professors could assign materials giving more context about the communities in which Goetz’s victims lived.
Professor Toussaint is a cogent and powerful writer. He weaves personal narrative, legal theory, and doctrine with confidence and mastery, deftly using his experience to frame the disconnect between the lawyer’s public duty and routine participation in a system in which “law seemingly facilitates injustice” (p. 302). The major contribution of the piece, which is unique and important, is to theorize new teaching principles that foster inclusion and justice, while demonstrating through examples how they can make a difference in the real-world learning environment. His move to connect these principles to underlying professional values is original and innovative, using the values as a strong foundation for a broader—and necessary—reordering of legal education that moves toward a deeper encounter with how law functions to sustain structural inequality and how that inequality can be addressed through a richer conception of the lawyer’s public role. The article effectively shows how abstract teaching principles could be operationalized to guide different types of conversations in the Goetz case. Toussaint’s ethical reframing of legal pedagogy should gain wide attention and spark robust conversation.
The article does leave open some important questions. Professor Toussaint frames his contribution as a critique of legal formalism, but it is not clear that formalism is the root problem—as opposed to other types of pedagogical approaches that obscure the race, class, and other dimensions of cases. Toussaint focuses so much attention on debates about lawyering role and ethical rules, I was left wondering how his principles would apply to teaching those rules in relation to the course on professional responsibility itself—or if he thought that course was not the right vehicle to advance his project.
The concerns Toussaint raises about the “intellectual violence” of law school’s “objective, apolitical, and so-called ‘colorblind’ jurisprudential stance” (p. 292) are not specific to legal ethics, but Toussaint reaches into ethical rules to ground his “countercultural” pedagogical proposals on the theory that the rules present a vision of social responsibility that law teachers could leverage to engage critical perspectives. This makes sense to me, though his focus on application outside of the domain of professional responsibility (focusing on criminal law) kept me coming back to the question of whether his proposal required a more fundamental rethinking of how professional responsibility is taught. And I was not sure that some of the ethical principles he reaches for—like candor and competence—matched his ambition to fundamentally rethink teaching practice.
Indeed, his use of those principles was more rhetorical than actual: he adapts them from their specific meaning in legal ethics to frame broader points about teachers’ obligations to be honest and thorough vis-a-vis students in presenting the sociopolitical aspects of cases. Finally, I left the article still pondering over how many alternative frameworks (e.g., outsider jurisprudence, democratic theory, social movement theory, etc.) to use in teaching and whether and how to draw limits given practical constraints of time and pedagogical focus. I was hungry for more guidance here and perhaps more drilling down into the Goetz case as an exemplar.
In the end, Toussaint has succeeded in laying down an important challenge to legal educators in this moment of reflecting upon and reconsidering how to teach “law” in a time when its democratic foundations are under threat. The Miseducation of Public Citizens is sure to have a broad impact on crucial debates about how law schools need to change internally to better reflect the world that we seek to create outside its walls.
Jan 3, 2023 Carole Silver
Juliet’s soliloquy notwithstanding, how naming happens and what you’re called matters in the legal academy. In Unentitled: The Power of Designation in the Legal Academy, Rachel López illuminates the ways in which faculty titles and their corresponding categories function as drivers of inequality – an inequality that is difficult to discern because it is presented as justifiable, enmeshed within a seemingly merit-based difference that in turn is framed by the regime of tenure. Titles reflect and create difference: they function as proxies for the hierarchy inherent in the world of legal academia, and at the same time structure expectations, interactions and opportunities while signaling status. Nevertheless, these same titles are at odds with the commonalities that increasingly cut across faculty categories, and they mask the impact of different policies and perceptions that fall particularly heavily on women of color, and women generally. (P. 924.) To address these effects, López offers several concrete suggestions for law schools pursuing an anti-racist agenda.
López’s positionality matters in making this case: she is a boundary crosser, having begun her career in a non-tenure clinical role and then purposefully moving into a tenure-line role, where, among other things, she has continued her involvement with clinical legal education through teaching and administration. This history of crossing categories enables her to perceive the “problem of academic exceptionalism in the legal academy—hierarchy and exclusion are others’ problems, not our own.” (P. 925.) The orientation in the legal academy towards preserving the power and centrality of tenure-line faculty, which extends from governance to resource allocation, can be blinding to those within the system who may not perceive inequalities embedded both in the functional differences attributed to particular faculty roles and in the notion of merit that is seen as the foundation of these categories.
Titles that convey functional differences also disguise the ways in which faculty respond to the same incentives and responsibilities while operating in vastly different circumstances. I offer five examples related to these dynamics. First, López highlights the ways in which teaching does not abide categories implicated in faculty titles. For example, she describes that more than half of clinical faculty surveyed by the Center for the Study of Applied Legal Education who were allowed to teach podium classes did so (and according to the same source, “more often than not without any additional compensation or teaching release.”) (P. 928.) The experience at Northwestern, where I am on the faculty, is similar with regard to teaching assignments (but not compensation): doctrinal courses, including first-year classes, routinely are taught by non-tenure-line faculty with titles of Lecturer, Senior Lecturer and Professor of Practice, and by Clinical Professors (which includes faculty teaching Communication and Legal Reasoning) as well as by tenure-line faculty.
Second, the importance of scholarship also crosses title lines at many law schools and is crucial to advancement or contract renewal for many nontenure-line faculty. (P. 927.) Despite this, the structures that support tenure-line faculty scholarship, including having stretches of time without teaching responsibility, are not necessarily available to all; for example, law schools may be slow to cover the costs associated with offering clinical faculty research leaves when their clients continue to require their service. Related to this, time for research may be more difficult for nontenure-line faculty because of differences in teaching loads: a full course-load for tenure-line faculty might be three or four courses a year, while clinical, legal writing and research, lecturers and professors of practice can be subject to a standard of five or more courses per year.
Third, compensation differs dramatically according to title, apart from workload expectations, qualifications and credentials. Even within the diverse group of non-tenure-line faculty, these differences can be substantial. Further variation is found in compensation differences around course overloads, research accounts and research or summer stipends – the latter may not even be on the radar screen of non-tenure-line faculty. And as non-tenure-line faculty increasingly engage in scholarship, the lack of resources to support research, including for research assistants and travel, for example, can make it more difficult for them to fully immerse themselves in the research activities.
Fourth, the consequences of title assignment are reflected in differences in hiring processes, which in turn set the stage for whether and how faculty get to know one another as well as develop expectations about the activities – including scholarship – in which others will legitimately engage. What occurs around tenure-line hiring – where the focus is on a candidate’s scholarship with the expectation that faculty at a school interviewing a prospective new hire will read the candidate’s publications – often is entirely different than what occurs around non-tenure-line hiring. At many law schools, there is no similar process for non-tenure-line faculty who have a record of publications, and expertise outside of scholarship also is not used as a basis for becoming acquainted with these candidates. As a result, faculty may be ignorant of the expertise and experiences of non-tenure-line faculty in their own law schools.
Last, governance power often remains out of reach for non-tenure-line faculty. Voting policies commonly divide along the same title differences, which work to silence and disenfranchise non-tenure-line faculty. (P. 926.) But the work of running the law school may not similarly exclude based on title, so non-tenure-line faculty may be asked to participate in law school committees (including appointments and curriculum, for example) despite not having a vote on committee-related decisions when brought before the faculty. Myriad other policies also distinguish based on title at some schools, such as for the assignment of office space, which further contributes to segregation, power inequity and perceptions about how different faculty contribute to the law school.
The system of law school academic titles and their categories perniciously promote the importance of particular speakers, discounting others: what is valued in terms of knowledge and knowers relegates non-tenure-line faculty to the periphery. These sorts of differences are consistent with the line of reasoning that increasingly has found the legal profession to be a site of “epistemic injustice:” certain people are seen as more valuable “knowers” and others as less valuable, and at the same time, particular kinds of knowledge are valued more than others. Swethaa Ballakrishnen and Sarah Lawsky draw on this theory to frame the ways that minorities are treated as unreliable witnesses even about their own experiences. In the context of law school titles, individuals identifying as other than White and male are overrepresented in faculty roles with these “other,” non-tenure-line titles and consequently more likely to experience the sorts of inequalities described by López.
It is these very individuals, though, who are presented by law schools as evidence of a commitment to faculty diversity and agents of change. But they are stymied by their titles in challenging the power dynamics in their organizations. The “veil of objective neutrality” that spans this regime perpetuates a hierarchy that promotes and confirms those who have held and retain power in the legal academy at the expense of those on the periphery, including women of color. (P. 924.) And, as López describes, this marginality extends even outside of a particular law school to taint interactions with faculty across the legal academy. (P. 930.)
López makes a couple of recommendations for law schools to pursue an anti-racist agenda. First, the title Professor of Law should be applied to all full-time faculty. Second, a unitary track or a tenure option for all faculty positions should be adopted, making paths to the norm for law schools both transparent and attainable. Some may consider these suggestions extreme or naïve, or both. Titles reflect rewards recognized in rankings and other competitive measures as well as – and related to – financial models shaping resource allocation, and López’s suggestions would carry deep implications in this regard. But despite the potential disruption of these recommendations, by drawing attention to the ways in which titles embed inequality in the legal academy, López has offered law schools ways to think about taking first steps towards building a regime that internalizes the aims of anti-racism within the academy.
Nov 18, 2022 Scott Cummings
New Legal Realism Goes to Law School is a chapter in a book on New Legal Realism (NLR)—a jurisprudential movement studying the role of law in everyday life through empirical methods—that takes on the specific question of how to advance the self-defined NLR aspiration to “integrate law and social science to form a truly interdisciplinary approach to law.” (P. 191.) In this piece, Taylor Poppe focuses on one possible way of advancing that goal: improving the teaching of empiricism (and interdisciplinarity through empiricism) in law school by not just training “empiricists to communicate with lawyers and legal scholars, but also…building the bridge from the other side.” (P. 192.) To do so, she argues that NLR “must convince legal scholars and practitioners of the value of interdisciplinarity and must ensure they are equipped with the skills and knowledge needed to engage with empirical data and analysis,” leading her to consider changing legal education through “the inclusion of training in empirical methods in the law school curriculum, the adoption of evidence-based inclusive pedagogy, and the integration of social science insights into the explication of legal doctrine.” (Id.)
Taylor Poppe begins by canvassing impediments to greater interdisciplinary integration. And this is something she is quite good at: crystallizing the existing landscape by pulling together different types of materials and showing how they work together to create interlocking barriers. For example, she lays aim at the ABA, which does not promote engagement with empiricism in its accreditation standards, and critiques “the formal and hidden curricula of law school and the dominant pedagogical techniques,” (P. 194) particularly the Socratic method and winner-take-all-exam, arguing that the “continued use of these methods despite awareness of their flaws represents a profound dismissal of empirical knowledge.” (P. 195.) This, along with the rejection of evidence-based policy analysis, results in law school teaching “future lawyers and legal scholars that law stands apart as a discipline, that conclusions about the functioning of law in the world do not require recourse to empirical evidence, and that neither law-making nor legal practice require fluency in methods of empirical analysis.” (Id.)
Responding to this harsh assessment, Taylor Poppe proposes equipping students “with a working knowledge of empirical methods,” focused on understanding research design, being able to “place studies they encounter within a larger methodological context,” and appreciating “how empiricists draw inferences.” (Pp. 196-97.) She further calls for “measures of teaching effectiveness beyond student evaluations,” “linking doctrinal legal education to the realities of legal practice, incorporating bottom-up perspectives on law and legal institutions, de-centering law and increasing attention to the social contexts within which law operates.” (P. 198.) Noting how consigning contextual analyses of law in action to spaces like legal clinics may serve to reinforce the empirical disconnect in doctrinal classes, Taylor Poppe concludes with a helpful analysis of her own efforts to advance an NLR approach to 1L Civil Pro, which consists of “covering those topics that future lawyers are most likely to face in a practice,” (P. 199) reorienting content toward state courts, where most litigation occurs, (P. 200) focusing on “discovery and motion practice” since that is where litigators spend most of their time, (Id.) and situating civil procedure within the broader ecosystem of dispute resolution. (P. 201.) To advance these goals, she proposes providing greater social context for doctrine, assigning materials other than appellate cases, and grounding policy discussions on empirical evidence. (Id.) She concludes optimistically by arguing that the rise of technology, which requires understanding underlying data, may create more space for incorporating empirical approaches—an opportunity strengthened by the perceived crisis in legal education and the rise of “alternative facts,” which make this an important moment to rethink how to better train lawyers to strengthen fact-based discourse and protect the rule of law.
This chapter succeeds in making a targeted intervention that provides useful insights into how law school might change to advance NLR goals. This means that the chapter is not about defending NLR goals as first principles—which could be debated—but rather taking those as a given and asking what can be done. This approach is consistent with the framework of the book she is contributing to. The chapter has a number of strengths, which include a helpful discussion of the NLR literature, the rise of interdisciplinarity in law schools, and how law school shapes student identities. These issues are not novel, but Taylor Poppe puts them together in a compact way that helpfully sets the frame for her recommendations for reform.
I found her analysis of the problems of contemporary legal education useful beyond the arguments she makes about advancing NLR. Specifically, her points about the lack of a systematic evidence-based approach to policy argumentation and teaching were sharp and persuasive, framed in a way that I had not considered before and thus appreciated having read. How can we teach students to make policy arguments in the abstract without grounding them in data? Some of her recommendations about how to incorporate NLR into teaching felt familiar, and some (like contextualizing problems and assigning alternative materials) seemed widespread from my anecdotal knowledge. This did make me want more empirical data about what law professors actually do with regard to interdisciplinarity, which is an interesting future project. In that regard, there is strong evidence of the rise of Ph.Ds in law teaching, particularly at elite schools, suggesting that “social science integration” is already happening at a level never before seen in the legal academy—although this may affect scholarship more than approaches to teaching. The chapter also raised for me the question of what value empirical methods and approaches to legal scholarship give to law students, the overwhelming majority of whom are training for law as a vocation. Thus, it might be the case that, on the one hand, the glass is already half full from an NLR perspective, while on the other, we might be concerned about how far the shift toward interdisciplinarity pulls law schools established to prepare lawyers for practice away from that mission.
As law schools struggle through the Age of Trump with how to teach the basic skill of logical reasoning and fact-based discourse in a context where an increasing number of students do not subscribe to a common knowledge platform, Taylor Poppe’s ideas about the importance of facts and data resonate and deserve to be taken seriously—beyond the ambit of NLR. There are her specific recommendations to improve teaching effectiveness, such as promoting greater attention to evidence-based pedagogy, which are helpful; but for me the most important takeaway was that in an era of greater attention to empiricism in legal scholarship, we need to find ways to use that knowledge to strengthen the essential function of law: to bridge differences and promote shared conceptions of justice. In short, the challenge Taylor Poppe asserts is how an NLR approach could scale up beyond teaching methods and contextualizing specific doctrinal subjects to stabilize the empirical foundations of the rule of law.
Oct 31, 2022 Nora Freeman Engstrom
In Judges and the Deregulation of the Lawyer’s Monopoly, co-authors Jessica K. Steinberg, Anna E. Carpenter, Colleen F. Shanahan, and Alyx Mark make a surprising discovery, with significant implications for the current debate concerning the delivery of legal services.
To understand their paper—and why it’s so important—a bit of background is necessary.
Right now, across the United States, lawyers’ monopoly over the provision of legal services is getting overdue scrutiny—and, in some states, professional lines are in flux. Arizona, Washington, Minnesota, and Utah have licensed legal technicians, essentially nurse practitioners for law. In New York, a nonprofit provider called Upsolve has filed an innovative and well-coordinated legal challenge to curtail that state’s unauthorized practice of law restriction, insisting that the law, as applied, violates the First Amendment. And, in a number of other states, including California, Colorado, Michigan, and North Carolina, policymakers are exploring whether—and how—to welcome new legal service providers into the fold.
In the face of this budding reform activity, critics have rallied to defend status quo, predicting that a parade of horribles awaits consumers and attorneys after the monopoly ends. Some, for example, have called the notion of relaxing unauthorized practice restrictions a “catastrophe waiting to happen.” Others have lamented that deregulation would open the market to “an unsuspecting and ultimately unprotected public [that would then] receiv[e] legal services from unqualified and potentially unscrupulous actors.” Or, as one lawyer put it, while opposing possible (and ultimately, doomed) reforms in Florida: “The opportunity for abuse of the legal system would be made limitless, and legal!”
Embedded within these alarmist predictions are several questionable assumptions. First, critics seem to assume that the civil justice system currently works well for most Americans, and we shouldn’t fix what isn’t broke.
The reality, however, is otherwise.
Our courts are in the grips of an alarming pro se crisis. In state courts, at least one side is unrepresented in an astonishing three-quarters of all civil cases. Our federal courts fare only marginally better. Within the federal system, more than a quarter of claims are filed by pro se plaintiffs, and the majority of appeals are pursued by unrepresented individuals.
Then, below the pro se crisis lies a larger but hidden crisis. That consists of what I call the “lumpers.” These are tenants, debtors, workers, abused spouses, insureds, accident victims, and others who have legal problems but take no action in the face of those problems. They are, therefore, entirely excluded from the civil justice system. The most recent national survey found that only 14% of civil claims “involve courts,” which indicates that as much as 86% of Americans’ legal needs fall into this category. They go entirely unmet.
Summing up this sorry state, the World Justice Project creates a comprehensive rule of law index by assessing countries along various metrics. It ranks the United States 126th out of 139 countries on accessibility and affordability of civil justice. That puts us dead last among countries within our income bracket—and it also places us behind Uzbekistan and Angola, among others.
In addition to (wrongly) assuming that the status quo is tenable, critics of regulatory reform also assume that all legal services today are actually provided by lawyers—that deregulation would be a “catastrophe” because it would involve a sudden and dramatic shift.
Steinberg and her three coauthors show that this assumption is similarly unfounded. After spending two years carefully observing roughly 275 court proceedings involving cases in which petitioners sought domestic violence protective orders, the authors discovered that, if you actually look under the hood of state court processes, we aren’t on the cusp of deregulation; deregulation is already here.
In fact, legal services in domestic violence proceedings have been effectively deregulated for years, thanks to a large shadow network of nonprofit-employed, and Violence Against Women Act-funded “advocates,” who are deeply integrated into the day-to-day operations of courts. These advocates are generally not licensed, regulated, or even formally recognized by state supreme courts or bar associations.
Yet they are effective.
The authors found that, across hundreds of court hearings and spanning three different research sites, nonlawyer advocates offered crucial support to women navigating the labyrinthian system. The advocates drafted court petitions, developed and produced evidence, prepared pleadings, explained legal options and procedural rules, counseled petitioners about how to achieve their goals within the confines of the legal system. Sometimes, they even appeared physically in court.
These findings inform current debates for at least three reasons. First, Steinberg and her co-authors torpedo the notion that status quo involves lawyers providing help exclusively. Nonlawyers already play important roles in civil courts. The question, then, is not necessarily whether lay advocates should or shouldn’t provide legal assistance. It’s whether their help should take place in the open (where it can be scrutinized, licensed, and regulated) or, rather, in the shadows.
Second, Steinberg and her co-authors show that nonlawyer advocates are not necessarily dislodging lawyers. They are, at least sometimes, addressing legal needs that would otherwise go unaddressed. In the courts the co-authors studied, in other words, it wasn’t a question of domestic violence petitioners relying on nonlawyer advocates instead of lawyer advocates; it was a question of domestic violence petitioners relying on nonlawyer advocates instead of proceeding pro se. That, very often, is the relevant question—and that subtle reframing ought to inform policymakers’ assessment of how to move forward.
Third, and most fundamentally, Steinberg and co-authors add to the stock of available evidence concerning the kind of work non-lawyers can perform—and the quality of the services they can render.
This is important, because at the heart of the push toward the deregulation of legal services is a big and brewing question concerning the wisdom of the traditional prohibition on the unauthorized practice of law. “The prohibition against the practice of law by a layman,” the Model Code explained, “is grounded in the need . . . for integrity and competence.” Or, as Steinberg et al. put it: “The basic justification for [lawyers’ professional] monopoly is quality control—that is, only a lawyer is qualified to render counsel and advice to a person with a legal problem.” (P. 1318.) Against that backdrop, scholars have asked for years how services provided by nonlawyers stack up against services provided by their J.D.-wielding counterparts, and whether it’s true that only those with law licenses are equipped to offer high-quality help. As should be obvious, that question looms large because if nonlawyers can furnish at least some legal services with integrity and competence, the flat prohibition on nonlawyer assistance becomes hard—if not impossible—to justify.
Even before Steinberg et al.’s study, the evidence of high-quality lay representation was starting to accumulate.
Decades ago, for example, Herbert Kritzer studied lay representation in Social Security Appeals. He found only a limited gap between the success rates of lawyer and non-lawyer personnel.
More recently, nonlawyers were found to be highly effective at helping pro se litigants in New York City’s Court Navigators Program. In an comprehensive evaluation of the program, Rebecca Sandefur and Thomas Clarke found that tenants helped by a nonlawyer Navigator were 87% more likely than unassisted tenants to have their defenses recognized and addressed by the court. In one of the three pilot projects they studied, not a single tenant helped by Navigators was evicted. In a similar AmeriCorps program in Illinois, 96% of self-represented litigants rated the help they received from non-lawyers as “excellent.” Similarly, in California, 97% of self-represented litigants who were assisted by trained nonlawyers found the service to be “very helpful,” while 95% felt able to prepare and file their own court forms.
Likewise, in child welfare proceedings, studies have found nonlawyers to match—or even surpass—lawyer effectiveness. One of the first empirical studies, from Donald Duquette and Sarah Ramsey in 1987, found that trained lay volunteers and law students, given a special child-welfare training curriculum, were more effective courtroom advocates than lawyers who lacked the specialized training. A raft of subsequent studies have found that lay advocates, such as a court-appointed special advocate (CASA), improved the chance that a child would be adopted and lowered the child’s chance of re-entering foster care.
Enriching this literature, Steinberg and co-authors show that, even when law assistants operate in something of a legal limbo—as they provide legal assistance while being formally forbidden from doing so—they nevertheless operate with loyalty and competence. (P. 1347.) Indeed, advocates are so effective that judges themselves find it hard to imagine court without them. As one judge noted approvingly, advocates “take the weight off of us.” (P. 1338.)
“Judges and the Deregulation of the Lawyer’s Monopoly” is hardly the final word on the wisdom of lawyer deregulation. More research is urgently needed—as we’d benefit from knowing much more about everything from the kind of services lay advocates can provide, to the quality of representation they can offer, to the regulatory framework under which they should operate. But this piece adds yet further evidence that, while lawyers may (still) have a monopoly on the “practice of law,” they haven’t cornered the market on effective or competent advocacy.
Oct 19, 2022 Laurel Terry
In 2021, when the chair of the International Bar Association’s International Trade in Legal Services Committee (IBA ITILS) recommended that our committee prepare an information paper on climate change, my first reaction was, “isn’t this a bit far afield from lawyer regulation and ITILS topics?” After reading the available resources, including Professor Flatt’s article entitled Disclosing the Danger: State Attorney Ethics Rules Meet Climate Change, I became convinced that climate change is relevant to lawyer regulation and that this is a topic that legal ethics and legal profession scholars need to keep on their radar screens.
Professor Flatt, who is primarily an environmental law scholar, serves as the Co-Director of the University of Houston Law Center’s Environment, Energy, and Natural Resources Center. Disclosing the Danger reviews recent climate change developments and provides legal ethics scholars with important perspectives about the intersection of climate change and lawyer regulation issues.
Professor Flatt’s article focuses on Rule 1.6 of the ABA Model Rules of Professional Conduct (Rules), but also discusses Rules 1.2, 1.16, and 4.1, examining lawyers’ confidentiality, disclosure, and withdrawal obligations in situations that involve greenhouse gas emissions. The strengths of this article include its easy-to-understand summary of national and intergovernmental climate change reports and its use of two fact patterns to anchor the legal ethics discussion. In 2014, a lawyer who represented ExxonMobil issued a one-page statement concluding that in the next forty years, there would be minimal risks and cost to ExxonMobil from greenhouse gas regulation. This statement was subject to U.S. securities laws that require disclosures to be truthful. The first hypothetical in Disclosing the Danger asks the reader to consider whether that same short statement could properly be issued today. The second hypothetical examines the obligations of a government lawyer who works for the Environmental Protection Agency and is asked to insert into proposed notice and comment rulemaking a statement that the social cost of carbon is only one dollar per ton. The hypothetical states that the attorney believes that $40/ton is the correct figure and that the $1/ton figure is a misstatement of all available evidence and is contrary to prior government precedent requiring the EPA to examine the costs and benefits for future generations.
When analyzing these two hypotheticals, Disclosing the Danger effectively draws upon both scientific and legal ethics literature. The article suggests that credible arguments can be made that the lawyers would be permitted to disclose confidential client information and might even be required to do so or required to withdraw. (P. 577.) Professor Flatt’s analysis of lawyer confidentiality obligations is consistent with the analysis that applies in other practice areas, such as clients who produce dangerous products.
What is particularly useful in Disclosing the Danger is the application of Professor Flatt’s expertise about climate change to lawyer confidentiality issues. Having access to this type of expertise is important because Professor Flatt predicts that, in the future, the Rules are likely to be viewed as an additional strategic tool by climate change activists. As he explains:
No state supreme courts have yet applied attorney ethical rules to require disclosure of dangerous client activities relating to greenhouse gas emissions. However, given climate activism to reduce greenhouse gas emissions, the ease of filing attorney ethics complaints, and requirements to disclose potential ethical violations of other attorneys, the application of ethical rules to representing greenhouse gas emitters is not only possible but likely.” (P. 575.)
His article concludes with the following admonition to lawyers:
Given that greenhouse gas emissions could trigger attorney ethical responsibilities, it is only a matter of time before attorney ethics rules become another legal tool that climate advocacy organizations use to try and lessen continued greenhouse gas emissions. Practicing attorneys have a duty to stay abreast of relevant ethical rules and their application to the ever-evolving practice of law. The climate activism emerging now, coupled with the recent judicial recognition of the harms caused by climate change and their connection to greenhouse gases, suggests caution. Therefore, attorneys should be aware of this possibility and react accordingly. Whether in the employ of a large multinational firm or the government, ethical obligations exist. This Article reveals the possible coming vulnerability of attorneys for failing to disclose the dangers of client activity related to climate change. (P. 611.)
Professor Flatt’s article provides a thoughtful introduction to a lawyer’s disclosure obligations regarding climate change issues, but it does not provide an exhaustive overview of all of the places in which legal ethics and climate change issues intersect. Fortunately, Professor Flatt (and others) have produced two additional resources that address additional issues.
The first additional resource is a June 2021 (free) IBA webinar entitled Burning Down the House: The Role of Lawyer Regulators in Addressing Climate Change for Domestic and International Legal Services. During this webinar, Professor Flatt and the other panelists discuss issues that include lawyers’ accountability for the clients they represent. On the one hand, ABA Model Rule 1.2(b) states that, “A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.” (Other countries have similar principles.) On the other hand, it has become somewhat common for lawyers to be challenged because of the clients they represent. To illustrate the tension between these two principles, Professor Flatt cited the “naming and shaming” initiative at more than twenty U.S. law schools. As illustrated by their website and Climate Change Scorecards, Law Students for Climate Accountability have asked legal employers to reject representation of clients whose actions are viewed as harmful to the environment. (Additional examples of the tension between these two principles include advocacy efforts following Russia’s invasion of Ukraine and developments outside of the United States.)
A second useful resource is the climate change information paper prepared by the International Bar Association’s BIC ITILS Committee. Although this paper is only five pages long, it notes several areas of overlap between climate change and lawyer regulation. For example, it identifies topics on which lawyers may need to offer climate change advice to their clients in order to provide competent representation. It also suggests that, in the future, law firms might be subject to climate change regulation. After pointing out that climate disclosures are mandatory in the field of finance, the IBA paper observes that climate change activists may argue that law firms should also be required to address the impact of their work on greenhouse gas emissions.
In sum, if you are like me, you might not have previously considered the interplay between climate change and lawyer regulation. Professor Flatt’s Disclosing the Danger article, and the two IBA resources mentioned in this post, have convinced me that the time has come for all lawyers to consider not only how climate change might affect their personal lives, but how it could affect their professional lives and lawyer regulation.
Sep 19, 2022 Elizabeth Chambliss
Do lawyers engage in racial discrimination in client selection? This is the primary question Brian Libgober asks in his article, Getting a Lawyer While Black: A Field Experiment. The article presents a series of field experiments testing private practitioners’ responses to emails from potential clients with Black- and white-sounding names. In the first experiment, based on a sample of 96 criminal lawyers in California, the response rate to emails from Black-sounding clients seeking DUI representation was 19%, compared to 40% for white-sounding clients. (P. 76.) The quality of lawyers’ responses also varied in response to the client race signal. For instance, in response to otherwise identical requests, “Brad McCarthy” received an email describing California law, how it applied to his case, and possible legal strategies, whereas “Darnell Jackson” received one that said only “who referred you?” and another that said “Call our office at XXX-XXX-4DUI for an appointment. YOU HAVE JUST TEN DAYS TO CHALLENGE YOUR SUSPENSION.” (P. 78.)
Though race was the primary factor of interest, the first experiment also found significant differences in lawyers’ responses to client gender, with men receiving 50% more responses than women (37.5% versus 23%) and white men receiving the highest percentage of responses (50%). (PP. 76-77.) Interestingly, signals about client income (around $40,000 versus $80,000) were not significant in the overall sample; however, signaling higher income was significantly harmful for women. The response rate for higher-income women was only 16%, tied for lowest with Black women and Black, lower-income clients. (P. 77.) These income effects are “hard to view as a rational response to incentives.” (P. 79.) The lawyers in the first sample were “mostly white and male.” (Pp. 77-78.)
The second experiment was based on a sample of 899 lawyers in Florida, selected to vary by race, gender, and practice area (criminal, divorce, and personal injury). The second experiment was designed to test whether the racial disparities observed in the first experiment were the result of economic profiling rather than lawyers’ own racial preferences. For instance, perhaps lawyers use race as a proxy for income and are concerned about clients’ ability to pay. Or perhaps lawyers are concerned about third-party racial preferences, such as the preferences of judges and juries. (Pp. 55-56.) Variations among practice areas with different economic risks and incentives might clarify the “mechanisms of racial discrimination in legal markets.” (P. 79.)
Strikingly, however, in the second experiment, client race had no significant effect on lawyers’ responses overall or by practice area. Client race also did not matter significantly more or less to Black lawyers than to white lawyers. (P. 96.) The effect of client gender also was “notably weaker” in the second study. (P. 100.) The race of the lawyer, however, had a significant effect on lawyers’ overall responsiveness. “Black lawyers overall had a significantly higher tendency to respond to client emails, regardless of racial signal. The white lawyer response rate was 25.4%, while the [B]lack lawyer response rate was 34.1%.” (P. 96.)
What should we make of the seemingly inconsistent findings regarding lawyers’ responses to client race?
One possibility is that the findings reflect differences in experimental design. To maximize comparability across practice areas, the second experiment used different email templates and different income signals than the first study (P. 87), as well as different names “that were racially identified to varying degrees” (P. 90.) To investigate the possibility that these design changes affected the results, Professor Libgober conducted a “cross-over” replication exercise among the criminal lawyers, using the California names and template on the Florida criminal lawyers, and the Florida names and criminal template on the California lawyers (both the original sample and a second, fresh sample of 96 criminal lawyers). (P. 99.) The result was the replication of findings from both experiments: that is, significant differences in California lawyers’ responses to Black- versus white-sounding clients (27.1% versus 56.2% in the original sample) but no significant differences in Florida lawyers’ responses. (P. 99.)
What should we make of these findings showing consistent differences between states? Surely California lawyers are not more racist than Florida lawyers? Professor Libgober investigates this possibility using various sources of evidence about racial attitudes in California and Florida, such as voting patterns, attitude surveys, and “list” experiments (arguably a more rigorous form of attitude assessment than surveys). (Pp. 100-101.) He concludes that the evidence “tends to rebut the notion that the white California population might be more racist than one would think and the Florida population less,” and that “our conventional priors seem correct.” (P. 102.) More plausibly, he argues, it may be that the original sample of California lawyers was somehow unusual. The original sample showed the largest race effects under both experimental designs, whereas the results from the second sample of California lawyers were weaker. (P. 99.) Yet there is no statistical evidence of disparities between the two California samples and no reason to treat them separately rather than pool them for analysis. (Pp. 99-100.) (Recall, too, that gender effects also differed between the two states.)
Instead, he argues, a better interpretation of the differences between states is that the market for lawyers is more competitive in Florida, making it more costly for Florida lawyers to discriminate in client selection. He notes that there are “about 20% more lawyers per capita in Florida than California,” and “[t]he oversupply of retail lawyers is probably even greater.” Florida lawyers also earn substantially less on average. (P. 103.) Moreover, the criminal lawyers in California had a specialty certification and were selected for study on that basis, to ensure that a request for DUI representation would be relevant, whereas Florida does not offer specialty certification. In Florida, lawyers were selected through a more labor-intensive process of combing through the state bar directory and lawyer websites to identify lawyer practice areas. (P. 93.) The state-certified California lawyers “are likely more skilled and in higher demand than the typical Florida lawyer in the study” and more likely “to have the luxury of expressing their … personal preferences through client selection.” (P. 103.) (And though he does not discuss it, Black lawyers may be less likely to have this “luxury,” because Black lawyers may be more likely to face discrimination from clients.)
Professor Libgrober tests the market explanation by looking at the Florida data by county to see whether lawyers’ responses to client race vary according to local market conditions and finds that they do. “Although the sample size for this regression is small, because it is tied to the number of counties where there were enough lawyers sampled, the coefficients consistently point in the right direction and are often significant, especially the ones related to wages.” (P. 103.) Thus, he argues that “[w]hile the explanation that [the lawyers in the two states] are different … struggles against our priors and some data, there is a much stronger case that the markets are substantially different.” (P. 102.)
In conclusion, he states that the experimental evidence has “three clear findings”:
First, at least in some geographically defined legal markets, blacks on average have a substantially harder time getting lawyers to respond to their requests for representation than whites. The word “some” is important. Not every sub-population of lawyers appears to discriminate against black-named clients. Even so, there is a replicated experimental finding within one well-defined population where a substantial disparate impact was found, and it is unlikely that this lawyer population is particularly unusual. Second, black lawyers respond to all clients at a higher rate than white lawyers do. Third, there is no evidence that economic profiling drives the selection of black versus white clients. Variation in the kind of risks to the lawyer’s payoff did not lead to any differences in lawyer behavior toward black and white clients; if anything, black lawyers treated black clients more favorably than white clients. There is some evidence that retail lawyers particularly dislike affluent female clients, which is a counterintuitive form of economic profiling to say the least. (P. 104.)
Professor Libgober argues that the main policy implication of his findings is the need to increase market competition by increasing the supply of lawyers. Or, if increasing the overall supply of lawyers proves too “politically unpopular with lawyers,” he suggests focusing on increasing the supply of Black lawyers. (P. 105). He argues that his research provides “an evidence-based rationale” for race-based affirmative action in law school admissions and spends the last part of the article discussing the diversity rationale in affirmative action case law. (P. 106.)
Whatever its merits, this doctrinal punchline does not do justice to the myriad implications of Professor Libgober’s rich experimental research. For starters, his findings have direct implications for current debates about professional regulation, such as the regulation of racial discrimination by lawyers under Model Rule 8.4(g). Model Rule 8.4(g), as recently amended, prohibits lawyers from engaging in “discrimination … in conduct related to the practice of law,” but does not regulate discrimination in client selection. Some argue that it should; and Professor Libgober’s findings could be read to support this view.
His findings also will be of interest to those seeking to expand access to legal assistance in eviction and debt collection matters by providing a civil right to counsel, or empowering trained nonlawyers to offer basic legal advice. The vast majority of defendants in eviction and debt collection matters currently are unrepresented and, in many markets, are disproportionately Black.
To the extent that racial discrimination by private practitioners is a factor, calls for a civil right to counsel and reforming prohibitions against non-lawyer assistance take on an additional urgency with racial justice implications.
More research is needed to assess the prevalence of discrimination by private practitioners in different legal markets, as well as variations among private practitioners by race and gender. This article deserves close attention from researchers and policymakers alike.
Aug 5, 2022 Rebecca Roiphe
Part of what makes David Luban so masterful is his ability to pose a critical question. After reading the first few sentences of his article, Complicity and Lesser Evils: A Tale of Two Lawyers, I immediately wanted the answer. Should lawyers participate in a corrupt or evil regime? Should they try to use their power to mitigate the damage or should they run in the opposite direction, knowing that obedience is support so no matter what they does they will end up responsible for the evil result? The answer to this question matters not only to give government lawyers guidance in the unlikely event that an evil regime takes over, but also to deepen understanding of the role of government lawyers in normal(ish) times.
Another thing that makes Luban so talented as a lawyer, academic, and philosopher is his ability to tell a story. Rather than answering the question he poses with philosophical rumination alone, he recounts the story of two lawyers who worked in the Third Reich. Some questions are hard to answer with logic and reason, citations to cases, or philosophical principle. This is one of them. The result of the story is that, when Luban does return to moral philosophy, its practical import is so clear, its human side so vivid that one hardly notices that it is, in fact, philosophy.
Before he gets to the stories of the two lawyers in the Nazi regime, Luban explains Hannah Arendt’s answer to his question. She is unequivocal: Professionals and functionaries were not useful in reducing the damage of the Third Reich because whatever bad consequences they might have mitigated were outweighed by the way in which their service in normalized the evil regime. There is no way for insiders to insulate themselves from the taint of an evil regime. There is no such thing as mitigation because any assistance lends a veneer of legitimacy to the regime, which is far more valuable than the additional evil acts that might have been accomplished had the lawyer stayed on the side lines. In other words, Hitler’s success rested on the participation of professionals. Had the lawyers and civil servants stayed at home, he never could have accumulated the power and legitimacy necessary to perpetrate the atrocities of his regime. As lawyers went about their daily work, Luban elaborates, they gave Germans the sense that nothing too terrible or unusual was going on. Any individual’s sense of shock was muted by the observation that others were acting normally. And so, by hiding concern and outrage, professionals facilitated the regime.
Luban turns to the biography of two lawyers to test her thesis. Bernard Lösener, the first of the two, started his career as a regional bureaucrat when he was called to serve as a lawyer to the Ministry of the Interior for the Third Reich as a “Jewish expert.” In 1935, he was called to draft the infamous Nuremburg laws. Four drafts ended up in circulation. Lösener fought hard against Hitler’s more radical advisors for the least severe version and he ultimately got his way. While Lösener viewed even his own draft as an outrage, he felt he had won a major victory and took credit for averting a more dire result. By excluding some individuals with mixed heritage from the definition of “Jew,” Lösener claimed to have saved over 100,000 lives. When the atrocities of the Nazi regime became too much for him, Lösener requested a transfer from his post at the Ministry. He was ultimately imprisoned for offering shelter to a couple accused of plotting to assassinate Hitler and likely would have been executed if the war had not ended.
Was he a hero or a villain? Luban explains that Lösener fought to keep mixed marriage Jews from confinement in the ghetto and later prevented some of them from being deported to death camps. But in addition to the Nuremberg laws, he drafted laws that would have ordered the sterilization of individuals with Jewish heritage. Like all of his legal work, he justified this as an effort to avert a worse fate. His friends begged him to keep his post so he could stave off more damage and as he put it, he did so, “even as disgust threated to choke me.”
Luban’s second lawyer is Count Helmuth James Von Moltke. Moltke practiced international business law and much of his private practice involved helping Jews escape Germany in the 1930s. From a famous Prussian military family, Moltke saw himself as part of the opposition. He almost emigrated out of concern that as a lawyer, he was supporting the corrupt Nazi regime, but instead, he joined the government as a civilian adviser on international law. His unit, Abwehr, formed a pocket of resistance—as Luban describes it, an early analog of the deep state. Moltke plotted with an inner circle to plan for a post-Hitler Germany. All the while, Moltke was aware of the regime’s atrocities and like Löesner, he was wracked with guilt over his complicity. Anything short of resistance warranted a share of the culpability. Moltke had the moral conviction that he was obligated to mitigate the evil and to reduce the scope of the criminality. He drafted memo after memo urging the regime to comply with international law. He traveled to urge military leaders not to shoot hostages or prisoners. Moltke was, in the end, executed for his subversive actions.
Moltke had what Luban calls spielraum, discretion to influence events and sway those in power. He asserted his point of view, stood up to authority, insisted on what he saw as lawful and right. Unlike Lösiner, his work was not used to commit atrocities. He may have been complicit for remaining in government or not doing more to resist, but he did not aid the Nazi cause as Lösiner did.
Luban draws on moral philosophy to compare and evaluate the lives and careers of these two men. But in the end, he returns to the question with which he began and concludes that Arendt got it wrong. Staying in an evil regime can be the right thing to do. Particularly, when you can significantly reduce the harm, you retain your moral resolve, and finally when circumstances allow you the power and discretion to do so—spielraum, as Luban puts it—you can make a difference.
Before he presents Hannah Arendt’s view and tells the story of the two lawyers, Luban offers a parable that sounds familiar. A lawyer has been asked to draft a controversial law on immigration for an unprincipled leader. We later learn that he is describing Lösiner but he intentionally makes it sound as if it could be a principled conservative lawyer in former President Trump’s administration. Luban is not speaking in the abstract but rather bringing lessons learned from Nazi Germany to bear on the present. He makes it clear, of course, that he is not drawing an equivalence between Trump and Adolf Hitler. Instead, he makes a modest claim that lawyers and civil servants in these two regimes faced a similar dilemma. Many of them struggled with the question of whether to stay and mitigate the damage or refuse to participate.
While Luban’s comparison is illuminating, it has its limits, as he acknowledges. Luban anticipates and answers the objection: If Arendt is wrong and professionals could make a meaningful difference even in Nazi Germany, then the same must be true in a less evil regime, like Trump’s. As he promised, the narratives of the two German lawyers prove not only useful but enlightening despite the many dissimilarities. Returning to the difference between Nazi Germany and the Trump administration, however, might add to our understanding. It seems that the nature and degree of illegality and the relative evil of the regime within which the professional is asked to serve must also play a role in the analysis. Perhaps Arendt reached her conclusion, with which Luban ultimately disagrees, because Nazi Germany was such an extreme example.
Luban limits the scope of his observations, explaining that they only pertain to lawyers in abnormal times, but it seems to me there are lessons to be learned for government lawyers in normal times as well. Even decent leaders can do bad things. Illegal and destructive policies are not the sole province of dictators and demagogues. I take a broader moral from Luban’s story, which is that there is always some room around the edges for lawyers to exercise influence: through counseling, protest, mitigation, or even stepping down in the face of unjust power. However, the desire to stay in the room—to be relevant and powerful—should never supplant lawyers’ professional judgment and obligation the rule of law. Because it is easier to make excuses and invent rationalizations when the stakes are lower, losing sight of this may be an even greater danger in normal(ish) times than it is when evil takes over.
Jul 7, 2022 W. Bradley Wendel
Scott Cummings’s new book, An Equal Place: Lawyers in the Struggle for Los Angeles, tells five different stories illustrating the role of law and lawyers in securing goods such as economic justice, environmental protection, and the rights of immigrants, in the city of Los Angeles in the years following the 1992 riots. The book is organized around chapters providing comprehensive histories of these campaigns: Reforming sweatshop labor in the garment industry; contesting anti-solicitation ordinances that restricted the ability of mostly Latino day laborers to obtain employment; ensuring living-wage jobs in the wake of gentrification and community redevelopment projects; blocking the development of a Wal-Mart supercenter that would have undermined unionization in the grocery industry; and improving labor and environmental conditions for truck drivers at the Ports of Los Angeles and Long Beach.
In his most recent Netflix special, all-time-great comedian Chris Rock observes: “[W]hen you’re in a band, you have roles that you play in the band. Sometimes, you sing lead. And sometimes, you’re on tambourine. And if you’re on tambourine, play it right. Play it right. Play it with a . . . smile, because no one wants to see a mad tambourine player.” Rock uses this as an extended metaphor for relationships, but at the risk of wrenching it too far out of context, the comparison can also apply to the role of public interest lawyers in social movements. Some lawyers may aspire to be the lead singer, but the interests of justice may be better served by lawyers playing a supporting role, and playing it well.
In these chapters, lawyers and the establishment and enforcement of individual rights play at most a supporting role. The law may be of central importance in structuring the opportunities for exercising leverage to achieve a desired outcome, but this may be in the form of a state of local ordinance or a federal policy already in place, not the outcome of lawyer-led litigation. In short, the lead singer in the long struggle to make Los Angles a more equal place may be a community organizer or a coalition of local advocacy groups, with lawyers playing tambourine. Cummings’s title is actually a play on words, indicating that lawyers may, and arguably should, have to get used to not being the leaders in the struggle for social justice. There may be only an equal place for lawyers, and that may be a very good thing, given that the roots of economic inequality are mostly structural and not the sorts of problems that can be addressed by adding or applying legal rights here and there.
As we know, lead singers aren’t always well behaved. In an influential critique of the involvement of lawyers in movements for social change, Derrick Bell envisioned public interest lawyers as caught between the interests of their clients and social movement goals. One of the fundamental ethical ideals informing the lawyer’s role is client autonomy. Lawyers are agents, duty-bound to pursue the lawful objectives of their principal. Social-movement lawyers, however, may feel a stronger allegiance to the interests of a group or wider policy objectives. In pursuit of equality for all, lawyers may be tempted to sacrifice or downplay the interests of their clients. It would be a deeply ironic outcome for lawyers who claim to be motivated by the desire to rectify imbalances of power in society to act in ways that systematically disempower their clients.
I use the term social-movement and public-interest lawyers advisedly here, knowing there is a longstanding debate over how to define public-interest lawyering. For example, what about lawyers who represent classes of claimants in consumer-protection or product-liability litigation, or lawyers who represent individual plaintiffs in employment-discrimination or constitutional-tort cases? Highly compensated plaintiffs’ lawyers may plausibly see themselves as working in the interests of social justice. Then there is the issue of viewpoint: Do conservative legal organizations, such as the Pacific Legal Foundation and the Alliance Defending Freedom, count as public-interest groups? They recognize that the idea of public-interest lawyering is contestable, but the core of the concept includes serving those individuals and groups who are shut out of the private market for legal services and seeking to advance the collective interests or political position of some defined group or constituency, whether liberal or conservative. The debate over the public-interest title shows that public interest lawyers claim a distinctive normative vision, in which the actions of lawyers are not justified on conventional, neutral-partisanship grounds – that is, by the promotion of the objectives of clients, whatever they happen to be.
The involvement of lawyers in social movements presents an additional risk, summed up by the cliché that every problem looks like a nail if all you’ve got is a hammer. Lawyers are trained and socialized to employ the tool of litigation, seeking to establish legal rights through judicial decisions. The mythology of the Civil Rights movement centers on the Brown v. Board of Education decision, the culmination of years of carefully planned litigation by the NAACP Legal Defense Fund. As historians and political scientists have argued, however, the role of courts in political and social change is relatively limited. Many problems facing marginalized communities, such as lack of economic opportunities, cannot be effectively and comprehensively addressed by adjudication and the establishment of new legal rights. Despite the enduring mythology of the Warren Court, which historian Laura Kalman has claimed remains almost a cult among law professors, the entire project of legal liberalism, in which courts serve as the engine of large-scale social change in the direction of greater equality, now appears to be in disarray. The conservative retrenchment of the Roberts Court, including “new Lochner” assertion of constitutional rights to advance a deregulatory agenda on behalf of business interests, is one factor in the disenchantment of progressives with the Supreme Court. However, public-interest lawyers have adapted to the reality in which social justice may not be best served by the creation or enforcement of legal rights through litigation, and the training of these lawyers now emphasizes skills such as negotiation and community organizing.
The theoretical framework of the book is a comparative institutional analysis, in which litigation strategies are understood as complementary with political and other nonlegal alternatives. The broader objectives of a movement may be served by court decisions, rulemaking, legislation, or social changes, such as the establishment of new norms or changes in attitudes. Cummings usefully reorients the analysis around specific campaigns, considering the role of lawyers only secondarily. In some of these campaigns, lawyers themselves were mostly content to assume a secondary role in these campaigns. In others, however, the limits of a litigation-centered strategy revealed themselves. For example, in the campaign to secure equal rights for day laborers, the Mexican-American Legal Defense and Education Fund (MALDEF), filed a lawsuit seeking to recognize day-labor solicitation as protected commercial speech under the First Amendment. This litigation culminated in a victory in the Ninth Circuit, but the victory was narrow, and many municipalities reacted by simply passing new anti-solicitation ordinances which circumvented the Ninth Circuit’s ruling. The problem of abusive labor practices also persisted, even if day laborers did enjoy expanded rights to solicit employment.
One of the book’s strengths is the depth and detail in which Cummings treats each of the episodes he studies. The payoff for a patient reader of each of these case studies is an appreciation of the limits of legal liberalism. Consider, for example, the problem described in Chapter 4 on the redevelopment of the Figueroa Corridor in the vicinity of the Staples Center. The city government had decided to enter into public-private partnerships with real estate developers to transform a working-class neighborhood into a glitzy sports and entertainment hub. Community groups and labor advocates sought to ensure that the economic benefit of the Figueroa Corridor development would not go only to the developers, but would also provide sustainable employment for local residents. Community organizing and coalition building resulted in the nation’s first Community Benefits Agreement, under which the developer agreed to enter into written contracts incorporating public benefit terms, such as affordable housing, neutrality on labor organizing campaigns, green space, local hiring, and living wages. State and local permitting and approval processes provided avenues for community groups to oppose the redevelopment project, but informal action such as protests and public relations efforts provided further leverage on the side of the coalition in its negotiations with the developers. The result of the negotiations was an unprecedented agreement in which the community organizations agreed not to oppose the project in exchange for the developers meeting community employment, wage equity, housing, and environmental goals. (Pp. 185-87.)
Lawyers were involved in the negotiations and contract drafting associated with the Community Benefits Agreement, but they played a supporting role, providing technical expertise while the process of setting the agenda and defining the goals of the campaign were left in the hands of members of the affected community. As Cummings argues in his concluding chapter, there are considerable benefits to lawyers who are willing to play tambourine. Lawyers who have an equal place alongside community activists and organizers are more likely to serve collectively determined goals, as distinct from the objectives lawyers themselves may bring to the representation. (P. 481.) More theoretically, “rights-based legal mobilization was especially prone to reinforce the legitimacy of liberal individualism in ways that conflicted with deeper equality claims.” (P. 484.) The Figueroa Corridor campaign emphasized not right as such, but equality of access to opportunities to obtain jobs with fair labor standards and living wages. In addition, social change brought about through mechanisms other than litigation may prove more durable and legitimate in the long run. (P. 483.) Litigation was an ever-present threat, structuring the negotiated resolution of the controversies described in the book. (P. 487.) But agreement reached in the shadow of the law may prove to be more sustainable than court-ordered reforms.
As much as lawyers may have enjoyed their brief moment of public acclaim as heroes of the resistance to the travel ban, economic and social inequality is highly resistant to solutions that take the form of court decisions vindicating individual rights. An Equal Place is a welcome corrective to the liberal legal mythology running from the Civil Rights Movement and the Warren Court into the present. Successful, sustainable social change requires cooperation, organization, and creative synthesis of the contributions of many different professional disciplines. Lawyers may be indispensable members of the band, but they should not always sing lead.
