Do Bar Exam Waivers Hurt Lawyer Quality?

May 16, 2025 Scott CummingsAdd a Comment

Scott Cummings

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.

Stopping the Zombie Apocalypse

Apr 16, 2025 Rebecca RoipheAdd a Comment

Rebecca Roiphe

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.

Who’s Here? How U.S. Law Schools Understand Their International Students

Mar 17, 2025 Carole SilverAdd a Comment

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 1^st year of the pandemic) and 3% or more since 1992.¹ 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.² Between 2012 and 2021, for example, nearly 60,000 unique individuals obtained a visa to study in an ABA-approved law school.³ 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.⁴

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.⁵ 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?⁶

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.⁷ 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,⁸ 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.⁹ 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.

1. IIE, Open Doors International Student Data, Enrollment Trends.
2. Carole Silver, Internationalizing U.S. Legal Education: A Report on the Education of Transnational Lawyers, 14 Cardozo J. of Int’l & Comp. Law 143, 147 (2006).
3. Carole Silver and Ritika Giri, Diasporas in Global Legal Education, in Bryant Garth and Swethaa Ballakrishnen, eds., Edward Elgar Research Handbook on Global Legal Education (forthcoming).
4. Carole Silver and Ritika Giri, “Is Post-Graduate Legal Education in the U.S. Still Globally Attractive? Using the past to consider the future: international law students 2012-2021,” presented at AALS Annual Meeting (1.10.2025).
5. IIE Open Doors, All Places of Origin, Historical Data; IIE Open Doors, Academic Levels and Places of Origin, Historical Data.
6. In earlier research with Swethaa Ballakrishnen, we identified a group of students who held Canadian citizenship but were born in China. We perceived differences between these students and Chinese and Canadian students who had been born and held citizenship in China and Canada, respectively. Carole Silver and Swethaa S. Ballakrishnen, International Law Student Mobility in Context, in Bryant Garth and Gregory Shaffer, The Globalization of Legal Education (2022), 476, 492, n.45.
7. But see Carole Silver, Agents of Globalization in Law, LSAC Research Report (2009), at 7 (available upon request)(international law graduates’ reporting on funding).
8. The New York State Board of Law Examiners, NYS Bar Exam Statistics, Annual Pass Rates 2004-2024; National Conference of Bar Examiners, “Law School Outside the USA”.
9. ABA Section of Legal Education and Admissions to the Bar -> Resources -> Questionnaires & Applications -> Annual Questionnaire -> Complete 2024 AQ Instructions -> Part II. Admissions and Enrollment (“The ABA no longer treats U.S. Nonresident as a separate category. Please enter your Law School’s students, regardless of citizenship status, using the other categories. Continue to enter Hispanics of any race and Race/Ethnicity Unknown before other categories.”).

Seeing the Unseen: Procedural Solutions in Plain Sight

Feb 20, 2025 Melissa MortazaviAdd a Comment

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.¹⁰ 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.¹¹ 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,¹² 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.

1. Abbe R. Gluck & Elizabeth Chamblee Burch, MDL Revolution, 96 N.Y.U. L. Rev. 1, 13-14 (2021).
2. See James F. Humphreys Complex Litig. Ctr., George Washington L. Sch., Inclusivity And Excellence: Guidelines And Best Practices For Judges Appointing Lawyers To Leadership Positions In Mdl And Class-Action Litigation 2-4 (2021).
3. See Roger Michalski, Ethics by Appointment: An Empirical Account of Obscured Sanctioning in MDL Cases, 74 Hastings L. J. 1373 (2023), noting the idiosyncratic underutilization of Federal Rules of Civil Procedure 11, 26(g), and 37; Federal Rule of Appellate Procedure 38; 28 U.S.C. §§ 1927 and 1447( c) in MDL cases.

New Kid No Longer: Tracing Legal Ethics’ Growth and Charting its Future

Jan 29, 2025 Amy SalyzynAdd a Comment

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.¹³ 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.¹⁴ 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.¹⁵ 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 20^th 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.

1. Us Canadians claim a 1990s birthday! See, Adam Dodek, Canadian Legal Ethics: A Subject in Search of Scholarship, 50 U. Toronto L.J. 115 (2000).
2. For those unfamiliar with the term, the Standard Conception “is constituted by three value claims: (a) to neutrality, meaning a commitment to moral detachment regarding the client’s objectives; (b) to partisanship – whereby lawyers are obligated to advocate for the client, to the limits of the law, and (c) non-accountability. The latter follows the former, so that, if the proper conditions of neutrality and partisanship are met, then lawyers are not morally accountable for the outcomes of their advocacy.” (P. 3.)
3. In providing this framing, I have the same caveat that Webb and Nicola Hard provide in the book’s Introduction, “this is not to say that philosophical legal work…[has] been blind to questions of ethics in practice.” (P. 20.)

Should Lawyers be Accountable for their Clients?

Dec 12, 2024 Robert GordonAdd a Comment

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.

Evidence-Based Innovation: Criteria for Evaluating Lay Legal Assistance Programs

Sep 24, 2024 Elizabeth ChamblissAdd a Comment

Elizabeth Chambliss

It is an exciting time for access to justice and access to justice research. Jurisdictions around the country are experimenting with new models for expanding access to legal assistance by training nonlawyer advocates and advisors to provide limited legal services in areas of high unmet need. Such models range from for-profit programs for specially trained paralegals to not-for-profit community-based programs using a variety of staffing models.¹⁶ Research on such programs is growing and becoming more organized, rigorous, and impactful.¹⁷ Finally, after decades of resistance to new categories of providers, regulators are beginning to pay attention to evidence about the limits of the lawyer-only model and possible benefits of expansion.¹⁸

The question now is, how are these programs working? And what should be the criteria for assessment? How might we move beyond case-by-case, after-the-fact program assessment based on the number of intakes and outcomes and incidents of demonstrable harm, toward a more robust, comparative framework for research? Two new articles tackle these questions by proposing specific evaluative criteria, measurement strategies, and sources of data to guide researchers and policymakers in program evaluation and design.

In Measures of Justice: Researching and Evaluating Lay Legal Assistance Programs, Tanina Rostain and James Teufel draw on assessment methods in healthcare and social services to define and compare three criteria for measuring the quality of legal services: “fidelity,” which measures providers’ adherence to preestablished work standards and procedures (P. 1491); “harm avoidance,” which focuses on consumer protection from specific harms in commercial contexts (for instance, bad results, unintentional default, and unnecessary purchases) (P. 1493); and “effectiveness,” which compares the services of different providers based on the user’s goals and experiences. (P. 1495.)

The promotion of a user-centered approach to assessment is a defining feature of both papers and marks an important shift from focusing only on providers’ perspectives. “Effectiveness” from a user perspective is measured not only by the legal outcome but also by the visibility and accessibility of the service; the timing of service (for instance, prevention versus crisis intervention); user trust in and the approachability of providers; and how users are treated by formal institutions such as agencies and courts (i.e. procedural justice). From a user perspective, Rostain and Teufel argue that the co-location of legal and adjacent services may be especially effective for increasing visibility, trust in providers, and “upstream” intervention, as illustrated by the widespread success of medical-legal partnerships. (P. 1498.)

Rostain and Teufel also define and compare various measures of program impact, with a focus on measures of interest to funders, such as financial and social return on investment, which measure monetary costs and benefits, and “cost effectiveness,” which includes measures of nonmonetary benefits such as well-being, employability, and perceptions of fairness. (P. 1504.) They conclude by calling on providers and regulators to define evaluative goals and measures as a component of program design:

Rather than an exercise after-the-fact, evaluation needs to be built into the design of innovations to capture the goals new models are intended to further…. The time for the American legal profession to develop an evidence base for its institutions and practices is long overdue. (P. 1507.)

In addition to designing for program “effectiveness,” Matthew Burnett and Rebecca Sandefur urge providers and regulators to design for “scalability” and “sustainability.” (P. 1529.) Based on a review of contexts in which lay legal assistance has long been allowed—immigration matters, Tribal courts, and jailhouse lawyering—as well as a variety of recently-approved community justice worker programs, A People-Centered Approach to Designing and Evaluating Community Justice Worker Programs in the United States defines effectiveness, scalability, and sustainability as the three core criteria for evaluating such programs; explains how each can be measured; and provides a detailed appendix linking research questions to specific sources of data. Burnett and Sandefur illustrate their framework by comparing programs on a series of measures related to the criteria they propose.

The focus on scalability is a key contribution of the paper.¹⁹ Regulatory barriers to nonlawyer assistance have led to mostly hyper-local, hyper-regulated pilot programs with significant barriers to entry and expansion. Only recently has the demonstrable effectiveness of trained lay providers in various contexts begun to penetrate the bar’s default resistance to new categories of providers, and many regulators remain skeptical. But while against this backdrop any move to expand effective assistance is exciting, locally handcrafted programs can be hard to scale. Thus, even as regulatory approval remains an important hurdle, Burnett and Sandefur urge providers and regulators to think beyond the threshold question of effectiveness and design programs for scale. As they argue:

Effective services alone cannot address the enormous justice gap unless they can scale to serve as many people as possible over the long term. Scalability involves increasing the impact of the activity while maintaining or increasing its effectiveness…. (P. 1530.)

In assessing programs’ potential for scaling, Burnett and Sandefur identify four barriers that must be overcome: barriers to entry, barriers to replication, barriers to learning, and barriers to funding. Barriers to entry are “what is required to engage in the authorized activity.” (P. 1531.) For instance, programs that require lengthy upfront training and individual authorization of each provider (such as Washington States’s now-sunset Limited Legal License Technician program)²⁰ will be harder to scale than programs that authorize supervising organizations to iteratively train and insure the competence of providers (such as Alaska’s Community Justice Worker program).²¹ Barriers to replication are “what is required to replicate the program with fidelity to its original design and implementation.” (P. 1531.) For instance, state-level programs are harder to replicate than federal and Tribal programs due to state variations in unauthorized practice of law (UPL) regulation and rulemaking.

Barriers to learning are “constraints on experimentation and producing new knowledge.” (P. 1531.) Burnett and Sandefur emphasize the potential for community legal assistance programs to increase “people’s capability to engage with their own law” and argue that community learning should be a central goal of such programs. (P. 1528.) Regulators can encourage learning by authorizing experimentation by supervising organizations and requiring data collection and assessment as a component of program design. Here again, delegating authority to supervising organizations can increase scalability by allowing adaptation and expansion based on ongoing assessment.

Barriers to funding are what they sound like. As Burnett and Sandefur acknowledge:

Nearly all civil legal services programs and models face funding barriers, particularly in contexts such as the United States, where state and federal government funding for lawyer-based legal aid is inadequate to support programs of sufficient size to meet actual needs. Moreover, the traditional approach by philanthropic donors is often fragmented and project specific and relatively short-term rather than in the form of long-term operational support. (P. 1534.)

But while all efforts to expand legal assistance face funding constraints, Burnett and Sandefur identify three promising funding models that have emerged. The first is to allow supervising organizations to charge nominal fees (as is allowed by statute in the immigration context).²² Some programs that prohibit providers from receiving direct compensation from clients nevertheless allow compensation to supervising agencies (such as Delaware’s Qualified Tenant Advocate program).²³ Another promising model is cross-subsidization, whereby justice workers are embedded in and paid by community organizations rather than the supervising organization (such as in Arizona’s Domestic Violence Legal Advocates program).²⁴ A final model is to allow justice workers to work for profit and charge clients directly (as is allowed under the supervision of the Utah Regulatory Sandbox).²⁵ Though there are obvious limits to a for-profit model for serving low-income clients and communities, some types of limited legal services may be marketable at low cost.²⁶

The final criterion in Burnett and Sandefur’s evaluative framework is sustainability, which refers to program “durability and resilience.” (P. 1536.) They identify four components of sustainability: diversity of funding streams; staff recruitment and retention; community engagement; and political support from the bar, legislatures, courts, and the public. Funding, community engagement, and political support are relatively self-explanatory and only partly within designers’ control, though Burnett and Sandefur point to several strategies that specific programs have used with success.

Staff recruitment and retention, however, are critical components for scaling and sustaining lay legal assistance programs and “have not historically been prioritized in program design and development.” (P. 1538.) The process of seeking regulatory approval tends to be onerous and time consuming and focused on ensuring effectiveness. But regulatory approval is just the first step. Once a program is authorized, it must be staffed, which requires workforce development and training and attention to worker retention and wellbeing. As Burnett and Sandefur acknowledge, we have little data on effective strategies for justice worker recruitment and retention, except that it helps to keep entry barriers low. It is also important to ensure community representation among justice workers, ideally including during program design. Burnett and Sandefur identify the Alaska Community Justice Worker program as a model in both respects but note that more research is needed. Staffing is also a persistent problem in legal aid offices staffed by lawyers, especially in rural locations.²⁷

Three broad takeaways emerge from among the many specific contributions of these complementary articles. The first is the importance of adopting user-centered measures of effectiveness that consider not only the quality of service but also the ease and timing of access and user trust in providers. Here the profession and regulators should build on established models for assessment in related professions such as health and social services. The second is the significant benefit of working through existing legal aid and community organizations to train and supervise justice workers, rather than regulating individual providers. The U.S. profession has resisted entity regulation of legal services, in contrast to most comparable countries, which limits the models for service delivery in both the for-profit and nonprofit sectors. Scaling civil legal assistance depends on rethinking our uniquely individualistic approach. Finally, staffing is a persistent challenge, and we need models for workforce development, both through collaboration with related providers and through community-based recruitment.

Taken together, these articles contribute significantly to defining shared criteria and measures for evaluating legal assistance programs and identifying an action agenda for providers and regulators working to improve access to justice.

1. See Michael Houlberg & Janet Drobinske, The Landscape of Allied Legal Professional Programs in the United States, Institute for the Advancement of the American Legal System (2022), (surveying the landscape).
2. See, e.g. ABF’s Access to Justice Researchers Join in $1 Million Grant from the National Science Foundation, Sep. 21, 2023, (announcing a $1 million research grant to study the Alaska Community Justice Worker Program).
3. See Elizabeth Chambliss, Evidence-Based Lawyer Regulation, 97 Wash. U. L. Rev. 297 (2019) (discussing the increasing legal and political pressure for evidence-based regulation).
4. See also Matthew Burnett & Rebecca L. Sandefur, Designing Just Solutions at Scale: Lawyerless Legal Services and Evidence-Based Regulation, 19 Direito Publico 102 (2022) (discussing the importance of scalability in designing “lawyerless” models for legal assistance). “Around the world, billions of people lack access to justice, often because they cannot access help in resolving their justice issues. An important reason for this is that many access models rely centrally on lawyers, and such models simply cannot scale.”
5. See Wash. Admi. And. Prac. R. APR 28 (authorizing specially trained paralegals to offer limited fee-paid legal services). The program required a paralegal degree, 45 credit hours of law school coursework, the passage of three exams, purchase of malpractice insurance (which is not required of Washington state attorneys), and 1,500 hours of supervised practice by a licensed attorney. Id. The law school training was offered at one school, once a year, with limited capacity, “and outside the standard offerings eligible for financial aid.” Thomas Clarke & Rebecca L. Sandefur, Preliminary Evaluation of the Washington State Limited License Legal Technician Program, Mar. 2017. (Pp. 6-8.)
6. See Alaska Bar. R. 43.5 (authorizing a broad waiver of UPL restrictions for the Alaska Legal Services Corporation (ALSC), to train and supervise Community Justice Workers to offer limited legal service). The waiver allows ALSC to expand the services provided as the program develops, in partnership with the Alaska Native Tribal Health Consortium (ANTHC) and the Alaska Pacific University (APU). N.Y.U. Ctr. on Int’l Cooperation, The Native Health Partners Ensuring Justice for People in Alaska, MEDIUM (Oct. 2, 2020).
7. See 8 CFR §292.2(a)(l) (allowing recognized organizations to charge nominal fees to help supplement other sources of funding).
8. See Delaware Supreme Court Rule 57.1; Delaware Senate Bill Qualified Tenant Advocates; (authorizing trained lay advocates to represent tenants in eviction cases).
9. See Arizona Supreme Court Administrative Order No. 2020-88 (authorizing domestic violence advocates employed by the Emerge! Center Against Domestic Abuse to provide limited legal services to domestic violence survivors); Arizona Supreme Court Administrative Order No. 2023-21. (authorizing the expansion of the program to include other community-based organizations).
10. Our History, Utah Off. of Legal Servs. Innovation, (last visited June 24, 2024) (allowing both for-profit and not-for-profit organizations to seek waivers of UPL prohibitions, subject to a risk assessment of possible harm to consumers and ongoing monitoring).
11. See Elizabeth Chambliss, Marketing Legal Assistance, 148 Daedalus 98 (2019) (urging providers to design flat-fee, standardized products targeted to consumers’ discrete legal needs).
12. See, e.g., Damian Dominguez, S.C. Legal Services Closing its Greenwood office, Index-Journal, Jun. 27, 2024, (reporting that South Carolina Legal Services, the only state-wide legal aid provider, was forced to close its Greenwood office due to staffing shortages).

How the Conservative Legal Movement Gave First Amendment Rights to Corporations—and Why It Matters Now

Jul 26, 2024 Scott CummingsAdd a Comment

Scott Cummings

Ann Southworth is a pioneering scholar of the conservative legal movement. Her 2008 book, Lawyers of the Right: Professionalizing the Conservative Coalition, offered path-breaking insights into the evolution of the movement, charting its origins, features, and fractures. Her new book, Big Money Unleashed: The Campaign to Deregulate Election Spending, is a worthy—and timely—successor that explores one facet of what the movement has achieved. In it, Southworth examines the decades-long legal campaign to transform the First Amendment into a vehicle to enable unfettered corporate influence in politics. This campaign culminated in the 2010 Supreme Court case, Citizens United v. FEC, which gave corporations the right to spend unlimited amounts on candidates for political office, overruling precedent to strike down a critical provision of the Bipartisan Campaign Reform Act 2002 (BCRA), otherwise known as the McCain-Feingold law.

Southworth’s aim is not to explain or defend the doctrine resulting from this campaign, but rather to uncover the “process that generated” it. (P. 2.) She does so by analyzing “how lawyers and other key actors worked with the justices to create that law, borrowing a litigation strategy pioneered by the NAACP Legal Defense Fund to dismantle racial segregation and using it to advance a very different type of cause.” (P. 2.) Southworth mobilizes a trove of primary research, which includes data on the political alignments and financial supporters of organizations filing briefs in Roberts Court campaign finance cases (Citizens United (2010), Arizona Free Enterprise Club v. Bennett (2011), and McCutcheon v. FEC (2014)), language analysis of arguments in briefs filed in twelve Supreme Court cases since the 1970s, and interviews with fifty-two lawyers who participated on both sides of the campaign. It is a testament to Southworth’s careful scholarship and status as a scholar both sides respect that she was able to gain access to lawyers on this deeply polarizing political issue.

The result is a rich and penetrating account of how lawyers on the right mobilize law for social change in contemporary America, using a playbook honed by left-wing organizations during the Civil Rights Era to weaken progressive causes and political power. It is a story about legal strategy and tactics, as well as about how they intermesh with larger framing battles to transform public attitudes. In this regard, as Southworth puts it, the “challengers” of campaign finance law “characterized the controversy as a fight between elites, who sought to limit political expression, and ordinary Americans who needed greater freedom to speak about elections—notwithstanding that some of these lawsuits challenged limits on contributions and spending that far exceeded amounts that fit the budgets of most ordinary Americans.” (P. 8.) It is the tension between the campaign’s publicly proclaimed goals—helping “ordinary Americans”—and its consequences—“unleashing” corporate money in politics—that forms the book’s central storyline.

Lawyers are not the only protagonists in this story, but they play critical roles. In Part One of the book, Southworth rigorously documents their roles through each phase of the campaign, which unfolded through a legal-political network that gradually shifted focus from early efforts to reduce barriers to restrictions on nonprofit election advocacy to a full First Amendment assault on corporate spending restrictions, successfully equating money with “speech.” It begins in the 1970s, when “entrepreneurial scholars and lawyers developed some of the ideas necessary to create new constitutional law” (P. 22), centered on pamphlets drafted by Yale’s Ralph Winter published by the American Enterprise Institute, supplying “the foundational arguments” to challenge the constitutionality of the Federal Election Campaign Act (FECA). (P. 35.) These pamphlets, alongside Martin Redish’s 1971 law review article arguing that campaign finance deregulation promoted the “needs of an effective democracy,” provided intellectual inspiration for the 1976 legal challenge to the FECA in Buckley v. Valeo, which upheld limitations on contributions. This suit was partially funded by Charles Koch, who had a personal interest in wanting to make a large contribution to the Libertarian presidential candidate and urged business leaders to join his fight for “restoration of the free market.” (P. 43.)

Although these early legal efforts were not “particularly partisan” (P. 22), they grew increasingly so as politics became more polarized and big money fundraising took on greater significance to both the Republican and Democratic Parties. Against this backdrop, Southworth documents how the legal attack on campaign finance regulation “developed a more coordinated and incremental approach” modeled on Brown, repackaging “ideas about the meaning of the First Amendment for a lay audience, working with politicians and media figures to popularize those ideas.” (P. 22.) After the 1995 introduction of a comprehensive campaign finance reform bill in Congress, the Federalist Society launched its Free Speech and Election Law Practice Group. The group published newsletters featuring Senator Mitch McConnell, who viewed campaign finance regulation as “a threat to the fractious Republican coalition and its fundraising strategies” (P. 51), and James Bopp, Jr., a conservative antiabortion lawyer from Indiana, who criticized the Federal Election Commission for the “20-year war it has waged on the First Amendment” for prosecuting the Christian Coalition for election violations. (P. 58.)

Bopp is a pivotal figure in the campaign to challenge campaign finance laws. An Indiana Law School graduate and general counsel of the National Right to Life Committee, Bopp turned toward campaign finance litigation to expand the influence of socially conservative nonprofit groups advocating against abortion and same-sex marriage. Toward that end, in 1997, he started the James Madison Center for Free Speech, which received funding from the Republican National Committee and right-wing foundations sponsored by the Devos, Pope, and Mercer families. (P. 64.) Southworth explores the puzzle of how Bopp, a social conservative committed to the antiabortion cause (who would later mastermind the successful attack on Roe v. Wade), became chief architect of Citizens United, representing the nonprofit group in its effort to air Hillary: The Movie, a tendentious portrait of Clinton due to air right before the 2008 election. Citizens United could not qualify for an exception to the BCRA’s electioneering provision because it had received too much for-profit corporate funds. Accordingly, it offered a vehicle for directly challenging restrictions on corporate spending. In advancing this case, Bopp used some inflammatory arguments, emphasizing in lower court that Hillary: The Movie was the “functional equivalent of a book” and that if the government could restrict the movie it could “engage in high-tech ‘book burnings’ without restriction,” an argument echoed by Ted Olson (George W. Bush’s Solicitor General and lead marriage equality lawyer) when he took over on appeal, and by Justices Alito and Kennedy in oral argument (P. 77)—despite the fact that restricting books was not at issue in the case.

Southworth states that Bopp viewed Citizens United as a vehicle for achieving his primary aim, which was “overturning the BCRA’s disclosure requirements, so that his clients could run ads without including a disclaimer indicating who paid for the communication.” (P. 106.) From this perspective, the case was conceived as one designed to promote unaccountable corporate influence to advance right-wing causes. In this sense, it became a Trojan Horse for broader conservative agendas. Southworth (drawing on Mary Ziegler) suggests that Bopp decided to push the bigger argument in Citizens United—that it was unconstitutional for Congress to limit corporate spending in any way—as part of a tacit bargain with the Republican establishment, which had grown squeamish about the politics of abortion, to ensure party support for nominating judges to the Supreme Court committed to overturning Roe. (P. 108.)

Citizens United also proved to be the genie in a bottle: unleashing not only money but an expansive set of ideas about free speech that morphed in dangerous undemocratic directions. One of the most compelling questions raised by Southworth’s account is how much we should hold lawyers like Bopp accountable for the consequences of extending the First Amendment to corporate political spending. These consequences were not merely doctrinal: they included public reframing of corporate deregulation as a victory for working people and a radical expansion—some might say weaponization—of the First Amendment as a tool for advancing a broader far-right agenda. This broader turn highlights three important issues raised by Southworth’s book.

The first is the paradox of nonelite lawyers advancing a fundamentally elite legal project through effective legal framing that broke down barriers for corporations to capture American politics. As Southworth documents, campaign finance challengers were generally less elite than their reformist counterparts, with “[a]ll but one of the lawyers for groups associated with the Republican Party’s populist elements identified themselves as Catholics or evangelical Protestants, and most had attended regional or local law schools.” (P. 26.) These lawyers spearheaded the litigation; they also participated in reframing the issue. Southworth emphasizes how challengers used “frames strategically” to change the law (P. 132), charting the frequency of terms like “censorship” in challenger briefs and Court opinions. These frames demonstrated that lawyers operated in different “constitutional universes,” comprised of “polarized networks of activists who champion different visions of the First Amendment.” (P. 150.) What is most striking—and troubling—about this effort is how these lawyers repackaged the deregulatory project of billionaire libertarians as a campaign to help the little guy. After the Citizens United ruling, Bopp proclaimed that it vindicated “the ability of average citizens to participate in our democracy.” (P. 82.) This sort of cynical reframing has become a hallmark of Trumpist appeals to working class Americans.

The second issue revolves around the ethical accountability of the lawyers who served as architects of the campaign. Left-wing cause lawyers coming out of the 1960s were vigorously attacked for instrumentalizing law in the service of political agendas—for engaging in legal activism. While these attacks came from notable conservatives (Attorney General Ed Meese sought to close down LSC for its impact work), they also emanated from within the progressive legal movement. In the chapter on “accountability,” Southworth shows that conservative lawyers generally lack this internal self-critique. As she put it, the challenger lawyers “defended their own roles in this litigation campaign,” characterizing themselves as “part of an admirable enterprise in which advocates helped right-thinking justices read the Constitution correctly to protect rights properly found there—not one in which lawyers and judges manufactured law.” (P. 163.) These lawyers were “unabashed about—indeed, proud of—their roles constructing the litigation campaign” and creating test cases to “move the law.” (P. 175.) Southworth does document dissenting views, which all came from reformer lawyers on the other side of the issue. For example, some interviewed lawyers questioned whether Bopp’s campaign “served “interests of social conservatives or, more generally, regular people of modest means” (P. 171), suggesting he had a conflict of interest given that he served on the RNC that funded litigation, along with people like the Koch Brothers, Sheldon Adelson, and other “wealthy donors” who used “populist energy to achieve their own deregulatory objectives.” (P. 173.) NAACP lawyers were skewered for “serving two masters” by pursuing an integration agenda claimed to favor elite white interests over the needs of the black community. If that posed an ethical challenge to left-wing cause lawyers, it is hard to see how the work of Bopp and other lawyers to serve the interests of corporate funders doesn’t raise a serious accountability issue. The absence of an internal conservative critique of lawyers like Bopp suggests that ethical critiques of cause lawyers are deeply politicized.

The third issue is the role of campaign finance lawyers in laying the groundwork for processes of autocratization leading to Trump. It is important to consider the degree to which the lawyer-led reformulation of the First Amendment as the uber legal principle underwriting—and tying together—the success of conservative causes—from corporate campaign speech to religious liberty—has also built a bridge to political extremism and rule-of-law attacks. It is not sheer coincidence, as Southworth mentions, that some of the lawyers involved in challenging campaign finance regulation, particularly key architect Bopp (but also Cleta Mitchell and John Eastman) (P. 211), figured prominently in the 2020 Stop the Steal campaign. These lawyers were central figures in the “polarized” legal networks producing Citizens United (P. 91), but also extending the free speech foundations of the case into the dangerous territory of conspiracy theory and disinformation.

In the end, Southworth’s historical story has important contemporary implications. As America faces the real prospect of a second Trump presidency, understanding the trajectory of the conservative legal movement is of critical democratic importance. In this regard, Southworth’s book provides necessary context to the current conflict within the movement between gatekeepers of mainstream conservativism and the rule of law versus “MAGA” lawyers intent on delivering Trump to the White House and mobilizing power to undermine traditional institutional checks, like DOJ independence, in the service of prosecuting enemies and eroding the rule of law. While Southworth does not address this conflict directly, her timely book provides insight into its origins—and thus helps clarify what legal conservatives might do to reclaim their movement from dangerous extremism.

When Worlds Collide: Mapping the Collision Between Lawyer Regulatory Regimes

Jun 28, 2024 Nora Freeman EngstromAdd a Comment

Nora Freeman Engstrom

In Ethics, Lawyering, and Regulation in a Time of Great Change: Field Notes from the (R)evolution, Lucian Pera depicts a profession caught in a storm of transformation, both driven by—and driving—the “twin factors” of economic and regulatory change. (P. 802.) In the midst of this rapidly shifting environment, and as some states (most notably, Utah and Arizona) relax their legal practice regulations while most others cling to the traditional rules, the two modes of regulation will invariably collide. In a timely and accessible piece, Pera maps this collision, unearths under-explored complexities, and offers tentative thoughts on a possible path forward.

At the center of Pera’s contribution is the alternative business structure (ABS), variously called nonlawyer ownership (NLO), corporate law practice, or multidisciplinary practice (MDP). Whatever term or abbreviation is used to describe it, in this arrangement, a nonlawyer-owned or nonlawyer-controlled entity offers legal services to consumers or customers. This form of practice flourished in the 1920s in the United States (until it was snuffed out by the bar), and it has been around for a while in the U.K. and Australia.²⁸ But it is viewed skeptically (to put it mildly) in most states.

These days in the U.S., except in three jurisdictions, per ABA Model Rule 5.4(d), it is a no-no for nonlawyers to even partially own entities that deliver legal services.²⁹ This absolute prohibition on nonlawyer ownership, many say, is necessary to safeguard a lawyer’s professional independence. Without it, the thinking goes, lawyers “will sell out their clients, divulge client confidence, represent clients ineptly…and disregard their public obligations.”³⁰ Or, in the stern words of ABA House of Delegates Resolution 402, which recently doubled down on Rule 5.4(d): “[T]he ownership or control of the practice of law by non-lawyers [is] inconsistent with the core values of the legal profession.”

Perhaps not surprisingly then, in recent years, when a couple of states have toyed with efforts to relax Rule 5.4(d), they’ve encountered fierce resistance. As Florida considered such a move in 2021, the State Bar’s Board of Governors weighed in to “unanimously reject[]” the reform. The Board of Governors centered its opposition on the fact that the change was vocally and roundly opposed by lawyers, as well as its view that “allowing nonlawyers to own interests in law firms inevitably would compromise the independence of the self-regulated legal profession.” A similar story played out in my home state of California. Here, in 2019, the California bar asked a high-profile working group to consider responsible ways to relax the thicket of rules that govern law practice. But then, after the working group spent two years carefully studying potential reforms, the California legislature—under pressure from lawyer organizations—unceremoniously shuttered the effort.

Yet in two jurisdictions—D.C. and Utah—Rule 5.4(d) has been limited (although not entirely discarded).³¹ And Arizona, the third and most recent jurisdiction to enact reform, has gone a step further. In 2021, the Arizona Supreme Court totally scrapped the ban on nonlawyer ownership in what it described “as a “generational advance in access to justice” after the Court’s Task Force on the Delivery of Legal Services determined that the ban “has been identified as a barrier to innovation in the delivery of legal services.”³² “[L]awyers have the ethical obligation to assure legal services are available to the public,” the Task Force reasoned, and “if the rules of professional conduct stand in the way of making those services available, then the rules should be changed.”

Reform opponents frame all the above as a war between the altruistic, ethical class of lawyers and the profit-motivated, corrupt interests of corporate America.³³ And in this particular war, unanswered questions abound.

One key question is: What will these ABSs look like? Will they resemble traditional law firms, now simply owned in whole or in part by nonlawyer investors? Or will an entirely new form of legal service delivery take root?³⁴

Another open but vital question revolves around client identity. Who are these new ABSs apt to serve? Are they going to serve mostly middle- and low-income Americans, as some supporters hope?³⁵ Or are they simply going to expand the legal services available to the “have’s” in society?

Yet a third open question centers on the quality of ABS services. Are clients of ABSs going to be served with competence, care, and fidelity? Or, compared to clients at conventional law firms, are they more likely to be sold out or shortchanged?³⁶

Yet another set of thorny questions relates not to the ABSs themselves but, rather, to these firms’ interaction with more traditional law firms—including in states where ABSs aren’t permitted. It is here, surfacing “the hard fact of a mixed regulatory environment,” that Pera digs in. (P. 813.) In so doing, he rolls through a range of provocative questions.

For example, picture a co-counsel arrangement between an Arizona lawyer working at an ABS and a lawyer in a jurisdiction that retains Rule 5.4(d). Could the Arizona lawyer appear in court (pro hac vice) outside of Arizona on behalf of their mutual client?

What about multijurisdictional practice? While an Arizona ABS cannot open an office in California or Nevada (two neighboring jurisdictions that retain Rule 5.4(d)), could that same ABS lawyer live and work remotely from California or Nevada? These kinds of practices are increasingly recognized, assuming of course that the remote lawyer is not practicing the law of the remote jurisdiction.

Pera argues that the above questions aren’t just tricky in their own right. Instead, he says, the questions are important because they spotlight a broader uncertainty—and this uncertainty, he says, is a problem. Unsure what is and isn’t permitted, lawyers and state regulators are likely to trim their sails for fear of running afoul of state requirements. He convincingly contends that, given that impulse, far more clarity is needed to guide lawyers in ethical yet flexible law practices—and further, that in creating clear rules, “respecting the dignity and public policy decisions of other jurisdictions should be a mandate.” (P. 819.)

Now stepping back, a fair question is whether recent reforms have really created new multijurisdictional questions or simply illuminated longstanding challenges with the checkerboard nature of our country’s system of lawyer regulation.³⁷ In a profession that’s increasingly nationalized—particularly given that so many lawyers’ practices routinely cross state lines—does it make sense for different lawyers to be subject to different licensing requirements? Perhaps the core issue is not the uncertainty that Pera identifies but rather the fact that these key inconsistencies from jurisdiction to jurisdiction persist in spite of an ongoing social and economic transformation.³⁸

But even so, Pera is right to focus our thinking on the many questions that do not yet have clear answers. As ABSs come online, we ought to be analyzing what they do and who they serve carefully. We ought to see the tension between the decisions made by Arizona’s regulators and those that guide attorney regulation in other states. And we also ought to be attuned to the fact that, at least so long as the checkerboard nature of state attorney regulation persists, and at least so long as some states try new things while other states hew to familiar approaches, we are going to inhabit a world where different modes of attorney regulation inevitably collide.

1. For how such practices once flourished in the United States, see Nora Freeman Engstrom & James Stone, Auto Clubs and the Lost Origins of the Access-to-Justice Crisis, 134 Yale L.J. (forthcoming 2024) (available on SSRN). For the U.K. and Australia, see Harv. Law Sch., Ctr. on the Legal Prof., Under New Management: Early Reform in the United Kingdom and Australia, The Practice (Jan./Feb. 2021).
2. Rule 5.4(d) contains a carve-out for nonprofit entities, and the Rule does not apply if the lawyer is merely offering legal services to the entity itself (e.g., as its general counsel).
3. Bruce A. Green, Disciplinary Restrictions on Multidisciplinary Practice: Their Derivation, Their Development, and Some Implications for the Core Values Debate, 84 Minn. L. Rev. 1115, 1117 (2000) (capturing, although critiquing, this line of argument).
4. In D.C., only individual nonlawyers (not corporate entities) are permitted to hold a financial interest in law firms. D.C. Rules of Prof’l Conduct R. 5.4(b). In Utah’s regulatory sandbox, authorized entities can leverage a nonlawyer ownership model, but these entities must demonstrate that they are aiming to reach underserved legal consumers. Information for Interested Applicants, Utah Office of Legal Serv. Innovation, (last visited May 27, 2024).
5. Arizona also enacted other reforms, in addition to its abolition of Rule 5.4(d). For discussion, see David Freeman Engstrom et al., Legal Innovation After Reform: Evidence from Regulatory Change (2022).
6. Sam Skolnik, Firm Ownership Debate Rages Amid ABA Innovation Leader Change-Up, Bloomberg L., Aug. 25, 2023.
7. For an answer to this question, at least as of 2022, see Engstrom et al., supra note 5, at 23–34.
8. As Pera rightly notes: “the advocates of regulatory reform have rhetorically staked a great deal on the potential benefits—the increase in access to justice that could result from such reforms.” (P. 812.)
9. For detailed discussion of these and other questions, see generally Engstrom et al., supra note 5.
10. In early 2022, the Association of Professional Responsibility Lawyers sent a letter to the ABA highlighting many of these regulatory uncertainties and proposing a new approach to multijurisdictional practice. Letter from Brian S. Faughnan, President, Ass’n Prof’l Responsibility Lawyers, to Reginald M. Turner, President of the ABA (Apr. 18, 2022).
11. For a discussion of a more ambitious reform idea, see David Freeman Engstrom & Daniel Rodriguez, Our Bar Federalism in Rethinking the Lawyers’ Monopoly (David Freeman Engstrom & Nora Freeman Engstrom eds., forthcoming 2024). For further discussion, see generally Eli Wald, Federalizing Legal Ethics, Nationalizing Law Practice and the Future of the American Legal Profession in a Global Age, 48 San Diego L. Rev. 489 (2011); Eli Wald, Resizing the Rules of Professional Conduct, 27 Geo. J. Legal Ethics 227 (2014).

Biblical Insights for Lawyers

May 3, 2024 Eli WaldAdd a Comment

Eli Wald

One of my favorite “classes” at law school was not a class at all. Once a week, along with dozens of other seemingly busy law students, I would head to Pound Hall to hear eminent international law professor Joseph Weiler lead an informal bible reading group. Two aspects of the reading group were especially intriguing: the analysis of the Old Testament from the perspective of “thinking like a lawyer” and the group’s inclusivity. All were welcomed and no prior knowledge or experience was required. The only thing one was expected to do was read the weekly portion ahead of the gathering. The reading group carried no credit and yet regularly it was standing room only. People attended because it was a fun intellectual exercise. It was a highlight of my days at Harvard Law School.³⁹

Daphne Barak-Erez’s new book, Biblical Judgments, reminds me of the old law school reading group. Barak-Erez invites readers to “think about law and legal institutions by a rereading of the Hebrew Bible,” revisiting hidden assumptions underlying, and testing correlations to, contemporary legal systems. (P. 1). The manuscript explores excerpts from the Old Testament to illuminate contemporary challenges confronted by lawyers in six areas of law practice: law and government, judging and judges, human rights and social justice, criminal law, private law, and family and inheritance. My favorite section is Part III, dealing with individual rights and social justice. It tackles topics such as discrimination, harassment, and racism, not shying away from acknowledging the limitations of pursuing social justice back in Old Testament times and—in what is one of the book’s important takeaways—now. Turning to the old text, Barak-Erez effectively mines new, refreshing, and often surprising insights, compelling readers to revisit and rethink their own perspectives and convictions. The analysis of the principle of “an eye for an eye,” (pp. 247-48), is a typical gem, arguing persuasively that retribution is not only a justification for imposing liability but also at the same time a call for proportionality and limiting the scope of liability.

Like Weiler, Barak-Erez is not a Jewish Law or biblical scholar. She is a Justice on the Israeli Supreme Court, a renowned administrative and constitutional law scholar, and a former law professor and dean of the University of Tel Aviv Law School. Yet, also like Weiler, Barak-Erez examines the Old Testament as a lawyer with passion, ease and expertise. Biblical Judgments is a well-written, accessible read. Just as participants in my law school reading group enjoyed “thinking like a lawyer” when reading the bible, readers of Biblical Judgments will enjoy revisiting sections of the Old Testament with legal eyes. The book is not only illuminating for lawyers, but also, truly, an intellectual joyride.

More importantly, in this time of growing political, cultural and legal polarization, Biblical Judgments is a must read for lawyers because it is an essential exercise in legal inclusivity, welcoming all types of lawyers, irrespective of their political and religious backgrounds, convictions and affiliations, to participate in reading the bible and treating them all fairly and equally as legitimate readers of the text. The book defies simplistic expectations and stereotypes. It forces readers to abandon silly notions of “good” and “bad” lawyers and lawyering styles, assumptions about who reads the bible and why (think “conservatives read the bible” versus “progressives read the Bill of Rights”), and about modes of interpretation (for example, “Originalism” versus the “Living Constitution”). The manuscript demonstrates effectively that all lawyers can and should read the bible because of the lessons it holds as we continue to seek solutions for divisive contemporary challenges.

Indeed, it is exactly Barak-Erez’s close reading of the text that is so impressive and revealing. She ends up reminding all of us an imperative lesson some lawyers may but should not forget in these polarizing times: there is a legal way to read, think about, and understand texts, which is separate and distinct from a political or a religious manner of reading and thinking. As Jerry Seinfeld will observe, “not that there’s anything wrong with that”. Lawyers, of course, are welcome to form opinions as political or religious beings. Yet, they can and should remember their professional training and ability to read, think, and form opinions as lawyers, who are “public citizen[s] having special responsibility for the quality of justice” and the rule of law.⁴⁰ The book takes what could be misunderstood as a polarizing religious text, which “belongs” to some but not to others, and shows how lawyers – all lawyers – can and should read it as lawyers to help address and resolve difficult contemporary challenges. In this way, Barak-Erez has authored an important book that shows how lawyers can play an important role in overcoming religious, political and cultural divides by thinking like lawyers and role modeling commitment to public citizenship, the rule of law, justice and inclusivity.

1. A second “law school” highlight was English professor Marjorie Garber’s Jane Austen class but have no fear, Anne-Marie Slaughter’s masterful Civil Procedure made me want to be a law professor and David Wilkins’s Lega Profession made me fall in love with the law governing lawyers and dedicate my career to the study of lawyers and the legal profession.
2. “A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.” American Bar Association Model Rules of Professional Conduct, Preamble, Comment 1 (2024).