Tuesday, August 12, 2014

Law school puffery and the last minute grab for students

If memory serves, first-year contract law teaches that specific, factual misrepresentations are bad and legally actionable, whereas mere “puffery” (e.g., “We are the world’s best; hurry and come to us before it’s too late!”) is just bad.  I even remember one law school professor wryly telling the class that daytime television ads by personal injury lawyers were “quite unsettling.”  Yet, despite this anti-puffery attitude inside the classroom, law schools are among the biggest puffers when it comes to selling their own services.

Friday, August 8, 2014

California State Bar Serves Up Delicious Irony

"This is delicious!"
Lawyer ethics rules — particularly those regarding confidentiality — are supposed to protect clients.  But sometimes the bureaucrats are so obsessed with giving the impression that they are protecting the public that they actually lose sight of that goal.  For example, when doing research for a new law review article, I came across several articles discussing the California Bar’s “Formal Opinion 1986-87.”  This opinion is now quite old, but it is so absurd that it is still being discussed and debated in legal publications as recently as 2013.  In short, the opinion deals with California’s version of the bizarre ethics rule that prohibits an attorney from revealing any information relating to the representation of a client.  And the word “information” includes not only confidential client communications and other secrets, but all information, including information that is widely and publicly available.  (If you are a Wisconsin lawyer and think this is ridiculous, you might be surprised to learn that we, along with most states, have similarly absurd rules in the form of SCRs 1.6 and 1.9.)

Monday, August 4, 2014

“You’re not killing me properly” and other legal news

I’ve often criticized government officials for completely botching nearly every aspect of the criminal justice system.  (Until my recent spate of legal education-related posts, government-bashing is pretty much what this blog has been about since I took to the keyboard with the inaugural post on judicial incompetence in 2010.)  If fact, the negligence, complete ineptitude, and even intentional wrongdoing of many police, prosecutors, and judges makes for a compelling argument against the death penalty.  But now there is a better argument: government officials aren’t even capable of killing someone properly.

Tuesday, July 29, 2014

Summer hiatus (and good links)

Knightly and I are on summer break, where we're alternating naps and research for a new law review article.  In the meantime, checkout these blog posts for some interesting goings on.  First, and most significantly, there is good news for practicing lawyers: law school enrollments will be down yet again this fall.  If these declines continue, eventually the huge backlog of unemployed lawyers (and the massive numbers of underemployed lawyers) might be able to find suitable work -- though we are a long way off from that utopia.

This graph nicely illustrates the dipping  plummeting applications over the past decade.  This post at Third Tier Reality (a great blog, but not for the law professor or the overly sensitive) discusses how this fall's entering class of law students will likely be the smallest since 1974, even though we now have dozens more law schools than when Steely Dan was making magic.

Friday, July 4, 2014

Bad Business

TV viewing with Knight
Some marketing campaigns are so bad or so embarrassing that you wonder how they ever got off the ground.  One ad that makes me flat-out angry every time I see it is the Time Warner Cable series, where former football coach Bill Cowher walks into a family’s home and just starts talking to them about TWC’s services.  In one commercial, the marketing geniuses behind the ad actually have the nerve to make Cowher read this line: “You shouldn’t have to buy what you don’t want.”  This from the company that makes me buy an entire package of cable channels just so I can get ESPN and FX.

Wednesday, June 25, 2014

Big Ten conference to dissolve, Rose Bowl to terminate, sky to fall

"Really, Jim?"
A group of college football players at Northwestern recently won the right to unionize and negotiate for better working conditions, health insurance, scholarship terms, and other forms of pay and benefits.  Essentially, the athletes were deemed to be “employees.” This makes sense, of course, as they are under the university’s control, provide a service to the university, produce millions of dollars in revenue for the university, and receive benefits, including tuition and books, in return.  (The fact that they’re paid in goods and services, instead of cash, shouldn’t turn them into non-employees.)  According to this ESPN report, however, the Big Ten’s Jim Delany says that if the schools actually have to pay their athletes, the conference will dissolve and it will also bring an end to the traditional Rose Bowl matchup between the Big Ten and Pac Twelve champions.  Really, Jim?

Friday, June 20, 2014

Work experience: Northwestern Law School’s double standard?

I recently read an interview of Northwestern Law School’s Daniel Rodriguez.  In it, he said that Northwestern Law has taken a page from the business schools and requires—or, more accurately, strongly prefers—that its incoming law students have two years of work experience before reentering academia’s bubble.  A double check on the school’s website confirms this: ninety percent of the incoming students have worked at least one year, and more than seventy percent have worked at least two years.  Fair enough.  But then I wondered: does Northwestern Law School impose a comparable, two-year legal work experience preference on its law professors?

Wednesday, June 4, 2014

The Collapsing Constitution

For my latest rant, check out my essay "The Collapsing Constitution" in the new issue of the Hofstra Law Review, available here. (All of my articles are available here.) On a related note, for a discussion of my second book "Tried and Convicted" check out The Irreverent Lawyer, here, where he ties-in the book's theme with the recent judicial misconduct in Florida. The Dog's readers have probably seen the video by now, but if you haven't, it's included in the irreverent one's post. Hopefully the defense lawyer has a civil suit against the judge. It would be great if some of the judge's huge salary and benefits could be transferred to the lawyer in the form of compensatory and punitive damages. But it would be interesting to see how far the doctrine of judicial immunity could be stretched. I think that threatening the lawyer, challenging him to a fight, and then leaving the bench to go outside might be a bit outside the scope of "his honor's" judicial duties.

Sunday, May 25, 2014

Associate’s degree in law?

Jeff Winger (photo by Alan Light)
Attorney Jeff Winger got caught.  After he graduated from law school, passed the bar exam, and launched a successful career at a law firm, the Colorado Bar Association found out about his fake bachelor’s degree.  The punishment: disbarment.  The light at the end of the tunnel: go back to college and earn a post-J.D. bachelor’s degree and be readmitted to the bar.

When Winger arrived on campus, one of the professors—a former drunk-driving client of Winger’s—asked: “I thought you had a bachelor’s from Columbia?”  Winger responded: “And now I have to get one from America.  And it can’t be an email attachment.”

Jeff Winger is just a fictional character on NBC’s amazing but recently canceled television show Community (DVDs available here), but his situation got me thinking: aren’t law degrees really just associate’s degrees? 

Saturday, May 24, 2014

The Law: “Jealous Mistress” or Ignored Spouse?

Back in the Paper Chase era, law school deans would tell their incoming classes: “Look to your left, look to your right—one of you won’t be here next year.”  Along with this scare tactic came the now-famous warning that “the law is a jealous mistress,” and will require nearly all of a student’s time and attention if he or she hopes to graduate from law school.  Oh, how times have changed.  And for proof, look no further than the University of Texas Law School.    

Saturday, May 17, 2014

Legal education potluck: judges, lawyers, law schools, law profs, and law reviews

I can’t quite explain my morbid fascination with the state of legal education — well, maybe I could, but it would take too long and require way too much introspection.  In any case, I’ve often blamed law schools for judges’ lack of understanding of basic legal principles.  But that’s not to say that practicing lawyers, on average, know the law any better than the judges.  It’s just that lawyers’ ignorance of the law is not as obvious to me.  For example, when a prosecutor misstates the law, there is no way to know if: (1) he/she really doesn’t understand the law; or (2) he/she is intentionally misstating the law to try to trick the judge — something I’ve suspected, and prosecutors have even gleefully confessed to me, on several occasions.  But regardless, the point remains: the judiciary’s utter indifference to the rule of law is still traceable to the law school industrial complex.  And a recent article by law school prof (and law school-basher) Paul Campos may have identified some root causes within the law schools.

Monday, May 12, 2014

“Public service” in Massachusetts

In March I wrote a post titled “the public service mantra.”  The upshot was that when our next judicial election rolls around, we voters shouldn’t buy into the candidates’ inevitable cries that they are seeking the job to “serve the community.”  Instead, I argued, the more likely explanation is that candidates seek judgeships for the huge pay raise and incredible benefits.  More specifically, the median salary for Kenosha households is $53k, for Kenosha attorneys is $77k, and for Wisconsin judges (in all counties including Kenosha) is $129k plus a host of benefits that few others enjoy.  But does this hold true in other parts of the country?  The short answer: yes.

Saturday, April 26, 2014

When it comes to privacy, NSA is only part of the problem

"Somebody's watching me."
A single, now-famous whistleblower and countless journalists have exposed widespread NSA operations that invade our privacy and violate the Fourth Amendment.  But the NSA, the police, and other government agents are only part of the problem.  The bigger problem is that the judiciary—the supposedly neutral and detached group to whom we look for protection from the NSA and its ilk—has reduced the Fourth Amendment to meaningless jargon.  In reality, every day in nearly every community across the country, state-court judges are allowing government agents to violate the Fourth Amendment’s warrant requirement at the expense of our privacy rights.

Thursday, April 24, 2014

The law school student loan mess

The government has done it again.  It all began innocently enough when the government got into the student loan business.  But the educational industrial complex knew a sucker when it saw one, so schools started raising tuition to get more of that guaranteed government cheese.  And law schools were the worst offenders.  Even though the study of law requires only a casebook (or an internet connection), a pencil, and a notepad -- the Socratic method hasn’t changed much since the days of Socrates -- law schools still raised tuition quite dramatically each year.  In fact, they raised it faster than inflation, faster than college-level tuition, and even faster than medical school tuition -- even though colleges and medical schools require expensive equipment and other facilities that law schools do not.  But the government asked no questions.  It could have asked, for example, “Why, law school, do you need a double-digit annual tuition increase when technology is driving costs down and your professors are already being paid triple of what college professors earn, even though they teach fewer classes?” 

Wednesday, April 16, 2014

Drugs, plea deals, snitches, trials, and hung juries

Photo by Leo Martin
Defense attorney Terry Rose (pictured on right) just conducted some sharp cross-examination and delivered a cut-to-the-chase closing argument to get a hung jury in a drug delivery case. His trial raises several points. First, our legislature is crazy. (More on that below.) Second, a substance that is allegedly delivered to an undercover snitch should not increase in weight after the government uses up a portion of it for chemical testing. And third, government witnesses who hope to work off their own charges by testifying and burying the defendant are motivated to lie, much like a salesman is motivated to sell.