Wednesday, June 30, 2010

What's Joel Stein Got Against Indians?

1) Sorry for the long delay in posting. It's been a while, but I'll catch up soon, I promise.

2) Close on the heels of Robin's post about Indian-Americans in politics (linking to a pretty balanced, and fact-based, story on Yahoo), we have here another post about Indians, this time, not in politics, but in Edison, N.J. And my post refers a story in Time Magazine, by regular columnist Joel Stein. Unfortunately, Stein's article is neither balanced nor fact-based.

Stein's article starts out as follows:
I am very much in favor of immigration everywhere in the U.S. except Edison, N.J. The mostly white suburban town I left when I graduated from high school in 1989 — the town that was called Menlo Park when Thomas Alva Edison set up shop there and was later renamed in his honor — has become home to one of the biggest Indian communities in the U.S., as familiar to people in India as how to instruct stupid Americans to reboot their Internet routers.
It's pretty much downhill from there. Stein writes that he learned to commit various petty crimes at neighborhood joints, and, now that the stores and restaurants are Indian, "[t]here is an entire generation of white children in Edison who have nowhere to learn crime."

Har-har. So Stein has a malformed, if incoherent, sense of humor. (Confidential to Klein: it is, in fact, possible to steal food from Indian restaurants, too.) But the article quickly degenerates into out-and-out racism. After noting that the locals took to calling the new immigrants "dot heads", Stein writes, "I question just how good our schools were if 'dot heads' was the best racist insult we could come up with for a group of people whose gods have multiple arms and an elephant nose."

Now I can take a joke pretty well, and Jay-Z's "red dot or feather" line doesn't bother me all that much. And I suspect that Stein was going for a tongue-in-cheek piece rather than a blatantly racist one. But it's too late to unring the bell. Stein's piece is just the type of fodder that fuels anti-immigrant sentiment (Indian or otherwise) around the country. The "sense of loss" he feels is because people in his hometown look different and eat "food that spicy". His attempt at humor (and I'm being charitable; maybe he really did intend to write a racist screed) falls flat precisely because it seems to belie an underlying xenophobia.

The ironic thing is, Stein sort of has a point. In his last paragraph, he writes (again inartfully) about the assimilation of the current generation of Indian-American kids into American -- and more specifically, Jersey -- culture. This is a good thing. Just like people from any other immigrant community, Indians in this country have, to varying degrees, adopted American customs, names, habits, musical tastes, and more. The Indian kids slick back their hair and wear gold chains, a la the cast of Jersey Shore; the kid whose family has been in Edison since the time of, well, Thomas Edison, tries Indian food and sneaks into a Bollywood movie. Stein is correct: that give-and-take is "so wonderfully American".

Also "wonderfully American" is petitioning for redress of one's grievances. So take a minute click this link, and petition Time Magazine to respond to Stein's article. Unlike in much of the world, Stein has a right to write whatever kind of article wants, racist, ill-informed, or otherwise. But he should defend his views, if he really does hold them, or publicly explain his motivations in writing the article, if he does not.


Since lawyers and law students read this blog, I'll make a few technical comments. One, I know the right to petition applies only to the government and not private actors; it's a rhetorical device, and anyway, the practice of petitioning has a long history in this country. Second, I know Stein's has a First Amendment right to publish whatever he wants; I don't suggest that it was (legally) improper for him to write or Time to publish the article. But First Amendment rights are a two-way street and, if for nothing more than his reputation and journalistic integrity, Stein ought to defend his views.

Tuesday, June 29, 2010

Is Ethnicity a Handicap When Running for Office?

I recently read this article discussing how more Indian Americans are running for office and found many things surprising. First, the two most widely recognized Republican Indian politicians, Bobby Jindal (Governor of Lousiana) and Nikki Haley (leading candidate for Governor of South Carolina) have both abandoned their Indian religions in favor of Christianity. Coincidence? If these politicians chose to convert to Christianity because of marriage or even to follow what they believe to be their true faith, all the power to them. However, if the conversion was a political and strategic move, I think it's just sad. Has the bible become such a central part of politics that our leaders must have some connection to it? It seems to always come up- abortion, marriage, evolution, especially from conservatives. So can you be Hindu or Jain or Sikh and run as a Republican? If it was a political move, maybe these candidates preemptively converted without either giving Americans a chance to prove that faith doesn't matter or being critiqued for their faith and showing America that apparently it does matter.

Another interesting element of the article was the discussion about name changes. Piyush became Bobby, Nimrata became Nikki, Jigar became J., all because the Americanized names are just easier to say. I've always wondered about this as well. Is something like that really a factor when Americans sit down to vote or do minorities maybe find it either annoying or insulting to have people constantly messing up their names, especially when they are in the public eye. I've been told several times that I have it easy with the name "Robin," but I'm curious as to whether making an ethnic name seem more American may actually make upset voters from the candidate's ethnic group. What's in a name when you're running for office?

I think the underlying theme of the article was the interplay between whether these Indian candidates are giving something up to run for office or simply running as who they are, Indian Americans raised in the United States who are more assimilated into American culture than their Indian immigrant parents. I really look forward to seeing possible trends develop in the future so this can be studied further.

Tuesday, June 8, 2010

Law School Lore: Myth or Vestige of History?

It was nice to be on the other side of law school...until bar studying got in the way for some of us. But during that brief post-3L/pre-graduation period in which I had nothing to do but think introspectively about where I started and where I want to wind up, I realized something that had not really crossed my mind before:  almost everything I had heard about law school before I took the plunge--from books, movies, lawyers, you name it--turned out to be grossly overstated at best.

We are all familiar with the lore--law school, we are constantly told, is where dreams go to die. You'll be studying around the clock, your professors will abuse you in the classroom, and you'll be lucky to have any meaningful social relationships during your (generally miserable) stay. Perhaps I'm embellishing a bit, but the general conception so far as I can tell is that law school is not only hard but very hard--almost to the point of being unmanageable and leading people to serious mental infirmity. Scott Turow's One L is a case in point. So is the old favorite The Paper Chase. More recently, Legally Blonde took a stab at perpetuating the stereotype in depicting a fun-loving sorority girl from California who managed to succeed amidst a class of (seemingly) more boring and neurotically-focused students.

I  found law school taxing and mentally exhausting at times, but I never felt as pressured and anxious as I expected to be based on all I had heard. I don't think my classmates ever really did either--at least not to the extent one would reasonably expect from talking to any lay person or older lawyer about law school.

So, if I am correct that things really are not all that bad, where do these stereotypes come from? I have two theories. First, maybe my observation (if accurate) is a self-aggrandizing phenomenon whereby those who have been through law school feel, after the fact, that it was more arduous than it was simply because it is a past accomplishment. Maybe complaining about how bad it was is a privilege of conquering it. But more likely, I think, is that something has changed in the legal education. Indeed, the horror stories tend to come from older attorneys as opposed to more recent graduates. There are many other tenable explanations for this, but I still think it strong evidence of a change in the educational pedagogy and the (probably) corresponding student mentality. If my hunch is correct, will the shift be good or bad for tomorrow's attorneys?

I leave that question, along with all the others I have posed, to you folks...


(Please accept our apologies for the slowdown in content. While law school is not as bad as they make it, bar preparation has made it harder for many of us to post as often as we would like.)

Saturday, May 22, 2010

Monday, May 17, 2010

Congratulations to The Blackbook Legal Team!

As our regular readers undoubtedly know, The Blackbook Legal Blog has always been a student-run enterprise.* I am happy to report, however, that the extent to which it will remain this way hinges on our hiring new contributing editors. That's my backhanded way of reporting that a majority of the contributing editor team here at Blackbook Legal has--as of this week--successfully completed the law school curriculum.  Congratulations to law school graduates across the nation!

*We are pleased, of course, to already have one practicing attorney--Goutam Jois--in our ranks.

Sunday, May 16, 2010

Elena Kagan's Law School Record

From the Wall Street Journal:
As part of her 1986 Supreme Court clerkship application, [Supreme Court nominee Elena] Kagan filed her most recent transcript, giving a snapshot of her academic interests and performance. She got a B- (her worst grade) in Torts, part of a first year law student’s mandatory curriculum. . . .
She did marginally better in Criminal Law, with a B, and managed a B+ in Administrative Law. For the rest, it was all A or A-, except for passing ungraded courses in Accounting and Copyright.

Five Harvard professors, writing separate letters of recommendation in her third year, left no doubt of her potential, however. . . . “I am looking at her transcript as I write, and there’s just no doubt that her first-year spring-term grades…not the [lower] fall-term ones, are the true reflection of her capacity and her learning,” wrote Prof. Frank Michelman.
So 1Ls, don't be discouraged if you mess up in a few classes during your first semester; the finish line is all that matters. You can still be a Supreme Court justice. :)

Wednesday, May 12, 2010


Dear BBLers, we apologize for our lack of output over the past few weeks. We have finals like most of you. We will be back in full force shortly.

Friday, May 7, 2010

Elena Kagan: The Next Supreme Court Justice?

The Huffington Post reports that Obama is likely to nominate Elena Kagan to the Supreme Court on Monday. Read about it here.

Monday, May 3, 2010

The Philosophical Justification for Civic Capitalism

In a forthcoming article in the Emory Law Review, Scott Harshbarger and I address some of the issues that have come out of the recent financial crisis. In the next days and weeks, I'll be blogging about that article. But for now, I want to take a step back and talk about the philosophical justification for the position we advance in that paper. The discussion below doesn't appear in the article -- because of space limitations, we couldn't include it in the text. [NB: this is pretty long]

Sunday, May 2, 2010

Ranking Law Reviews in Terms of General Social Science Impact

Mikhail Koulikov recently wrote an article examining the academic impact of legal scholarship in disciplines other than law. Specifically, he explores the level of coverage that selected law reviews received in eight general academic databases. His methodology is explained:
Because nonlegal academics do not generally use legal databases, I developed a study to see whether nonlegal scholars have access to legal journal articles, and thus legal scholarship, through databases they might commonly use. Any in-depth analysis of the coverage of law reviews by major nonlegal academic databases necessarily must be limited to a sample of law reviews, and a selected number of databases. I decided to use the three major general databases that Blessinger and Olle evaluated as a starting point. Expanding on their work, and taking the generally accepted view that law is a social science, my study also examined coverage of law reviews in several other databases that are key to study of the social sciences: JSTOR, PAIS International, Periodicals Archive Online, Worldwide Political Science Abstracts, and the International Bibliography of the Social Sciences. All of these are commonly available databases that should be familiar to most academic researchers, and all five claim to include coverage of law as a discipline.
He limited the scope of his study to the top 20 law reviews in terms of impact factor (per the Journal Citation Reports) and included--for good measure--the general law reviews of the top twenty schools according the U.S. News and World Report Rankings. The following are the first ten law reviews in his ranking in terms of general academic scholarship impact (with impact factor as the number in brackets):
(1) Harvard Law Review
(2) Columbia Law Review
(3) UCLA Law Review
(4) Texas Law Review
(5) Yale Law Journal
(6) University of Pennsylvania Law Review
(7) California Law Review
(8) Cornell Law Review
(9) Stanford Law Review
(10) Virginia Law Review
This study provides a good illustration of how legal scholarship is used to inform development of other social sciences. I recommend reading Mr. Koulikov's full article.

Monday, April 26, 2010

Vice President Joe Biden, Rich Rodriguez and West Virginia

As a native West Virginian, I was heartbroken by the coal mining tragedy that occurred a few weeks ago. Yesterday, President Obama and Vice President Biden were gracious enough to attend the miners' memorial service at the Beckley-Raleigh Convention Center. I have provided the Vice President's speech below.

A funny tidbit: at around 2:26, he mentions the long and nasty divorce between the WVU football program and now-Michigan head coach Rich Rodriguez, and how the deceased miners--like many others in the state--hated the way that it happened. Over the past few days, many people have intimated that this comment may have been slightly inappropriate and insensitive, but I believe the Vice President was simply trying to convey the extent to which everyone in the state is family. It's difficult for outsiders to understand the bond that exists between West Virginians. This comment nicely demonstrates it.

Saturday, April 24, 2010

Goldman Sachs: Evil or Genius?

In the midst of this struggling economy, you can always count on Goldman Sachs to make some money. From the New York Times:
[Email] messages appear to connect some of the dots at a crucial moment of Goldman history. They show that in 2007, as most other banks hemorrhaged money from plummeting mortgage holdings, Goldman prospered....In the third quarter of 2007, the investment bank reported publicly that it had made big profits on its negative bet on mortgages. By the end of 2007, the firm curtailed its disclosures about its mortgage trading results.
While Goldman vigorously denies claims about its significant profit, it will be interesting to see how the debate over the financial reform bill plays out in the Senate on Monday. Many Republicans are opposed to provisions such as the one requiring banks like Goldman to spin off their derivatives-trading operations into subsidiaries. As a result, they are threatening a filibuster, and the Democrats seem worried that it just might work.

Thursday, April 22, 2010

What Do SEC Lawyers Do?

Look at porn apparently. From Yahoo News:
A senior attorney at the SEC's Washington headquarters spent up to eight hours a day looking at and downloading pornography. When he ran out of hard drive space, he burned the files to CDs or DVDs, which he kept in boxes around his office. He agreed to resign, an earlier watchdog report said.
As Rome burned, the taxpayers funded the SEC's porn habit; to the tune of over $200,000 a year.

Wednesday, April 21, 2010

New Rules on Derivative Trading?

From the New York Times:
The Senate Agriculture Committee on Wednesday approved legislation to tighten regulation of derivatives trading, with a single Republican, Senator Charles E. Grassley of Iowa, joining Democrats in supporting the measure. The vote was 13 to 8.

The bill to tighten regulation of derivatives is a crucial component of a larger effort to revamp regulation of the nation’s financial system. The Senate banking committee approved a broader bill last month on a party-line vote of 13 to 10, with Republicans unanimously opposed.

Law School Transparency

We urge all of our readers to check out Their goal?
Law School Transparency’s goal is to provide open access to ABA-approved law school employment data and information. Many journalists, legal scholars, law school professors, graduates, and current students have discussed the need for a more comprehensive look at job prospects for recent law school graduates. When schools do go above the minimum standards set by the ABA or prominent third parties like U.S. News, they present the additional employment information in ways that often make it impossible to compare job prospects across law schools and determine the actual range of opportunities available at each school. Accordingly, our mission is to establish a new standard for employment reporting and to assist ABA-approved law schools in improving their reporting methods.

This website aims to become a clearinghouse for employment data from ABA-approved law schools. Additionally, we provide a closer look at how career services and admissions offices work together at ABA-approved law schools to develop relationships with employers and assist students in finding work. We believe that publishing employment lists will supplement, rather than replace, the many job placement summaries already provided by schools, publications, and legal scholars.
Hopefully law schools will embrace this idea. Many already hope for fundamental changes to the system as it is now constituted.

Sunday, April 18, 2010

Dr. Brian Leiter on Why Obama's Choice is Janet Napolitano

Dr. Leiter makes a convincing case for why President Obama's choice to replace Justice Stevens will be Janet Napolitano, the current Secretary of Homeland Security. His reasons from Brian Leiter's Law School Reports:
1. She's a she.

2. She's a Protestant, replacing the last remaining Protestant on the court.

3. She's not yet another Yale/Harvard, "inside the Beltway" nominee, who has done nothing but be a judge or DC lawyer or law professor. She has political experience, as well as prosecutorial experience.

4. She's not an East Coast insider either--she's a "real" Westerner. Geographic diversity!

5. Like Kagan, but unlike Wood (and Garland), she could easily serve 25 or more years on the court given her current age.

6. She has the strong support of the two Republican Senators from Arizona, which will help neutralize Republican opposition.

7. She was confirmed without opposition to her current post--and that wasn't long ago.

8. She's a solid Democrat, but not obviously a liberal--there's little ammunition for the crazy right. She even put people to death as a prosectur in Arizona!

9. She's politically skilled, and, esp. with the support of the Arizona Senators, could likely win over other Republicans.

10. She doesn't have the baggage of Kagan or Wood. In the case of Wood, a long judicial record creates lots of fodder for the right-wing kooks. In the case of Kagan, she has limited experience (she is no John Roberts), a somewhat odd academic career (tenured at Chicago, but then unable to get hired back to the faculty after leaving the Clinton Administration; a visiting stint at Harvard led to an appointment, which was then followed by a successful Deanship, but she's had a relatively limited scholarly output); and even her nomination as Solicitor General produced more than 30 'no' votes in the Senate.
Like Dr. Leiter, I cannot imagine that President Obama would waste a substantial amount of political capital on a nominee whom Republicans will simply not accept. Secretary Napolitano seems to be a safe pick.

Friday, April 16, 2010

Insurance Companies and Fast Food

So large health and life insurance companies have substantial holdings in . . . fast food? CBS

Tuesday, April 13, 2010

Visualizing the U.S. News Rankings

Visualize Law provides a pretty cool graphical representation of the overall scores of the 2011 U.S. News Rankings. Click the small image above to see it.

Because Who Wants to Wait? USN Rankings Leaked @ TLS

Every year, as the tax man comes to take his share from his loyal citizens, law students from around the country eagerly anticipate the release of the latest U.S. News rankings. And every year, someone always claims to have the elusive list before it is officially released.

We may just have it, thanks to the diligent law students on the Top-law-schools message board.

Click the picture to the right and enjoy.

Disclaimer: This may not be the real deal - but it's always fun to speculate!

Monday, April 12, 2010

Linda Greenhouse on Justice Stevens

Can justices still learn on the job, or are they confined to strict party lines? Linda Greenhouse examines how Justice Stevens began his career with a somewhat conservative lean, even voting against government funding for abortions. Now, as liberals lament his retirement, his initial views on affirmative action and the death penalty seem to be disregarded.

Greenhouse ends her op-ed implying that we've exited the era in which a Supreme Court Justice can afford to change his mind. People want to know exactly how a potential justice will decide major issues, and I can't say I'm an exception. Maybe it's because the role of the Supreme Court is far too powerful to leave up to chance or indecision. Then again, maybe it's just a further reflection of our exceedingly binary political system.

Friday, April 9, 2010

The End of an Era: Justice Stevens Retires

As many had predicted, this term will be Justice Stevens's last on the Court.  The New York Times reports:
In a brief letter to President Obama, whom he addressed as “my dear Mr. President,” Justice Stevens said he was announcing his retirement now because he had “concluded that it would be in the best interests of the Court to have my successor appointed and confirmed well in advance of the commencement of the Court’s next term” in October.
Justice Stevens's early announcement will hopefully quell expressed concerns that the Senate would not be able to confirm a replacement Justice in time. But who will that Justice be? We leave that question to the comments...

Wednesday, April 7, 2010

Steve Wynn Plans Casino in Philadelphia

It was not long after Pennsylvania legalized table games that UPenn alum, and Las Vegas tycoon, Steve Wynn expressed his desire to get a piece of the action. My question: why couldn't this have happened while I was still in law school? The Philadelphia Inquirer

Sunday, April 4, 2010

Stay on the Court, Justice Stevens

Senator Specter urges Justice Stevens to stay on the Court for the remainder of this term because he feels that the Senate will not be able to confirm a replacement this year. Washington Post

Friday, April 2, 2010

Pearson-Iqbal: Responding to Comments

Thanks all for the helpful comments, and thanks especially to the DUI attorneys who seem so interested in the intersection between qualified immunity and pleading standard. (Joke.)

Before I wrap up discussing this article, I thought I’d respond to some comments I got throughout this series.

An early commenter posed the question of whether constitutional rights could be established by means other than § 1983 litigation, for example on habeas review or criminal appeals. The answer to this question is obviously yes — but only with regard to criminal law. And even then, many cases (for that matter, Saucier itself) arise out of underlying criminal cases. So at a minimum, this affects all civil rights claims that don’t arise out of underlying criminal cases, and those criminal cases that would otherwise be litigated by way of § 1983. (In subsequent posts, I discussed the race discrimination example. There are others: employment discrimination, free speech/press/religion claims, for example, and virtually all sorts of litigation that seeks injunctive relief, particularly structural injunctive relief. Probably none of these could be litigated if the only means of “clearly establishing” the law was by way of criminal appeals or habeas.)

The first commenter also raised Article III issues, namely, whether Saucier sequencing raises the problem of advisory opinions. Judge Leval on the Second Circuit has discussed this issue recently, essentially agreeing that there is a problem. Shortly before Pearson was decided, Sam Kamin wrote a persuasive article responding to the Article III concerns. I don't focus on those issues here; his article is a good one on that point.

Another, more "from-the-trenches" view, supporting Iqbal, came from a district court intern, who pointed out that Iqbal simply facilitates the dismissal of "claims that do not have merit". Let's just stipulate that frivolous lawsuits ("The president is spying on me and thus violating my constitutional rights") will be dismissed under any standard. Once those claims are bracketed, the point becomes question-begging. Recall that Rule 12(b)(6) motions are to be granted when the plaintiff fails to state a claim on which relief can be granted. Let’s say you experience some really invidious racial discrimination. If you come into court with a lawsuit that says “I suffered really invidious racial discrimination”, you will lose on a motion to dismiss even though your claim “has merit”. The work that Iqbal does is to tell you how much detail you need to plead so as not to get thrown out of the courthouse, not whether your claim, as such, is meritorious.

And, as another commenter pointed out: yes, a lot of these criticisms apply to Twombly as well. The real issue with Iqbal, though, is that there was some confusion pre-Iqbal as to the applicability of Twombly. And, because Iqbal arose in the civil rights context, it is reasonable to expect it to have its greatest impact there.

4:43 on 3/16 and Craig’s exchange is a good one as well. It really illustrates the problem of identifying “clearly established” law. 4:43 suggests that, in the school discrimination context I cited, perhaps race and sex discrimination are different, and the problem I identify is illusory. But as Craig points out, the very fact that we don’t really know makes the law “not clearly established”, so the claim could easily get kicked. The only way to avoid that is to plead more generally, which leads to the interaction (Iqbal) problem.

Finally, in response to a commenter — no, I don’t know of any courts so far that have caught on to this. But I hope they do soon!

In my next post, and my last post on this article, I’ll wrap up with a few thoughts on “procedural judicial activism”.

Wednesday, March 31, 2010

Blogging from the Supreme Court: Oral Argument Comedy

I was able to attend oral arguments in Barber v. Thomas, 09-5201 (2010) yesterday. The question presented in that case was whether the "'term of imprisonment' in Section 212(a)(2) of the Sentencing Reform Act, enacting 18 U.S.C. 3624(b), unambiguously require[s] the computation of good time credits on the basis of the sentence imposed?"

But an exchange between a few of the Justices and the Solicitor General's counsel during oral arguments provided more entertainment than the Court's endeavors to solve the mathematical puzzles in the case. provided a detailed account of the incident:
The issue before the Court in Barber v. Thomas is the interpretation of a "term of imprisonment" under the federal good-time credit statute. The petitioning federal inmates argue that they should be eligible for the statutory 54 days of good-time credit for each year of their entire sentence as originally imposed. The position of the Bureau of Prisons is that the calculation of good-time credit is based only on time actually served by the prisoner. . . .

Assistant to the Solicitor General Jeffrey B. Wall, arguing on behalf of the government, told the justices that the petitioners' method of calculating a year of imprisonment, subtracting the 54 days of credit, wrongly creates a 311-day cycle for good-time credit eligibility. "But what the statute says is you make the determination at the end of the year. And we don't read "year" to be a 311-day period. We read it to be a 365-day period," Wall said.
Ok, got that? Enter Justices Breyer and Stevens to comb through the arguments and the math:
Justice Stephen Breyer expressed concern about awarding good-time credit for what he at one point in the argument termed "phantom time" -- time sentenced but not actually served. A prisoner sentenced to 10 years, Breyer said, "is not actually in prison for 10 years. He is going to be released sometime late in year 8. And so why should we add 54 days? I mean maybe it would be a nice thing because sentences are awfully long, but -- but why would anybody want to add 54 days in respect to a year that's never going to be served?"
Breyer offered a somewhat lengthy and arithmetic-heavy reading of how the statute might apply to a prison term of 10 years: "At the end of the first year you write the number 54 on a piece of paper if [the prisoner] has done well. Suppose he comes in on Jan. 1, OK? So Jan. 2, after the first year, you write ... the number 54. And you do that each year. And by the time you get to the year eight, what you have done is you have got 432 days." . . . Breyer continued: "So then you subtract the 430 days from 10 years, and what you get is you are 67 days short of nine years. So now you look at the last sentence, and what you do is you take 67 days, subtract that from 365, and you've got 298, and you simply prorate for those 298. And you subtract that, too, so he gets another 10 days or so, or 15 days credit, and that's it.
Justice John Paul Stevens seemed concerned about the policy implications of the government's position, telling Wall: "You say there are 195,000 sentences affected by this rule. I don't know which way that cuts. If there are 195,000 people spending ... significantly more time in jail than they should, that's kind of troublesome." . . . "Justice Stevens, I think what I would say is the bureau has been doing it the same way since 1987. Congress has amended this statute five times in the last 20 years. It has never moved to alter the bureau's methods," Wall answered. . . .

"Probably they didn't understand it because it's an awfully hard statute to understand," Stevens offered.

"Justice Stevens, with all respect, Justice Breyer got it in the first five minutes," said Wall, to laughter from the audience in the courtroom.

"Well, he's a lot smarter than I am," Stevens quipped.

Justice Antonin Scalia jumped in with a mock-incredulous tone that ratcheted up the laughter: "Even Justice Breyer has got it! Whoa!"
Yes, even Justice Breyer got it.


On a related note, a few of my classmates and I got the opportunity to attend a small Q&A session with Justice Stevens after oral arguments. He talked with us about a few recent cases, his views on cameras in the Supreme Court and baseball. I'll be blogging more about this later.

Tuesday, March 30, 2010

The Next Major Product Liability Suit?

Drug product liability is an area of law that resembles a game of hot potato to decide who is at fault. The FDA, perhaps? Well of course not. You can't sue the FDA. That leaves you with the manufacturer. Hopefully, AstraZeneca isn't opening the door to its next major lawsuit.

Wednesday, March 24, 2010

Pearson-Iqbal: A discussion about discretion

In my last post, I explored a few of the problems with the interaction between Pearson and Iqbal: that a civil rights plaintiff is caught between saying too much (and getting dismissed because of Pearson) or not saying enough (and getting dismissed because of Iqbal); that, as I explained with the example from DiStiso v. Wolcott, this interaction could not only deter plaintiffs from arguing constitutional theories but also from enforcing constitutional rights; and that changing the Rule 8(a)(2) standard has also implicitly modified the substantive inquiry at "Saucier step one", even though the Court did not frame it that way.

I also noted that the increased discretion that courts are given (to decide which step of the QI analysis to undertake first, and to use "common sense") makes it hard to predict how different courts will deal with identical facts. In this post, I want to expand on the problematic way these two cases handle courts' discretion.

Pearson, as discussed earlier, gives courts the discretion to decide which step of the QI analysis to address first. (By the way, in response to Craig's earlier comment -- in FN 131 of the paper, I cite several cases where courts skipped to step two of the QI analysis and note that as of that writing (six months ago), courts had done so "dozens" of times; I suspect the number is higher now.) But while the case law now gives courts wider discretion to dismiss civil rights claims, they have no corresponding discretion to preserve such claims. In the article, I give an example where , at summary judgment, it is a close question whether a reasonable jury might conclude that there was a violation of a (clearly established) right. If a district court dismisses the claim, it will likely be protected by Pearson. But if it decides to let the case go to trial, it will probably have committed reversible error: although trial courts have various inherent powers, qualified immunity is an immunity from suit, not just liability, so the court will probably be held to have exceeded its discretion.

Moreover, litigants will not know which of the two steps a court will address first. Therefore, they will probably argue both. And, in responding to the arguments raised, a court may well address both arguments, even after disposing of the case on one prong or another. (The Tenth Circuit recently did this in a case I cite.) This in turn results in unnecessary dicta, which is the problem with Saucier sequencing that Pearson ostensibly fixes.

Iqbal also disrupts long-standing law regarding lower courts' discretion. As the Second Circuit explained in its Iqbal decision (Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007)), a trial court, “not only may, but ‘must exercise its discretion in a way that protects the substance of the qualified immunity defense.’” Id. at 149. This discussion quoted Crawford-El v. Britton, 523 U.S. 574, 597-98 (1998). Crawford-El explained that district courts have a wide array of tools at their disposal to carefully manage litigation and ensure that defendants -- and particularly government officials -- are not exposed to vexatious discovery and other litigation demands.

As the Supreme Court explained in Crawford-El, a trial court has the power, inter alia, to order a reply to the defendant’s answer per Rule 7 or require a more definite statement of the
plaintiff’s claims per Rule 12. “Thus, the [district] court may insist that the plaintiff put forward specific, nonconclusory factual allegations that establish improper motive causing cognizable injury in order to survive a prediscovery motion for dismissal or summary judgment.” Id. at 598. In Iqbal, the Court instructed that conclusory allegations must be disregarded altogether. Yet in Crawford-El, the Court specifically explained how trial judges were to use their discretion to more fully elaborate on such allegations in the course of testing a plaintiff's complaint. Iqbal makes no mention of Crawford-El, and therefore litigants must assume it is still good law, but there is no reasonable way to square the two decisions.

And this sort of carefully managed discovery process is nothing new. For years, courts have permitted plaintiffs to take limited jurisdictional discovery when there was a question as to whether personal jurisdiction existed in a particular forum. And consider this: Rule 9(b) imposes a heightened pleading requirement in certain cases. But the circuits were uniformly agreed, pre-Iqbal, that Rule 9(b)’s requirements were relaxed when the facts material to a fraud claim were in the defendant’s exclusive possession and could be obtained only through discovery. But it cannot now be the case that Rule 8's general allegations have to meet a higher standard than those that, per Rule 9, must be pled with particularity. Again, Iqbal makes no mention of this problem.

So Iqbal effectively rachets back district courts’ discretion, instructing them to dismiss a complaint outright when a complaint’s well-pleaded factual allegations are deemed implausible. But it also expands district courts’ discretion in another, important direction: it instructs courts to make this decision based on their “judicial experience and common sense." The problem, of course, is that this kind of a determination is so open-ended as to be almost unreviewable.

So this is the second major problem with Pearson-Iqbal: all of the discretion cuts one way. Pearson’s rule that sequencing is now voluntary increases a court’s discretion to dismiss civil
rights claims; Iqbal’s conclusion that discovery management is an inadequate tool decreases a court’s ability to preserve civil rights claims; Iqbal’s directive to rely on common sense increases a court’s ability to dismiss such claims.

Of course, it is possible to devise a rule that would have balanced the interests of civil rights plaintiffs and defendants. For example, the Supreme Court could have (and I submit should have) announced the following rule, consistent with Twombly and pre-Twombly authority: (1) civil rights claims require no heightened pleading standard; (2) if the allegations regarding a particular defendant’s actions are “conclusory,” a court is to determine whether the claims against him are consistent with liability and, if so, whether the facts necessary to support such a claim are likely to be in the defendant’s possession. If so, the court could order limited discovery or use other procedural tools — as described in Crawford-El — to permit the plaintiff an opportunity to determine if he can make out a claim against the defendant. If so, the case would proceed in the normal course; if not, the case would be dismissed. Again, such a formulation preserves the defendant’s interest in avoiding discovery intended only to harass, while permitting the district court to operate with a scalpel rather than a mallet (and a rather one-dimensional mallet at that, since a court’s only option in such a context is dismissal).

We're getting to the end. Because this series has gone on for a while, I'll take a break in my next post and respond to some reader comments. I'll wrap up with a discussion of procedural judicial activism and why we should worry about it.

Tuesday, March 23, 2010

Country Roads

I love my home state of West Virginia. I love the beautiful hills, the wonderful people and, of course, the Sweet 16-bound Moutaineers. But I cannot ignore a troubling aspect that continues to plague the state's reputation: its economy and general business environment. A recent study ranked the Mountain State dead last in lawsuit environment:
A study conducted by the U.S. Chamber Institute for Legal Reform rates West Virginia as having the nation’s worst lawsuit climate in the United States. . . . The Lawsuit Climate 2010: Ranking the States survey measures how a state’s legal climate affects businesses. Survey respondents were made up of general counsels and senior attorneys or executives in companies with annual revenues of at least $100 million. According to the report, West Virginia was rated last in each of ten elements used to determine a state’s overall position.
So apart from being a lawyer's paradise, businesses tend to eschew locating within the state. And the large companies that have set up shop seem to experience stagnate growth relative to their peers. Various reasons have been advanced to explain why this is the case, including a lack of competitive pay for executives, a relatively antiquated corporate governance structure and now, as noted, the need for tort reform. In any case, it is tough to know how to enact sweeping and meaningful change.

Friday, March 19, 2010

Weekend in DC

For a bit of news that has nothing to do with Pearson, Iqbal, or (at least directly) the law--

I'm in Washington, DC this weekend at the annual "Legislative Weekend", part of the YMCA DC Youth & Government Program. The program brings together high schoolers from across the District to discuss and debate issues that are important to them, to play the role of Youth Mayor, Council Members, etc., and "pass" bills into law. Some of the bills introduced during the high schoolers' program have gone on to become law in Washington, DC. The youth leaders from the program contribute to community and civic life as well; most recently, students from the program testified before the DC City Council.

I helped start this program eight years ago and it's grown well beyond its humble origins. I'm proud to be part of such an impressive program and encourage you to read more about it and support it if you are so inclined.

Lady Gaga and Boys

I vaguely recall Lady GaGa once intimating that any new boyfriends who come into her life would be in for a bumpy ride. Well, apparently one fell off and is suing GaGa for $35 Million:
Lady GaGa's former songwriter, music producer and also ex-boyfriend . . . Rob Fusari says GaGa squeezed him out of her career after he co-wrote some of her songs, came up with her stage name and helped her get a record deal. Fusari acknowledges getting checks for more than $600,000 from . . . GaGa, but says that isn't his full share.
In any case, I take it that this amount of money is a drop in the bucket for her. Check this out for more.

Wednesday, March 17, 2010

Federalism Showdown

Idaho governor signs law requiring Idaho AG to sue the federal government if residents are forced to buy health insurance. AP

The Blackbook's Second Annual Top Law Prof. Competition

It's that time of the year again! The Blackbook Legal Blog is proud to announce that we're hosting our second annual top law professor competition. Last year's competition was a major success with hundreds of different voters from different schools casting their ballot. In the end, Professor Peter Smith of The George Washington University Law School emerged victorious. We hope this year's competition will be as spirited.

As a reminder, here's how it works: e-mail us or leave us a comment to this posting nominating a professor. Be sure to specify what school the professor teaches at.* In a week or two, we'll put everything together and create a poll. We'll pull the top five professors from that poll into another poll, and will determine--from there--who our readers think should be crowned "Blackbook's Top Law Prof."

*Note that winners from the past year are ineligible to participate. Thus, nominations for Professor Smith will not be accepted in this year's competition.

Tuesday, March 16, 2010

Pearson-Iqbal: What's the big deal?

In my previous posts (Part I and Part II), I explained why the Supreme Court's recent decisions in Pearson and Iqbal are problematic on their own terms. These are some fairly well-known criticisms. In this part, I want to explain why the interaction between these two cases is problematic -- a point that has not gotten any treatment, to my knowledge, in the academic literature (in print or online).

The biggest problem is that the Pearson-Iqbal interaction threatens to catch litigants -- civil rights plaintiffs in particular -- on the horns of a dilemma. In my article, I illustrate this problem with a case that was recently decided by the District of Connecticut. (The case then went to the Second Circuit, but its disposition there was on grounds unrelated to the issues I discuss here.)

In DiStiso v. Wolcott, 539 F. Supp. 2d 562 (D. Conn. 2008), Robin DiStiso sued various school officials on behalf of Nicholas, her minor son. Robin alleged inter alia that the other students at school harassed, taunted, and assaulted Nicholas because of his race. She further alleged that she complained to Nicholas’s first-grade teacher, Tammy Couture, and the principal, John Cook, and that they did nothing to respond to the complaints. Robin and her husband testified to this effect at their depositions. For their part, Couture and Cook stated in affidavits that they never observed such conduct and never received such complaints from the parents.

At the time of Robin's suit, it was clear that, per Second Circuit case law, a claim like this one -- alleging deliberate indifference to racial harassment -- had to make out at least three elements: (1) harassment by other students; (2) awareness, on the part of school officials, of such harassment; and (3) a “clearly unreasonable" response by those officials. However, it was not clear whether the parents also had to allege (and later demonstrate) a racially hostile educational environment. Years before, the Supreme Court had held that such a showing was necessary in the context of student-on-student sexual harassment. But neither the Supreme Court nor the Second Circuit had so held in the context of racial harassment.

Now we see the Pearson-Iqbal interaction problem. Robin could plead the violation a specific constitutional right: the right to be free from student-on-student racial harassment, premised on a theory of deliberate indifference. But this claim could easily get dismissed: on the basis of Pearson, the District Court could, correctly, hold that (because no court has held whether a hostile educational environment is a necessary element of the claim) the right in question is not "clearly established."

To avoid this problem, Robin could plead the violation of a general constitutional right: the right to be free from racial discrimination. But in this case, Robin and Nicholas would almost certainly lose because of Iqbal. Any allegations regarding intentional, active discrimination by Cook
or Couture would be conclusory, because the real nub of the claim against them (on this count) was not that they did discriminatory things to Nicholas; it was that they willfully ignored others’ discriminatory treatment. In such a context, any allegation that Cook or Couture actively engaged in discriminatory conduct would be seen as “conclusory” as the allegations discarded by the Supreme Court in Iqbal.

And so, in a Pearson-Iqbal world, Robin and Nicholas would be stuck. They could plead the violation of a specific constitutional right -- indeed, the one that is most directly applicable to the fact pattern -- and risk getting tossed by Pearson. Or they could plead the violation of a more general constitutional right, and risk getting thrown out by Iqbal.

There are several important implications:

1) Pearson-Iqbal puts civil rights litigants in a position where their claims, even if they are meritorious, are at risk of dismissal whether they say "too much" (Pearson) or "too little" (Iqbal).

2) The interaction not only threatens the development of novel constitutional theories but also the enforcement of existing constitutional rights. The Second Circuit has held for at least ten years (since Gant v. Wallingford) that schools officials might be liable in this kind of context. But the fact that the applicability of one element has not been squarely decided puts the plaintiffs at risk of immediate dismissal per Pearson.

3) There is no guarantee that the problems I outlined would actually come about (if the DiStisos' case were litigated in post-Pearson/Iqbal world). But this exacerbates the problem. The increased discretion courts have (to use their "common sense" to decide if there was discrimination; to decide how to approach the qualified immunity analysis) makes it that much harder to predict how different courts will rule given identical facts. Such unpredictability undermines the rule of law.

4) When deciding a motion to dismiss on the grounds of qualified immunity, a court had to first decide if the allegations, assumed to be true, make out the violation of a constitutional right (Saucier step one). But as several civil procedure professors pointed out in the Iqbal amicus brief, "what is now described as the first step is, in fact, only a reflection of the plaintiff ’s standard obligation to show her entitlement to relief under Rule 8(a)(2). As a matter of trans-substantive procedural law, a failure to make such a showing in any case would trigger a Rule 12(b)(6) motion to dismiss for failure to state a claim. No different rule applies to constitutional claims . . . ." But by raising the bar for a "regular" Rule 12(b)(6) motion, Iqbal has, perhaps inadvertently, altered the standard for Saucier step one. Now, when faced with a 12(b)(6) motion based on qualified immunity, a court will have to import Iqbal's plausibility standard -- or, if it does not, it will have to explain why plausibility applies in some contexts but not others.

This post has run a bit long, so I'll cut short here. In my next post, I'll elaborate on a point I mentioned in passing above -- the role of lower courts' discretion. Then I'll respond to some of the comments I've received thus far.

Sunday, March 14, 2010

Pearson-Iqbal, Part II

In this post I'll continue with an overview of my forthcoming article, Pearson, Iqbal, and Procedural Judicial Activism. In Part I, I explained why the Supreme Court's decision in Pearson v. Callahan was problematic: by permitting courts to skip to the second step of the qualified immunity analysis, Pearson will, over time, reduce the universe of claims available to civil rights plaintiffs.

The story is more straightforward with Ashcroft v. Iqbal. Although that case was, at least on one level, a qualified immunity case, the ultimate disposition turned on pleading standards. Iqbal, a Pakistani national living in the U.S., was picked up by federal authorities shortly after September 11 on certain fraud charges. He alleged that, while in prison, he was abused by low-level guards, at the direction of, and with the knowledge of, high-level government officials. The question the Supreme Court addressed was "whether conclusory allegations that high-level government officials had knowledge of alleged wrongdoing by subordinate officials are sufficient to survive a motion to dismiss in an action brought under Bivens."

The court held that a plaintiff's complaint was to be tested in accordance with a two-step process. First, the court was to disregard all "conclusory" allegations. Second, the court was to determine whether the non-conclusory allegations, assumed to be true, gave rise to a "plausible" entitlement to relief.

This two-step process is fraught with problems. The relevant passage in Iqbal reads, “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. [Twombly, 550 U.S.] at 555 (Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we 'are not bound to accept as true a legal conclusion couched as a factual allegation' (internal quotation marks omitted))."

But this paragraph is sloppy; it equates "conclusory statements" with "legal conclusion[s]", even though these are two different concepts. But certain conclusory statements, even under a properly-applied Iqbal standard, are entitled to the assumption of truth. For example, the statement that "X was walking down the street," though conclusory -- it provides no facts to suggest that X actually was walking down the street -- is entitled to the assumption of truth. "X was negligent," on the other hand, is not. Of course, the two statements are equally "conclusory"; the former is a factual conclusion and the latter is a legal conclusion.

So perhaps Iqbal meant to say that legal conclusions are not assumed to be true? But this cannot be: as Justice Souter wrote in his dissent, there are factual conclusions that are also not entitled to the assumption of truth: "that are sufficiently fantastic to defy reality as we know it: claims about little green men, or the plaintiff’s recent trip to Pluto, or experiences in time travel." And the majority's did not limit its plausibility standard this (or any) way. Instead, a court is to rely on its “judicial experience and common sense” in determining whether a claim is plausible, after disregarding “conclusory” allegations. Thus, in its attempt to discard improperly pled (factual? legal?) allegations, a court must necessarily draw on its own views as to what the facts are, or should be.

Iqbal also elevates form over substance. "X discriminated against me because of my race" is conclusory and would be disregarded. But "X discriminated against me; I am an Arab Muslim; non-Arab, non-Muslims were not discriminated against" probably would pass muster, even under Iqbal. But the second formulation adds nothing, as a practical matter, to the first.

There are a variety of other criticisms of Iqbal that I summarize briefly in my article. My only point here is to highlight the fact that Iqbal does not even necessarily hold water on its own terms. (Professor Arthur Miller, in Congressional testimony, has expounded some other criticisms, including the idea that Iqbal is the culmination of a line of cases steadily eroding our commitment to civil litigants' day in court.) I do not intend to be exhaustive here about all of these criticisms. I just want to point out that, by raising pleading standards, Iqbal raises the bar on plaintiffs, making it harder for civil plaintiffs to prevail on their claims.

In my next post(s), I will explain how the interaction between Pearson and Iqbal harms civil rights plaintiffs, and how this exemplifies what I call "procedural judicial activism." I'll also respond to the comments -- look forward to hearing more.

Saturday, March 13, 2010

Pearson, Iqbal and Procedural Judicial Activism

Thanks again to the staff at Blackbook and the commenters for the welcome.

I want to start off by summarizing, in a few parts, my latest article, Pearson, Iqbal, and Procedural Judicial Activism. The paper takes aim at two cases the Supreme Court recently decided -- Pearson v. Callahan and Ashcroft v. Iqbal -- and concludes that the cases are problematic, not just on their own terms but also in terms of their potential interaction.

Pearson was a qualified immunity case. By way of background, qualified immunity is a doctrine that generally shields government officials from liability for their actions. In a nutshell, the rule that the Supreme Court formulated, which found its most famous expression in 2001's Saucier v. Katz, was this: a state official would not be liable unless his actions (1) violated a constitutional right and (2) that right was "clearly established" at the time of the relevant conduct. These two questions were to be addressed in sequence. As the Court explained, "This is the process for the law’s elaboration from case to case, and it is one reason for our insisting upon turning to the existence or nonexistence of a constitutional right as the first inquiry."

To see how this works in practice, consider the Court's recent decision in Safford v. Redding. Savana Redding was strip searched at school and subsequently sued, claiming that the search violated her constitutional rights. The Court held (at step one) that the search did in fact violate Redding's rights. But it went on to hold (at step two) that the right was not "clearly established" at the time of the search. Note the salutory effect of this sequencing: in the future, school officials will know the permissible limits of a search, and students will have a clearer understanding of their rights.

In Pearson v. Callahan, the Supreme Court made Saucier's sequencing optional. Now, courts are free to skip ahead to step two and grant an official immunity based on the fact that the asserted right was not clearly established. Note the problem: if a court skips to step two on the basis that the right in question was not clear, then the court does not pass on the nature of the right at issue. That means that, the next time a similar case comes up, the relevant right still has not been clearly established. Over time, the "voluntary sequencing" regime will have a detrimental effect. Courts will never need to address the constitutional question, the right will never become established, and the universe of claims available to civil rights plaintiffs is smaller than it otherwise would be. (Obviously, in some cases -- like Redding, which was post-Pearson -- a court will pass on the first question by choice; it is not inevitable that all cases get kicked out by a court moving directly to step two. But these will generally be the exception.)

This is why Perason is problematic on its own terms: by permitting courts to bypass the first step of the immunity analysis, it will limit the range of claims that civil rights plaintiffs can bring.

In my next post, I'll summarize the problems with Iqbal, and in a third, I'll explain how the interaction between these cases harms civil rights plaintiffs. The article is still forthcoming, so if anyone has comments, I'd love to hear them and, to the extent feasible, will work them into future drafts.

Tuesday, March 9, 2010

The Power of Oral Dissents

The New York Times reports that dissenting from the bench is on the rise. With Justice Ginsburg holding the record for most oral dissents, other justices have stepped up to add a little more sarcastic flavor to their written dissents. Is this just a way to stick it to the majority, or is it because justices feel so passionately against the court's holding that they must outwardly express their displeasure?

The article mentions that some of the more prominent oral dissents were in cases such as Ledbetter v. Goodyear Tire and Rubber Co. and Stenberg v. Carhart, which, in Ledbetter's case, led to Congress passing the Lilly Ledbetter Fair Pay Act essentially overturning the original ruling. Maybe these oral dissents are a call to other sources to help overturn majority decisions when the justices themselves cannot get the votes. Then again, maybe it really is the political minority on the bench staking its claim and fighting back as aggressively as it can.

Monday, March 8, 2010

A Response from UT Law and a Clarification

A few days ago, we posted a story about the relative shortage of practical legal education opportunities at many U.S. law schools, as well as the according need for change. In that article, I cited an op-ed in the Daily Texan written by three University of Texas Law students on how UT Law does not currently offer a mandatory brief writing course for first years. A few other outlets--including the Legal Writing Prof Blog--picked up the story. Well, UT Law has chosen to respond to the articles. Specifically, Wayne Schiess, director of the Legal Writing program at UT Law, said in a statement to the Legal Writing Prof Blog:
It is true that the University of Texas School of Law has a first-year legal-writing curriculum without brief writing. When the law school administration removed credits from the required course five years ago, brief writing was lost. Needless to say, the legal-writing faculty thought it was a mistake. So we’ve been teaching a brief-writing elective that only some 1Ls can get into. We're optimistic that brief writing will return to the required first-year curriculum. Indeed, a proposal to do that comes before the faculty this week.
We applaud the changes the school is making. However, I want to emphasize that the article was not meant to single UT Law out. It is obviously a fine institution that provides its students with fantastic opportunities (so, Hook 'em Horns!). And thus, despite the intimations of numerous posters on message boards around the internet, I do not have a problem with UT Law as an academic institution; I do have a problem, however, with the law school system as a whole. If one takes a full glance at the article I wrote, as well as the February 2009 article it cited, one will see that many of us on this blog believe that we need substantial reform in the current law school model because it is simply failing students.

Sunday, March 7, 2010

2009/2010/2011 BigLaw Class Years: The Gilded Ones?

Look around your law school campus and you will see the carnage left behind by the financial crisis. Classes of 2009/2010/2011 are left jobless and debt ridden. Among the detritus scattered around campus, however, there are the lucky few who have successfully secured gainful employment at some of the nation’s premier firms. It is my belief that these “survivors” of sorts are poised to have the most market (and hence financial) leverage in the medium- and long-term. There are two phenomena that support my assertion: 1) the seemingly unmovable law firm profit model; and 2) demographic destiny.

First, to quote Mark Twain, the reports of the BigLaw model’s death are greatly exaggerated. While some firms have moved away from traditional lock-step compensation systems and have outsourced the more mundane portions of their work, the fundamental premise of their business depends on starting large classes of associates at the bottom of the pyramid and slowly winnowing them out either via voluntary or forced attrition before they reach the top layers. Many of the survivors of this process who end up at the top of this pyramid are compensated with a consecrated slice of the partnership pie. So how does this ancient and seemingly indestructible profit model help the lucky few who landed summer associate positions? Simple. Supply and demand.

These lucky few will ultimately succumb to the same pressures experienced by any other BigLaw class year. Some will leave for government, some for mid-size/small law, and some will just leave the law period. This inevitable thinning of the 2009/2010/2011 class years will create an abnormally small layer in the BigLaw pyramid relative to the size of the firms’ respective partnerships. Ultimately, when the economy turns around (yes, one day it will be better; even the Great Depression came to an end after all), BigLaw will have more work than mid-level associates to do it. The result of this excess work and limited supply of experienced attorneys means that there could very well be a financial war between firms for mid-level attorneys. BigLaw firms will be unable to fill these voids in their ranks with attorneys from small/mid-sized law firms and the government because they will simply not have the requisite experience to do the work.

Second, viewing the future with more of a long-term lens, old partners, particularly baby boomers, have to retire at some point. Whether by “age-out” clauses in partnership agreements or simply by partners deciding that they have hit the end of the line, there is a large generation of law firm partners who will be heading for greener pastures in the next decade or so. The generations immediately behind them, particularly Generation X and the Millennials, are quite a bit smaller than their baby boomer predecessors. Come time for partnership promotions, there might very well be a shortfall in available talent to take up the reins of the firm; particularly, a shortfall in talent around the time the 2009/2010/2011 classes are up for partner. Those who make through the eight to ten years of hoops stand (I think) a much improved chance for partner compared to their boomer and Generation X peers.

So what’s the conclusion? Those in the Classes of 2009/2010/2011 who are/were able to obtain a BigLaw position may have some serious market power behind them in the medium- and long-term. So long as these individuals can wade through the next two to three years of economic waters, they stand an excellent chance to develop a skill set that will be in high demand during the medium term (i.e., during their mid-level years) due to limited supply. Further, any members of these Classes who manage to survive eight to ten years in their firms also stand an excellent chance of making partner due to demographic pressures on the boomers.

Obviously this is all just speculation. Should the overall size of BigLaw shrink my predictions will not hold. However, given the ever increasing levels of regulation coming out of Washington, I believe that there may just be an enormous opportunity for these lucky few.

Friday, March 5, 2010

Informational Asymmetries, the Emperor's New Clothes and More Cries For Value

Early in 2009, we noted that the recession has exposed numerous deficiencies in the current legal education system. Accordingly, we argued for a systematic change in curriculum and focus. It appears that law students elsewhere are yearning for the same at their institutions. From The Daily Texan:
[C]riticisms [of the University of Texas Law School] are well-founded. In a survey of accredited law schools, Texas was the only school without a mandatory brief-writing course. In fact, only about half of first-year students surveyed reported being able to get into a brief-writing course. As a result, they will not be trained how to present arguments to a court — one of the most basic legal skills.

Instead of rectifying the problem by meeting national practical skills standards, UT Law instead chooses to steer law students away from taking practical courses by offering grossly grade-inflated first-year electives on such totally impractical topics as Race and Gender in the Constitution.

The first-year curve in all courses is set at 3.3; the average in these “electives” is a 3.8. A student in Race and Gender in the Constitution commented, “The class is a complete joke and a waste of time, but the professor gives almost everyone A’s.” Since law students’ employment is determined by their first-year GPA, creating such an exception to the curve is unfair to other students and misleading to employers relying on the veracity of student transcripts. . . .
So law students can game the system and come out Order of the Coif, while not knowing a single thing about the basic exceptions to the hearsay rule? I can vouch for the fact that this is an absolutely accurate characterization of the system as it is constituted both at my institution, and as the authors noted, at others.

But more pertinently, law school seems (oddly enough) to present a sort of transparent information asymmetry cogently illustrated by the student in this article: in many respects, law schools fail to meet the demands and expectations students have upon entering and that employers have when hiring. Yet, it seems like we all know a little bit of what we are getting at the outset; the sales pitch is just all too compelling. In this sense, law school is more like an experience good that shouldn't demand any sort of warranty. But the problems are still exceedingly pervasive. As the authors noted with respect to their institution:
[There is a] deeper problem at UT Law that has drawn criticism from all corners of the legal industry: Lax institutional standards have marginalized the law school’s role in society of preparing its students to be competent, ethical lawyers.
I hate to say it, but this problem is not confined to UT Law. We need major reforms soon, because permitting students to become engulfed in massive amounts of debt with little to no guidance on how to be competent lawyers will (inevitably, I think) continue to dilute the profession's quality, and worse yet, harm students' lives. Law students ought to be more vocal in their cries for change like the authors in the noted article.

Thursday, March 4, 2010

BREAKING: Chief Justice Will Not Resign!

From Radar Online:
John Roberts, Chief Justice of the United States Supreme Court, is seriously considering stepping down from the nation’s highest court for personal reasons, has learned exclusively.
Clearly big news (or rumors). This would give President Obama the ability to establish a firm liberal legacy on the Court.

Perhaps this rumor/news is related to the Chief Justice's health. As you may recall, Chief Justice Roberts suffered from a seizure while on the Court. He suffered from a similar seizure in 1993 as well.

UPDATE: Radar Online has retracted their statement and now notes that the Chief Justice will NOT be resigning. See what happens when you read the tabloids?

Joinder and Dispositive Motions

Though I have never blogged about it here, dispositive motions are currently my main legal interest. I recently published a student comment, for example, arguing that summary judgment has the capacity to be granted inappropriately in factually driven inquiries and that such decisions violate the Seventh Amendment. (Yes, I posted my comment on SSRN.)

I write today to float around an idea along these lines that I am considering addressing in some form:  whether increased use of party and claim joinder by plaintiffs, under Rules 13, 18 and 20 have led to an appreciable increase in granting 12(b)(6) motions and summary judgment. My (currently baseless) suspicion is that increased use of party and claim joinder may have played a contextual role in informing the Supreme Court's decisions in Celotex and its 12(b)(6) analogue in Twombly. While it is commonly understood that both decisions make it easier for defendants to prevail without going to trial, I wonder to what extent--if any--the decisions were designed as (or have been used as) tools for lower federal courts to simplify cases with multiple defendants and claims.

My current thinking is that this examination would be best conducted with an empirical analysis tracking the use of joinder over the last 30-40 years. I would be interested to hear our readers thoughts on the methodology, and the idea generally.

Wednesday, March 3, 2010

A Curious Framing of First Amendment Rights

From the Seattle Times:
A Clackamas [Oregon] man has filed a federal lawsuit over what he says is his First Amendment right to express himself by giving the finger to sheriff's deputies.

Robert Ekas tells The Oregonian that he flipped off Clackamas County sheriff's deputies because he has a constitutional right to do it. Ekas also says he is protesting police violence.

In his lawsuit, Ekas says that in July 2007 he flipped off a Clackamas deputy while driving, and the deputy gave him tickets for illegal lane change and improper display of license plates. He was acquitted on the citations. A month later, he gave the finger to another deputy, who detained him but wrote no tickets.
Hmm. . . . I wonder whether this constitutes "protected" speech.

Tuesday, March 2, 2010

Introduction and Thanks

Hi Everyone,

First of all, thanks to Craig for the nice introduction. As he mentioned, I'm a recent law school graduate currently living in New York, where I am an associate at a law firm. Over the past few years, I've published law review articles on a range of subjects, from gay marriage to civic engagement to the takings clause. My most recent article was on stare decisis and was discussed on this blog last year. I've got a couple of other pieces in the pipeline, which I'll blog about soon. I'll also share my thoughts on other issues as they come up. Sometimes I'll be discussing works that are still unpublished, so I'd appreciate any feedback or comments you might have.

Incidentally, the views in my articles and my blog posts are my own, not those of my firm, Blackbook, other editors on this blog, or any other individual or entity. And, although I'd like to blog about interesting legal issues in the news, I won't be blogging about anything work-related, even if news about those matters is already public, just to steer well clear of any confidentiality concerns.

I'm looking forward to blogging here and engaging in discussions with all of you. Feel free to contact me with any questions, comments, criticisms, or funny jokes. Thanks to Craig, Nima, and everyone else on the Blackbook team for inviting me to blog with them. This should be fun!

New Contributing Editor--Blackbook Legal Welcomes Goutam Jois

The Blackbook Legal Blog is delighted to announce that Goutam Jois will be joining our ranks as a contributing editor. Goutam is currently an associate at a large New York City law firm. Prior to joining the firm, Goutam clerked for Judge Wolf on the District of Massachusetts and Judge Straub on the Second Circuit. Goutam graduated cum laude from Harvard Law School in 2007, and also holds a Masters and Public Policy from Georgetown where he also earned his A.B. magna cum laude.

Goutam is widely published, and--in fact--we've featured his scholarship on these pages in the past. We welcome Goutam, and look forward to an abundance of substantive legal posts on the legal issues of the day.

Monday, March 1, 2010

Space Junk Getting Worse

Space Junk. . . . the old rocket clunkers, metal scraps, and dilapidated satellites littering the final frontier. It's an illustration of a tragedy of the commons on a massive scale, and there seemingly has been little done to remedy it. An MSNBC article written last week notes how the problem is getting worse:
The already untidy mass of orbital debris that litters low Earth orbit nearly got nastier last month. A head-on collision was averted between a spent upper stage from a Chinese rocket and the European Space Agency's huge Envisat Earth remote-sensing spacecraft. Space junk tracking information supplied by the U.S. military, as well as confirming German radar data, showed that the two space objects would speed by each other at a nail-biting distance of roughly 160 feet (50 meters).
This problem is quite substantial because such items flying around the earth's orbit act as virtual bullets that can penetrate satellites and spacecraft, potentially causing considerable and costly damage. While the science is fascinating, at BBL we are (as always) interested in the legal issues presented by this problem.

There are two related issues that I have been involved in researching recently. First, the problem seems to be partially attributed to a lack of effective regulation on a global basis. It is true that agencies such as NASA have implemented certain guidelines to deal with the issue, and the U.N. has also attempted to solve the problem--i.e., United Nations Committee on the Peaceful Uses of Outer Space. But space debris nonetheless seems to continue causing problems. The image in this post alone illustrates just how pervasively such "junk" permeates earth's orbit.

I want to pose a question regarding further regulations' potential effectiveness. The problem of space junk, I think, can be partly attributed to the fact that governments, in essence, are the entities that need to be regulated. Thus, are self-imposed guidelines, for example, largely ineffective in an area such as space regulation because of the biases countries may have toward the domestic advancement of space exploration? International dispute resolution bodies--such as the World Trade Organization--have shown success in adjudicating disputes between member-bodies over alleged anticompetitive trade actions. But can similar schemes be implemented to deal with the space debris problem?