Law Commons^™

Setting Attorneys' Fees In Securities Class Actions: An Empirical As, Lynn A. Baker, Michael A. Perino, Charles Silver

Vanderbilt Law Review

n 1995, Congress overrode President Bill Clinton's veto and enacted the Private Securities Litigation Reform Act ("PSLRA"), a key purpose of which was to put securities class actions under the control of institutional investors with large financial stakes in the outcome of the litigation.' The theory behind this policy, set out in a famous article by Professors Elliot Weiss and John Beckerman, was simple: self-interest should encourage investors with large stakes to run class actions in ways that maximize recoveries for all investors. These investors should naturally want to hire good lawyers, incentivize them properly, monitor their actions, and reject …

Richard A. Nagareda, "In Memorian" 1963-2010, Chris Guthrie, John C.P. Goldberg, Andrew R. Gould, J. Maria Glover

Vanderbilt Law Review

A year ago, many of us gathered in Vanderbilt University Law School's Flynn Auditorium to attend a "Celebration of the Life of Professor Richard Nagareda." Frankly, I didn't feel like celebrating, a sentiment I suspect others shared. Richard-scholar, teacher, mentor, colleague, friend, father, husband-had left this earth before any of us were ready to part with him. And yet, as the speakers shared their memories of Richard, the intense grief I had felt since learning of Richard's untimely death began to dissipate. There was then, and there remains now, so much to celebrate about his life. For in his forty-seven …

Slipping Away From Justice: The Effect Of Attorney Skill On Trial Outcomes, Jennifer B. Shinall

Vanderbilt Law Review

Fred Goldman blamed the defense attorneys when a Los Angeles jury found O.J. Simpson not guilty of murdering his son, Ron Goldman, and Nicole Brown Simpson on October 3, 1995. Yet Goldman was not the only one who blamed the defense attorneys for the acquittal; much of the media agreed that Simpson was guilty and had escaped his rightful punishment. As one New York Times reporter lamented, "To watch Mr. Simpson slip away from justice ... was an infuriating sight." People who believed in Simpson's guilt cited Johnnie Cochran's decision to "play the race card" and his clever catch phrases …

A Lawyer's Lament: Law Schools And The "Profession" Of Law, Wayne S. Hyatt

Vanderbilt Law Review

Back in the mid-eighties, I offered a first year, second semester "un-elective" called American Legal Theory and American Legal Education. It scrunched together two history courses I had taught irregularly before. I liked the way the two topics fit together and still do, but with so many recalcitrant law students enrolled in it, the course was an unmitigated disaster. As is always the case with such attempts at offering perspective, amidst the shambles I had acquired at least a few devoted students. At the end of the last class one of them came up to the front to ask a …

The Ethical Bar And The Lsc: Wrestling With Restrictions On Federally Funded Legal Services, Liza Q. Wirtz

Vanderbilt Law Review

In 1996, Congress passed a budget act containing the most restrictive set of legislative limitations on the Legal Services Corporation ("LSC")-the private, nonprofit organization responsible for administrating federal funding for and facilitating access to legal services for low-income people across the nation-in the tumultuous history of that entity. Designed to forestall advocacy and representation activities viewed as undesirable by those in political power, these restrictions mandated that those organizations to which the LSC awarded funds refrain from engaging in any of a wide variety of previously permissible actions (for example, assisting incarcerated persons in civil proceedings and encouraging other people …

On What A "Private Attorney General" Is--And Why It Matters, William B. Rubenstein

Vanderbilt Law Review

May 17, 2004 marked the fiftieth anniversary of the Supreme Court's decision in Brown v. Board of Education.' This precise day also marked the sixty-first anniversary of the Supreme Court's first use of the phrase "private attorney general." For about three decades after this initial 1943 appearance, the private attorney general concept surfaced only occasionally in the legal literature. Starting in the 1970s, however, its presence became quite regular, and that regularity has escalated steadily to the present: on average, during the past fifteen years, every single workday, somewhere in the United States, some judge has written a legal opinion …

Beyond The Caricature: The Benefits And Challenges Of Large-Firm Practice, Mary A. Mclaughlin

Vanderbilt Law Review

I am the arch-villain of Professor Schiltz's article-not just a partner at a big firm, but the Hiring Partner. Because I have spent part of my career in government service and teaching, I may be uniquely positioned to react to Professor Schiltz's article. After get- ting out of law school in 1976, I clerked for a federal judge for a year and then went to a big firm in Washington, D.C. In 1980, became an Assistant United States Attorney, working as a criminal prosecutor for three-and-a-half years. I then went to Vanderbilt Law School where for two years I taught …

On Being A Happy, Healthy, And Ethical Member Of An Unhappy, Unhealthy, And Unethical Profession, Patrick J. Schiltz

Vanderbilt Law Review

Dear Law Student: I have good news and bad news. The bad news is that the profession that you are about to enter is one of the most unhappy and unhealthy on the face of the earth--and, in the view of many, one of the most unethical. The good news is that you can join this profession and still be happy, healthy, and ethical. I am writing to tell you how. I. THE WELL-BEING OF LAWYERS Lawyers play an enormously important role in our society. "It is the lawyers who run our civilization for us-our governments, our business, our private …

Resisting The Current, Stephen L. Pepper

Vanderbilt Law Review

The occasion was a faculty lunch with presentations from three members of the local bar. One was a partner at one of the largest and most respected firms in the city. Another was a former student of great ability and charm who had left one of the other large elite firms to form his own small, successful firm. The third, if I recall correctly, practiced with one of the federal agencies. Our purpose was to reinforce contacts with the city's practitioners and learn more concerning their views of contemporary law practice. I remember the two private practitioners more clearly because …

Large Law Firm Misery: It's The Tournament, Not The Money, Marc S. Galanter, Thomas M. Palay

Vanderbilt Law Review

Will young lawyers truly be happier and more fulfiled if they can restrain their appetite for money? Professor Schiltz's wonderful sermon certainly provides a stirring argument in the affirmative. In his eyes, it is greed (or materialism) that has led to the decline of the profession and makes lawyers unhappy. Lawyers' lust for money is at the root of their unhappiness with the profession.' This is broken down into two steps: "[m]oney is at the root of virtually everything that lawyers don't like about their profession: the long hours, the commercialization," etc., etc. And their obsession with money leads lawyers …

Cross-Examining The Myth Of Lawyers' Misery, Kathleen E. Hull

Vanderbilt Law Review

This comment will address one important aspect of Professor Schiltz's broader argument, namely his contention that the legal profession is afflicted with widespread job dissatisfaction. More specifically, Schiltz makes the following assertions about lawyers' unhappiness with their professional lives: (1) dissatisfaction is high; (2) dissatisfaction is increasing; and (3) dissatisfaction is highest among lawyers in private practice in large firms.' Using data from a recent survey of Chicago attorneys as well as other studies of lawyers' job satisfaction, including those cited by Schiltz, I will address each of these points in turn.

Thinking About The Business Of Practicing Law, Michael J. Kelly

Vanderbilt Law Review

The core of Schiltz's argument with which I most disagree is that large firms are all alike, or, to put it in its more modest, plausible, and compelling form, that big firms and big-firm lawyers are be- coming more alike. The claim of what academics call isomorphism-- in this case, that large-firm practices converge ultimately in similarity-- is his principal descriptive claim. It is also the primary rhetorical device that allows Schiltz to attack large law firms as if they were one, to transpose the caricature of the managing partner in his third marriage to all large law practices. Schiltz's …

Speaking Truth To Powerlessness, Howard Lesnick

Vanderbilt Law Review

I have offers from three New York firms, and wonder if you can tell me which one is the most prestigious. A third-year student seeking my advice a year or two ago The most striking aspect of Patrick Schiltz's essay is that it directly addresses students. In word (the salutation) and deed (what follows), he speaks, not to the folks who help rule the world (judges, legislators, officials, weighty practitioners, and those rulers-once-or- twice-removed, professors), but to those who are hoping-dare they?-to ascend to some future vacancy in those positions.

Schiltz's message is in two parts: First, he tells students …

The Pursuit Of Happiness, Michael Traynor

Vanderbilt Law Review

Ills that beset our profession are addressed by Professor Patrick Schiltz in the alert he sounds in his lead article, On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession,' and his earlier article, Legal Ethics in Decline: The Elite Law Firm, the Elite Law School, and the Moral Foundation of the Novice Attorney. His articles call for attention and introspection by law students and others in the profession.

The editors invited me to comment because of the transitions I have experienced since graduating from law school in 1960. I agreed, not realizing the extent …

Provoking Introspection: A Reply To Galanter & Palay, Hull, Kelly, Lesnick, Mclaughlin, Pepper, And Traynor, Patrick J. Schiltz

Vanderbilt Law Review

I have benefitted enormously from reading the Responses, and I am grateful to all of the commentators for entering into this conversation with me. There is much in each of the seven Responses to which I would like to reply-sometimes to agree, sometimes to disagree, sometimes to elaborate, sometimes just to express puzzlement. Unfortunately, though, my time and space are extremely limited. Given those limitations, I will first reply generally to Marc Galanter and Thomas Palay, Michael Kelly, Howard Lesnick, Stephen Pepper, and Michael Traynor, all of whom seem to be at least somewhat sympathetic to the underlying theme of …

Legal Malpractice: The Profession's Dirty Little Secret, Manuel R. Ramos

Vanderbilt Law Review

Legal malpractice is a taboo subject. It has been ignored by the legal profession,' law schools, mandatory continuing legal education ("CLE") programs, and even by scholarly' and lay publications. Unfortunately, our perception of legal malpractice, up until now, has been highly distorted by secretive insurance companies, confidential settlement agreements, and a questionable American Bar Association ("ABA") Study. Nonetheless, sharply contrasting portraits of legal malpractice have emerged: either it is just a minor problem of "weeding out" a few "bad apples," or it is the tip of an "iceberg," ready to overwhelm the legal profession. The ABA Study has fostered the …

Reflections On The Hart And Wechsler Paradigm, Richard H. Fallon, Jr.

Vanderbilt Law Review

The Federal Courts field may be experiencing a methodological crisis, but if so, it is a methodological crisis of a peculiar kind. The problem is not that new methodologies threaten traditional modes of analysis. On the contrary, the difficulty is that we have been doing largely the same thing for more than forty years--asking much the same questions formulated by Henry Hart and Herbert Wechsler in the first edition of The Federal Courts and the Federal System' and trying to answer them with roughly the same techniques. Not surprisingly, a number of people would like to throw off the Hart …

Theories Of Poetry, Theories Of Law, Lawrence Joseph

Vanderbilt Law Review

I write poetry." Also, since 1976, when I was admitted to practice before a state bar, I have served as a law clerk for a justice of a state supreme court, practiced, and mostly taught law. About the time that I began law school, while I was writing poems that would appear in my first book, an extraordinary change in jurisprudence began to occur, one which focused on legal language as something more than a medium for conveying singular meaning. This legal theory has become as important as any since legal realism. Because I also have written essays and re- …

Where Were The Lawyers? A Behavioral Inquiry Into Lawyers' Responsibility For Clients' Fraud, Donald C. Langevoort

Vanderbilt Law Review

Where were the lawyers? Perhaps rhetorical, even sarcastic, this question is being asked all too frequently after large financial frauds. "[W]ith all the professional talent involved," mused Judge Sporkin in a decision growing out of the Lincoln Savings & Loan scandal, "why [didn't] at least one... [blow] the whistle to stop the overreaching that took place in this case[?]" The Lincoln matter alone ensnared a number of the country's most prominent law firms," and many others have been blamed in comparable, if less notorious, banking delicts. Clark Clifford's indictment in the BCCI proceeding has extended the dark shadow even further …

There Goes The Monopoly: The California Proposal To Allow Nonlawyers To Practice Law, Kathleen E. Justice

Vanderbilt Law Review

Lawyers love to compete, but only with each other. The legal profession consistently has fought outside competition and successfully has controlled competition to ensure professional survival. Lawyers control competition through participation in bar associations, legislatures, and courts. For example, state statutes and bar association regulations' forbid the practice of law by nonlawyerss To enforce this prohibition, all states require that state and professional bar associations certify individuals as competent legal practitioners before they can practice law. Courts generally have upheld these statutes and regulations. Thus, lawyers have succeeded in limiting outside competition.

These limitations, however, may be resulting in denial …

The Role Of Law In Progressive Politics, Cornel West

Vanderbilt Law Review

What is the role and function of the law in contemporary progressive politics? Do legal institutions represent crucial terrain on which significant social change can take place? If so, how? In what ways? How can progressive lawyers remain relatively true to their moral convictions and political goals?

In this Article I shall attempt to respond to these urgent questions.I will try to carve out a vital democratic space left between the Scylla of upbeat liberalism that harbors excessive hopes for the law and the Charybdis of downbeat leftism that promotes exorbitant doubts about the law. My argument rests upon three …

Lawyers As Officers Of The Court, Eugene R. Gaetke

Vanderbilt Law Review

In its public assertions, the legal profession promotes a different model: lawyers are officers of the court in the conduct of their professional, and even their personal," affairs. The organized bar has expressly emphasized this obligation in each of its major codifications of the ethical obligations of the profession, including the American Bar Association's most recent effort, the 1983 Model Rules of Professional Conduct.

Lawyers like to refer to themselves as officers of the court. Careful analysis of the role of the lawyer within the adversarial legal system reveals the characterization to be vacuous and unduly self-laudatory. It confuses lawyers …

The Noblesse Oblige Tradition In The Practice Of Law, David Luban

Vanderbilt Law Review

In 1905 Louis D. Brandeis delivered a talk entitled The Opportunity in the Law to the Harvard Ethical Society.' It was delivered as a pep talk, what Harvard Law Professor Duncan Kennedy, seventy-six years later, would refer to as "the old address to the troops." Brandeis hoped to rally law students to his vision of the moral possibilities of legal practice-specifically, the elite corporate legal practice into which Brandeis could assume his audience would enter. Brandeis was concerned that elite lawyers were becoming thralls of robber-baron capitalists, that they were ignoring the possibilities of law practice as a kind of …

Attorney Advertising And Competition At The Bar, Terry Calvani, James Langenfeld, Gordon Shuford

Vanderbilt Law Review

Generally, advertising tends to lower prices and stimulate competition. This unexceptional statement becomes controversial, however,when applied to the legal profession. Indeed, only the newest members of the bar cannot recall the time when both professional and legal strictures precluded attorneys from advertising. Attorney advertising has been, and probably remains, a controversial subject. This Article analyzes attorney advertising and the regulations that police it. The Article begins by discussing the legal history of restraints on advertising.The Article then presents an economic analysis of the effects of attorney advertising. Finally, the Article examines the empirical evidence measuring the impact of attorney advertising …

The Challenge Of Change: The Practice Of Law In The Year 2000, James W. Jones

Vanderbilt Law Review

The past two decades have witnessed extraordinary changes that will have a lasting impact on the structure of the legal profession and the ways in which lawyers approach their practices. Some twenty years ago the legal profession was remarkably stable, having changed little in the preceding 100 years. The bar was relatively small, fairly homogeneous, mostly male, and overwhelmingly white anglo-saxon Protestant.The profession was, in the main, a close-knit fraternity of like-minded practitioners who shared a strong sense of common values and a general disdain for any efforts to commercialize the profession. The American Bar Association's 1908 Canons of Ethics …

The 1988 Vanderbilt Law Review Symposium The Modern Practice Of Law: Assessing Change, William E. Pilsk

Vanderbilt Law Review

The legal profession has long embraced an ironic contradiction:lawyers help clients respond to or create change, yet at the same time lawyers steep themselves in tradition and pride themselves on professional stability. Thus we have the image of the conservative, pedigreed attorney, clad in dark wool, who helps his client accomplish new and daring objectives, but who generally resists changes in his or her relationship with the client. For many years this image has served as the ideal for the legal profession, and rules and standards evolved to preserve that ideal.For generations the legal profession has adhered to its traditions …

Break The Monopoly Of Lawyers On The Supreme Court, Arthur S. Miller, Jeffrey H. Bowman

Vanderbilt Law Review

The questions these cases pose are: Do lawyers alone have the wisdom to make such sociological and moral decisions as Plessy, Brown, and Roe? Should only lawyers deal with political theory in the way the Supreme Court has in the Legislative Reapportionment Cases? Can only lawyers deal in a definitive way with the troublesome questions concerning the relationship of church and state presented by the Prayer Cases? Although the list of cases may be extended to cover the full range of socioeconomic questions that remain of fundamental importance to this country, the answer to these questions remains the same. No …

Limited Liability For Limited Partners: An Argument For The Abolition Of The Control Rule, Joseph J. Basile, Jr.

Vanderbilt Law Review

One of the important features of the limited partnership' that makes investment in this form of business organization attractive is the general immunity afforded to limited partners from liability for the obligations of the partnership. This immunity, however,can be forfeited. Under both the Uniform Limited Partnership Act (ULPA) and the Revised Uniform Limited Partnership Act (RULPA), a limited partner becomes liable for the obligations of the partnership if, in addition to the exercise of the rights and powers of a limited partner, the limited partner "takes part in the control of the business.''

Not surprisingly, when sophisticated investors are offered …

Book Review: Louis D. Brandeis And The Progressive Tradition; Brandeis, Paul Brickner

Vanderbilt Law Review

Urofsky has captured the essence of Brandeis in his excellent and informative volume. Urofsky often demonstrates a fine facility for clarifying points and positions with meaningful factual details.His book reveals the depth of scholarship that one would expect from a co-editor of the five volume collection of Brandeis' letters."He recognized the importance of the relationship between Brandeis and Frankfurter and devoted an entire small chapter to their efforts to promulgate their views as described by Bruce Murphy. For a concise but telling biography of Brandeis, from the "people's attorney" to one of the Supreme Court's " nine old men", Urofsky's …

Ethics Inside The Law Firm: Do It My Way Or You're Fired, L. Harold Levinson

Vanderbilt Law Review

Part I of this Book Review examines the two business management models -- the autocratic and the "good" -- that Ewing discusses in his book and concludes that the "good" management model serves well as the basis for the law firm management theory that this Book Review proposes. Part II outlines the provisions of the Model Rules that are relevant to law firm management. Part III introduces this reviewer's theory of the fiduciary duties of law firm partners and their associates. Part IV gives a hypothetical example of two law firm associates who face a series of dilemmas when a …