Law Commons^™

Disparities On Judicial Conduct Commissions, Nino C. Monea

Marquette Law Review

Every state has a judicial conduct commission responsible for investigating complaints against judges and issuing sanctions where appropriate. But the judicial disciplinary system needs fixing. This Article examines 466 cases of public discipline from five states to illustrate the shortcomings of the present system. The status quo hides judicial misconduct from the public, fails to punish judges who abuse their office, and gives judges greater protections than criminal defendants, even when the stakes are lower.

A New Metaphor: How Artificial Intelligence Links Legal Reasoning And Mathematical Thinking, Melissa E. Love Koenig, Colleen Mandell

Marquette Law Review

Artificial intelligence’s (AI’s) impact on the legal community expands exponentially each year. As AI advances, lawyers have more powerful tools to enhance their ability to research and analyze the law, as well as to draft contracts and other legal documents. Lawyers are already using tools powered by AI and are learning to shift their methodologies to take advantage of these enhancements. To continue to grow into their shifting role, lawyers should understand the relationship between AI, mathematics, and legal reasoning.

Is The Legal Profession Too Independent?, Limor Zer-Gutman, Eli Wald

Marquette Law Review

Faced with mounting pressure to permit national law practice and increase

access to legal services for those who cannot afford to pay for them and

critiques about growing inequality and its failure to lead the battles for greater

gender and racial justice, the legal profession’s response has been to resist

reform proposals by invoking its independence. Lawyers and lawyers alone,

asserts the profession, ought to determine the pace and details of nationalizing

law practice, set the conditions under which nonlawyers and artificial

intelligence can offer legal services, and respond to growing inequality among

lawyers and concerns about the role lawyers …

When Does Big Law Work?, Abraham J.B. Cable

Marquette Law Review

Law firms have grown from hundreds of lawyers to thousands of lawyers, and the conventional wisdom is that this trend fuels dissatisfaction among lawyers. This Article scrutinizes that conventional wisdom based on interviews with lawyers who joined large firms through law-firm mergers. These lawyers offer a valuable perspective on firm size because they made abrupt changes from small to large firms. Though some interviewees echoed the conventional wisdom, others suggested that larger firm size has limited or even positive effects on professional satisfaction. In one counter-narrative, large law firms are relatively diffuse organizations that have limited influence over individual lawyers. …

Why Are Seemingly Satisfied Female Lawyers Running For The Exits? Resolving The Paradox Using National Data, Joni Hersch, Erin E. Meyers

Marquette Law Review

Despite the fact that women are leaving the practice of law at alarmingly high rates, most previous research finds no evidence of gender differences in job satisfaction among lawyers. This Article uses nationally representative data from the 2015 National Survey of College Graduates to examine gender differences in lawyers’ job satisfaction, and finds that any apparent similarity of job satisfaction between genders likely arises from dissatisfied female JDs sorting out of the legal profession at higher rates than their male counterparts, leaving behind the most satisfied women. This Article also provides a detailed examination of the specific working conditions that …

Hallows Lecture: Ambition And Aspiration: Living Greatly In The Law, Lee H. Rosenthal

Marquette Law Review

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A Cure Worse Than The Disease? The Impact Of Removal On Children And Their Families, Vivek Sankaran, Christopher Church, Monique Mitchell

Marquette Law Review

Removing children from their parents is child welfare’s most drastic

intervention. Research clearly establishes the profound and irreparable

damage family separation can inflict on children and their parents. To ensure

that this intervention is only used when necessary, a complex web of state and

federal constitutional principles, statutes, administrative regulations, judicial

decisions, and agency policies govern the removal decision. Central to these

authorities is the presumption that a healthy and robust child welfare system

keeps families together, protects children from harm, and centers on the needs

of children and their parents.

Yet, research and practice—supported by administrative data—paint a

different …

When Less Is More: The Limitless Potential Of Limited Scope Representation To Increase Access To Justice For Low- To Moderate-Income Individuals, Kristy D'Angelo-Corker

Marquette Law Review

Both attorneys and judges take an oath to promote justice for all, however,

that is not the case in our current system. The world we live in today looks

incredibly different than it did just a few years ago and, as a result, the practice

of law must adapt to meet the changing needs of individuals in this new era.

Notably, the access to justice problem, specifically affecting low- to moderateincome

individuals, requires a shift in the availability of legal services

provided. Limited scope representation, which has been accepted by the

American Bar Association for 20+ years, where an attorney …

Attorney-Client Privilege And The Kovel Doctrine: Should Wisconsin Extend The Privilege To Communications With Third-Party Consultants?

Marquette Law Review

In today’s marketplace, the way that corporations conduct business is drastically changing, and lawyers are increasingly relying on third-party consultants, such as accountants or investment bankers, to facilitate them in providing accurate legal advice to corporate clients. Despite this reliance, whether the attorney–client privilege protects the communications between an attorney and a third-party consultant is often questioned. In United States v. Kovel, the Second Circuit found that the attorney–client privilege extended to communications between an attorney and a third-party consultant who acted as an interpreter. However, both federal and state courts have since split over the proper scope of the …

The Parent Trap: Equality, Sex, And Partnership In The Modern Law Firm, Miranda Mcgowan

Marquette Law Review

The fight for women’s equality in law has achieved a lot. Women have

made up nearly half of law students and law firm associates for the last two

decades. Despite this progress, the partnership ranks of law firms are

profoundly and intolerably sex segregated and will remain so for the

foreseeable future. Our profession, which has fought for and helped to achieve

legal equality on behalf of so many, is itself dogged by intractable inequality.

A standard set of solutions, which address structural barriers within law firms

and the effects of cognitive biases, have been urged for decades and yet …

Ok, Google, Will Artificial Intelligence Replace Human Lawyering?, Melissa Love Koenig, Julie A. Oseid, Amy Vorenberg

Marquette Law Review

Will Artificial Intelligence (AI) replace human lawyering? The answer is

no. Despite worries that AI is getting so sophisticated that it could take over

the profession, there is little cause for concern. Indeed, the surge of AI in the

legal field has crystalized the real essence of effective lawyering. The lawyer’s

craft goes beyond what AI can do because we listen with empathy to clients’

stories, strategize to find the story that might not be obvious, thoughtfully use

our imagination and judgment to decide which story will appeal to an audience,

and creatively tell those winning stories.

This Article reviews …

Cooperation And Turnover In Law Faculties: A Game-Theoretic Model And An Empirical Study

Marquette Law Review

A standard account of group cooperation would predict that group stability would bring about greater cooperation because repeat-play games would allow for sanctions and rewards. In an academic unit such as a department or a law faculty, one might thus expect that faculty stability would bring about greater cooperation. However, academic units are not like most other groups. Tenured professors face only limited sanctions for failing to cooperate, for engaging in unproductive conflict, or for shirking. This article argues counter-intuitively that within limits, some level of faculty turnover may enhance cooperation. Certainly, excessive and persistent loss of faculty is demoralizing, …

Supreme Verbosity: The Roberts Court's Expanding Legacy

Marquette Law Review

The link between courts and the public is the written word. With rare exceptions, it is through judicial opinions that courts communicate with litigants, lawyers, other courts, and the community. Whatever the court’s statutory and constitutional status, the written word, in the end, is the source and the measure of the court’s authority.

It is therefore not enough that a decision be correct—it must also be fair and reasonable and readily understood. The burden of the judicial opinion is to explain and to persuade and to satisfy the world that the decision is principled and sound. What the court says, …

Towards A Series Of Academic Norms For #Lawprof Twitter, Carissa Byrne Hessick

Marquette Law Review

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Institutional Pluralism And The (Hoped-For) Effects Of Candor And Integrity In Legal Scholarship, Paul Horwitz

Marquette Law Review

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A Thought Experiment About The Academic "Billable" Hour Or Law Professors' Work Habits, Eli Wald

Marquette Law Review

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Law Clerks And The Institutional Design Of The Federal Judiciary, Albert Yoon

Marquette Law Review

This Essay highlights the evolving institutional changes in the federal judiciary—a protracted confirmation process, higher caseload demands, and declining real salaries—in concurrence with evidence suggesting greater reliance by judges on their law clerks when writing opinions. These dynamic forces arguably undermine the integrity of the judicial process and counsel for legislative action to address judicial working conditions or for changes by judges in the hiring of law clerks.

Bonus Babies Escape Golden Handcuffs: How Money And Politics Has Transformed The Career Paths Of Supreme Court Law Clerks, Artemus Ward, Christina Dwyer, Kiranjit Gill

Marquette Law Review

Job prospects for former Supreme Court law clerks have radically changed in recent years. Beginning in 1986, skyrocketing law firm signing bonuses caused a transformation from the natural sorting system, where clerks chose among private practice, government, academic, and public interest positions, to a Bonus Baby Regime where former clerks almost always choose to work in private firms after they leave the Court. This development is a result of both financial and ideological factors. While the more conservative clerking corps of recent years has been increasingly drawn to private practice, the firms themselves hire along ideological lines. Still, while former …

Supreme Court Clerks As Judicial Actors And As Sources, Scott Armstrong

Marquette Law Review

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Introduction: Judicial Assistants Or Junior Judges: The Hiring, Utilization, And Influence Of Law Clerks, Chad Oldfather, Todd C. Peppers

Marquette Law Review

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A Truth About Career Law Clerks, Joseph D. Kearney

Marquette Law Review

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Advice From The Bench (Memo): Clerk Influence On Supreme Court Oral Arguments, Timothy R. Johnson, David R. Stras, Ryan C. Black

Marquette Law Review

Scholars of the U.S. Supreme Court have long debated the role, and possible influence, of clerks on the decisions their Justices make. In this Paper, we take a novel approach to analyze this phenomenon. We utilize pre-oral argument bench memos sent to Justice Harry A. Blackmun from his clerks. Specifically, we use these memos to determine whether Justice Blackmun asked questions of counsel that were recommended by his clerks in the memos. Our data indicate Justice Blackmun often followed his clerks’ advice. Accordingly, we provide another important link to demonstrate Supreme Court clerks can and do affect how their Justices …

The World Of Law Clerks: Tasks, Utilization, Reliance, And Influence, Stephen L. Wasby

Marquette Law Review

This Article is an examination of the work of judges’ law clerks, based on a variety of materials. It begins with consideration of who is a law clerk and of the role of staff attorneys and judges’ secretaries. Clerks’ tasks are examined next, with attention to the preparation of bench memoranda and judges’ delegation of work to their clerks. Aspects of clerks’ influence and the related matter of judges’ reliance on them is then presented, including attention to law clerks’ recommendations to their judges.

Keynote Address: Secret Agents: Using Law Clerks Effectively, David R. Stras

Marquette Law Review

Recent scholarship discusses the role of law clerks and their role in influencing the courts on which they work. This Keynote Address discusses the nuts and bolts of law clerks, including how they are selected, what role they play on various courts, and their potential opportunities for influence.

The Future Of Federal Law Clerk Hiring, Aaron L. Nielson

Marquette Law Review

The market for federal law clerks has been upended. Beginning in 2003, the Federal Judges Law Clerk Hiring Plan was implemented to regulate clerkship hiring. According to the Plan, a judge could not interview or hire a potential law clerk before the beginning of the applicant’s third year of law school. The Plan, however, never worked well, constantly got worse, and has now officially collapsed. Across the country, clerkship hiring once again regularly occurs during the second year of law school.

This Article addresses the rise and inevitable fall of the Plan. In particular, it submits that the Plan never …

Fielding An Excellent Team: Law Clerk Selection And Chambers Structure At The U.S. Supreme Court, Christopher D. Kromphardt

Marquette Law Review

Supreme Court Justices exercise wide discretion when hiring law clerks. The Justices are constrained only by the pool of qualified applicants and by norms of the institution, such as that beginning with Chief Justice Burger’s tenure in 1969 90% of clerks have previously served a clerkship with a federal judge. Previous work finds that ideology structures hiring decisions at the individual clerk level; however, these analyses fail to account for the fact that a Justice hires several clerks each Term—he seeks a winning team, not just a single all-star. Hiring decisions are structuring decisions in which one of a Justice’s …

Surgeons Or Scribes? The Role Of United States Court Of Appeals Law Clerks In "Appellate Triage", Todd C. Peppers, Micheal W. Giles, Bridget Tainer-Parkins

Marquette Law Review

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Hiring Supreme Court Law Clerks: Probing The Ideological Linkage Between Judges And Justices, Lawrence Baum

Marquette Law Review

Since the 1970s, the overwhelming majority of Supreme Court law clerks have had prior experience clerking in lower courts, primarily the federal courts of appeals. Throughout that period, there has been a tendency for Justices to take clerks from lower court judges who share the Justices’ ideological tendencies, in what can be called an ideological linkage between judges and Justices in the selection of law clerks. However, that tendency became considerably stronger between the 1970s and 1990s, and it has remained very strong since the 1990s.

This Article probes the sources of that alteration in the Justices’ selection of law …

Panel Discussion: Judges' Perspectives On Law Clerk Hiring, Utilization, And Influence, David R. Stras, Diane S. Sykes, James A. Wynn Jr.

Marquette Law Review

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Law Clerks As Advisors: A Look At The Blackmun Papers, Zachary Wallander, Sara C. Benesh

Marquette Law Review

The Justices of the United States Supreme Court seek advice, by way of cert pool memos, when making their consequential agenda-setting decisions. There is some debate over the extent to which these law clerks actually influence the Justices. Focusing on the certiorari stage and on the information and advice provided to the Court via the cert pool memos, we ascertain the extent to which the contents of the memos drive the decision making of the Court. We find that information about conflict, amici, and the position of the United States does indeed influence the Court’s votes, but also that the …