Law Commons^™

Making Method Visible: Improving The Quality Of Science-Based Regulation, Pasky Pascual, Wendy Wagner, Elizabeth Fisher

Michigan Journal of Environmental & Administrative Law

Scientific inferences are theories about how the world works that scientists formulate based on their observations. One of the most difficult issues at the intersection of law and science is to determine whether the weight of evidence supports one scientific inference versus other competing interpretations of the observations. In administrative law, this difficulty is exacerbated by the behavior of both the courts and regulatory agencies. Agencies seldom achieve the requisite visibility that explains the analytical methods they use to reach their scientific inferences. Courts—because they appreciate neither the variety of inferential methods nor their epistemic foundations—do not demand this level …

Oh, The Treatise!, Richard A. Danner

Michigan Law Review

In his foreword to the Michigan Law Review's 2009 Survey of Books Related to the Law, my former Duke colleague Erwin Chemerinsky posed the question: "[W]hy should law professors write?" In answering, Erwin took as a starting point the well-known criticisms of legal scholarship that Judge Harry Edwards published in this journal in 1992. Judge Edwards indicted legal scholars for failing to engage the practical problems facing lawyers and judges, writing instead for the benefit of scholars in law and other disciplines rather than for their professional audiences. He characterized "practical" legal scholarship as both prescriptive (aiming to instruct attorneys, …

Federal Constraints On States’ Ability To License An Undocumented Immigrant To Practice Law , Adam Wright

Michigan Journal of Race and Law

No court has decided whether an undocumented immigrant can be admitted to a state bar in a manner consistent with federal law. At the time of this writing, the issue is pending before the California Supreme Court. Federal law prohibits states from providing public benefits to undocumented immigrants. In its definition of a “public benefit,” 8 U.S.C. § 1621 includes any professional license “provided by an agency of a State . . . or by appropriated funds of a State . . . .” The law’s prohibitions, however, are not unqualified. The statute’s “savings clause” allows states to provide public …

The Crisis In Legal Education: Dabbling In Disaster Planning, Kyle P. Mcentee, Patrick J. Lynch, Derek M. Tokaz

University of Michigan Journal of Law Reform

The legal education crisis has already struck for many recent law school graduates, signaling potential disaster for law schools already struggling with their own economic challenges. Law schools have high fixed costs caused by competition between schools, the unchecked expansion of federal loan programs, a widely exploited information asymmetry about graduate employment outcomes, and a lack of financial discipline masquerading as innovation. As a result, tuition is up, jobs are down, and skepticism of the value of a J.D. has never been higher. If these trends do not reverse course, droves of students will continue to graduate with debt that …

The Crisis Of The American Law School, Paul Campos

University of Michigan Journal of Law Reform

The economist Herbert Stein once remarked that if something cannot go on forever, it will stop. Over the past four decades, the cost of legal education in America has seemed to belie this aphorism: it has gone up relentlessly. Private law school tuition increased by a factor of four in real, inflation-adjusted terms between 1971 and 2011, while resident tuition at public law schools has nearly quadrupled in real terms over just the past two decades. Meanwhile, for more than thirty years, the percentage of the American economy devoted to legal services has been shrinking. In 1978 the legal sector …

Agency And Equity: Why Do We Blame Clients For Their Lawyers' Mistakes, Adam Liptak

Michigan Law Review

If you were to ask a child whether it would be fair to execute a prisoner because his lawyer had made a mistake, the answer would be no. You might even get a look suggesting that you had asked a pretty stupid question. But judges treat the issue as a hard one, relying on a theory as casually accepted in criminal justice as it is offensive to principles of moral philosophy. This theory holds that the lawyer is the client's agent. What the agent does binds the principal. But clients and lawyers fit the agency model imperfectly. Agency law is …

Efficiency-Wage Theory And Law Firm Pay, Dongyu "Eddie" Wang

University of Michigan Journal of Law Reform Caveat

Every first-year law student knows that Big Law pays $160,000 a year. In fact, this number is likely the biggest incentive for applying in the minds of most law-school hopefuls. Taking New York City as an example, a quick look at Vault’s salary data reveals that, indeed, the large majority of New York firms with available salary data pay first-year associates exactly $160,000.

Providing Capital For Law Firms In A Credit Crisis: Non-Lawyer Equity Ownership, Brett Novick

University of Michigan Journal of Law Reform Caveat

Last year, a New York federal district court dismissed a lawsuit by Jacoby & Meyers LLP attacking a New York law that prevents non-lawyers from owning an equity interest in law firms. On November 21, 2012, the U.S. Court of Appeals for the Second Circuit resuscitated the lawsuit, remanding the case to the district court and granting Jacoby & Meyers LLP leave to amend its complaint. Non-lawyers owning an equity interest in law firms is not a new idea, as countries such as Australia and the United Kingdom already allow it, and the United States should follow their example to …

Misunderstanding Lawyers' Ethics, Monroe H. Freedman, Abbe Smith

Michigan Law Review

The title of Daniel Markovits's book, A Modern Legal Ethics, gives the impression that it is a comprehensive treatise on contemporary lawyers' ethics. The contents of the book, however, are both more limited and more expansive than the title suggests. Markovits's treatment of lawyers' ethics concerns itself with what he conceives to be the pervasive guilty conscience of practicing lawyers over their "professional viciousness" (p. 36), and how lawyers can achieve a guilt-free professional identity "worthy of ... commitment" (p. 2). Markovits's goal in the book is to "articulat[e] a powerful and distinctively lawyerly virtue" (p. 2), one that …

A Review Of Richard A. Posner, How Judges Think (2008), Jeffrey S. Sutton

Michigan Law Review

I was eager to enter the judiciary. I liked the title: federal judge. I liked the job security: life tenure. And I could tolerate the pay: the same as Richard Posner's. That, indeed, may have been the most flattering part of the opportunity-that I could hold the same title and have the same pay grade as one of America's most stunning legal minds. Don't think I didn't mention it when I had the chance. There is so much to admire about Judge Posner-his lively pen, his curiosity, his energy, his apparent understanding of: everything. He has written 53 books, more …

Penalizing Poverty: Making Criminal Defendants Pay For Their Court-Appointed Counsel Through Recoupment And Contribution, Helen A. Anderson

University of Michigan Journal of Law Reform

Over thirty years ago the United States Supreme Court upheld an Oregon statute that allowed sentencing courts, with a number of important procedural safeguards, to impose on indigent criminal defendants the obligation to repay the cost of their court appointed attorneys. The practice of ordering recoupment or contribution (application fees or co-pays) of public defender attorney's fees is widespread, although collection rates are unsurprisingly low. Developments since the Court's decision in Fuller v. Oregon show that not only is recoupment not cost-effective, but it too easily becomes an aspect of punishment, rather than legitimate cost recovery. In a number of …

Feature: The Roots Of The Executive Branch

Law Quadrangle (formerly Law Quad Notes)

When President Barack Obama needed a top adviser and steadfast sounding board, he turned to a Michigan Law alumna who has been called the "First Friend" and "the other half of Obama's brain." When he considered appointees for the role of Secretary of the Interior, he chose and alumnus he called a "champion for farmers, ranchers, and rural communities." Here, we profile some of Obama's aides, advisers, and appointees who have ties to Michigan Law, and who began their jobs by our press time. We highlight how their experiences in Law School helped to shape their journey from the gothic …

Feature: The Father Of Miranda, James Tobin

Law Quadrangle (formerly Law Quad Notes)

This is the first in a series of articles about the intellectual history of the Law School, and the impact our scholars have had, from the classroom to the Supreme Court.

Yale Kamisar's transformative impact on the law began with a humble hunch in the early 1960s, when he was a young professor at the University of Minnesota.

Feature: Anatomy Of An Alumnus, Katie Vloet

Law Quadrangle (formerly Law Quad Notes)

50 years later, remembring Anatomy of a Murder and the fly-fishing, U.P.-loving, mushroom-hunting state Supreme Court justice who wrote it.

Feature: Teaching The Teachers, Nicole Fawcett

Law Quadrangle (formerly Law Quad Notes)

A new ranking system explores 'intellectual super-spreaders'. A new model for determining the influence of law schools looks at the links between where law professors received their J.D. and where they go on to teach law. The model, which uses a mixture of social network analysis and computer simulation, shows how a handful of elite institutions are likely influencing legal principles and attitudes across the country. Michigan Law ranks third in the study.

Men And Women Of The Bar: The Impact Of Gender On Legal Careers, Kenneth G. Dau-Schmidt, Marc S. Galanter, Kaushik Mukhopadhaya, Kathleen E. Hull

Michigan Journal of Gender & Law

In the last three and a half decades, the legal profession has undergone a dramatic transformation in the gender composition of its members. During that time, the number of women applying to law school and entering the profession has gone from a few gallant pioneers to roughly equal representation with that of men. Between 1970 and 2000, the proportion of first-year law students who were female climbed from 8% to 49%. Because the existing bar consisted primarily of male lawyers, the percent of women in the legal profession changed more slowly, but still rose dramatically. Women, as a percent of …

Against Practice, Anthony V. Alfieri

Michigan Law Review

This Review examines the theory/practice dichotomy in legal education through the prism of the Carnegie Foundation's Educating Lawyers: Preparation for the Profession of Law. Descriptively, it argues that the Foundation's investigation of law school curricular deficiencies in the areas of clinical-lawyer skills, professionalism, and public service overlooks the relevance of critical pedagogies in teaching students how to deal with difference-based identity and how to build cross-cultural community in diverse, multicultural practice settings differentiated by mutable and immutable characteristics such as class, gender, and race. Prescriptively, it argues that the Foundation's remedial call for the curricular integration of clinical lawyer …

Eyes Wide Shut: How Ignorance Of The Common Interest Doctrine Can Compromise Informed Consent, Katharine Traylor Schaffzin

University of Michigan Journal of Law Reform

This Article addresses the novel ethical problems presented by the common interest doctrine that implicate an attorney's duties of diligence, confidentiality, and loyalty to his or her client. These adverse effects of informal aggregation are not always fully considered before engaging a client in a common interest arrangement, but they should be. In Part II, this Article first explains the potential advantages that the common interest doctrine presents as an evidentiary tool, but then recognizes that exercise of the doctrine creates an undefined duty on the part of the attorney to the party with whom a client exchanges confidential information. …

Lawyer As Emotional Laborer, Sofia Yakren

University of Michigan Journal of Law Reform

Prevailing norms of legal practice teach lawyers to detach their independent moral judgments from their professional performance-to advocate zealously for their clients while remaining morally unaccountable agents of those clients' causes. Although these norms have been subjected to prominent critiques by legal ethicists, this Article analyzes them instead through the lens of "emotional labor," a sociological theory positing that workers required to induce or suppress feeling in order to sustain the outward countenance mandated by organizational rules face substantial psychological risks. By subordinating their personal feelings and values to displays of zealous advocacy on behalf of others, lawyers, too, may …

Kidsvoice: A Multidisciplinary Approach To Child Advocacy, Scott Hollander, Jonathan Budd

University of Michigan Journal of Law Reform

There is growing recognition that effective child advocacy requires a broad range of knowledge that often goes well beyond the legal needs of the child. This Essay details the multidisciplinary approach to child advocacy that KidsVoice, a Pittsburgh legal services organization representing almost 5000 dependent children each year, has implemented to better develop uniquely tailored recommendations regarding which placement and services might create better possibilities of success for each child and family.

Young Associates In Trouble, William D. Henderson, David Zaring

Michigan Law Review

Large law firms have reputations as being tough places to work, and the larger the firm, the tougher the firm. Yet, notwithstanding the grueling hours and the shrinking prospects of partnership, these firms perennially attract a large proportion of the nation's top law school graduates. These young lawyers could go anywhere but choose to work at large firms. Why do they do so if law firms are as inhospitable as their reputations suggest? Two recent novels about the lives of young associates in large, prestigious law firms suggest that such a rational calculation misapprehends the costs. Law professor Kermit Roosevelt's …

Judging Magic: Can You See The Sleight Of Hand?, Rebecca Johnson

Michigan Law Review

Cultural critic bell hooks says, "Movies make magic. They change things. They take the real and make it into something else right before our very eyes." Movies do not, of course, have an exclusive hold on this ability to change one thing into something else. Law, too, possesses this power. Certainly, one must acknowledge some significant differences in the "magic" of filmic and legal texts. For the most part, as willing consumers of cultural products, we "choose" to subject ourselves to the magic of film. We sit in a darkened theater and let ourselves be taken away to a different …

Capital Defense Lawyers: The Good, The Bad, And The Ugly, Sean D. O'Brien

Michigan Law Review

Professor Welsh S. White's book Litigating in the Shadow of Death: Defense Attorneys in Capital Cases collects the compelling stories of "a new band of dedicated lawyers" that has "vigorously represented capital defendants, seeking to prevent their executions" (p.3). Sadly, Professor White passed away on New Year's Eve, 2005, days before the release of his final work. To the well-deserved accolades of Professor White that were recently published in the Ohio State Journal of Criminal Law, I can only add a poignant comment in a student blog that captures his excellence as a scholar and educator: "I wanted to …

The Bureaucratic Court, Benjamin C. Mizer

Michigan Law Review

In August 2006, the New York Times caused a stir by reporting that the number of female law clerks at the United States Supreme Court has fallen sharply in the first full Term in which Justice Sandra Day O'Connor is no longer on the bench. In an era in which nearly fifty percent of all law school graduates are women, the Times reported, less than twenty percent of the clerks in the Court's 2006 Term - seven of thirty-seven - are women. In interviews, Justices Souter and Breyer viewed the sharp drop in the number of female clerks as an …

Unconscionable Contracting For Indigent Defense: Using Contract Theory To Invalidate Conflict Of Interest Clauses In Fixed-Fee Contracts, Jacqueline Mcmurtie

University of Michigan Journal of Law Reform

Indigent defense remains in crisis and yet constitutional challenges to promote systemic change have met with mixed success. This Article explores the new strategy of applying contract theory and principles to challenge indigent defense contracts that violate the canons of professional responsibility. This Article begins by discussing the author's experience working on cases of indigent defendants whose convictions were overturned through the efforts of the Innocence Project Northwest. The erroneous convictions were facilitated by the indigent defense contract in place at the time of the convictions. Pursuant to this contract, the indigent defense contractor agreed to provide representation in all …

The Multistate Bar Exam As A Theory Of Law, Daniel J. Solove

Michigan Law Review

What is the most widely read work of jurisprudence by those in the legal system? Is it H.L.A. Hart's The Concept of Law? Ronald Dworkin's Law's Empire? No. It is actually the Multistate Bar Exam ("Bar Exam"). Perhaps no other work on law has been so widely read by those in the legal profession. Although the precise text of the Bar Exam is different every year, it presents a jurisprudence that transcends the specific language of its text. Each year, thousands of lawyers-to-be ponder over it, learning its profound teachings on the meaning of the law. They study …

Tribute To John Pickering, Ruth Bader Ginsburg

Michigan Law Review

John Pickering was a grand human whose life is just cause for celebration. He taught constantly, through his own work and deeds, how lawyers in private practice can contribute hugely to the public good. John's dear friend, my revered D.C. Circuit colleague, Carl McGowan, spoke of the lawyer of technical competence content to be a working mason. The best of lawyers, Judge McGowan said, serve as architects, planners, builders in law. Along with high technical competence, the best of lawyers have a deep understanding of the nature and purposes of the law, which makes them wise and reliable counselors, broad-gauged …

Tribute To John Pickering, James Robertson

Michigan Law Review

John Pickering was so much involved with both the United States District Court for the District of Columbia and the United States Court of Appeals for the District of Columbia, and with the bar of this city. It would take too long to recite all of the ways in which John supported and helped our Court and the Court of Appeals, but I will note that, in every one of the ten years since I have been on this bench, John has been invited to speak at the Law Clerks Luncheon Series. That is a big deal. The law clerks …

Tribute To John Pickering, Timothy B. Dyk

Michigan Law Review

It is very appropriate that we are here today to honor John Pickering, who, for more than five decades, was a leading member of our bar. I first met John when I joined the small firm of Wilmer, Cutler & Pickering in 1964, two years after it was founded. The three founding fathers of the firm were formidable figures, particularly to a young lawyer, and John Pickering was no exception. I do not mean that John was unkind. He was the kindest of people. But there was something particularly serious about him, and I always wondered whether that had to …

Tribute To John Pickering, Noël Anketell Kramer

Michigan Law Review

I knew John Pickering from the time that I was a second-year law student- just a few years ago, it seems-when he and Sally Katzen recruited me to join what was then the small firm of Wilmer, Cutler & Pickering. We remained friends thereafter, sharing among other interests an avid loyalty to the University of Michigan.