Beesquared

Author: beesquared

  • The Times looks at the legal academy in a digital age

    The Times on Sunday published two stories about the law that juxtapose a tension that tugs at legal education in the current economy.

    The first story looks at how a weak market for legal hiring is inspiring some educators to think anew about training the latest generation of lawyers. The second, a Q&A, has two professors answering real-life questions about the law.

    For the story, the Times traveled to the Entrepreneurial Lawyering Startup Competition, a program sponsored by Michigan State University’s law school that aims to spur students to think of themselves as entrepreneurs. The competition, part of the university’s so-called Reinvent Law Laboratory, aims to equip them to navigate a legal marketplace that, like most marketplaces, is being upended by technology. Pitches presented at the competition include a service to help people claim property and another to help immigrants file their taxes.

    The school sees the program as part of an effort to give students an assist in a job market that remains gloomy. Daniel Martin Katz, an associate professor and a founder of the laboratory, described the goal as helping students develop knowledge of the law and a broader set of abilities. “Analytics plus law gets you into a niche,” Katz told the Times.

    Other schools reportedly are blazing similar paths. The University of Colorado law school runs a four-week summer camp to equip students with training in such tools as Adobe and NetApp. Northwestern University Law School is using faculty members with experience in technology and business to teach in what Daniel Rodriguez, the dean, describes as “the law/business/technology” interface.

    The efforts by law schools, especially those outside the top tier, to give students a leg up is understandable. The number of law school applicants dropped this year for the fourth year in a row and is down more than 37% since 2010, according to figures compiled by the National Law Journal. The academic institutions need some way to differentiate themselves in the competition for applicants.

    The second piece features six questions about the law drawn from everyday life, with answers provided by Alan Dershowitz, professor emeritus at Harvard Law School, and Susan Crawford, a professor at the Cardozo School of Law.

    The first question, from Dershowitz, reportedly comes directly from his classroom.

    Attorney Goodheart is asked by Badact to represent him. Badact asks for and receives a promise of confidentiality, then tells Goodheart that he committed a murder for which another man has been convicted and is awaiting execution. Can Goodheart break his promise to save the life of a stranger but at the possible cost of his own client’s life?

    The short answer is yes. Law students learn that a lawyer may not reveal confidential information that she receives from her client, except in limited circumstances, which include to prevent reasonably certain death or substantial bodily harm. But Dershowitz goes on to highlight the difficulty that legal education trains lawyers to confront:

    There is still considerable controversy over what “reasonably certain” and “substantial bodily harm” mean. What if the innocent person is serving life imprisonment? Ten years? Five years? Another difficult question: Should a lawyer now advise his client that disclosure is permitted in certain circumstances? If so, will the client tell him the truth? There are no easy answers.

    There are no easy answers. The combination of an issue, a rule and its application comprises the core of legal training and, it seems, the essential learning of a lawyer. Lawyers learn a way of thinking that, while sometimes maddening to non-lawyers, distinguishes the profession. Legal thinking also separates law school from business school, where managers deconstruct case studies of business problems in an effort to boost profits at the company the case profiles.

    While both methods tie to the world of modern business, they represent different ways of thinking about the world. That’s why I wonder whether add-ons to the law school curriculum make sense. What makes a lawyer valuable is his or her ability to identify legal issues, know the law and apply that law effectively on behalf of a client. Find yourself in need of a lawyer – whether to defend you in court, to draw up your will or to handle your divorce – and my guess is that you’ll value those skills above all.

    That’s to say that we value the skills that law schools have taught for years and that the practice of law reinforces. Adobe’s system for managing documents may change or the cloud at NetApp may expand, but the legal method is the legal method. It evolves but it remains basically what it was for the past 600 years. Business tends to profit from the future, if for no other reason than that’s where opportunity lies. The law has no comparable currency.

    In attempting to advance its approach, Michigan State’s law school touches on the tension. “Legal education has been stronger on tradition than innovation,” Joan Howarth, the school’s dean, told the Times. “What we’re trying to do is to educate lawyers for the future, not the past.” Law schools will do their best to conceive legal education for a digital age. As for the merits of that strategy, as with many things legal, we’ll have to await the verdict.

  • House GOPers vote to sue President Obama, but legal hurdles await

    The House of Representatives is not letting a lack of legal authority stand in the way of handing President Obama a political setback.

    On July 30, the House voted to file a federal lawsuit against the president for allegedly exceeding the bounds of his constitutional power.

    The resolution authorizes the House to “initiate litigation for actions by the President or other executive branch officials inconsistent with their duties under the Constitution of the United States.”

    In a report that accompanied the vote, the Republican members of the House Rules Committee accuse the president of “executive overreach” in a series of policy areas, including the administration’s implementation of the Affordable Care Act, the president’s transfer of five prisoners held at Guantanamo Bay to the Taliban in return for the handover of Army Sergeant Bowe Bergdahl, and the administration’s ordering the Department of Homeland Security to defer action on deportation of certain children who enter the U.S. illegally.

    The resolution passed by a vote of 225-201, with no Democrats voting for the measure and five Republicans voting against it.

    Though one can debate the political motives of the resolution’s proponents, they likely will be unable to satisfy the prerequisites for filing a lawsuit in federal court.

    The Supreme Court has ruled that members of Congress lack standing, which requires parties who seek to file a lawsuit in federal court to show that they have suffered a concrete injury. In that case, the court held that six members of Congress lacked a basis for alleging in a federal lawsuit that the law authorizing the line-item veto was unconstitutional. Raines v. Byrd, 521 U.S. 811 (1997).

    In Raines, the  court based its decision on a finding that the members of Congress did not have a sufficient personal stake in the dispute to file suit, and that other avenues for challenging the law existed. As Chief Justice William Rehnquist wrote for the majority,

    We also note that our conclusion neither deprives Members of Congress of an adequate remedy (since they may repeal the Act or exempt appropriations bills from its reach), nor forecloses the Act from constitutional challenge (by someone who suffers judicially cognizable injury as a result of the Act).

    In the resolution that passed the House on July 30, the resolution’s proponents acknowledge the problem that a lack of standing presents. However, the majority leans on an analysis by several law processors, including Elizabeth Price Foley, a professor at Florida International University School of Law.

    According to the majority, in Professor Foley’s analysis of the case law:

    The House would have Article III standing if it (a) were acting as an institution rather than a small group of aggrieved members and (b) if it suffered an institutional injury in the sense that the President’s executive action caused Congress’ vote on a particular issue to be `nullified.’ In addition, Professor Foley stated that the courts will likely analyze whether `prudential factors’ bolster or weaken the case for granting congressional standing. These factors include: (a) whether the institution has explicit authorization to bring the lawsuit; (b) whether there has been a `benevolent suspension’ of law in which no private plaintiff has been harmed and in which case only Congress would have standing; and (c) whether the legislature has exhausted its legislative remedies against the executive.

    Many experts disagree. Tara Grove, a law professor at William and Mary, told the Wall Street Journal, that she “would be very surprised” if the court grants standing. “We’re in uncharted waters, and I think any judicial court would want to avoid weighing in,” said Grove.

    Thomas Mann, a congressional scholar at the Brookings Institution. noted that because the House isn’t actually harmed, a federal judge would be inclined to toss out the lawsuit. “I don’t see how [House Speaker John] Boehner, authorized by a vote of the House, could possibly get standing as an injured party under the court’s cases and controversies jurisdiction,” Mann told the Scripps Howard Foundation.

    House Democrats forced a series of votes on related resolutions that opponents of the resolution hope will underscore what they charge is the partisan nature of the suit. The votes, which the Rules Committee defeated along party lines, would have required, among other things, the House’s general counsel to disclose how much is spent on the lawsuit each week, to prevent the hiring of any law firm that lobbies on implementation of the Affordable Care Act, and to require the House’s lawyers to explain the likelihood of success in the lawsuit or how they think they will overcome the legal obstacles presented by Supreme Court precedent.

    For his part, President Obama, a former constitutional law scholar, dismissed the resolution as “a political stunt.”

    “Every vote they’re taking like that means a vote they’re not taking to actually help you,” the president told an audience in Kansas City, Missouri. He went on to urge Republicans to “stop just hating all the time.”

     

     

     

     

  • Butler Library, July 28

    The view from my chair in Butler Library on Monday, July 28, a day before the New York bar exam.library

  • Even lawyers need copy editors

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  • You know the bar exam is nine days away when…

    I’m walking through Central Park and all I can think about is that if one of those branches falls and hurts someone that person will have one year and 90 days to sue the city, according to the statute of limitations.20140720-124958-46198826.jpg

  • About those media rights…

    In New York, a lawyer cannot enter into, or even negotiate, any arrangement or understanding with a client or prospective client by which the lawyer acquires any interest in literary or media rights with respect to the subject matter of the representation or proposed representation, or transfers or assigns any such interest, according to the state’s rules for attorneys.

  • Study aid

    north meadowA path through the North Woods of Central Park, where I head to defrag my brain and lift my spirits.

  • New York bar exam hopefuls…

    javitsStudents head to a simulated exam, at the Javits Center, July 7, 2014.

  • A pink sunset to end the July 4th weekend

    sunsetReviewed my notes Sunday evening at the Hudson River, as the sun set over New Jersey.

  • From my notebook…

    Questions/notes jotted during a morning walk through Central Park’s North Meadow, July 5, 2014:

    1. Will a good-faith, unilateral mistake undo a contract?
    2. Does a non-breaching buyer have a duty to cover under Article 2 of the Uniform Commercial Code?
    3. Review elements of strict liability for defective products…
    4. Review contributory negligence…
    5. Review intent requirement for trespass to land…
    6. Review vicarious liability for automobile owner/driver…
    7. Must a merchant’s firm offer be in writing?
    8. What does a disclaimer look like when one disclaims the warranty of title?

    Answers: 1) generally no; 2) no, though the buyer may cover; 7) yes; 8) e.g., a sheriff’s sale