Yearly Archives: 2012
Oct 2, 2012 Sida LiuJotwellLegal Profession
Bernard A. Burk & David McGowan,
Big But Brittle: Economic Perspectives on the Future of the Law Firm in the New Economy, 2011
COLUM. BUS. L. REV. 1 (2011)
available at SSRN.
Until the recent global financial crisis, elite law firms had been growing in size and number of offices for decades, both in the United States and across the world. Accordingly, the reasons behind law firm growth have fascinated legal scholars as well as social scientists studying the legal profession. Many theories have been formulated and tested by empirical research. Burk and McGowan’s article not only provides an excellent summary of these competing theories, but also proposes two new perspectives, namely, (1) relational capital and internal referral network; and, (2) technological innovation and transaction cost. Both are familiar theories in other research areas but neither had been applied to explain the growth of law firms.
In this essay, Burk and McGowan examine the evolution of large law firms in America from the late nineteenth century to the 2008 economic recession. Until the 1960s, most elite law firms have had a simple “partner-associate” two-tier structure following the Cravath System, which emphasized the long-term training of associates, the “up or out” rule of promotion, and the lockstep system for partners. Lateral hiring of partners were rare. As a result, firm growth was steady, featuring what Galanter and Palay have called law firms’ “internal growth engine.” From the 1970s to the mid-2000s, however, law firm growth entered an “explosive” era – the growth rate of elite firms jumped from 5% per year to 8% or more (p. 11). By the mid-1980s, the number of American law firms with more than a hundred lawyers had increased from a dozen to more than 250. The growth in size was accompanied by the expansion of geographic locations and lateral mobility. By 1988, over a quarter of the 500 largest American law firms had acquired more than half of their partners laterally. The lateral movement of associates had also become more frequent. As a result, the Cravath System was significantly eroded. Meanwhile, the formal structure of large law firms had become more complex – two-tier partnership was more commonly adopted, with an increasing proportion of non-equity partners and a higher leverage (i.e., associate-partner ratio) in most firms. Continue reading "Big and Innovative? The Future of Law Firms (Not Only the American Ones)"
Oct 1, 2012 Camille NelsonEqualityJotwell
It is a good thing when those of us in education are urged to be more thoughtful about what we seek to achieve through our teaching and scholarship. An analysis of the possible impact that education can have moves beyond the standard questioning of pedagogy, and speaks to the societal value of education as transformative, not just for the student and future graduate but also for society. Such higher order questions, as I like to call them, are not typically the stuff of faculty meetings, but they are at the core of a recent article by Professors Angela Mae Kupenda and Michelle Deardorff.
In their article, Negotiating Social Mobility and Critical Citizenship: Institutions at a Crossroads, the authors juxtapose two seemingly inconsistent struggles faced by institutions of higher education – improving the socioeconomic possibilities of our students versus preparing students for what they theorize as “Critical Citizenship.”: Continue reading "Is Critical Citizenship Critical?"
Sep 28, 2012 Lee EpsteinCourts LawJotwell
The U.S. Supreme Court: A Very Short Introduction is indeed a very short book (far shorter than most law review articles), but it is no “Supreme Court for Dummies.” To the contrary, it is a sophisticated, yet accessible, addition to Oxford’s Very Short Introduction series.
This much the author’s identity gives away. Though she now teaches at Yale Law School and no longer covers the Supreme Court full time, the fabulous Linda Greenhouse remains one of Court’s most astute students. (And she continues to write an opinion column for The New York Times website, which should never be missed for its insights on the current Court.) Continue reading "Introducing the Court"
Sep 26, 2012 Charles A. SullivanJotwellWork Law
Slightly off the mainstream of employment law scholarship is Margaret Lemos’s Interpretive Methodology and Delegations to Courts: Are “Common-Law Statutes” Different. This is a terrific, creative piece in only 14 pages. I am especially pleased to be able to highlight it on Jotwell because it will appear in a chapter entitled Intellectual Property And The Common Law (Shyam Balganesh ed., Cambridge University Press, 2012), and therefore might well be missed by most employment law types.
Professor Lemos starts with a commonplace of statutory interpretation, asks why, and comes up with answers that make one reconsider fundamental beliefs. What more could one ask?
The commonplace is that the normal methods of interpretation (whatever they happen to be at the time) are inapplicable when it comes to “common law statutes.” The paradigmatic example of such a statute is the Sherman Act, which is generally viewed as an enabling act — an authorization by Congress to the courts to create jurisprudence of “restraint of trade” largely unconstrained by common law precedents, textualist fussiness, or any need to discern legislative intent. In contrast, “normal” statutes, such as Title VII, are subject to a process of “statutory interpretation,” which these days requires an elaborate parsing of words in order to determine what the enacting Congress intended by the language it chose. Continue reading "Good Things Come in Small Packages"
Sep 25, 2012 Richard PierceAdministrative Law
Cynthia Farina, Mary Newhart & Josiah Heid,
Rulemaking vs. Democracy: Judging and Nudging Public Participation that Counts, 2 Mich. J. Envtl. & Admin. L. (2012),
available at SSRN.
In Rulemaking vs. Democracy: Judging and Nudging Public Participation that Counts, Cynthia Farina, Mary Newhart, and Josiah Heidt explain why the initial efforts to encourage use of electronic media to broaden participation in rulemaking have not, and can not, work. The opening paragraph of the article describes and criticizes the reasoning process that has inspired the initial efforts:
Open government enthusiasts (among which we certainly count ourselves) seem prone to magical thinking—i.e., the building of if-then links that are not objectively justifiable. Open government magical thinking has several strands. If we give people the opportunity to participate, they will participate. If we alert people that government is making decisions important to them, they will engage with the decisionmaking process. If we make relevant information available, they will use that information to engage meaningfully. If we build it, they will come. If they come, we will get better government. (P. 1.) Continue reading "Efforts to Expand Public Participation in Rulemakings Have Been a Failure"
Sep 24, 2012 Michael GreenJotwellJurisprudence
Caleb Nelson,
A Critical Guide to Erie Railroad Co. v. Tompkins, 54
Wm. & Mary L. Rev. (forthcoming 2013)
available at SSRN.
Philosophy of law can get lonely. Most law professors, not to mention lawyers, don’t care whether legal positivism or some kind of anti-positivist alternative is correct. It is surprising, therefore, that philosophers of law so rarely discuss Erie Railroad Co. v. Tompkins, since Erie suggests that the philosophy of law can be relevant to legal practice.
Legal positivism is identified, in part, by the social fact thesis: the law of a jurisdiction is fundamentally a matter of social facts concerning officials (or the general population) within the jurisdiction. In his opinion in Erie, Justice Brandeis rejected the regime of Swift v. Tyson, in part, because he thought Swift was incompatible with this thesis. In Swift, Justice Story opined about the common law prevailing in New York without deferring to the decisions of New York state courts. That sounds anti-positivist. Story apparently understood the common law to be binding in New York independently of social facts about New York (or, indeed, any other jurisdiction’s) officials. Continue reading "Erie, Swift, and Legal Positivism"
Sep 21, 2012 Alyssa DiRussoJotwellTrusts & Estates
Sometimes a will is not just a will. In Mark Glover’s recent article, he illuminates the psychological power that the law of wills and the process of estate planning can have. Although I’ve long suspected many of us who work in the world of trusts and estates do so for psychological reasons (what drives us to attempt to control death?), I’ve never seen the connection between psychology and the law of death made so persuasively and concretely.
Professor Glover begins with a useful introduction to therapeutic jurisprudence. It seems a gentle and unobtrusive movement; it largely suggests that, all other things being equal, the law should tilt toward rendering positive psychological consequences rather than negative ones. Fair enough. The model requires an analysis of the impact of laws on people, noting both the negative and positive psychological effect of the constructs law has created. An analysis should lead to an adjustment in the law if the primary goals of the law could be accomplished in a way with better net psychological impact. Continue reading "Estate Planning Is Better Than Xanax"
Sep 19, 2012 William BaudeConstitutional LawJotwell
Jud Campbell,
Commandeering and Constitutional Change,
122 Yale L. J. —, (forthcoming 2013)
available at SSRN.
Some of the best constitutional history papers have a single conceptual move that makes you see the world differently. Once you understand some previously unappreciated legal rule or piece of historical context, everything falls into place. Jud Campbell’s forthcoming article in the Yale Law Journal, Commandeering and Constitutional Change, is just such a paper.
The topic is “commandeering”—i.e., whether the federal government can force state officers to execute federal law. The Supreme Court has said that it cannot, because commandeering is inconsistent with state sovereignty. Campbell’s central insight is this: At the time of the Founding, commandeering was the Anti-Federalist position, not the Federalist position. The Anti-Federalists thought that it was much better for state sovereignty to have federal law executed by their own officers. They did not want a corps of officers in the states with federal paychecks and federal allegiance, and they were willing to accept commandeering, as opposed to voluntary cooperation, as the price of state execution. Continue reading "New Light on the Old World and Commandeering"
Sep 19, 2012 Angela HarrisCriminal LawJotwell
Imagine an interrogation chamber, twenty-five years from now. Rather than a dungeon or a prison cell, this space resembles the radiology suite of a hospital. A detainee is strapped to a gurney, electrodes attached to strategic parts of his body, rolled into a functional magnetic resonance imaging (fMRI) scanner, and there held immobile for the duration of the interrogation. Whenever he refuses to answer a question or gives an answer believed to be untruthful or incomplete, the detainee receives an electric shock. As the interrogation intensifies, so does the pain. Suddenly, however, the interrogation stops. The signal has been given from the observation room that the subject’s pain level has reached the threshold for “torture” established by the Geneva Convention.
What does it mean for criminal law, and for international humanitarian law, that we can see and measure the pain of others?
More generally, to what extent can scientific discoveries and technological advances solve (or dissolve) pressing moral debates? Continue reading "The Pain of Others"
Sep 18, 2012 Laura HeymannIntellectual Property LawJotwell
Until about a year ago, as the New York Times recently reported, Todd Rutherford had a successful business working with writers to help them market their self-published books on the Internet. Rutherford’s previous career had involved more traditional publicity efforts — talking up his clients’ work in the hope that a reviewer at a newspaper or a blog would take notice. But eventually he realized that it made more sense to “cut out the middleman and write the review himself.” And so GettingBookReviews.com was born, a business that, depending on how much the author was willing to pay, would write one, twenty, or even fifty online reviews singing a book’s praises. “Before he knew it,” the Times reported, “he was taking in $28,000 a month” and had to hire freelancers to keep up with the demand. Rutherford may have been particularly up-front about the nature of his business practices, but he was by no means an outlier; one estimate is that about one-third of online reviews purporting to be by actual consumers are marketing schemes rather than genuine reviews.
Rutherford did not, apparently, assert a proprietary interest in his company’s reviews; in any event, the service later foundered when Google, and then Amazon, took notice. But one might suggest that the inherently creative nature of the reviews – at least one of the freelancers admitted that she hadn’t actually read the books she “reviewed” – would put them squarely at the heart of copyright law’s scope of protectability. If this is the case, does that suggest something troubling about ratings? Or about copyright law more generally?
A recent article by James Grimmelmann seems to pose a simple question: Are ratings copyrightable? But what makes this short piece especially thought-provoking is the way in which Prof. Grimmelmann uses this question as a way of interrogating various fundamental doctrines of copyright law: the idea/expression dichotomy, the originality and creativity requirements, and the nature of fact versus opinion among them. Continue reading "Top-Ten Lists And Five-Star Reviews: Ratings, Rankings, And Creativity"
