March 30, 2007
Marquette Law Ranked #97 in 2007 US News Rankings
Marquette Law is back in the second tier of law school rankings after having dropped to the third tier last year. I'm shocked (massive sarcasm). See my prediction of this development from last April. Note my next prediction that Marquette will drop back into the 3rd tier in at least one of the next 5 rankings--that would be troubling except for my 3rd observation. So a reminder to prospective law students: it's stupid to rely on any single year's ranking in US News (and perhaps it's not smart to rely on them ever).
March 29, 2007
Bay Area Blawgers Meetup Recap
IMHO, last night's gathering of Bay Area Blawgers was a smashing success!
We had over 45 people show up at the event, exceeding our seating capacity! Typically, a fair number of lawyers who RSVP to an event don't show because of last-minute crises, etc. (This is especially true when there's no registration fee). Remarkably, all but a tiny handful of RSVPs actually showed up. I think this reflects bloggers' strong interest in meetups like this--we had attendees who fought a lot of traffic to make it from distant points, including SF, Marin and the Central Valley.
I was also struck by the bloggers' diversity. Just about every segment of the legal industry was represented: big firm lawyers, small firm lawyers, solo practitioners, in-house lawyers, government lawyers, non-profit lawyers, academics, law students, librarians/knowledge managers and legal reporters. Bloggers also covered a diverse range of topics/practice areas: we had a strong group of IP/tech bloggers, but we also had bloggers covering real estate law, immigration law, corporate law, unfair competition law, government law, professional responsibility, politics, legal humor and much more. Finally, we had all of the generations represented; we had lawyers with decades of experience and law students just starting their career.
Thus, this event cut across a lot of the normal divisions within the legal community, yet everyone had something to contribute, and people mingled freely. I can think of few other contexts where such a diverse group of lawyers (and legal-types) eagerly and easily interact with each other. Blogging truly does bring people together--in this case, people from many different backgrounds and walks of life. The main commonalities were (1) we went to law school, and (2) we blog. Apparently, that's enough commonality to form a solid community despite the many other differences.
One other point about the crowd. There's been a lot written about the dearth of women bloggers, a topic that regularly sparks blogwars. See, e.g., here, here (noting that 25% of law prof bloggers are women) and here/here (observing the phenomenon in political blogs). But last night, we had a terrific turnout of top-notch women bloggers. At least in the Bay Area, there's no obvious gender disparity.
In my introduction, I observed that blogging allows us to make virtual friends across the globe, so it’s a little ironic to meet physically, which by necessity limits attendance to people locally. This brings to mind the environmentalists’ 1970s mantra: “Think Globally, Act Locally.” Perhaps in the digital age, we might update that motto to: “Blog Globally, Meet Locally.”
During the discussion, we talked about why people blogged, the challenges that bloggers face, how bloggers develop their voice and strike a balance between personal and professional topics, how bloggers manage reader comments, some risk management issues (like liability for infringing comments), and how blogs may be affecting the development of the law. Although we had a formal discussion for almost 90 minutes, I felt like we barely scratched the surface of these topics, and there were many, many times I would have loved to ask follow-up questions and really explored someone's remark.
We ended up spending a surprising amount of time discussing blogs as an extension of a lawyer's identity and the obligations/challenges of owning one's words. We want freedom to express ourselves, but we also face a lot of constraints due to the possible implications of our words on our reputation or on third parties (such as our clients). Kim Kralowec was a perfect example, as she started out by blogging pseudonymously for a year before taking the cloak off. Then, she was reluctant to blog on defense-favorable cases given her plaintiff-side practice, but ultimately her firm's managing partner encouraged her to blog all sides.
As this indicates, many lawyers fear blogging because of possible future estoppel--i.e., lawyer takes position A on the blog, and then wants to argue contrary position B in the future for a client. On this point, Jason Schultz asked if anyone in the room had their blog cited against them by an adversary. His working theory is that adversaries may raise a lawyer's public statements against them, but that such citations rarely have any adverse consequence.
I had a personal experience with this. When I was being deposed as an expert witness, the opposing lawyer asked me about a post I had made to an email list. (The printout was actually garbled, but that's a different point). But, consistent with Jason's theory, this citation was inconsequential to my testimony or my credibility. In response to Jason's inquiry, John Steele also noted that he knew of 2 different law firms who had their client newsletters cited against them, but again it's not clear that those citations had any effect. So while blogging still has a theoretical risk of further adverse citation, we’re still looking for actual evidence of such adversity in practice.
However, I couldn't resist pointing out how I had been listed on a Rule 26 supplemental disclosure in the Bar/Bri litigation as a witness with potentially discoverable evidence because I had written a few general blog posts on the case.
Kurt Opsahl conducted 2 interesting surveys. First, he asked how many bloggers had filed a 512 OSP registration with the copyright office. No hands, although Mike Masnick from Techdirt said he was in the process of doing so. This result is consistent with my research on the OSP registration database last summer (see here), where I identified only about a dozen blogs that had filed registrations.
Second, Kurt asked how many bloggers had received a cease-and-desist letter. About 10 bloggers raised their hands. I raised my hand even though I don't think I've ever received a "true" cease-and-desist. I have gotten some nasty emails from litigants (typically plaintiffs) unhappy with my blogging on their case, but those rarely contain anything close to an implied legal threat.
However, I did have one situation that's close enough. In that case, a "reporter" (which I put in quotes for reasons that will be obvious in a moment) was surprised by my strong words in a post where I dissected an ill-conceived lawsuit. The reporter emailed me to ask if I thought my remarks were defamatory, and of course I replied that I thought not. This enterprising "reporter" then wrote a story about how bloggers can be irresponsible with their word choices, citing how a law professor (me) had written a blog post that could be defamatory. As part of this reporter's research, he called up the litigants in the deconstructed case and asked them "Hey, do you think Goldman defamed ya? And do you plan to do anything about that?" I think it's fair to insert a "hint hint" after those questions, and I'll let you form your own opinions about whether such questions are consistent with standard journalistic ethics. Then, to complete the campaign, the reporter submitted this story to Slashdot. Fortunately, when other bloggers with actual legal training weighed in, they all were as dismissive of the defamation characterization as I was. But it's never fun having people running around asking other people if they are planning to sue me!
One last point from the discussion: Cathy Gellis said that she went to law school in part to have a say in important matters. But then she realized that to have a say, she needed to speak up--which she now does via her blog. To me, this was one of the best justifications for blogging that I've heard.
At the event's end, I asked if there was sufficient interest in reconvening another gathering of Bay Area Blawgers, but I think the answer was already fairly obvious. It was absolutely terrific to meet people face-to-face, and we clearly have more things we could learn from each other. Therefore, the High Tech Law Institute plans to sponsor a second gathering of Bay Area Blawgers in Fall sometime. More details to come. If you didn't RSVP yes to the initial event, or if you're not on the list of Bay Area Blawgers, then I don't have you on the email list--please contact me and I'll add you.
Other Blog-Related Resources
March 28, 2007
Bar/Bri Settlement Preliminarily Approved
Judge Real preliminarily approved the settlement in the Bar/Bri antitrust case.
March 27, 2007
Bay Area Blawgers Roster
I compiled a list of Bay Area Blawgers. I welcome any updates or corrections.
March 24, 2007
Blog It Forward
A new research study from Yale suggests that outgoing links, even to competitors, builds traffic. The argument goes: outgoing links can help a blog's readers answer their informational needs, even if the content isn't originated at the linking blog. Therefore, blog readers will become more loyal to the blog even though they are being directed to competitors.
This argument sounds OK as a theoretical long run explanation, but I think there's another explanation for the value of ongoing links that has significantly more short-term currency. Many bloggers maintain vanity monitoring tools which notify them when another blogger links to their blog. An outgoing link triggers these notification tools. It's like sending the other bloggers an email, except that these notifications aren't blocked by spam filters. Therefore, outgoing links bring a blog to the attention of other bloggers, some of whom either establish reciprocal links immediately or become regular readers and start linking to the blog in the ordinary course of blogging.
HT: Kevin at LexBlog
March 21, 2007
Lawyer Blogging Covered by Malpractice Insurance?
One underwriter (rightly or wrongly) says that lawyer blogging would void its malpractice insurance coverage. I suspect this is one of those early overreactions to theoretical risks by an insurance carrier, and the insurance industry will wise up after a number of years of better understanding the (low) malpractice risk profile of blogging.
More by Kevin at LexBlog.
UPDATE: Kevin had a good exchange with Chubb, posted here. They've partially backtracked to say that they may not insure "advisory" blogs where law firms "offer advice," but informational blogs are OK. This makes sense, a little, in that lawyers would be ill-advised to render legal advice via a public blog, but I can't imagine many (any?) lawyers are doing that.
March 20, 2007
Lawyer Billing Rates Rising Faster than Inflation
According to this article in the San Jose Business Journal, lawyers' average hourly billing rates have grown faster than the rate of inflation for the past several years. This should hardly be surprising given the growth in lawyer compensation over the past few years (especially the breathtaking profits-per-partner this year), because there are only 3 inputs to law firm revenues that bill by the hourly rate: # of hours worked x hourly rate x realization rate. Most firms do a good job on realization, so there's only 2 levers to increase the top line: work harder or charge more. It appears that many lawyers are doing both.
March 19, 2007
My Highest Slinky--Stonerware Chronic Coil
I own a lot of unusual Slinky items, but this one rivals the bizarrest of them. Via eBay, I just bought a "Stonerware" item called "Chronic Coil," which is a green-colored plastic slinky in the shape of a marijuana leaf. See a picture here. The box has a tagline "for a laid-back lifestyle (tm)" and says "It walks down stairs, stoned and impaired" (parody?). Maybe I should start a new collection of Slinkies in the shape of contraband...
March 16, 2007
Legislative Audiences for Law Review Articles
Cardozo Law School held an event entitled "Trends in Federal Judicial Citations and Law Review Articles" where 7 appellate judges and several law professors discussed the general decline in court citations to law review articles. The New York Lawyer writeup (free registration required). Some of the article rehashes some well-trodden ground, but a few interesting tidbits emerged. Most importantly--the judicial crowd has made it relatively clear that they aren't able to do much with policy-oriented law review articles, which makes sense, but legislators can act on our arguments.
So, as at least one judge points out, we as law review article authors should make our arguments to legislators. Of course, this requires more than mere publication; some evangelization would be required to affect legislators' thinking. I have been thinking a lot about how to do this effectively; perhaps some day we can organize an AALS panel on that topic.
UPDATE: This topic has sparked a lot of discussion. See:
* Adam Liptak NYT Article
* WSJ Law Blog recapping the discussion.
* Dan Solove: "the worthwhile articles are becoming needles in an ever-growing haystack"
* Orin Kerr: "my sense is that a lot of law review scholarship is not terribly serious about engaging with the law"
* Eugene Volokh: "we shouldn't, it seems to me, insist that all or even most legal scholarship be aimed at judges, or see certain genres' lack of desire to influence judges as a sign of those genres' inherent flaws"
* Mike Madison: we should write to plug into some community, even if it's beyond the legal community.
March 15, 2007
More on Boom Practices
Patent litigators are HOT! (free registration required)
March 14, 2007
"Money Comes in Waves, and Attorneys Ride the Surf"
March 13, 2007
Communicating with Students
The Washington Post runs a story on one of the most vexing problems I face in my administrative capacity--how to communicate programmatic or administrative announcements to students. The article explains that proliferation of communication technologies has reduced the likelihood that any one method will reach students; plus, students routinely and deliberately ignore messages they receive via any of the official communication media (the article has quote after quote from students fessing up to this willful blindness). I can't count the number of times that I've spoken with a disappointed student saying "I had no idea" about some message that I had done my best to disseminate. It's very, very frustrating for everyone involved!
One particularly cumbersome solution is to blast students with the same message via multiple media, which only compounds the problem by increasing the data flow (and, perhaps more importantly, the irrelevancy of some of the data flow) to students, giving them even more incentive to check out. If anyone has figured out an effective method to reach students, I would LOVE to hear it!
March 12, 2007
Gifts for Incoming First Year Law Students
A friend recently asked for gift suggestions to give to a new incoming law student. This request had a certain irony, as those who know me well know that I am completely gift-challenged (and doubly ironic, as another friend had asked me about gifts to give law professors). So, at the risk of further exposing my gift-incompetence to the world, here's the suggestions I made:
Books to help with the first year
* Eugene Volokh, Academic Legal Writing. I can't tell you how many 2Ls and 3Ls have told me that they wished they had read Volokh's book as a 1L. There are many other books in this genre, such as Fischl, Getting to Maybe.
* Bluebook. Every 1L is going to have to buy it, and worse yet, they will curse having had to spend money on something so worthless. So this is an ideal 1L gift--much needed, often used, and something better received than purchased.
* There are some packages of commercial outlines covering the full range of first year courses, like Gilbert Law Summaries: First Year Program. This would be a nice one-stop resource for students who are probably going to buy commercial outlines anyway. You could also buy individual commercial outlines, especially if you had a favorite.
Media depictions of the first year:
* Scott Turow, One-L. I won't say that this is the easiest book to read as a prospective law student, but it's a still-relevant preview of life as a 1L.
* DVD of Paper Chase or Legally Blonde. Neither of these are all that realistic, but they are still both fun.
Tools to help professional development:
* Student membership in the ABA or another geographically proximate or topically relevant bar association, such as INTA for trademark students. Getting your recipient involved in a bar association might be a great way to jumpstart his/her networking/job search/expertise development, so this is a gift that could, in theory, keep on giving.
* How to Pay for Your Law Degree. Disclosure note: this is my mom's book. However, it's a great resource because it lists various scholarships and writing competitions for incoming and current law students. This might help your recipient get some extra dough for law school or gain extra recognition.
* Multi-color highlighter set. This is partially a joke--recall Dahlia Lithwick's meltdown over her choice of highlighter colors. But I think a lot of law students burn through a lot of highlighters in law school, so why not help them out a bit?
* Silly shirt from a Cafe Press shop
* Gift certificate(s) for stress reliever (massage, LaserTag, weekend getaway, etc.)
Let me know if you have any other ideas!
[note: some links go through Amazon Affiliates]
March 11, 2007
Associated Press on Internet Hunting
Yet another recap on the legislative frenzy to stop Internet hunting despite the lack of anyone in the market or wanting to be. I am always fascinated by the shifting basis of what constitutes the essential attributes of "hunting"--the lack of consensus on that topic makes it very hard to say why Internet hunting is different, but everyone quoted in virtually every article on the Internet hunting topic is sure that it is different!
This last week was Spring Break. Where did my Spring Break go? Three words: FACULTY ACTIVITY REPORT.
March 09, 2007
Slow Day in the New Mexico Legislature
A New Mexico legislator is proposing a resolution that when "Pluto passes overhead through New Mexico's excellent night skies, it be declared a planet." Amazingly, Wired quotes various people praising the resolution rather than scratching their head at legislative priorities.
UPDATE: I guess NM legislators really DON'T have anything else better to do. They also just enacted a law declaring the bolo tie the state's official tie. Great job, guys!
March 08, 2007
Bankruptcy Expert System is Practice of Law
In re Reynoso, No. 04-17190 (9th Cir. Feb. 27, 2007)
This case holds that an online bankruptcy expert system constitutes the unauthorized practice of law. As usual in these types of cases, every little fact matters. According to the court,
Frankfort sold access to websites where customers could access browser-based software for preparing bankruptcy petitions and schedules, as well as informational guides promising advice on various aspects of relevant bankruptcy law.
The site's marketing included the following statement:
Ziinet is an expert system and knows the law. Unlike most bankruptcy programs which are little more than customized word processors the Ziinet engine is an expert system. It knows bankruptcy laws right down to those applicable to the state in which you live. Now you no longer need to spend weeks studying bankruptcy laws.
The court continues in describing the site:
It explained that its program would select bankruptcy exemptions for the debtor and would eliminate the debtor’s “need to choose which schedule to use for each piece of information.” The site also offered customers access to the “Bankruptcy Vault”—a repository of information regarding “loopholes” and “stealth techniques.” For example, according to the site, the Vault would explain how to hide a bankruptcy from credit bureaus and how to retain various types of property."
Not surprisingly, the court concluded that this expert system constitutes the unauthorized practice of law:
Several features of Frankfort’s business, taken together, lead us to conclude that it engaged in the unauthorized practice of law. To begin, Frankfort held itself out as offering legal expertise. Its websites offered customers extensive advice on how to take advantage of so-called loopholes in the bankruptcy code,8 promised services comparable to those of a “top-notch bankruptcy lawyer,” and described its software as “an expert system” that would do more than function as a “customized word processor[ ].”
As usual, the words used in marketing these electronic tools are critical to the ultimate determination on UPL. Some of the word choices here were unfortunate--they were designed to entice users to use the system by promising more personalized solutions. There's a very fine line between legitimate technological tools that are user-controlled and software that crosses over to UPL by personalizing the results too much. Personally, I'm not sure where that line is, but it seemed pretty obvious to me that this software implementation crossed it. Plus, having an injured party (the bankruptcy debtor, whose case was hurt by errors in the system) didn't help.
HT: Poulsen at Wired.
March 07, 2007
British Report on Consumer Knowledge about Meat Manufacturing
I've blogged repeatedly on dichotomous consumer perceptions towards animals, such as consumers freaking out about SaveToby.com even though they would gladly eat Toby if prepackaged in the supermarket. As a result, I've asserted that consumers' willful ignorance of the meat manufacturing process increases consumer demand for meat compared to the "true equilibrium" level of demand if consumers actually understood the manufacturing process.
We get some further evidence of this in this new report about British consumers of meat. From the executive summary:
Consumers are increasingly concerned about the issue of welfare standards of food producing animals. ... However, consumers also lack knowledge on the food production system and, while they may express a demand for information on animal welfare, consumers will also voluntarily ignore the information, to avoid the realities of production.
Previous research has shown that consumers regularly over claim their propensity to purchase products with higher standards of animal welfare. Their willingness to pay more for improved animal welfare is in reality sometimes not put into practice. While consumers are more conscious about their food and where it has come from, many still do not use their beliefs within the decision making process.
This new research also reveals that consumers know very little about the supply chain, and in particular they are deliberately ignorant of anything that happens between slaughter and consumption. The only area that consumers do know – and want to know about – is the rearing and living stage prior to slaughter. By feeling that animals have been treated well at this stage, it helps to alleviate the guilt that consumers feel about consumption. This, in turn, drives the demand for higher welfare foods:
[Here's a nice money quote:]
“Higher welfare is about making sure that they can run around, and have a nice life before we eat them!” Leicester,Mixed Gender, Empty nesters, (BC1)
This raises a conundrum I haven't been able to solve. Normatively, I want consumers to confront the ugly truth about meat manufacturing, but descriptively, I have no idea how to accomplish this--if consumers aren't interested, there are very few ways to force them to care. The best I've come up with is putting a picture of Bessie on every package of meat containing Bessie, but I don't think that really hits the nail on the head.
March 02, 2007
This Blog Post Is Attorney Advertising
From the Law Blog: More silliness about the artifical lines between "commercial speech" (whatever that means) and editorial content. The NYT recaps law firms' reactions to the new New York ethics rules requiring firms to label their websites as "attorney advertising" if their "primary purpose [is] the retention of the lawyer and the law firm." So, does this cover the standard law firm website or not? Who knows. And what value does anyone derive from making that disclosure? I would venture to say, absolutely none. For a more rigorous rant on this point, see my short comment here.
March 01, 2007
Merritt on Teaching Evaluations
I've previously blogged on problems with student evaluations of teaching. First, I've expressed concern about the anonymous nature of the feedback, which means that the evaluators have reduced accountability for what they say. Second, there's evidence that superficial things like the professor's attractiveness affects the evaluations.
Deborah Merritt of Ohio State University College of Law provides much-needed structure to these critiques in her excellent article, Bias, the Brain, and Student Evaluations of Teaching, which reviews the extensive social science on teaching evaluations and how people judge other people to explain the significant deficiencies with the typical written evaluation of teaching. In a nutshell, she explains why written evaluations fail to accurately measure the quality of the professor's instruction, making them susceptible to bias and other unwanted forces. Her solution is to elicit student feedback in a guided discussion, a much more time-consuming method of collecting feedback but one that avoids the defects of the written evaluation.
Student evaluations of teaching are a common fixture at American law schools, but they harbor surprising biases. Extensive psychology research demonstrates that these assessments respond overwhelmingly to a professor's appearance and nonverbal behavior; ratings based on just thirty seconds of silent videotape correlate strongly with end-of-semester evaluations. The nonverbal behaviors that influence teaching evaluations are rooted in physiology, culture, and habit, allowing characteristics like race and gender to affect evaluations. The current process of gathering evaluations, moreover, allows social stereotypes to filter students' perceptions, increasing risks of bias. These distortions are inevitable products of the intuitive, “system one” cognitive processes that the present process taps. The cure for these biases requires schools to design new student evaluation systems, such as ones based on facilitated group discussion, that enable more reflective, deliberative judgments. This article draws upon research in cognitive decision making, both to present the compelling case for reforming the current system of evaluating classroom performance and to illuminate the cognitive processes that underlie many facets of the legal system.