Alabama high court race again garners most expensive pricetag in U.S.- Ads help raise total to $5.3 million
ERIC VELASCO, The Birmingham News
January 31, 2009
A spending surge the week before the Nov. 4 election helped paste a $5.3 million final price tag on the Alabama Supreme Court race, making it the nation's most expensive in 2008, according to new campaign disclosures and watchdog groups.
Republican Greg Shaw, Democrat Deborah Bell Paseur and a third-party group spent nearly $850,000 during the last week of the campaign to buy airtime for ads, according to the Brennan Center for Justice at the New York University School of Law.
Total candidate spending was nearly $4.3 million - $2.5 million by Paseur and $1.8 million by Shaw, according to state campaign disclosures, including final accountings filed this week. Third-party groups spent at least $1 million more.
Despite being surpassed by Paseur in ad spending, Shaw squeaked to victory by fewer than 13,000 votes out of 2 million cast Nov. 4. He was sworn in Jan. 20.
Shaw, Paseur and the Virginia-based Center for Individual Freedom spent about $4 million on TV ads, according to disclosure forms and the Brennan Center, which tracks the influence of politics on the judiciary. That paid for nearly 11,000 ad spots, the Brennan Center said.
Paseur's nearly $2 million ad campaign, the most spent in any judicial race nationally in 2008, paid for 6,000 ad airings on TV stations, disclosure forms and Brennan Center data show.
The Center for Individual Freedom ranked fifth nationally in buying airtime for judicial ads, according to the Brennan Center. The CIF, which does not disclose its donors, ran more than 2,400 ads in October and early November either supporting Shaw or attacking Paseur.
Paseur raised nearly $2.6 million in cash and in-kind services during her Supreme Court campaign, disclosure forms show.
About two-thirds of her total money came from the state Democratic Party executive committee, including $85,000 in cash and donated ads the week before the election, records show. Donors to the party committee include plaintiff trial lawyers and the state teachers union, the primary backers of Democratic judicial candidates.
Paseur's campaign ended with a $32,000 surplus.
Pro-business political action committees continued to be the primary source of the $1.8 million total Shaw raised, disclosures show.
Shaw received nearly $128,000 in PAC money the last week of his campaign, current disclosures show. A further $27,500 came from PACs in late December to help retire a portion of Shaw's campaign debt, now nearly $69,000, disclosures show.
Armed with an infusion of Democratic Party money, Paseur heavily outspent Shaw in the final month of the campaign, quickly gaining domination of the airwaves.
As Shaw fell further behind Paseur's ad pace in early October, the Center for Individual Freedom leaped in with pro-Shaw television ads, followed by anti-Paseur spots.
Alabama Voters Against Lawsuit Abuse, a tort-reform advocacy group, also ran ads the last two weeks of the campaign on 14 radio stations statewide attacking Paseur's judicial record. The group spent $160,000 to $180,000, AVALA executive director Skip Tucker said Friday.
Between Oct. 22 and Nov. 4, Paseur spent $625,000 to buy airtime for TV ads, according to the Brennan Center. The CIF spent nearly $595,000 on airtime in that period, while Shaw lagged at $274,000, the Brennan Center said.
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About allowing Ohio judicial candidates to identify their political affiliations? Never mind
Amanda Bronstad, The National Law Journal
January 28, 2009
Less than a month after allowing judicial candidates to identify their party affiliations during general elections, the Supreme Court of Ohio has reinstituted the prohibition in its revised Code of Judicial Conduct, which becomes effective on March 1.
On Jan. 20, the state's highest court announced that it had voted, 5-2, to reinstate the provision, which has been in existence since 1995. The prohibition earlier had been eliminated in the revised Code of Judicial Conduct announced on Dec. 30.
Officially, Ohio has nonpartisan judicial races in general elections, but political parties have been actively involved in campaign advertising and contributing to judicial candidates in recent years. Since 2004, enforcement of those rules has lapsed, however, pending a court challenge.
In reinstating the prohibition, Chief Justice J. Moyer had indicated that not identifying party affiliations in advertising emphasizes the nonpartisan nature of judicial elections in Ohio. The two justices who voted against the prohibition, Paul E. Pfeifer and Judith Ann Lanzinger, cited the U.S. Supreme Court's decision in Republican Party of Minnesota v. White, 536 U.S. 765 (2002), which found that a restriction on judicial candidate speech in Minnesota was unconstitutional. The majority judges said Minnesota v. White dealt with judges announcing their views on political issues.
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Practice-of-law definition hits new roadblock
Pacific Business News (Honolulu)
January 26, 2009
The issue of crafting a new definition for the practice of law in Hawaii is once again before the Hawaii Supreme Court, but state Attorney General Mark J. Bennett has spoken out against the revised rules, dealing a new blow to the efforts led by the Hawaii State Bar Association.
The bar association submitted its revised draft of a new definition for the practice of law last month after more than a year of occasionally contentious discussions in which professionals such as accountants, insurance agents and real estate brokers accused the lawyers of trying to steal their work.
The new four-page draft makes a point of saying that the rules are not intended to restrict anyone from doing their usual business. The public has until April 27 to comment.
After reviewing the rules in November, Bennett wrote to the bar association saying he could not support the revised rules because they were laden with exceptions and exclusions that were overly broad, ambiguous or do “not make sense.”
Bennett also quoted former state legislators who decided that defining the practice of law was “fruitless because new developments in society, whether legislative, social or scientific in nature, continually create new concepts and new legal problems.”
The new draft contains a dozen exemptions, including the preparation of real estate contracts, purchase and lease agreements and tax returns; selling or soliciting insurance and annuity products; performing paralegal services; and selling legal forms to the public.
There are other exemptions for individuals who choose to represent themselves in court, who participate in labor negotiations and arbitrations or who lobby at the Legislature.
Groups including the Hawaii Association of Realtors, Hawaii Insurers Council and the Hawaii Society of Certified Public Accountants were heavily involved in retooling the new draft.
The bar association said it was surprised by Bennett’s position since several state deputy attorneys general from his office were intimately involved in the discussions and reviewed various drafts of the rules as they were being written.
In a letter to the court, Jeffrey Sia, immediate past president of the bar association, wrote that the exemptions strike a balance between the concerns of all the stakeholders involved in the discussions.
“It was not the [association’s] intent to take away the lawful livelihood of nonlawyers or hinder the public’s access to legal services,” Sia wrote. “These types of exceptions are not novel.”
Only licensed attorneys can practice law in Hawaii, but there is no definition that describes precisely what the practice of law is. So the Hawaii Supreme Court asked the bar association to write an acceptable definition of the law business.
Its goal was to protect Hawaii residents and businesses from untrained, unlicensed and unregulated individuals offering advice on legal matters.
At least 25 other states and the District of Columbia have adopted similar rules or statutes defining the practice of law or protecting consumers from amateur legal advice.
If the Hawaii Supreme Court approves the rule changes, the earliest they would take effect would be July 1.
The proposed rules are available on the Hawaii State Judiciary’s Web site: www.courts.state.hi.us.
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Chill of Salary Freezes Reaches Top Law Firms
By EILENE ZIMMERMAN, The New York Times
January 25, 2009
LARGE law firms have long been known for lock-step salary increases and annual bonuses. But the recession and other economic pressures are changing that, with many firms deciding to freeze salaries and rethink bonuses.
In mid-December, the legal profession was taken aback when Latham & Watkins, considered a market leader, announced that it would keep 2009 associate salaries at their 2008 levels. At least 20 large firms nationwide have since done the same.
Although many associates are angry about the freezes, others are relieved, said David Lat, founding editor of AboveTheLaw.com, a blog about law firms and the profession.
“There is this sense that firms didn’t act prudently during the boom and now they are getting religion, and that it’s better late than never,” Mr. Lat said. “Many associates we have spoken to think the freeze probably saved jobs.”
For decades, when top-tier firms raised starting salaries, other firms would follow suit, in order to compete for the best talent.
“Lawyers are very conservative and tradition-bound,” Mr. Lat said. “There is a certain security in knowing what you are doing now is what others are doing and what has been done in the past. With salary freezes, you are seeing a sort of reverse ratcheting. If one firm sees a competitor lowering salaries, they feel it’s safe to lower salaries, too.”
Salaries of associates, as opposed to non-equity partners, appear to have been the most affected by freezes. (The pay of equity partners is closely tied to a firm’s profitability.)
Law is one of the few professions in which a 25-year-old with little experience can make a six-figure salary. Top law firms generally pay their new associates $140,000 to $160,000 a year.
Of course, not every lawyer’s starting salary is that high. According to the National Association for Law Placement, 16 percent of the class of 2007 law school graduates employed full time make $160,000 or more, while 38 percent make $55,000 or less.
Top-tier firms have been watching one another’s compensation moves since 1968, when the New York firm Cravath, Swaine & Moore raised first-year salaries to $15,000, well above what any other firm was paying at the time, said William D. Henderson, an associate professor at the Michael Maurer School of Law at Indiana University, who studies the legal labor market. “It was a watershed moment for the industry, akin to a shot heard round the world,” he said.
Starting salaries rose gradually through the 1990s, and in 2000, those at top firms jumped to $125,000, according to the association. Firms that did not meet that increase were perceived as second-rate, Professor Henderson said. “But today the thinking is, ‘If we meet the market, it may threaten our franchise.’ It’s too dangerous now,” he said.
Although the recent spate of salary freezes is a response to the recession, law firms have been facing other economic issues. For several years, corporate clients have complained about high billing rates, especially for relatively inexperienced junior lawyers.
In 2008, revenue and profits fell at many firms, and some managing partners at those firms are now rethinking their business model, Professor Henderson said.
Guy Halgren, chairman of Sheppard Mullin Richter & Hampton, which announced a salary freeze earlier this month, said the firm had been moving for the last few years toward a more merit-based advancement system. .
“We already do some of that — part of our bonus system is merit-based and it’s been like that for many years,” he said. “This has been happening in the profession slowly, but I think it will accelerate in the next year or two. We’ve been thinking about going to more merit-based incentives.”
This month, Morgan, Lewis & Bockius sent a memo to its associates announcing that 2009 bonuses would be merit-based, rather than hours-based.
Ralph Baxter, chairman of Orrick, Herrington & Sutcliffe, which announced salary freezes in late December, said his firm began reassessing its business model long before the economic crisis. In the last two years, the focus has been on operating more efficiently and at a lower cost to clients. Last year, Orrick announced that in addition to having partner-track associates, it would add substantial numbers of lawyers not working toward partnership, and a significant number of staff members who are not lawyers at all.
“This was born of our focus on adapting to a changed world, one in which our clients are facing greater and greater pressure to control their costs,” Mr. Baxter said.
The criteria for promotion toward partnership is not based just on hours billed, he said. “The criteria have changed over time,” he said. “Today you need a greater capacity to build personal relationships and far more entrepreneurial skill.”
MR. LAT says the focus on efficiency and cost control represents a change in the way law firms view themselves. “Law is becoming more of a business, and you will see more of an emphasis on results than in the past,” he said. “I think some breakdown in the lock-step mentality might actually stick. Firms are recognizing that on a certain level, it makes sense to pay people in a way that reflects their performance.”
A return to the days when starting salaries at top firms were under $150,000 is unlikely, however. A legal education is still expensive, and firms at the top of the rankings — those that traditionally drive salary increases — will continue to compete for graduates of leading law schools. “Clients want the best talent,” Mr. Halgren said. “Law firms like ours have to recruit and retain that top legal talent, and we need to pay competitively to do that.”
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How Much Should Judges Make?
By ADAM LIPTAK, The New York Times
January 20, 2009
Federal judges say they are underpaid. The problem, in Chief Justice John G. Roberts Jr.’s words, “has now reached the level of a constitutional crisis.”
It takes a pretty brave soul to argue the other side.
“I couldn’t find any evidence to support his claim,” Scott Baker, a law professor at the University of North Carolina, said of the chief justice. Professor Baker published a study last year in the Boston University Law Review that considered whether society would be better off were judges paid more as a matter of labor economics.
Its conclusion: “Pretty much nothing would happen if Congress decided to raise judicial salaries.” Money appears to have almost no impact on the quantity and quality of the work judges produce, Professor Baker found, and lots of capable people are eager to take the jobs at the current salary.
A second study to be published in The Journal of Legal Analysis, a peer-reviewed publication at Harvard Law School, goes even further. Its title seems calculated to provoke the people who wear black robes at work: “Are Judges Overpaid?”
G. Mitu Gulati, who conducted the study with Eric A. Posner and Stephen J. Choi, said judges have not embraced their findings. “There was anger and even incredulity that we would even ask the question,” he said.
Federal district judges make $169,300; federal appeals court judges, $179,500; Supreme Court justices, $208,100; and the chief justice, $217,400. There is no question that those salaries, which went up by 2.5 percent last year, have dropped significantly in real terms in recent decades or that they represent a tiny fraction of what partners in a big city law firms make.
This year, federal judges, alone among federal employees, did not even receive a cost of living adjustment.
On the other hand, being a judge is pretty sweet work and the job is in high demand. It comes with status, power, good working conditions, no clients, the ability to affect policy and the satisfaction of doing justice. Federal judges get very good health care, exceptionally generous pensions and the ultimate in job security – life tenure.
The two sides in the debate, in any event, are mostly talking past each other.
The professors collected data and analyzed them using the tools of economics. They measured things like productivity (number of published opinions), quality (how often other courts cite those opinions), speed (how quickly opinions are produced) and independence (how often judges disagree with colleagues with similar political views).
The Journal of Legal Analysis study considered the relative quality of state-court judges around the nation in light of their varying salaries. Professor Baker looked at federal appeals court judges in different parts of the country, taking account of the pay scales at the regional law firms judges might joint if they left the bench.
Both studies concluded that there is almost no evidence that taxpayers would be better off by paying judges more. A possible exception, according to Professor Baker, is that “low salaries lead to slightly fewer dissents.”
Frank B. Cross, a law professor at the University of Texas and a sophisticated empiricist, said the new studies go off the rails. “I love these economic tools,” he said. “But we don’t have a good measure of judicial quality.”
“Given the anecdotal evidence, economic logic and the great importance of a quality judiciary,” Professor Cross wrote in a reply to Professor Baker, “the case for a judicial pay raise is reasonably strong.”
Many judges say the entire enterprise is absurd and insulting. “The country wants and deserves the strongest possible judiciary, and we should be willing to pay for that,” said David F. Levi, the dean of Duke Law School and a former federal judge. (He said he did not step down for financial reasons.)
Chief Justice Roberts, in his report on the state of the judiciary at the end of 2006, cited a few kinds of data to support his argument that low pay is leading to a crisis. One was that 38 judges left the federal bench between 2000 and 2005, some citing the need to make more money.
Judge Richard A. Posner, a prominent federal appeals court judge in Chicago, called this “crying wolf” in his recent book, “How Judges Think.” The chief justice had lumped retirements and resignations together, Judge Posner said. Only 12 federal judges had resigned out of a total of 1,200 active and senior judges in the years in question, a small number in absolute terms and a smaller percentage than in the six years ending in 1974.
Judge Posner did not dispute that low pay may mean that there are fewer judges coming from private firms, but he did not see why that should matter so long as there appear to be plenty of qualified candidates.
Chief Justice Roberts also said the real pay of federal judges dropped about 24 percent since 1969 while the average worker’s real pay rose about 18 percent.
“But this is misleading,” Judge Posner responded. Federal judges received a roughly 30 percent pay raise in 1969. “Had Roberts picked as his base year 1968 rather than 1969,” Judge Posner said, “the picture of decline would have been less dramatic.”
What is most interesting about the basic argument made for a judicial pay raise is that it appeals to a value that many judges resist in other contexts. It is an argument about fairness and respect. It is the sort of argument liberals make for raising the minimum wage or for laws that guarantee equal pay for equal work.
Professor Baker said those arguments ought not matter. “Judicial selection has to be subjected to cost-benefit analysis just like everything else,” he said.
But he acknowledged a human dimension to the question.
“I got some e-mails from judges saying ‘How would you like it if your salary were not raised?’ ” Professor Baker said. “I kind of feel sympathetic to that. I’d probably be mad.”
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Interest Rate Drop Has Dire Results for Legal Aid
By ERIK ECKHOLM, The New York Times
January 19, 2009
BOSTON — Scores of legal aid societies that help poor people with non-criminal cases — like disputes over foreclosures, evictions and eligibility for unemployment benefits — are being forced to cut their staffs and services, even as requests for help have soared.
In an odd twist, the societies have been hit hard by the Federal Reserve’s steep reduction of its benchmark interest rate, which finally plunged last month to near zero.
The rate decline, though generally welcomed as a blow against the recession, has had an unplanned and severe effect on legal aid societies, which depend heavily on revenues that are tied to the federal funds rate. As recently as 2007, the rate was more than 5 percent and legal aid agencies reaped more than $200 million for their operations.
Now, for many legal aid groups across the country, cutbacks in staffing are expected to reach 20 percent or more over the coming months, even as requests for their services have risen by 30 percent or more.
Legal aid groups have long benefited from little-known programs that draw interest earned from short-term deposits that lawyers hold in trust for clients during, for example, real estate transactions or personal injury payouts. The interest is mainly donated to legal services for the poor.
But as the federal funds rate declined along with the number of real estate transactions, the payout has fallen precipitously. And beleaguered state governments are also curbing their aid.
The director of Connecticut Legal Services, Steven Eppler-Epstein, said that local agencies were already giving out pink slips and that 50 of 150 legal positions statewide might be lost.
“We are watching the interest rates with a sense of horror,” he said.
The cutbacks are occurring precisely as soaring foreclosures and unemployment, a surge in disputed applications for food stamps and a possible rise in domestic violence have produced record requests for help.
Some agencies that, in the best of times, had to turn away half of their qualified applicants are facing ever more wrenching choices about whom to represent, decisions that Steven Banks, chief attorney for New York City’s Legal Aid Society, compared to those in “a MASH unit in a war zone.” Legal aid can represent only one of every seven people seeking help in the city, he said.
In East Texas, where thousands of people whose houses were destroyed by Hurricane Ike last fall are contesting federal denials of aid, and some are living in tents, the regional legal service budget of $16 million is expected to decline to $4 million this year. Paul Furrh, director of Lone Star Legal Aid, said his group was already overwhelmed.
Low-income defendants in serious criminal cases have a constitutional right to a lawyer. But there is no such right in civil cases, even though the consequences — losing a home or custody of a child, failing to obtain a protective order quickly — can be just as life-altering.
Federal appropriations for the Legal Services Corporation, the largest source of money for aid groups, have declined over time. This year’s level of $350 million is, when adjusted to inflation, down more than one-third from its peak in 1994. Many states provide a supplement, but they are also in a brutal fiscal squeeze.
Over the last three decades, every state has adopted a program drawing interest from trust or escrow accounts. Called Interest on Lawyers’ Trust Accounts, or Iolta programs, they have been a godsend for struggling legal aid groups, providing $212 million in 2007, according to the American Bar Association.
But as a result of the collateral damage from the free-falling interest rate, the Massachusetts budget for civil legal services has been cut to $19 million this fiscal year, from $27 million; the Boston branch expects to lay off up to one-fifth of its lawyers and paralegals in coming months. People with legal troubles and little money, like Jim Vedrani, 53, of Amesbury, Mass., have found themselves on their own.
As a technician fixing boat motors, Mr. Vedrani earned a right to unemployment benefits when he was let go. Then he took a job working on a farm, but quit after seven weeks because of what he called extreme emotional abuse by his supervisor. “He took every chance to humiliate me in front of others,” he said.
He applied to reinstate his unemployment benefits, but the farm supervisor testified that Mr. Vedrani had not quit for good reason, and his claim was denied.
He appealed and contacted the office of Neighborhood Legal Services in Lawrence, Mass., which had recently laid off 7 of 32 staff members. The employment lawyer was too busy to attend his hearing, and Mr. Vedrani lost.
Sheila C. Casey, director of Neighborhood Legal Services, said that based on experience with such disputes, “We probably could have won it.”
Mr. Vedrani moved in with friends and now does odd jobs. “With those benefits, I’d have the money to put gas in the car, or to get a haircut or buy shoes before an interview,” he said.
Legal aid groups have long engaged in painful triage. A study in 2005 by the Legal Services Corporation found that the agencies it helped finance could represent only half the people who asked for help and qualified for it. Many more people never seek aid.
“Equal access to justice is a bedrock principle,” said Helaine M. Barnett, president of the Legal Services Corporation. But now, “the justice gap has precipitously widened.”
New York City reduced its grant for legal aid in 2008, and now, with New York State deep in the red, the 2009/2010 budget proposal of Gov. David A. Paterson would cut the entire $8 million it gives to legal service groups.
Legal aid for the poor was a contentious political issue in the 1970s, when Congress established the Legal Services Corporation as an outgrowth of the war on poverty. Conservatives charged that liberal lawyers were trying to use legal services, like class-action lawsuits on behalf of migrant farm workers, to change social policy.
Congress has restricted how Legal Service Corporation money can be used: recipient agencies cannot be involved in class-action suits or cases involving immigration, abortion or prisoners, among others. As a result, many agencies do not accept federal dollars.
Richard A. Samp, chief counsel of the Washington Legal Foundation, a conservative law firm, said that the Iolta programs amounted to “a slush fund for legal aid groups to do the kind of work the Congress has prohibited them from doing with public money.”
His group argued before the Supreme Court that the programs were an illegal seizure of private income, but the court, in 2003, held otherwise, calling them justified for the public good.
Lonnie Powers, director of the Massachusetts Legal Assistance Corporation, said in response to Mr. Samp, “Iolta is a creature of the states, and the states can decide how it is spent.” Some states impose their own restrictions.
The immediate financing crisis, others note, does not reflect any legislative rebuke but rather the fallout from the recession, combined with surging unemployment and foreclosures.
Donna Hawkins, 42, a receptionist at a Boston hospital, said she was always on time with the $1,100 rent on the apartment she lives in with her husband, two grown daughters and three grandchildren. So Ms. Hawkins was stunned when two men showed up in May to tell her that the bank had foreclosed on the property and that she had to move out in 15 days.
Her story is ending happily. A legal aid lawyer who took up her case free helped her contest improper filings and expects to win a one-year lease.
But for the lawyer, Zoe K. Cronin, of Greater Boston Legal Services, the victory is bittersweet. Her agency expects to lay off 15 to 20 lawyers and paralegals this spring, and Ms. Cronin does not have seniority.
“I’m virtually certain that I’m going to be laid off,” she said.
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Law schools dealing with budget cuts
Karen Sloan , The National Law Journal
January 19, 2009
JoAnne Epps got the bad news in September.
Instead of an expected 1% budget increase, the dean of the Temple University James E. Beasley School of Law learned that she would need to cut about 2% of the budget for the current academic year. The reductions were necessary because the Pennsylvania government — facing a major budget shortfall — was preparing to cut funding to the university by more than 4%.
Administrators at the law school tried to use the scalpel in hopes of avoiding the hatchet.
"We looked at the things we considered most discretionary," Epps said.
That meant paring back library acquisitions, switching over to electronic publications instead of hard copies, leaving some staff positions unfilled and cutting back on faculty travel, among other things.
Epps said the academic experience of Temple law students hasn't suffered because of the cuts, but she worries that the effects could be compounded by more reductions down the road. "Over time, the continued loss of support staff and counselors will be felt deeply," Epps said.
Temple is hardly the only law school struggling with funding cuts and the prospects of smaller budgets in the upcoming academic year. A number of states facing revenue shortfalls are eyeing cuts wherever possible, and higher education is a potential target.
Private schools not immune
The financial picture isn't much brighter — and may actually be worse — for private law schools. Those schools generally rely more heavily than their public counterparts on income from endowments to pay for operations, and the nose-diving financial markets have hit endowments hard. For example, Harvard University's $36.9 billion endowment has fallen 22% since the summer, while Yale University's plunged 25% to $17 billion during that time.
University of Chicago Law School Dean Saul Levmore said reliance on funding from endowments varies, but generally makes up a quarter to a half of the operating budget at private schools. Considering that many endowments have lost between 20% and 40% of their value, schools will likely need to make cuts, he said.
However, the full impact of shrinking endowments won't be felt for several years. Law schools may see modest budget cuts in the short term, but long-term reductions could reach about 17% for very endowment-dependent schools if the economy does not recover quickly, Levmore said.
Levmore declined to discuss the recent losses in the University of Chicago's endowment, but he said he expects to have to trim about 5% from the law school's budget for the coming academic year. Those cuts could come by filling positions more slowly and trying to find efficiencies where possible, he said.
Levmore predicts that the market for visiting faculty at schools across the country will slow significantly this year as law schools try to save money.
"It's the easiest thing to cut because visiting faculty aren't on the permanent payroll," he said. Schools also are likely to be pickier about whom they hire, he said.
While some schools are just starting to deal with the ramifications of smaller budgets, others have been in cutting mode for some time.
The William S. Boyd School of Law at the University of Nevada, Las Vegas has seen its state funding shrink by 9% through two cuts since December 2007, said Dean John Valery White. The housing crisis hit Nevada earlier than many other states, prompting legislators to cut higher education spending sooner.
"You have to cut a little bit of everything in order to get up to a pretty big number," White said. The law school has left some positions empty, cancelled some staff training and faculty travel, decreased its library staff, reduced the number of course sections and switched to more electronic publications to reduce library costs, he said.
The law school also is using some donation money to cover a portion of operational costs, such as staff salaries. In better times, that donation money would go to things such as capital projects or student travel.
"It's really just a stop-gap," White said.
Florida's public universities and community colleges are in line for nearly $150 million in state funding reductions under a plan lawmakers are currently debating. The proposed cuts are part of a larger effort to address the state's $2.3 billion deficit.
Budget cuts are something Florida State University College of Law Dean Donald J. Weidner is getting used to.
"We've already had 7% in budget cuts over the past year and a half. We're expecting more over the next six months, and I think people are very concerned. No one quite knows where this is going," he said.
The law school already has limited its hiring, shrunk its full-time and part-time staff, increased some class sizes and cut back on recruiting events, among other things.
The law school is pushing for a tuition increase to help mitigate the impact of the budget cuts. It has proposed a 15% increase in the $12,000 tuition for in-state residents. Weidner said that the school's tuition for residents is relatively low, but the need to raise it to cover costs is regrettable.
"I fear it's happening nationally to a significant extent. We're losing our vision for a truly low-cost, high-quality state legal education," he said.
Contingency plans
Many law schools simply won't know what their financial future holds until their upcoming budgets are finalized in the late spring or early summer, but some are making contingency plans in the meantime.
In preparation for cuts in state funding, University of California Hastings College of the Law in San Francisco recently asked department heads to shave 5% from their current operating budgets. It also has cancelled the anticipated cost-of-living salary increases for faculty and staff and has scaled back hiring.
The University of North Carolina School of Law has been asked to draw up three different budgets for the next year assuming 3%, 5% and 7% funding cuts, said Assistant Dean for Communications Katie Bowler. The school has already cut down on meeting expenses and faculty travel, as well as printing, supplies and furniture purchases, she said.
"We don't yet know where the [new] cuts will be," Bowler said. "But the school will not need to cut faculty or staff."
Levmore, the University of Chicago law dean, said one major unanswered question is whether budget cuts will lead to a smaller pool of financial aid for law students.
That issue looms largest for private schools, which use attractive financial aid packages to woo students. Financial aid is the fastest growing expense for law schools, Levmore said, and a reduction at one school could set off something of a chain reaction among peer institutions. The University of Chicago Law School has not made any determination about its financial aid awards for the next year, Levmore said.
None of the other law school officials interviewed said their institutions have plans to decrease financial aid, but several acknowledged that budget cuts could have ramifications on aid awards.
"If we didn't have a [proposed] tuition increase to offset the cuts, financial aid would be next," said Florida State law dean Weidner.
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Law Dean Says Schools ‘Exploiting’ Students Who Don’t Succeed
By Debra Cassens Weiss, ABAJournal.com
January 20, 2009
Law schools are “exploiting” any students who aren’t successful, according to a law school dean who spoke at a program on law school rankings earlier this month.
“We should be ashamed of ourselves," said Richard Matasar, dean of New York Law School.
Matasar said schools need to take responsibility for the failures of their students, according to an account of his Jan. 9 remarks by TaxProf Blog. Matasar said a law school education can cost as much as $120,000 for students who are making a “lottery shot” at being in the top 10 percent of their class so they can get a high-paying job.
He spoke during a program sponsored by the Association of American Law Schools that is available in a podcast. TaxProf Blog noted Matasar’s remarks and highlighted a Forbes article that questions whether students are being misled into believing that large school debt translates into a life of economic privilege. The article featured a lawyer couple divorcing amid overwhelming stress because of $190,000 in student debt.
“We own our students' outcomes," Matasar said at the AALS program. "We took them. We took their money. We live on their money. … And if they don't have a good outcome in life, we're exploiting them. It's our responsibility to own the outcomes of our institutions. If they're not doing well ... it's gotta be fixed. Or we should shut the damn place down. And that's a moral responsibility that we bear in the academy.”
At 50 law schools, 20 percent of the students either flunked out, can’t find jobs or have unknown outcomes, according to another speaker at the program, Indiana University law professor William Henderson. TaxProf Blog also transcribed some of his remarks.
Matasar questioned whether students are beginning to understand that law school does not guarantee a good job. He said registrations for the law school admissions test are flat or below the norm for this year. “That's never happened in a downturn in the economy before,” he said. “They're catching on. Maybe this thing they are doing is not so valuable. Maybe the chance at being in the top 10 percent is not a good enough lottery shot in order to effectively spend $120,000 and see it blow up at the end of three years of law school.”
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Federal courts crack down on shirking jurors
Vesna Jaksic, The National Law Journal
January 16, 2009
People who try to dodge jury duty and employers who retaliate against those who do show up are in for harsher penalties under a new federal law, a move that the federal bar hopes will improve jury service participation.
Jurors who do not respond to a federal jury summons now may draw fines of as much as $1,000 and be sentenced to community service, while the penalty for employers retaliating against employees serving on juries has jumped to $5,000.
The changes are among others that took effect in the federal judiciary in October 2008 as part of a new law that also gives federal judges more power over no-show jurors and increases jurors' pay for lengthy trials. The Third Branch, the newsletter of the federal courts, called the changes the most substantive involving the Jury Selection and Service Act in 20 years.
The $1,000 fine for jurors who don't respond to a summons or who misrepresent themselves on questionnaires was increased from $100. The new $5,000 fine for employers shot up from $1,000, and community
service now is an additional potential penalty for both jurors and employers.
Robert E. Kohn, a litigation attorney in Santa Monica, Calif.'s Kohn Law Group, said that judges in civil cases often don't allow trials to last for longer than five days because of concerns about retaining jurors. He hopes efforts to get jurors to show up are successful.
"A judge will say you can't have more than five days no matter how complicated the case is, because if we give you a trial that runs more than a week, we know from experience that the only people who will show up are federal employees, state employees, retired people or those who are not employed," said Kohn, who regularly sues and defends cases in federal court. "This is clearly an effort to try to fix that by broadening the pool of people who will show up. Whether it will work or not, who knows?"
John McCarthy, a partner in the New York office of Atlanta's Smith, Gambrell & Russell, said that it costs a lot of time and money to bring a civil case in front of a jury, so any incentives to get people to serve on juries are important.
"I think the problem is getting people to come in the first place," he said.
"Once they are there, most people who get impaneled take their oath seriously."
The law gives federal district courts the discretion to bring into court those who don't respond to their jury summons and to decide what action is appropriate. Previously, such court appearances were mandated by statute.
Other provisions include amending the federal judicial code to require at least three members of the U.S. Sentencing Commission to be federal judges.
Previously, no more than three members could be federal judges.
"Our Federal judges are experts on sentencing policy. Indeed, they preside over criminal sentencing proceedings daily; I am glad this restoration has been included," Vermont Senator Patrick Leahy, one of four co-sponsors of the bill, said in a written statement last year when introducing the bill.
As for juror fees, effective on Oct. 1, 2009, jurors serving on lengthy trials may receive a $10 supplemental fee after 10 instead of 30 days.
Called the Judicial Administration and Technical Amendments Act of 2008, the bill was signed into law in October. Calls to the office of Sen. Charles Schumer, who sponsored the bill were not returned.
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Perdue pushes tort reform, merit pay for teachers
Atlanta Business Chronicle
January 13, 2009
Gov. Sonny Perdue Tuesday proposed on Tuesday a second round of tort reform in Georgia to help businesses avoid the costs of frivolous lawsuits.
Four years after the Republican-controlled General Assembly put liability caps on medical malpractice lawsuits, the GOP governor said he will push “loser-pay” legislation that would force plaintiffs to pick up all legal fees if their suits against businesses are dismissed early in the process.
“This will free up our courts to pursue justice in cases of merit,” Perdue told about 2,500 business and political leaders at the Georgia Chamber of Commerce’s Eggs and Issues breakfast, an event held each year on the second day of the legislative session. “A threat of litigation is not a viable business strategy in Georgia.”
Chamber President George Israel said he would welcome adoption of the loser-pay concept in Georgia. He said a chamber committee has been working on ways to discourage people from tying up the courts with cases they aren’t likely to win.
“To too many folks, it’s just a get-rich-quick scheme,” Israel said.
Perdue said he would ask the legislature for a second tort reform measure aimed strictly at Georgia’s growing biotech industry. The bill would prohibit liability suits against products that have been certified by the U.S. Food and Drug Administration.
“FDA approval should mean something,” the governor said.
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Courthouse Security Still Found Lacking
Pamela A. MacLean, The National Law Journal
01-09-2009
Three years after the murders of a Chicago federal judge's husband and mother, and the courthouse shooting of a Georgia state judge and his court reporter, judicial security in states remains fragmented and uneven -- and the bad economy may slow planned upgrades.
The shocking 2005 murders galvanized not only the federal judiciary, but also state court judges across the country, to begin re-examining security in courthouses and the personal protection of judges.
Today, despite some rapid improvements, serious holes remain in some areas, and the economic downturn may slow planned improvements, according to information from several state courts.
In Ohio, Hamilton County Sheriff Simon Leis said recently that economic pressures have him "leaning" toward reassignment of deputies who provide courthouse security, rather than eliminating other patrols.
California Chief Justice Ronald George said on Dec. 16, "We need $27 million for security in the coming year," for such things as weapons screening, cameras and duress alarms.
"Some courts have been crime scenes and not refuges," he said. He pointed to the problem of old courthouses in which guards escort prisoners down the same halls as witnesses, jurors and the public. "It's an intolerable situation," he said.
But the state is in the midst of a $40 billion budget deficit crisis.
FUNDING A 'HODGEPODGE'
Judge Dwayne Steidley of Rogers County, Okla., a former state legislator, noted that "[i]n Oklahoma security funding is a hodgepodge."
Steidley told a Rotary Club meeting recently that courts need construction money so prisoners on the way to trial don't rub shoulders with the public.
"Courthouse funding is the responsibility of county commissioners," he said. Security guards are approved through the sheriff's budget and partially from court fees collected, said Steidley. "Judicial security has been a big topic at the last three judges conferences."
In addition, court security officials have discovered that there is little centralized coordination among law enforcement agencies within state jurisdictions or even among states to share threat information or track it.
The U.S. Marshals Service, which protects federal judges and investigates threats, included state and local law enforcement in judicial security training this year for the first time and graduated its first class in December, according to Daniel S. Hall, assistant chief of protective intelligence in the judicial security division.
California state law mandates that threats against judges be reported to the state Highway Patrol, which keeps records of threats against elected officials. But few local county sheriffs, who provide courthouse security, know about the requirement, according to Malcolm Franklin, senior manager of emergency response and security unit for the Administrative Office of the Courts.
Franklin said the threat reports that do get to the Highway Patrol don't get shared with other local law enforcement agencies, making tracking more difficult.
Jamie Coffee, the Highway Patrol spokeswoman in Sacramento, Calif., countered that the agency makes every effort to distribute threat information.
A 2005 survey of 855 California judges found 296 threats were reported, and 75 percent were against specific judges, court employees or family members, said Franklin.
New York state reported 159 threats against judges last year, 71 alone in New York City, according to David Bookstaver, spokesman for the state courts. He said court security remains a primary concern and is one of the few areas not affected by the budget squeeze.
In Florida, each of 67 counties is constitutionally obligated to fund the courts, and the state has no obligation to pay for security, according to Craig Waters, director of information for the Florida Supreme Court in Tallahassee. If you asked the status of court security in the 67 counties, you'd probably get 67 different answers, he said. He added that the Supreme Court upgraded security after the controversial 2000 presidential election and installed blast-proof windows. But he said one of the main reasons was hurricane protection, not security. Still, in just the past few weeks, one courthouse closed due to a bomb threat, and a white-powder scare disrupted an off-site mail facility, he said.
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Budget cuts to impact area's district attorneys
By Dana Beyerle, Gadsden Times
January 14, 2009
District attorneys in Northeast Alabama will lose more than $366,000 in state funding this year under Gov. Bob Riley’s order for agencies to cut spending by 10 percent.
Because certain salaries cannot be cut, the actual effect of Riley’s order will be a 13 percent reduction in state appropriations, Randall Hillman, executive director of the Alabama District Attorney’s Association/Office of Prosecution Services, said Wednesday.
“This is substantial for us,” Hillman said.
Rather than declare proration in the General Fund because of underperforming taxes, Riley last month ordered General Fund agencies to cut spending by 10 percent the remainder of the fiscal year.
Etowah County District Attorney Jimmie Harp said his office probably can cope but might have to cut back on non-prosecution services.
“We’re going to have to take a look, just like any other entity, at how we distribute funds,” Harp said. “I think we’re fine right now with current staffing levels.”
Etowah County will lose $82,685, Hillman said.
Blount County will lose $49,902, the DeKalb and Cherokee county circuit will lose $74,459, Marshall County will lose $85,960 and St. Clair County will lose $73,083, Hillman said.
Marshall County District Attorney Steve Marshall said he gets a local alcoholic beverage tax, but state money is his main source of funds.
“I think we’re OK this fiscal year, and we won’t have to do layoffs, but we’ll have to look at vehicle purchases and travel restrictions,” Marshall said.
The DA’s state appropriation of $42.5 million this year includes $13.2 million for district attorney and supernumerary district attorney salaries that cannot be cut. Statewide, DAs will lose nearly $3.9 million out of their remaining operating budgets of $29.3 million.
DAs are to receive a total of $96 million from all local, state and federal sources this fiscal year.
Hillman said many jurisdictions get bad-check fees, but with the advent of debit cards and electronic-check debiting, those fees have fallen dramatically as fewer people are writing checks.
DA budgets are being cut, but the state’s indigent defense fund isn’t being cut. That’s because it’s court-mandated, Riley’s press secretary, Todd Stacy said.
Hillman said he plans to seek parity with the state fair trial tax appropriation by the Legislature for indigent criminal defendants.
The appropriation was $68 million last year, $26 million more than state funding to district attorneys.
“The DAs want a level playing field,” Hillman said. “If you’re going to pay them, at least pay the good guys.”
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Public safety will suffer if more funds are lost, group warns lawmakers
By Dennis Lien, St. Paul Pioneer-Press (Minn.)
01/14/2009
Many minor criminal cases such as shoplifting and underage drinking wouldn't be processed and other civil or family-related cases could be delayed if an already-strapped state justice system is forced to absorb widely discussed budget cuts, a coalition of legal and law enforcement organizations warned Wednesday.
With the state facing a projected $4.85 billion budget deficit in the upcoming biennium and all state agencies and budget areas being asked to identify 10 percent spending cuts, the court system essentially put itself at the front of the "Don't Cut Me'' list.
"What part of justice do you want to stop serving?'' asked Minnesota Supreme Court Chief Justice Eric Magnuson, who also warned of hundreds of potential job losses.
Unlike other areas of state government, he said, the state's court, legal aid and public defender system, which makes up about 2 percent of the state budget, is obligated to protect public safety and, accordingly, has less control over what it handles.
"We have to deal with what comes in the door,'' Magnuson said."It's not an option for us to say we'll do less work and make up the difference,'' he added later.
Late last year, the system submitted a budget of about $600 million, calling for a $54 million, or 9.3 percent, increase. Later, it cut the proposed increase to $43 million.
Because of existing obligations, budget cuts beyond that level would result in progressively greater problems, Magnuson and others warned at a state Capitol news conference. Many court efficiencies already have been made and salaries for judges have been frozen, he added.
"(Magnuson) made very good points, very good arguments about why they should be first in line,'' said state Rep. Tony Cornish, R-Good Thunder, a member of House public safety committees that deal with the justice system. Cornish, a retired game warden, also is the Lake Crystal police chief.
But state Sen. Linda Higgins, DFL-Minneapolis, chairwoman of the Public Safety Budget Division, was more cautious.
"Every entity that we hold harmless in this budget problem is that much more of a burden that we put onto other budget areas,'' Higgins said.
About three-dozen representatives of the recently formed Coalition to Preserve Minnesota's Justice System appeared with Magnuson. Group members include the Minnesota Sheriff's Association, the Minnesota State Bar Association and the Minnesota District Judges Association.
Many lower-level crimes such as truancy or underage drinking that might not be processed are considered "gateway crimes'' to more serious ones, according to Hennepin County Sheriff Rich Stanek.
Dakota County Attorney James Backstrom and John Stuart, the state's chief public defender, stressed that budget cuts will put the public at greater risk. Stuart said the public defender system sustained a 12 percent personnel cut last year and would take an additional 20 percent to 25 percent cut if its budget is trimmed 10 percent.
Gov. Tim Pawlenty plans to release his proposed budget Jan. 27. Then, it will be up to Pawlenty and the Legislature to determine where cuts should be made.
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Alabama State Bar extends offer to lawmakers – [Editorial]
The Birmingham News
January 06, 2009
Alabama lawmakers will have a new resource heading into their next session - and all Alabamians could benefit if it is put to good use.
A special panel of so-called "neutrals" is offering to help members of the Legislature work through internal disputes, evaluate legislation and otherwise make sound decisions during the upcoming session.
These panelists are no slouches. They include notables and former officeholders who aren't strangers to the world of Alabama politics: former Gov. Albert Brewer, former Gov. (and Judge) John Patterson, former U.S. Magistrate Delores R. Boyd, former U.S. Rep. Jack Edwards, former U.S. Rep. Ronnie Flippo, former state Sen. Frank "Butch" Ellis Jr. and former Vestavia Hills Mayor Scotty McCallum.
The "Panel of Neutrals" is the brainchild of the Alabama State Bar. The licensing agency for lawyers sent the list of names to legislators late last year as a "gift" contained in a Christmas stocking.
If ever there has been a practical and needed gift, this is it. The Senate in particular clearly needs some grown-up supervision to help it work through an internal power dispute that has virtually wrecked the past two legislative sessions.
Already, there is talk about what will happen this year, when state Sen. Rodger Smitherman is supposed to become Senate pro tem under a deal made to win his support during the original battle for control. Will the ruling Democrats follow through with the commitment? Will the power lines shift? Will aggrieved Republicans and their Democratic allies continue to lock down the Senate?
The answers matter to all Alabamians. The standstill in the Senate has made it next to impossible in recent years to pass any legislation (with a few notable exceptions, such as - sarcasm alert! - an urgently needed pay raise for lawmakers). Senators have been too busy fighting among themselves to do the people's business. With the economy and state budgets in turmoil, this year could be critical.
The panel of neutrals could help ensure it starts out on more reasonable, productive footing. But the panel will help only as much as lawmakers allow. The panel's members are not going to force their services on the Legislature. They are, in essence, on call. Lawmakers have to avail themselves of this resource for it to have any benefit at all. Senators especially should waste no time seeking help before new battle lines are drawn.
If senators want to see this conflict resolved - and, frankly, that's a big if, judging by some of the conduct on both sides - they should seek out one of the esteemed people offering this service and take advantage of the advice they receive.
This is one "bar" offer legislators shouldn't pass up.
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Dozens of judges urge high court to assure recusals in cases involving substantial election contributions
Marcia Coyle, The National Law Journal
January 07, 2009
WASHINGTON — Twenty-seven former chief justices and justices of 19 state supreme courts are urging the U.S. Supreme Court in a controversial West Virginia challenge to rule that a judge must recuse himself or herself from cases in which a party has made a substantial financial contribution to the judge's election.
"Substantial financial support of a judicial candidate — whether contributions to the judge's campaign committee or independent expenditures — can influence a judge's future decisions, both consciously and unconsciously," the former justices explain in an amicus brief filed in Caperton v. A.T. Massey Coal, No. 08-22.
"Amici believe that the only way to preserve a litigant's due process right to adjudication before an impartial judge is to require that a judge recuse from a case not only when the judge consciously perceives the judge's own partiality, but also when there exists a reasonable appearance of partiality or impropriety."
The high court will hear arguments on March 3 in the Caperton challenge, which stems from the refusal of acting Chief Justice Brent Benjamin of the West Virginia Supreme Court of Appeals to step aside from a multimillion-dollar appeal involving his major campaign contributor.
Don Blankenship, chairman and chief executive office of Massey Energy Co., appealed a $50 million jury award for tortious interference with existing contractual relations, fraudulent misrepresentation and fraudulent concealment in a suit against his company by Hugh M. Caperton of Harman Mining. With post-trial interest, the award grew to $76 million.
Between the verdict and Blankenship's filing of the appeal in 2006, there was a hotly contested battle for a seat on the state high court between incumbent Justice Warren McGraw and then-attorney Brent Benjamin. Blankenship reportedly made campaign expenditures of $3 million in that battle, the bulk of which went to a so-called Section 527 organization, And for the Sake of the Kids, working to defeat McGraw, about $517,000 of which was in direct support of Benjamin.
The $3 million total reportedly was $1 million more than the total amount spent by all of Benjamin's other campaign supporters and three times the amount spent by Benjamin's own campaign committee. After the election, Benjamin cast the deciding vote in a 3-2 ruling in favor of Blankenship's company.
In their amicus brief, authored by Charles Wiggins of Wiggins & Masters in Bainbridge Island, Wash., the former justices argue that due process does not require a judge to recuse from any case in which a party gave financial support to the judge's election.
"Rather, amici submit that due process is only triggered by substantial financial support for a judge's election," they contend, adding, "Amici do not believe it is necessary for the court to define specifically what constitutes substantial financial support. Suffice it to say that the massive financial support provided by respondent Blankenship to the election of Justice Benjamin triggers due process concerns under any reasonable definition of substantial financial support."
All 27 former justices, according to Wiggins, believe that Benjamin's participation in the coal company case appeal created an appearance of impropriety, and they would have recused themselves in similar circumstances.
Massey Coal's response on the merits and any supporting amicus briefs are due by the end of this month.
