Survey reveals widespread cuts to state court budgets
Sheri Qualters, The National Law Journal
November 30, 2011
Deep state court budget cuts are hurting access to justice, according to a recent survey issued by the National Center for State Courts.
The survey, released on Nov. 29, tabulated a poll of state courts conducted from July through October.
Results indicate widespread recent budget cuts, including 42 states with substantial court budget decreases; 39 states where clerk vacancies were not filled; 34 states where court staff were laid off; and 23 states with reduced court operating hours.
The survey is the third poll of state court administrators since early 2010, according to Greg Hurley, an analyst from the center's knowledge and information services department.
Although some states are hardly affected at all and some are dramatically affected, at a national level, "the situation has gotten to the point where it is at its bottom," Hurley said.
"It can't get a whole lot worse," he said.
Severe cuts have hit states of different sizes and in different regions, he said. "We've seen smaller states have problems and larger states as well."
Taking a macro look at the cuts and the number of states involved, it's clear that the public at large is going to feel the impact, Hurley said. He said that the cuts will slow down cases moving through the system and reduce the number of people around the courthouse to help the public. "They'll still be able to get that information, but it's not going to be as easy to get."
Among the survey's findings are these:
New York cut its judiciary appropriation to $2.53 billion in fiscal year 2012 from $2.65 billion in fiscal 2011.
The Texas judiciary is primarily locally funded, but the state cut the court budget to $646.5 million in fiscal year 2012 from $671.75 million in fiscal year 2011.
Florida's judiciary appropriation, which was more severely cut in recent years according to Hurley, was trimmed to $458.1 million in fiscal year 2012 from $462.3 million in fiscal year 2011.
Illinois's state appropriation was cut from $310.3 million in fiscal year 2011 to $304.7 million in fiscal year 2012.
As for states with smaller populations, Maine's $61.5 million budget in fiscal year 2011 was reduced to $60.6 million in fiscal year 2012. But Idaho's increased from $43.2 to $48.3 million in those fiscal years.
States facing court budget cuts are taking a variety of steps to do more with less including reducing court hours, laying off staff, delaying judicial appointments, not filling clerks' office vacancies, using retired judges and restricting travel.
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What They Don’t Teach Law Students: Lawyering
By DAVID SEGAL, The New York Times
November 19, 2011
PHILADELPHIA — The lesson today — the ins and outs of closing a deal — seems lifted from Corporate Lawyering 101.
“How do you get a merger done?” asks Scott B. Connolly, an attorney.
There is silence from three well-dressed people in their early 20s, sitting at a conference table in a downtown building here last month.
“What steps would you need to take to accomplish a merger?” Mr. Connolly prods.
After a pause, a participant gives it a shot: “You buy all the stock of one company. Is that what you need?”
“That’s a stock acquisition,” Mr. Connolly says. “The question is, when you close a merger, how does that deal get done?”
The answer — draft a certificate of merger and file it with the secretary of state — is part of a crash course in legal training. But the three people taking notes are not students. They are associates at a law firm called Drinker Biddle & Reath, hired to handle corporate transactions. And they have each spent three years and as much as $150,000 for a legal degree.
What they did not get, for all that time and money, was much practical training. Law schools have long emphasized the theoretical over the useful, with classes that are often overstuffed with antiquated distinctions, like the variety of property law in post-feudal England. Professors are rewarded for chin-stroking scholarship, like law review articles with titles like “A Future Foretold: Neo-Aristotelian Praise of Postmodern Legal Theory.”
So, for decades, clients have essentially underwritten the training of new lawyers, paying as much as $300 an hour for the time of associates learning on the job. But the downturn in the economy, and long-running efforts to rethink legal fees, have prompted more and more of those clients to send a simple message to law firms: Teach new hires on your own dime.
“The fundamental issue is that law schools are producing people who are not capable of being counselors,” says Jeffrey W. Carr, the general counsel of FMC Technologies, a Houston company that makes oil drilling equipment. “They are lawyers in the sense that they have law degrees, but they aren’t ready to be a provider of services.”
Last year, a survey by American Lawyer found that 47 percent of law firms had a client say, in effect, “We don’t want to see the names of first- or second-year associates on our bills.” Other clients are demanding that law firms charge flat fees.
This has helped to hasten a historic decline in hiring. The legal services market has shrunk for three consecutive years, according to the Bureau of Labor Statistics. Altogether, the top 250 firms — which hired 27 percent of graduates from the top 50 law schools last year — have lost nearly 10,000 jobs since 2008, according to an April survey by The National Law Journal.
Law schools know all about the tough conditions that await graduates, and many have added or expanded programs that provide practical training through legal clinics. But almost all the cachet in legal academia goes to professors who produce law review articles, which gobbles up huge amounts of time and tuition money. The essential how-tos of daily practice are a subject that many in the faculty know nothing about — by design. One 2010 study of hiring at top-tier law schools since 2000 found that the median amount of practical experience was one year, and that nearly half of faculty members had never practiced law for a single day. If medical schools took the same approach, they’d be filled with professors who had never set foot in a hospital.
But sticking to the old syllabus has had little downside. The clients of law firms may be scaling back, but the clients of law schools — namely, students — are spending freely. Or rather, borrowing heavily. It is hard to imagine a 21-year-old without a steady income securing a private or federally guaranteed loan to buy a $150,000 house, but sums like that are still readily available for just about anyone who wants a doctor of jurisprudence degree. And while word of grievous job prospects is finally reaching undergraduates — there was an a 11.5 percent drop in applications this year — there were no empty seats in any of the 200 law schools in the country.
“I gather change is afoot at some law schools,” Mr. Connolly says, “but it’s going to be very slow.”
So at Drinker Biddle, first-year associates spend four months getting a primer on corporate law. During this time, they work at a reduced salary and they are neither expected nor allowed to bill a client. It’s good marketing for the firm and a novel experience for the trainees.
“What they taught us at this law firm is how to be a lawyer,” says Dennis P. O’Reilly, who went through the program last year, and attended the George Washington University School of Law. “What they taught us at law school is how to graduate from law school.”
Allergic to the Practical
Law schools’ aversion to all things vocational has been much debated, both inside and outside the academy. But critics are fighting both tradition and the legal academy’s peculiar set of neuroses.
“Law school has a kind of intellectual inferiority complex, and it’s built into the idea of law school itself,” says W. Bradley Wendel of the Cornell University Law School, a professor who has written about landing a law school teaching job. “People who teach at law school are part of a profession and part of a university. So we’re always worried that other parts of the academy are going to look down on us and say: ‘You’re just a trade school, like those schools that advertise on late-night TV. You don’t write dissertations. You don’t write articles that nobody reads.’ And the response of law school professors is to say: ‘That’s not true. We do all of that. We’re scholars, just like you.’ ”
This trade-school anxiety can be traced back to the mid-19th century, when legal training was mostly technical and often taught in rented rooms that were unattached to institutions of higher education.
A lawyer named Christopher Langdell changed that when he was appointed dean of the Harvard Law School in 1870 and began to rebrand legal education. Mr. Langdell introduced “case method,” which is the short answer to the question “What does law school teach you if not how to be a lawyer?” This approach cultivates a student’s capacity to reason and all but ignores the particulars of practice.
Consider, for instance, Contracts, a first-year staple. It is one of many that originated in the Langdell era and endures today. In it, students will typically encounter such classics as Hadley v. Baxendale, an 1854 dispute about financial damages caused by the late delivery of a crankshaft to a British miller.
Here is what students will rarely encounter in Contracts: actual contracts, the sort that lawyers need to draft and file. Likewise, Criminal Procedure class is normally filled with case studies about common law crimes — like murder and theft — but hardly mentions plea bargaining, even though a vast majority of criminal cases are resolved by that method.
Defenders of the status quo say that law school is the wrong place to teach legal practice because law is divided into countless niches and that mastering any of them can take years. This sort of instruction, they say, can be taught only in the context of an apprenticeship. And if newcomers in medicine, finance and other fields are trained, in large part, by their employers, why shouldn’t the same be true in law?
But those pushing for more practical content aren’t looking for a bunch of classes in legal minutiae, nor do they expect client-ready lawyers to march off their campus. Instead, they would like to see less bias against professional training and more classes that engage the law as it exists today.
“We should be teaching what is really going on in the legal system,” says Edward L. Rubin, a professor and former dean at the Vanderbilt Law School, “not what was going on in the 1870s, when much of the legal curriculum was put in place.”
During his tenure as dean, which began in 2005, Professor Rubin tried to update some of the school’s mandatory classes. First, he held a series of focus-group discussions, meeting with law firms to find out what managing partners wished that their new hires had already been taught.
Eventually, these conversations led to a new first-year class, the Regulatory State, an introduction to federal administrative agencies, statutes and regulations. Vanderbilt also made changes to second- and third-year courses.
But there were limits. Professor Rubin failed to sell his faculty members on a retooled first-year Contracts class.
“Some members of the faculty got a little overstressed by all the change,” Professor Rubin says. “Planning a new course, you have to move out of your comfort zone a little in terms of teaching. And there is always the fear that your school will wind up being seen as an oddball place.”
Another problem he encountered: there are few incentives for law professors to excel at teaching. It might earn them the admiration of students, but it won’t win them any professional goodies, like tenure, a higher salary, prestige or competing offers from better schools. For those, a professor must publish law review articles, the ticket to punch for any upwardly mobile scholar.
There are more than 600 law reviews in the United States — Georgetown alone produces 11 — and they publish about 10,000 articles a year. Some of these articles are worthwhile and influential, and the best are cited by lawyers in arguments and by judges in court decisions. A study to be published in The Northwestern University Law Review found that in the last 61 years, the Supreme Court “has used legal scholarship” in about one-third of its decisions.
But citable law review articles are vastly outnumbered, it appears, by head-scratchers. “There is evidence that law review articles have left terra firma to soar into outer space,” said the Supreme Court Justice Stephen G. Breyer in a 2008 speech.
Some articles are intra-academy tiffs that could interest only the combatants (like “What Is Wrong With Kamm’s and Scanlon’s Arguments Against Taurek” from The Journal of Ethics & Social Philosophy). Others fall under the category of highbrow edu-tainment, like a 2006 article in The Cardozo Law Review about the legal taboos of a well-known obscenity, the one-word title of which is unprintable in a family newspaper.
Still others crossbreed law and some other discipline, a variety of scholarship that seems to especially irk John G. Roberts Jr., chief justice of the United States. “Pick up a copy of any law review that you see,” he said at a conference this summer, “and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.”
In fact, many of these articles are not of much apparent help to anyone. A 2005 law review article found that around 40 percent of law review articles in the LexisNexis database had never been cited in cases or in other law review articles.
Of course, much of academia produces cryptic, narrowly cast and unread scholarship. But a pie chart of how law school tuition is actually spent would show an enormous slice for research and writing of law review articles.
How enormous? Last year, J.D., or juris doctor, students spent about $3.6 billion on tuition, according to American Bar Association figures, accounting for discounts through merit- and need-based aid. Given that about half of a law school’s budget is spent on faculty salary and benefits, and that tenure-track faculty members consume about 80 percent of the faculty budget — and that such professors spend about 40 percent of their time producing scholarship — roughly one-sixth of that $3.6 billion subsidized faculty scholarship. That’s more than $575 million.
Much of that comes from taxpayers in the form of federal student loans. Steven R. Smith, dean of the California Western School of Law, described this sum as “the equivalent of an involuntary fee” that students must pay to get a diploma. “It is not obvious that students are the ones who should be paying the cost of legal scholarship. They are generally borrowing the money to do this and they are the least able of all those in the profession to pay for it.”
The Prestige Game
About half of all law school hiring begins at the Faculty Recruitment Conference, widely known as the meat market, held by the Association of American Law Schools. It is conducted every year at the Marriott in the Woodley Park neighborhood of Washington.
At this year’s conference, in October, nearly 500 aspiring law professors turned up for interviews with 165 law schools. Like the draft of every professional sport, there are superstars here and for two days they were hotly pursued. At the top of the pile were former Supreme Court clerks. Just under them were candidates with both a J.D. and a Ph.D. in another discipline. Law schools, especially those in the upper echelons, have been smitten by Ph.D.-J.D.’s for more than a decade.
Ori J. Herstein, who studied philosophy in grad school and is a doctor in the science of law, says that “an economics Ph.D. is the most valuable,” and that “the further away you get from the humanities the better.”
Mr. Herstein was sitting in the Marriott lobby between interviews. Israeli-born and cheerful in a boyishly wonky way, he has a résumé that seems custom-built to tantalize law school recruiters. He has two degrees from Columbia, which, along with a handful of other elite schools — most notably Yale — has become a farm team for the credential-obsessed legal academy. He has already published a handful of law review articles with promisingly esoteric titles (“Historic Injustice and the Non-Identity Problem: The Limitations of the Subsequent-Wrong Solution and Towards a New Solution”) and has submitted another that sounds perfectly inscrutable (“Why Nonexistent People Do Not Have Zero Well-Being but Rather No Well-Being”).
This type of scholarship, and the cash that keeps the law review conveyor belt spinning, are defended by law school professors as a way to attract the best and brightest to teaching. It is also said to enhance the prestige and sophistication of the American legal system. “Students want renowned scholars to teach them, period,” said Francis J. Mootz III, a professor at the William S. Boyd School of Law at the University of Nevada and the author of “Neo-Aristotelian Praise of Postmodern Legal Theory. “They want to learn from the best and brightest.”
It is true that a law school’s reputation, and the value of its diplomas in the legal market, are almost entirely bound up in the amount and quality of the scholarship it produces. That’s been especially so since the late ’80s, when U.S. News and World Report started to rank law schools. The publisher’s annual rankings all but define a school’s standing in the legal academy’s firmament, and 40 percent of the U.S. News algorithm is based on a “quality assessment” survey by hundreds of lawyers, judges, deans and professors.
The problem is that with rare exceptions, all schools play the same scholarship-and-prestige game. Even professors in the lowest rungs churn out scholarship, and one of the first items of business for new schools is starting a law review. The result is a kind of arms race, with articles playing the role of nukes and students paying the bill.
Another appeal of Ori Herstein’s résumé is what it’s missing: many years of toiling in a law firm. It is widely believed that after lawyers have spent more than eight or nine years practicing, their chances of getting a tenure-track job at law school start to dwindle.
“Nobody wants to become a retirement home, or a place for washed-out lawyers,” says Kevin R. Johnson, dean of the law school at the University of California, Davis, who came to the meat market with six positions to fill.
This might seem a paradox — experienced people need not apply — but the academy views seasoned pros with a certain suspicion. In fact, a number of veterans of legal practice who failed to land tenure-track jobs say that experience was a stigma they could not beat.
“It can be fatal, because the academy wants people who are not sullied by the practice of law,” said a longtime lawyer and adjunct professor, who did not want to be identified because his remarks might alienate colleagues. “A lot of people who are good at big ideas, the people who teach at law school, think it is beneath them.”
The exceptions are those who teach legal clinics, which are programs where students learn to counsel clients (usually poor), draft documents and even litigate, all under faculty supervision. Legal clinics are a growing presence on nearly every campus, and many — like Washington University’s Law School in St. Louis and the CUNY School of Law in Queens — get high marks for quality and participation.
But a lot of these programs struggle with a kind of second-class status. Many are staffed, in whole or in part, by teachers who are not voting members of the faculty, and the programs are often modest. A soon-to-be released study of clinical programs by the Center for the Study of Applied Legal Education found that only 3 percent of law schools required clinical training.
“There has been an explosion in interest in clinical law programs,” says David Santacroce, president of the center, “but the growth parallels an explosion in the total number of law students so we haven’t reached anything close to the saturation point yet. The majority of law students still graduate without any clinical experience.”
While most of law schools’ professoriate still happily dwell in the uppermost floors of the ivory tower, the view from the ground for new graduates is growing uglier. It’s not just that the market is now awash with castoffs from Big Law, and that clients can now retain graduates from elite schools and pay them $25 or $50 an hour, on contract. The nature of legal work itself is evolving, and the days when corporations buy billable hours, instead of results, are numbered.
To succeed in this environment, graduates will need entrepreneurial skills, management ability and some expertise in landing clients. They will need to know less about Contracts and more about contracts.
“Where do these students go?” says Michael Roster, a former chairman of the Association of Corporate Counsel and a lecturer at the University of Southern California Gould School of Law. “There are virtually no openings. They can’t hang a shingle and start on their own. Many of them are now asking their schools, ‘Why didn’t you teach me how to practice law?’ ”
A Possible New Curriculum
What do corporate clients wish associates were taught in law school?
- A better understanding of modern litigation practice, which is about gathering facts and knowing how to settle a case.
- Greater familiarity with transactions law, including how to draft, evaluate and challenge a contract.
- Deeper knowledge of regulatory law and the ability to respond to a regulatory inquiry or enforcement action.
- Basic corporate legal skills, like how to perform due diligence.
- Writing skills. Partners at law firms say they spend a lot of time improving the writing of their first- and second-year associates.
- A stronger grasp of the evolving economics of legal practice, which will rely less on leveraging the time of new associates and more on entrepreneurship.
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Critics Say Budget Cuts for Courts Risk Rights
By JOHN SCHWARTZ, The New York Times
November 26, 2011
NASHUA, N.H. — For years, state courts across the nation have been scraping by on the support they get from state and local government budgets. Since the financial crisis of 2008, those budgets have been tightened in new ways that are being felt in courthouses and communities across the country.
“The justice system’s funding has been decreasing in constant dollars for at least two decades,” said David Boies, co-chairman of a commission formed by the American Bar Association to study court budget issues. “We are now at the point where funding failures are not merely causing inconvenience, annoyances and burdens; the current funding failures are resulting in the failure to deliver basic justice.”
Wayne and Kristy Haggie of Nashua, N.H., would agree. In June last year, they persuaded a judge to grant them visitation rights with their two children. Ms. Haggie’s parents had assumed child-raising duties during a financial rough patch for the Haggies, and then refused to give the toddlers back. With the judge’s ruling, the Haggies assumed that they would be seeing the children again immediately and regaining full custody before long. They borrowed $500 from Mr. Haggie’s relatives for a trip to Wal-Mart to buy the toddlers clothes and supplies.
“We got everything set,” Mr. Haggie said. “And then we sat there.”
The judge’s order was not mailed for three months — an eternity in the life of a child. The paperwork emerged from the courthouse only after the Haggies’ lawyer, Kirk Simoneau, joined with other New Hampshire lawyers to sue the state over budget issues and court delays. Between that delay and others while setting up visitation arrangements, the Haggies say, they have lost precious bonding time and been deprived of important moments.
“We missed our daughter’s first steps,” Mr. Haggie said. “We missed her first day of preschool.”
While most state agencies are feeling a squeeze, legislatures squeeze courts at the risk of violating the access to the courts guaranteed in criminal and civil matters by the Constitution, said Steven Zack, a former president of the American Bar Association. Set up to be coequal branches of government, the courts are nonetheless dependent on the legislative and executive branches.
“The real failure of the legislatures is to treat the courts as another bridge or another library,” Mr. Zack said. “It is not another bridge or another library. Without a working court system, our very democracy is at stake.”
The bar association created the Task Force on the Preservation of the Justice System, led by Mr. Boies and Theodore B. Olson, who served as solicitor general under President George W. Bush, to study financial issues and recommend courses of action.
“There has not been a natural constituency for the justice system,” Mr. Boies said. The rule of law, civil rights and the market economy are all profoundly affected by the courts, he noted, so, “Whatever is important to you, it’s ultimately the justice system that is protecting it and advancing it.”
While dockets are bulging with foreclosures and other pressing legal matters, 42 states have reduced their judicial budgets in the previous three fiscal years, with cuts in some jurisdictions totaling more than 12 percent. In the last three years, 34 states have laid off court employees, 39 have stopped filling clerk vacancies and 23 have reduced court operating hours, according to the National Center for State Courts.
State courts hear 95 percent of the nation’s legal cases, so the cuts are affecting the level where most people encounter the justice system, said Rebecca Love Kourlis, a former Colorado Supreme Court justice who is executive director of the Institute for the Advancement of the American Legal System at the University of Denver and co-author of a new book about the plight of the nation’s civil courts.
“For most Americans, Lady Justice lives in the halls of state courts,” she said. “Whether it is a divorce, traffic ticket, foreclosure or personal injury case that draws someone into the system, they will find themselves in state court.”
State courts around the country have found many ways, some unusual, to deal with the cuts. In Mount Gilead, Ohio, the Morrow County Municipal Court, like many others, is now working a four-day week. And that is not as large a hardship as the county experienced in 2009, when the court announced that it could not take new case filings for three months, until the end of the budget cycle, unless litigants brought their own paper for the court to use. Money for paper had run out.
“Even though paper is inexpensive, it’s still enough to shut us down,” said Judge Lee W. McClelland. Ultimately, he said, people in the community donated enough paper so that “we were able to limp through the year.”
“We also got about three rolls of toilet paper,” he said. “Obviously, they were confused about what kind of paper we needed.”
The courts are now looking at electronic filing to avoid the situation in the future.
Chief Justice Carol W. Hunstein of the Georgia Supreme Court said that after two and a half years of budget cuts for her state’s courts, “it has gotten to the point where it is difficult to say that we are delivering the constitutionally required judicial system.”
The implications are troubling for the state as a whole, she suggested: “I don’t know that you would have a new business or corporation that would want to relocate in a state where you couldn’t get your contract disputes or your business disputes resolved in a timely fashion.”
In Glynn County, Ga., Judge Amanda F. Williams issued a moratorium on all civil jury trials in 2009; because criminal defendants have a constitutional right to speedy trial, she said, her courts had put them first, along with domestic cases like divorce.
“You can’t leave people in jail,” she said, and “you can’t have somebody out there if they should be in jail.”
Domestic cases also came ahead of civil jury trials, Judge Williams said. “You can’t have people tied to each other when they can’t live together,” she said.
Judge Williams said she had to ask herself, “Which one can I put on the back burner a little bit longer? It’s obviously what you call the car wreck case.”
Ultimately, a newly appointed judge was assigned solely to civil trials for more than a year to ease the backlog, she said, but the budget problems remain and require further action.
In states like New Hampshire, there is a real impact from court budget cuts, said John T. Broderick, a former chief justice of the New Hampshire Supreme Court and now dean of the University of New Hampshire Law School. “I’ve been a lawyer and judge in New Hampshire for 38 years — I’ve never seen it like this.”
Mr. Simoneau, the Haggies’ lawyer, said that when he tells potential clients in personal injury cases that they might have to wait two or three years for resolution of their claims, some take settlement offers far lower than what a trial might result in. “They can’t afford to wait,” he said.
Meanwhile, the Haggies are getting more regular visits with their children, now 4 and 5 years old, and are still working through the process of gaining full custody.
But much has already been lost, Ms. Haggie said. “By the time they came, the clothes didn’t fit them anymore.”
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Why Law Schools Are So Bad at Creating Lawyers (and How to Fix It)
By Jordan Weissmann, The Atlantic
November 22, 2011
If law firms want young hotshots who can walk off campus and onto a merger case, they'd better sit down with the nation's top law schools and explain that the days of on-the-job training are over.
American law schools are suffering a bit of an image problem. Thanks to a determined group of writers known as "scam bloggers," it's now an open secret that many schools admit far more students than will ever be able to find jobs after graduation. These student often leave campus with six figures of debt and, as a New York Times article argued this weekend, no ability to actually practice law.
The piece, by David Segal, delves into an issue that for years has been accepted as a fundamental fact of life in the legal industry: Law schools teach students how to think like a lawyer, but not how to be one. It's the difference between being able to parse a 19th century decision on states' rights to regulate waterways and being able to walk a corporate client through a major merger. They're almost entirely different skill sets.
Until the recession, nobody treated that as a problem. But now, law firms are facing unprecedented challenges to their business models, and law school graduates are facing the worst job market in memory. A lot of people suddenly care what skills J.D.'s learn in class.
Yet, if law students aren't learning what they need in order to succeed as real live lawyers, it's not fair to lay all the blame on academia. Law firms have been guilty accomplices. And in the end, it's the firms who are going to need to force change.
How? It's time to stop hiring students from Harvard Law. Or at least threaten to.
WHAT THE RECESSION DID TO THE LAW FIRMS
First, it helps to understand how the system used to work, and why it's breaking down. In a way, we're seeing a story play out that has been repeated over and over since the 2008 financial crisis. When credit was cheap and corporate profits were enormous, it was easy to neglect structural problems in any number of industries. Now, those problems can't be ignored.
In the past, what a law school graduate did or didn't know about his profession wasn't particularly important. If he was smart and knew the fundamentals of legal research and writing, he were useful. That's because law firms had the luxury of charging their clients for time that was essentially spent teaching first and second year associates the basics of how to practice.
Now, as The Wall Street Journal pointed out in October, corporations are less and less willing to subsidize that on-the-job training. A survey of in-house legal counsel found that more than 20% of companies had started refusing to pay for work by first and second year attorneys on at least some matters. That number is likely to grow. When your legal department budget is getting squeezed, paying your law firm to train its employees just isn't much of a priority.
Unfortunately, that has ripple effects throughout the legal economy. For law firms, that shift in priorities has whittled down a significant source of profits. Some have responded with apprenticeship-like systems. But for most, it means they simply have less money to hire young associates (or, more accurately, less money to hire associates while paying out profits to partners). That pushes students who would have gone to firms into government and public interest jobs. In the meantime, J.D.'s who can't find any employment also don't have the wherewithal to open their own practice.
Note the role played by firms in this scenario. For years, they simply bought whatever law schools were selling. Instead of expecting the schools to teach J.D.'s practical skills, they treated them as glorified head-hunting services from which they could draw raw talent. Even when schools offered up programs such as legal clinics, which let students represent underprivileged clients under the supervision of a licensed attorney, the response from the industry was minimal. To this day, hiring partners at elite firms still mostly look for students with high GPAs and law journal experience--experiences that, as Megan McArdle would tell you, were probably pretty similar to their own.
So firms have reinforced the very education system they now say falls short. The schools haven't had an incentive to rethink their model. And while the bad press may force reform around the edges, it's hard to imagine the legal academy making wholesale changes on its own accord. After all, it's been working on the same basic model for more than a century.
No. To change the schools, law firms need to change their own behavior.
PRESSING HARVARD LAW
And that's where Harvard comes into play. Imagine what would happen if a coalition of elite law firms approached every Ivy League law school and gave them an ultimatum: Change your curriculum, or in five years we will stop hiring your graduates. They could just as easily go to a group of lower-ranked law schools and offer to start hiring more graduates if they make the same curriculum changes. It would require accepting the possibility of hiring outside of the most elite institutions. But frankly, that might add some much needed diversity to firms anyway.
I imagine the results would be dramatic. In the end, the most important thing to a law school's reputation these days is who hires its students. And where the Ivies go, the rest of legal academia will go.
You might ask, isn't there already an organization that's capable of doing this? Well, yes. Technically. The American Bar Association is responsible for accrediting law schools and setting academic standards. But frankly, it's a glacial institution. You're more likely to get a deficit bill from Congress than a serious education reform effort from the ABA.
So it's on the firms to take a stand. Either they provide an incentive for schools to make serious changes to their curriculum, or you can expect law schools of the future to look much like law schools of today.
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Legal Education Reform – [Editorial]
The New York Times
November 26, 2011
American legal education is in crisis. The economic downturn has left many recent law graduates saddled with crushing student loans and bleak job prospects. The law schools have been targets of lawsuits by students and scrutiny from the United States Senate for alleged false advertising about potential jobs. Yet, at the same time, more and more Americans find that they cannot afford any kind of legal help.
Addressing these issues requires changing legal education and how the profession sees its responsibility to serve the public interest as well as clients. Some schools are moving in promising directions. The majority are still stuck in an outdated instructional and business model.
The problems are not new. In 2007, a report by the Carnegie Foundation for the Advancement of Teaching explained that law schools have contributed heavily to this crisis by giving “only casual attention to teaching students how to use legal thinking in the complexity of actual law practice.”
Even after the economy recovers, the outsourcing of legal work from law firms and corporate counsel offices to lower-fee operations overseas is likely to continue. Belatedly, some law schools are trying to align what and how they teach to what legal practice now entails and what individuals and institutions need — like many more lawyers who can serve as advocates for the poor and middle class.
Instead of a curriculum taught largely through professors’ grilling of students about appellate cases, some schools are offering more apprentice-style learning in legal clinics and more courses that train students for their multiple future roles as advocates and counselors, negotiators and deal-shapers, and problem-solvers.
With new legal issues arising from the use of computers in business and government to manage information, some schools are teaching students software code as well as legal code to solve systemwide problems. Some are exploring ways to reduce tuitions and make themselves more sustainable. Potential business models include legal degrees based on two years of classes, followed by third-year apprenticeship programs.
In American law schools, the choice is not between teaching legal theory or practice; the task is to teach useful legal ideas and skills in more effective ways. The case method has been the foundation of legal education for 140 years. Its premise was that students would learn legal reasoning by studying appellate rulings. That approach treated law as a form of science and as a source of truth.
That vision was dated by the 1920s. It was a relic by the 1960s. Law is now regarded as a means rather than an end, a tool for solving problems. In reforming themselves, law schools have the chance to help reinvigorate the legal profession and rebuild public confidence in what lawyers can provide.
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On the move
By The Birmingham News
November 23 & 29, 2011
• Bradley Arant Boult Cummings LLP said Ethan T. Tidmore, a litigation partner in the firm's Birmingham office, has been selected as a member of the Alabama State Bar's Leadership Forum Class 8. The mission of the Leadership Forum is to build a core of practicing lawyers who strive to raise the overall standards of the Bar and serve as leaders in the state.
• Edward S. Sledge IV and Kevin C. Gray have been selected to participate in Class VIII of the Alabama State Bar's Leadership Forum. Sledge, a shareholder in Birmingham, practices in the firm's General Litigation, Insurance and Financial Services Litigation and Products Liability practice groups. Gray is a shareholder in the firm's Huntsville office.
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Alabama chief justice talks fiscal responsibility - Chuck Malone discusses saving state dollars at Opelika Kiwanis meeting
By: Joe Mcadory, Opelika-Auburn News
November 10, 2011
“If the doors (to courts) are not open, then how can we have justice?” Alabama Supreme Court Chief Justice Chuck Malone
Chuck Malone doesn’t drive a state vehicle. He doesn’t use state-paid security officers in the public, either. Instead, Alabama’s Supreme Court Chief Justice chooses to be a good steward of state dollars.
He prefers to see that money go elsewhere … like in Alabama courts.
“Funding for the courts is my No. 1 issue,” Alabama’s Supreme Court Chief Justice told Opelika Kiwanis Club members and guests during Thursday’s weekly meeting at Saugahatchee Country Club. “I have made that (improving court funding) my agenda. If it doesn’t deal with funding, then it is not my top priority.”
All Lee County judges, a number of attorneys, Circuit Clerk Corinne Hurst, and Sheriff Jay Jones were in attendance to hear the man who sits on the state’s highest bench.
Malone, a Republican candidate for re-election to the bench in 2012, is a long-time Tuscaloosa attorney and Baptist Sunday School teacher who was appointed Chief Justice on Aug. 1 by Gov. Robert Bentley following Sue Bell Cobb’s resignation.
Budget cuts in the past year have crippled courts statewide, including Lee County. They have devastated courts across Alabama for fiscal year 2012. State courts received $152 million for fiscal year 2011, but will receive only $138.9 million for fiscal year 2012, according to Alabama’s Administrative Office of Courts. To sum: State courts now receive only 8.6 percent of monies from the Alabama General Fund.
Cuts in funding result in cuts in staffing, which can result in a backlog of cases. Locally, the Lee County Circuit Court Clerk’s office was trimmed from 18 full-time employees to 10.
“If the doors (to courts) are not open, then how can we have justice?” asked Malone, who served as a judge in Tuscaloosa County’s Circuit Court before serving briefly as Bentley’s Chief of Staff.
Malone said fiscal responsibility is crucial to receiving more state funding.
“We must have transparency and show that we’re being responsible because we’re asking for additional money,” he said. “When I walk up the hill (Statehouse), they (Legislature) are going to ask those questions.”
He said he felt civil matters needed as much attention as criminal matters, particularly as Alabama strives to be a leader in luring industries.
“Businesses have to go to courts to solve problems,” he said. “There are foreclosures and collections of debt. It affects our economy. If businesses are looking at us, and if our court system is not working, it has an impact on people developing (industries) in Alabama. We have to keep the doors (courts) open. We must lead in a way that demonstrates responsibility.
“But we’ll live with what they give us. We’ll be respectful with what we’re given and be responsible with it.”
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TN lawmakers warn judges to change their ways
Written by Brandon Gee, The Tennessean (Nashville)
November 16, 2011
The commissions that nominate, evaluate and discipline Tennessee’s judges were all scrutinized at a legislative hearing Tuesday that set the stage for an expected fight next year over the future of the state’s judiciary.
The Government Operations Joint Subcommittee on Judiciary and Government met Tuesday to discuss whether to retain the Court of the Judiciary, the Judicial Nominating Commission and the Judicial Performance Evaluation Commission, or let them expire. Members made it clear that a broad restructuring will be on the table when the full General Assembly reconvenes in January.
The Court of the Judiciary, which investigates ethical complaints against judges and determines discipline, received most of the committee’s attention. Lawmakers from both parties warned Court of the Judiciary officials that if they don’t change their processes, the General Assembly will do it for them.
“There’s so many good judges out there,” said Rep. Mike Turner, D-Old Hickory. “The problem is we’re not addressing the bad judges, and that’s what concerns me.”
The hearing featured testimony from several people who complained of mistreatment by Tennessee judges. Dennis Schuelke of Hendersonville said he turned to the judicial system for help after getting caught up in a Ponzi scheme, but only encountered more corruption. Schuelke — who took out a prominent billboard along Interstate 40 in Nashville for his book, Attorneys Above the Law — said his attempts to file complaints were nothing “but a waste of paper and time” and that the system is a “total failure.”
“Judges, you better get your house in order because we’re going to do it for you if you can’t,” Rep. Tony Shipley, R-Kingsport, warned after listening to testimony from disgruntled litigants across the state.
State judges hope to avoid an overhaul devised by legislators by taking matters into their own hands. Court of Criminal Appeals Judge Jeff Bivins said they are in the process of drafting legislation to address lawmakers’ concerns about the Court of the Judiciary.
Lawmakers have grown dissatisfied with the Court of the Judiciary in recent years, saying that it dismisses too many complaints without investigating them, keeps too much of its work private and includes too many members who are judges.
Court of the Judiciary Presiding Judge Chris Craft noted that most of the complaints are either frivolous, outside the commission’s jurisdiction or concern legal decisions that should be addressed in appellate courts rather than ethical violations.
“What we don’t do, is we don’t sweep things under the rug,” he said.
Bivins said the state’s judges are willing to lower the bar for when it is appropriate to launch a full investigation into a complaint against a judge. Currently, the standard is that there must be substantial probability that an ethical violation has occurred. Bivins said the judges will recommend the lower threshold of probable cause. Asked whether the judges will propose opening up more of the Court of the Judiciary’s work Bivins said, “We’re certainly open to that, but that’s one of the things we’re still discussing.”
From July 1, 2009, to June 30, 2011, the Court of the Judiciary received 703 complaints. Twenty-five resulted in sanctions including seven private reprimands, eight deferred discipline agreements, nine public reprimands and one suspension. Additional complaints that would have become public were instead retired when judges who “saw the writing on the wall” chose to retire or resign rather than face the charges, Craft said. Over the past four years, 21 judges have retired or resigned while a complaint against them was pending.
Committee members were more concerned with judges who remain on the bench despite the troubling allegations brought forward by the litigants who testified at Tuesday’s hearing.
“The testimony here today, if one-tenth of what these people are saying is true, there are gross miscarriages of justice going on here,” Turner said. “If we don’t address this, I’m telling you, the judiciary system as we know it today will change drastically if you don’t take care of yourself.”
The state constitution gives the Legislature the power to remove judges but does not spell out a procedure for investigating complaints or handing down less severe punishments. The Judicial Standards Commission was created in 1971 to play that role and to recommend the removal of judges to the Legislature. It was replaced by the Court of the Judiciary in 1979.
Concerns also were raised Tuesday about the Judicial Nominating Commission and the Judicial Performance Evaluation Commission. The former recommends three applicants to the governor for judicial appointments. The latter grades appellate judges on their performances and recommends to voters whether they should be retained or replaced every eight years.
Critics, including many lawmakers, believe Tennessee’s system of appointing appellate judges and holding retention elections every eight years violates the state constitution’s requirement that judges “shall be elected by the qualified voters of the State.”
“I think if they can do that for the General Assembly, they can do it for the judges they appear in front of,” said, Sen. Kerry Roberts, R-Springfield.
Turner, however, said forcing appellate judges to run in expensive statewide elections would be a mistake: “You want a bad system, do it that way.”
The committee members chose to pass all three of the bodies on to the full House and Senate government operations committees without a recommendation on whether to keep them.
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Would Rick Perry’s government reform ideas work? Experts examine them
by Jennifer Jacobs, Des Moines Register
November 15, 2011
Bettendorf, Ia. – Presidential candidate Rick Perry today called for uprooting problems in the federal government with sweeping measures.
Here’s what legal and politics experts had to say about the Texas governor’s ideas, unveiled during a campaign stop in Bettendorf this morning:
1. NO LIFE TERMS FOR JUDGES:
Perry is calling for term limits for all federal judges, from the U.S. District Courts all the way up to the U.S. Supreme Court.
Many law professors and constitutional scholars support U.S. Supreme Court terms limits, said Mark Kende, director of the Drake University Constitutional Law Center.
Kende cited an article that spells out why 18 years is the most popular proposal. (Starting at page 855.)
“Actually, it might be doable without a constitutional amendment if the Supreme Court Justices were kept around as federal judges in some capacity once off that highest court,” Kende said.
But whether a constitutional amendment is needed is debatable, he said.
“And of course, final arbiter might – ironically – be the Supreme Court,” Kende said.
Seth Andersen of the American Judicature Society said this isn’t Perry’s only proposal challenging the independence and authority of the judiciary.
In Perry’s book “Fed Up,” he calls for another constitutional amendment that would Congress to override any decision of the Supreme Court with a two-thirds vote.
“The founders designed a judiciary that would be able to protect our rights and liberties. They recognized that lifetime tenure during good behavior would ensure that judges could do their jobs without fear of retribution,” Andersen said.
Proposals to limit the terms of federal judges have never succeeded, largely because Americans tend to resist arguments that they should amend the U.S. Constitution to give politicians more control over the judiciary, Andersen said.
Some federal judges – known as Article I judges – already have such limited terms, said University of Iowa politics professor Timothy Hagle, whose main area is judicial politics.
“I’ve done research on the political aspects of retirement from the U.S. Supreme Court and there’s a link between the politics of the justices and when they choose to retire. A set term of 18 years would tend to limit that,” Hagle said. “A justice could still politically time a retirement short of 18 years, but at least not beyond that.”
Perry would have to make clear whether the 18-year limit is total or if one could serve up to 18 as an associate justice and then up to another 18 as chief – this would have affected Edward White and William Rehnquist, Hagle noted.
Given that lower federal courts are not as visible as the Supreme Court the effect would probably be of lesser concern. The only problem would be if the judges forced to retire weren’t being replaced in a timely manner, he said.
Ian Millhiser, a policy analyst at the Center for American Progress Action Fund, blasted the idea.
“It’s a bit bizarre to hear Rick Perry ranting against judges who ‘legislate from the bench’ when he’s the same guy who thinks the Affordable Care Act, Medicare and Social Security should be declared unconstitutional,” Millhiser said. “I’m pretty sure his entire policy agenda depends on judges legislating from the bench.”
Justice for sale? – [Editorial]
The Montgomery Advertiser
Nov. 2, 2011
The late comedian and social commentator Will Rogers would have loved the Alabama Supreme Court, in the same sense that Jay Leno loved George Bush the younger when Bush was president. Comedians usually have a warm place in their hearts for an easy target.
Rogers, as our older readers and history buffs will recall, used to say that Americans had the best Congress money can buy. That line would be even more appropriate today for Alabama's appellate court judges.
Over the past decade, more money has been raised and spent in election campaigns for the Alabama Supreme Court than in similar contests in any of the other 21 states that elect their highest courts, according to the Brennan Center for Justice and other groups which have monitored such spending for several years.
Now a new report -- The New Politics of Judicial Elections 2009-2010 -- discloses that Alabama is still among the leading states in campaign funds raised by judicial candidates for all court races.
The study shows that judicial candidates in Alabama raised $3.16 million during 2009-2010, the second highest amount in any state. Only Pennsylvania candidates raised more -- about $5.4 million.
But Pennsylvania's population is almost three times the population of Alabama, so when figured on a per capita basis or even a per voter basis, Alabama's fundraising for judges was still tops in the nation for 2009-2010.
The need for judicial candidates to raise so much money raises serious questions about their ability to decide cases in a fair and impartial manner.
In addition to heavy spending on campaigns, Alabama is one of just eight states in which judicial candidates run under political party labels. There needs to be a public debate over whether the state's system of partisan judicial elections is the best one.
But non-partisan elections would not solve the problem of the high cost of those elections. That's more a result of various business interests and trial lawyers competing with their pocketbooks to see if they can get judges elected who are sympathetic to their interests.
We do not believe that every judge is directly influenced by campaign contributions; in fact, we believe that most try to set aside as best they can such considerations and decide issues on the facts and the law. But it almost certainly affects the judgment of some of them.
Inarguably, however, the heavy spending on judicial races undermines the public's perception of an independent judiciary. Alabamians should ask themselves if they really want to see candidates for judicial office engaged in this kind of large-scale fund-raising.
The Alabama Legislature appeared to have addressed this issue almost 20 years ago when it passed a law that required judges to step aside in cases in which a judge had received large campaign donations from a party to the lawsuit. But for reasons that are hard to understand, that law has never been enforced. It should be.
Alabama needs Supreme Court justices and other judges with a deep commitment to the law and an unyielding determination to address each case on its legal merits.
When court elections require judges and judicial candidates to raise hundreds of thousands or even millions of dollars, Alabamians have every right to question whether they have a truly independent judiciary.
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Alabama's new ethics law fails to stop exemption requests from lobbyists and public officials
By Kim Chandler, The Birmingham News
November 6, 2011
MONTGOMERY -- The Alabama Ethics Commission has received nearly 200 requests to certify dinners, trips and conferences as allowable exemptions since Alabama 10 months ago adopted a new ethics law, which caps how much a lobbyist can spend on a public official.
The events range from associations paying for politicians' hotel rooms during their summer conferences to sponsors picking up meals for the General Fund budget committee.
The new ethics law caps what a lobbyist can spend on a legislator's meal to $25 per meal, with a limit of $150 in a calendar year. It rules out the free tickets, golf outings, social trips and one-on-one dinners lobbyists used to treat legislators to. But the new law also has exemptions to allow work sessions, economic development functions, educational events and receptions and dinners that are considered widely attended events.
Politicians and lobbyists do not have to get Ethics Commission approval before sponsoring events, but the requests that have been made offer a glimpse at the wining and dining that still is going on in Montgomery.
The letters to the Ethics Commission included requests for:
*The Business Council of Alabama to pay for the cost of lodging public officials invited to attend its annual conference in Point Clear.
*The Alabama State Bar Family Law Section to provide lodging for judges at its annual education conference "Divorce on the Beach."
*The Alabama Defense Lawyer Association to pay for judges' lodging at the group's annual meeting at the coast.
*Lt. Gov. Kay Ivy to take an economic trade trip to China.
Ethics Commission Director Jim Sumner said that, while there still is wining and dining by lobbyists going on in Montgomery, it is a "monumental" improvement over the past.
"I would liken it to in the past to having all of the floodgates on the dam open. Now we have one floodgate barely open," Sumner said.
"What we had in the past was just wide open without any limitations. Pretty much anything went. We now have some parameters. We have some limitations," Sumner said.
The sponsor of the law, Sen. Bryan Taylor, R-Prattville, said one of the major changes is that purely social outings are no longer permissible.
"Before, it was perfectly acceptable to take a public official on a trip to New York or the Masters in Augusta for no other reason than entertainment," Taylor said.
"Under the new law, any trip is presumed unacceptable unless it fits within a very tightly defined set rules that ensure there is an official business purpose related to the travel," Taylor said.
Sumner said there was much hesitancy when the new law went into effect, and people were afraid to be a test case for the new law. Out of caution, they bombarded the commission with requests to certify their events as acceptable.
Between the time the law was passed in December 2010 and mid-October this year, the commission received more than 190 requests for precertification.
Not every request to the Ethics Commission was granted. Many were turned down because they did not meet the criteria of the law. One rejected request was from a group hoping to take legislators on a dove hunt. Another was from a city seeking to give legislators tickets to its annual music festival.
"Everything that was purely social, recreational and entertainment was turned down," Sumner said.
"Someone wanted to take a group to a New Orleans Saints football game and call it an economic development function. That was turned down," Sumner said.
Sumner said the law defines an economic development function as something that is for the advancement of a "specific, good faith economic development or trade promotion project."
'Run by lawmakers'
He said "just trying to throw the umbrella of economic development" over a social function is not allowed.
Similarly, the other exemptions -- including work sessions and educational functions -- must have some legitimate purpose, Sumner said.
"We said from the very first lobbying seminar we did that a work session will not be taking three members of the Legislature out to play golf," Sumner said.
Legislative leaders said they think the law has diminished the influence of lobbyists.
"This place used to be run by lobbyists. Now, it is run by lawmakers, and that's how it ought to be. There's no question the stricter laws are a big reason for that," said Speaker of the House Mike, Hubbard, R-Auburn.
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Price tags on state’s judiciary – [Editorial]
Nov 06, 2011
More than $3.1 million was spent on three 2010 Alabama Supreme Court elections, according to a new report by a coalition of nonpartisan groups dedicated to studying money’s influence on the nation’s judiciary.
The sum ranks Alabama second in the nation in high-court candidate fundraising. With $5.4 million spent last year, Pennsylvania was No. 1, according to the report released last week by the Brennan Center for Justice, the National Institute on Money in State Politics and Justice at Stake.
Other findings in The New Politics of Judicial Elections 2009–10: How Special Interest “Super Spenders” Threatened Impartial Justice and Emboldened Unprecedented Legislative Attacks on America’s Courts were:
• Between candidates and special-interest groups, $38.4 million was spent on state supreme court races across the nation, just slightly less than the high-water mark of $42.7 million in 2005-2006.
• Almost one-third of the 2009-2010 spending came from independent groups not directly affiliated with candidates.
• The Business Council of Alabama was listed in the top 10 of “Super Spenders.” According to the report, the BCA contributed almost $1.3 million to Alabama races.
• Broken down by sector, “lawyers/lobbyists” make up the bulk of contributions, with $8.5 million given. “Business” was second with $6.2 million.
• In the 2009-2010 cycle, Alabama’s $3.1 million in contributions was well off the pace it previously established. Last decade, candidates raised $40.1 million, which, according to the report, was “easily the most costly state in the 2000-09 decade.”
• Television is the primary way Supreme Court candidates reach out to voters. Thousands of high-court commercials were aired in Alabama in 2010, according to the study. That means an estimated $1.9 million was spent to buy TV time.
This last point reminds me something Drayton Nabers Jr. said during the last weeks of his Alabama Supreme Court chief justice race in 2006. The Star’s editorial-board meeting with Nabers was fascinating. He had joined the court after Gov. Bob Riley appointed him to fill out the term of Roy Moore. Nabers, a one-time law clerk for U.S. Supreme Court Justice Hugo Black, displayed a keen intellect and sharp wit. He came across as a devout, serious and conservative man not given to wild passions concerning the law and justice.
As we were wrapping up the meeting, Nabers mentioned with a sigh that explaining who he was and his judicial philosophy was impossible in the 30-second blasts that could either sink or save his campaign. His opponent at the time — Sue Bell Cobb, who would go on to win in 2006 — was airing ads that touted that she played piano at church.
My takeaway from Nabers’ comment and those from others in his shoes is that TV commercials are a necessary evil for judicial candidates. I suspect it’s easier to punch hot-buttons in 30 seconds than it is to illustrate that a candidate is intelligent, prudent and wise. To test my theory, I subjected myself to a selection of Alabama Supreme Court candidate ads from last year. If possible, the spots look even worse 12 months removed from the heat of a campaign. Here are the transcripts:
TOM PARKER AD: “Some people believe in assembly line justice, turning out one case after another without looking deeply at the Constitution, but not Justice Tom Parker.
“Tom Parker not only stands up for what we believe, Parker respects the Constitution and fights for it every single day.
“There’s lots of competing interests before the court, but there’s only one independent justice on our side, Tom Parker.
“Justice Tom Parker — fair and balanced, putting taxpayers first.”
— Parker for Justice. [http://youtu.be/hueoAry3-eg]
MAC PARSONS AD: “Remember Tom Parker?
“He’s the Supreme Court justice who doesn’t pay his taxes. [Montgomery County probate records cited in extremely fine print.]
“Now get this, Tom Parker got a man of the year award from a group that wants to rewrite the Constitution and end a woman’s right to vote. That’s right; they’d end a woman’s right to vote.
“A Supreme Court justice who doesn’t pay his taxes and might end a woman’s right to vote.
“What else do you need to know about Tom Parker?”
— Mac Parsons Campaign [http://youtu.be/0pOZA8045K0]
TRACY W. CARY AD: “Mike Bolin took money linked to BP oil, the same oil company that’s destroying our Gulf Coast. Why does it matter? Because after Bolin took money linked to Exxon, he allowed the oil giant to cheat Alabama taxpayers.
“Liberal Bolin is just as soft on criminals. Last month he reversed the murder conviction of a robber who killed a handicapped man. That’s liberal judge Bolin; he sides with oil companies and he’s soft on crime.”
— The Committee To Elect Tracy W. Cary [http://youtu.be/9HxaGFrViOE (starts at 1:15 mark)]
KELLI WISE AD: [Opens with video of young girl saying nighttime prayers] “Now I lay me down to sleep.”
[Candidate speaking directly to the camera] “The law is supposed to be fair, to protect us from injustice.”
[Girl] “I pray the Lord my soul to keep.”
[Candidate] “As a judge, it’s my job to make sure it does.”
[Girl] “Angels watch me through the night.”
[Candidate] “I’m Judge Kelli Wise. In over 20,000 cases, I’ve followed the law, my faith and our Alabama values to do what’s right.”
[Girl] “And wake me with the morning light.”
[Candidate] “So everyone in Alabama sleeps safe.”
[Announcer] “Judge Kelli Wise for Alabama Supreme Court.”
— Friends of Judge Kelli Wise [http://youtu.be/VGlcRvjW01I]
It seems candidates for Alabama’s highest court face a quandary. Successful campaigns depend on TV commercials that appeal to pure emotion, the very thing judges should be above when rendering justice. At the same time, the winners must abide by a code of ethics that rightly demands “high standards of conduct so that the integrity and independence of the judiciary may be preserved.”
Doing both is a lot to ask of state Supreme Court justices.
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Guest post: Reform law schools, don’t deregulate them
By Daniel de Vise, The Washington Post
November 7, 2011
Here is a guest post from A. Benjamin Spencer, a law professor at Washington & Lee University School of Law who chairs the Virginia State Bar Section on the Education of Lawyers.
These are challenging times for legal education. The legal job market is eroding in ways not likely to improve in the near term, if at all. Fundamental change is afoot in the legal profession. Some tasks previously performed by lawyers—such as document review—are now performed by computers here or legal workers offshore,or simply by cheaper in-house staff or contract attorneys.
Law firm business models must change in response to these developments. This may mean alternative billing arrangements or moves towards tiered attorney structures offering lower pay and opportunity to lawyers who sign on to do routine legal work at less cost.
These developments have also laid bare defects in legal education, putting pressure on law schools to innovate and improve if they hope to survive. During better economic times, law schools operated under the assumption that their graduates would receive practical skills training on the job, at the expense of their employers.
Today, law firms are no longer willing and able to train recent graduates. Consequently, law schools must fulfill this role. In the wake of a 2007 report of the Carnegie Foundation for the Advancement of Teaching, many law schools are making their academic programs more balanced. They are supplementing the traditional cognitive learning traditionally associated with law school with more practical and ethical instruction. The goal is to create competent legal professionals who are prepared for practice upon graduation.
Unfortunately, the need for these changes comes as student loan debt is escalating to unsustainable levels when law graduates are least able to bear it, given the thin job market. Cutting law school costs now is challenging since such cuts could undermine the schools’ ability to offer the practical, experiential learning that they are being asked to deliver.
Some have even suggested getting rid of law schools and bar admissions requirements. The argument is that a free market for legal services would permit new entrants to drive down prices through competition. Quality control would be left to customers’ word-of-mouth.
While it is worth exploring how barriers to entry adversely impact access to legal services while imperfectly protecting the public from bad lawyers, total deregulation would likely make matters worse. In the early 20th century, the medical profession was deregulated in the sense that there was an abundance of medical schools of widely varying quality, resulting in poorly qualified physicians being unleashed on the public. That ended after another Carnegie Foundation report—the Flexner Report—insisted on the model of medical education that we have to this day.
Some might argue that today we have an abundance of law schools of varying quality churning out graduates who are not ready to practice and who can’t get jobs. But if that is true — and it may be — how would formally deregulating the industry make the situation better? Doing so would allow even lower standards; costs would drop, but so would quality. This is unacceptable; quality legal services help ensure the rule of law in our democracy.
The better solution is to reform law schools by offering a better balance of the doctrinal, skills, and values education that students need to become competent legal professionals. The American Bar Association, in its role as accreditor of law schools, should make sure its standards allow the freedom to make these changes.
Reforming admission to the bar should also be considered. For example, rather than making the bar exam a concentrated experience, the certification process could be extended over a period of years as with the various steps of the U.S. Medical Licensing Exam. Law graduates could be required to take an initial doctrinally focused exam followed by a probationary period during which they would work for less pay under the supervision of practicing attorneys. That, in turn, would be followed by an exam that tests their practice skills.
Although some of history’s greatest lawyers never attended law school, the world in which we live today is exponentially more complex; preparing to practice in this environment requires specialized training. Less training may be necessary for simple matters. Perhaps law schools could be more flexible in the degrees they could offer — e.g., a one-year degree for those who will do routine legal work as clerks under a lawyer’s supervision and a full two- or three-year J.D. degree for those who intend be licensed to practice as attorneys.
These are challenging time for the legal profession. Innovative thinking is not only welcome, but imperative. However, let us focus on being expansive and creative in how we re-imagine legal education, rather than embracing counterproductive measures that would only make the state of the legal profession much worse.
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Hornsby honored for judicial service
By DAVID GOODWIN, Tallassee Tribune
Nov. 1, 2011
Ernest “Sonny” Hornsby, a former Chief Justice of the Alabama Supreme Court, was one of the former judicial heavyweights enshrined this week in the honor court at the old judicial building in Montgomery.
Retirement Systems of Alabama constructed a new building designed to surround and preserve the old Scottish Rite Temple, which housed the state Supreme Court from 1940 to 1993.
During Hornsby’s six years as chief justice, he oversaw the construction of a new judicial complex next door. He led the state’s high court from 1989 to 1995. The new judicial building opened in 1994.
“The whole notion of an honor court between the (Alabama State) Bar Association and the judicial building was quite amazing,” Hornsby said, praising RSA chief Dr. David Bronner’s vision. “I felt very proud, honored and humbled to be part of this legal and judicial history of Alabama.”
Hornsby and the other chief justices each contributed to the creation of life-sized bronze statues.
“I think it looks better than I do,” he joked.
Hornsby noted that he’d occupied offices at all three Dexter Avenue addresses, having also served as president of the state bar in 1977 and 1978.
Hornsby was joined by his three children, all attorneys, and three of his seven grandchildren.
Of the chief justices memorialized in the honor court, only Hornsby and his predecessor, Judge Bo Tolbert, remain.
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The One Percenters Include More Doctors than Lawyers
By Debra Cassens Weiss, ABAJournal.com
November 2, 2011
Lawyers are well-represented in the top 1 percent of earners, but they still are outranked by business people, doctors and finance professionals.
That’s the conclusion of a study of 2005 tax data by economists Jon Bakija, Adam Cole and Bradley Heim. The New York Times Economix blog reported on the results, and New York Times columnist David Brooks has a column commenting on the implications.
The researchers found that lawyers make up about 8 percent of the top 1 percent. Here are the top five professions in the top 1 percent, based on distribution of income excluding capital gains:
1) Executives, managers, supervisors (nonfinance): 31 percent
2) Medical: 15.7 percent
3) Financial professions, including management: 13.9 percent
4) Lawyers: 8.4 percent
5) Computer, math, engineering, technical (nonfinance): 4.6 percent
According to Brooks, income inequality isn’t nearly as important as educational differences. Today, college grads are more likely to get married, less likely to get divorced, less likely to have a child out of wedlock, less likely to be obese, and more likely to have larger friendship circles. The average college graduate makes 75 percent more than the average high school grad.
“If your ultimate goal is to reduce inequality, then you should be furious at the doctors, bankers and CEOs,” Brooks writes. “If your goal is to expand opportunity, then you have a much bigger and different agenda.”
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