Category Archives: Legal

The sun never sets on legal un(der)employment

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John Flood, a U.K. legal scholar and sociologist, comments on the well-documented travails of recent U.S. law graduates, noting that their U.K. counterparts are facing similar difficulties as globalization changes the practice of law the world over:

What we’ve seen in the UK is a disjunct between the numbers of law students coming into the academy and the numbers of jobs available. For many the problem is that the academy is producing too many law graduates and should be more sensitive to job availibility rates….[T]here is also a big rise in the use of paralegals and I don’t mean those trained to be paralegals. Rather the unemployed would-be lawyers are turning to paralegaling in the hope that a training contract might open up while they are there.

What will entrench the stratification of the market is the opening up (de- and re-regulation) of the legal services market that’s now taking place. Fewer jobs will need to be done by fully-qualified lawyers. They can instead be carried out by a range of people qualified for certain legal and quasi-legal tasks. This is where corporatized law meets Tesco Law. [Tesco is a U.K.-based retailer similar to Wal-Mart.]

The US legal profession still thinks it can maintain a headlock on the control of the profession. How long for? At the expense of a cheap shot, [Egyptian President] Mubarek is finding a 30-year rule coming to end; [former British Prime Minister] Tony Blair only lasted for 10 years before he was ejected. Permanent monopoly becomes increasingly hard to justifiy, especially in a global market.

Flood also references a recent Above the Law article, which noted that Thomson Reuters recently

announced that it was exploring the sale of BAR/BRI, its bar exam prep business, and purchasing Pangea3, a legal process outsourcing company. That’s a strong message that they think there’s more of a future in hiring people to do low-end legal work, work that technically doesn’t constitute “practicing law” under legal ethics rules, than in training the practitioners of the future.

I’d like to see a quantitative analysis backing up some of Flood’s assertions, but his general points are well taken:

  • There are more lawyers than jobs.
  • Many law jobs do not, objectively speaking, require lawyers.
  • Much legal work can be done at a distance–even across international borders–as a back-office service.
  • In the long- (and maybe even the short-) run, the established legal cartels are no match for these forces of globalization.

Vast worlds of discovery

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In case you thought the age of discovery was over, Wired’s Threat Level blog is reporting that a 21-year-old hacker George Hotz who released the PlayStation 3 jailbreak has been ordered to surrender

any and all computer hardware and peripherals containing circumvention devices, technologies, programs, parts thereof, or other unlawful material, including but not limited to code and software, hard disc drives, computer software, inventory of CD-ROMS, computer diskettes, or other material containing circumvention devices, technologies, programs, parts thereof, or other unlawful material.

As Hotz lawyer put it,

The information sought at issue [the jailbreak code] is less than 100 kilobytes of data. Mr. Hotz has terabytes of storage devices….Impounding his computers, it’s like starting a forest fire to cut down a single tree.

Though the court’s order does seem like overkill, it is unfortunately a typically broad discovery request.  Sony may simply be trying to harass Hotz and/or hamper any future work, a theory especially plausible insofar as the court also ordered that Hotz “shall retrieve” the jailbreak he posted.  Given the number of websites that have re-posted Hotz’s original code, this would seem to be impossible.  As Hotz’s lawyer rather cogently quipped, ““Mr. Hotz can’t retrieve the internet.”

Wired has posted the judge’s order here (PDF).

Blacklisting the Bluebook

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The Yale Law Journal recently published Judge Richard Posner‘s hilariously scathing review of The Bluebook (the standard manual for legal citation forms) in which Posner compares the growth of the book from 26 to 511 pages over nineteen editions as a type of cancer:

The analogy of cancer to The Bluebook’s growth comes quickly to mind, as does the distinction between the multiplication of cancer cells in the organ in which they first appear and their eventual metastasis to other organs. For the growth of The Bluebook has stimulated the creation of supplemental citation and style guides at a number of law reviews….[L]egal citation form has become the subject of a vast academic literature. There is even a 180-page book called Understanding and Mastering The Bluebook.

After suggesting that the publishers of the Bluebook may just be out to make money by multiplying editions, Posner suggests a more interesting reason for The Bluebook’s growth:

The growth in the size and complexity of The Bluebook may also reflect the reflex desire of every profession to convince the laity of the inscrutable rigor of its methods….But unlike the genuinely professional methods used by the modern medical profession to diagnose and treat disease, the core method of the lawyer and the judge is “legal reasoning,” and it lacks scientific rigor; indeed, at its best, it is uncomfortably close to careful reading, to rhetoric, and to common sense. An unconscious awareness of the limitations of legal “science” drives the search for rigor into unlikely places, such as the form of citations, and has given the profession a 511-page book that it does not need.

The only thing I would like to add is that The Bluebook also serves a purpose within the obsessive-compulsive profession itself:  The Bluebook’s endless forms allow us to think that we are getting something difficult done.  In reality, of course, we are just manipulating mindless bits of text on a computer screen (and avoiding the truly difficult bits involving reading, rhetoric, and common sense, as Judge Posner puts it).

Hat tip:  Above the Law.

Shuttering harassment of photographers

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The New York Times’ Lens Blog is reporting that the Department of Homeland Security has recently issued a directive reminding its officers “of the public’s general right to photograph the exteriors” of federal buildings:

The three-page bulletin reminds officers, agents and employees that, “absent reasonable suspicion or probable cause,” they “must allow individuals to photograph the exterior of federally owned or leased facilities from publicly accessible spaces” like streets, sidewalks, parks and plazas. Even when there seems to be reason to intercede and conduct a “field interview,” the directive says:

Officers should not seize the camera or its contents, and must be cautious not to give such ‘orders’ to a photographer to erase the contents of a camera, as this constitutes a seizure or detention.

As an avid photographer, this warms my heart.  I remember attempting to photograph the Sears Tower (now the Willis Tower) in downtown Chicago a few years after 9/11 during an architectural photoshoot of the loop and being chased away by security guards who claimed I could not take pictures from the public sidewalks.  Personally, I haven’t run into too much opposition since then, but it will be nice to have documentation of my photographic rights on my person when I’m out shooting photos.

The legal future: climate-change litigation?

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Perhaps climate-change litigation is where lots of money is to be made in the coming decades:

In the past three years, the number of climate-related lawsuits has ballooned, filling the void of political efforts in tackling greenhouse-gas emissions.

Eyeing the money-spinning potential, some major commercial law firms now place climate-change litigation in their Internet shop window…

But legal experts sound a note of caution, warning that this is a new and mist-shrouded area of justice.

Many obstacles lie ahead before a Western court awards a cent in climate damages and even more before the award is upheld on appeal…

Lawsuits in the United States related directly or indirectly almost tripled in 2010 over 2009, reaching 132 filings after 48 a year earlier, according to a Deutsche Bank report.

Elsewhere in the world, the total of lawsuits is far lower than in the US, but nearly doubled between 2008 and 2010, when 32 cases were filed, according to a tally compiled by AFP from specialist sites.

Sounds like it will take some time and some important rulings before this field comes into greater focus.

Two questions:

1. How much money could be at stake in these sorts of lawsuits?

2. Does this mean this will be the subject of the next John Grisham novel?

The American Bar Association issues a financial warning for prospective law students

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The American Bar Association has issued a warning for perspective law students about the cost of obtaining a law degree:

According to the association, over the past 25 years law school tuition has consistently risen two times faster than inflation.

The average private law student borrows about $92,500 for law school, while law students who attend public schools take out loans for $71,400. These numbers do not include any debt law students may still have from their time as undergraduates.

Before the recession, the ABA cites statistics that show an average starting salary for an associate of a large law firm of about $160,000 a year. But by 2009, about 42 percent of graduates began with an annual salary of less than $65,000.

And those are just the newbies.

This is an interesting statement: a national organization warning students about the large amount of debt they will incur (and hinting at the lack of jobs to pay off this debt) for their own profession. What do law schools think about this? What sort of discussions took place before issuing this warning? How many complaints have come from people who did not know about the full cost of getting a law degree?

It would help to have some context regarding this statement. Is this the first time the ABA has issued something like this? How unusual is this across a variety of disciplines that require a professional or advanced degree? Are other organizations interested in issuing similar statements?

(Read the full statement here.)

h/t Instapundit

How winning on minor technicalities can lead to a 25 year foreclosure battle

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As lenders have recently had to slow down the foreclosure process because of running into trouble for not properly following procedures, the Wall Street Journal reports on another cautionary tale: one woman in Florida has stretched out her foreclosure for 25 years, not making a payment since 1985. According to the story, this has happened because the woman has been able to make successful arguments in the courts:

She has managed to stave off the banks partly because several courts have recognized that some of her legal arguments have some merit—however minor. Two foreclosure actions against her, for example, were thrown out because her lender sat on its hands too long after filing a case and lost its window to foreclose.

Ms. Campbell, who is handling her case these days without a lawyer, has learned how to work the ropes of the legal system so well that she has met every attempt by a lender to repossess her home with multiple appeals and counteractions, burying the plaintiffs facing her under piles of paperwork.

She offers no apologies for not paying her mortgage for 25 years, saying that when a foreclosure is in dispute, borrowers are entitled to stop making payments until the courts resolve the matter.

“This is every lender’s nightmare,” says Robert Summers, a Stuart, Fla., real-estate lawyer who represents Commercial Services of Perry, an Iowa-based buyer of distressed debt that currently owns Ms. Campbell’s mortgage and has been trying to foreclose. “Someone defending a foreclosure action can raise defenses that are baseless, but are obstacles for the foreclosing lender,” he says, calling the system “an unfair burden” for lenders.

I don’t know if the system is “unfair” for lenders but it is remarkable that the woman is openly guilty about not making a payment and yet is still able to win in court. Could lenders be this bad on following procedures? Or is the law really this in favor of people who haven’t made mortgage payments?

No gaming the system

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Although the fictional legal world of TV, movies, and mass-market paperbacks often turns on dramatic courtroom surprises, trying to sneak in unexpected witness testimony can destroy your case in real life.  David Kravets over at Ars Technica reports on the fate of Matthew Crippen, who the government accused of running “a small business from his Anaheim home modifying the firmware on Xbox 360 optical drives to make them capable of running pirated or unauthorized games” in violation of the Digital Millennium Copyright Act.  The trouble started on the prosecution’s very first witness, who

said Crippen inserted a pirated video game into the console to verify that the hack worked. That was a new detail that helped the government meet an obligation imposed by the judge that very morning, when [the judge] ruled that the government had to prove Crippen knew he was breaking the law by modding Xboxes.

Unfortunately, this was the first time any witness for the prosecution accused Crippen of actually running a pirated game:

nowhere in [the witness’s] reports or sworn declarations was it mentioned that Crippen put a pirated game into the console.

This was a huge mistake by the prosecution and deeply unfair to Crippen.  With the judge chewing them out and their case unraveling, the prosecution decided,

[i]n light of that omission and “based on fairness and justice,” [to move] to dismiss the case, conceding that the government had made errors….

Unlike the fictional worlds of David E. Kelley, the real law doesn’t like surprises.

$1 for your trouble

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How much is a technical trespass worth?  Apparently $1. That’s the amount just granted to a couple who had their home photographed by Google as part of its Street View service:

over two and a half years after the case got started, a judge has handed down her consent judgement, ruling that that Google was indeed guilty of Count II Trespass. [The plaintiffs] are getting a grand total of $1 for their trouble. Ouch.

Ouch indeed.  It’s not quite Bleak House, but 2.5 years of litigation is an awful lot of trouble for $1, any way you measure it.

Just how much is the testimony of a veteran worth?

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The case against David Hinkson included prominent testimony from a man claiming to be a decorated war veteran. The problem: the witness’ claims about killing men and being decorated in combat were false.

All lies. Mr. Swisher had never seen combat, had killed no one and had served without distinction. The document was a forgery. Mr. Swisher has since been convicted of lying to federal officials, wearing fake medals and defrauding the Department of Veterans Affairs of benefits for combat injuries.

But the jury knew none of this, and with Mr. Swisher’s testimony it convicted Mr. Hinkson of soliciting three murders. He was sentenced to 33 years for those crimes, along with 10 years for tax evasion, and he is serving his sentence in the maximum-security prison in Florence, Colo.

The New York Times uses this case to illustrate a larger question: just how different is testimony from a veteran in court? According to veteran’s groups, jurors respect military service and put more faith in testimony from veterans.

Culturally, being a veteran does seem to confer certain respect from other citizens. Think of instances where veterans are applauded, perhaps at a sporting event, church, or civic gathering. Serving in the military is equated with bravery, courage, and patriotism.

But do these qualities necessarily translate into providing true testimony or acting legally or morally? Not necessarily. In cases where the credibility of witnesses matters, it seems like being truthful about decorated military service would matter – if it didn’t, there would be no reason to lie to claim one was a decorated veteran. It sounds like it will take some work to translate cultural ideas about veterans as honorable citizens into court proceedings.

h/t Instapundit