The Faculty Lounge

Mack on “Civil Rights and Presidents Kennedy and Johnson,” on C-Span

Tomorrow C-SPAN will broadcast a discussion at the JFK Library on “Civil Rights and Presidents Kennedy and Johnson,” that includes Ken Mack of Harvard Law School.  It will be broadcast at 8:30, 7:30 PM, and 10:30 PM.  The discussion lasts about an hour, as they say, and it'll be available for viewing at your leisure on C-SPAN's website after broadcast.

I'm very much looking forward to talking about Ken's new book Representing the Race: The Creation of the Civil Rights Lawyer (Harvard University Press, 2012)  this summer.  Cribbing now a little bit from HUP's webpage:

Representing the Race tells the story of an enduring paradox of American race relations, through the prism of a collective biography of African American lawyers who worked in the era of segregation. Practicing the law and seeking justice for diverse clients, they confronted a tension between their racial identity as black men and women and their professional identity as lawyers. Both blacks and whites demanded that these attorneys stand apart from their racial community as members of the legal fraternity. Yet, at the same time, they were expected to be “authentic”—that is, in sympathy with the black masses. This conundrum, as Kenneth W. Mack shows, continues to reverberate through American politics today.

Mack reorients what we thought we knew about famous figures such as Thurgood Marshall, who rose to prominence by convincing local blacks and prominent whites that he was—as nearly as possible—one of them. But he also introduces a little-known cast of characters to the American racial narrative. These include Loren Miller, the biracial Los Angeles lawyer who, after learning in college that he was black, became a Marxist critic of his fellow black attorneys and ultimately a leading civil rights advocate; and Pauli Murray, a black woman who seemed neither black nor white, neither man nor woman, who helped invent sex discrimination as a category of law. The stories of these lawyers pose the unsettling question: what, ultimately, does it mean to “represent” a minority group in the give-and-take of American law and politics?

You might be interested in the discussion about Representing the Race at HUP's blog as well.  The Harvard Law Bulletin's story is here.

This is a very exciting time for books on race and law in the twentieth century -- you may recall earlier this week I blogged about Andrew Kahrl's The Land Was Ours, which also appeared this year from HUP.

The SALT Salary Survey

Now that there's a new SALT Salary Survey out, I want to take a look at the relationship between law faculty salary data and U.S. News ranks.  By way of background, SALT (the Society of American Law Teachers) requested information on salaries and on summer research grants from 200 law schools in the United states and Puerto Rico. The survey was conducted by email. Non-responding schools were followed up with another email and if necessary by telephone. Sixty-six schools responded -- a response of 33% .   Many thanks, by the way, to Eric Janus, President and Dean of the William Mitchell College of Law, who conducted the survey.  

In my recent paper on the relationships between U.S. News law school rankings and racial diversity (and several other variables), I divided the ABA-approved law schools into four groups to obtain a finer set of categories than the current two-tier U.S. News system.  I’m using that four-way group again in this post, which deals with some results of the 2011-2012 salary survey published by SALT this month and with the 2013 U.S. News ranks.

 Here is the classification of the 195 ABA-approved law schools:

Group.            N          Ranks            Schools

1                      50         1 - 49          Yale thru American, Pepperdine (tie)

2                      50         51 - 99          Baylor thru Rutgers-Camden, Tulsa

3                      46        101 - 145        St. Louis + 4 other schools thru Montana, North Dakota

4                      49         Rank Not Published

Total    195

Here are the responses by tier:

                         Response

Tier     Total   Yes     No       % response

1          50         8        41        16.00

2          50        21        29        42.00

3          46        19        27        41.30

4          49        18        33        36.73

 

The response rate differs across tiers. (Chi-square = 9.41, df = 3, p = .02). Schools in Tier 1 were less likely than other schools to respond to the survey.  None of the 28 highest ranked schools in the current U.S. News rankings responded. The highest ranked school that responded is the University of Iowa (rank 29), followed by North Carolina (38), Maryland (39), Ohio State (39), Arizona (43), Colorado (44), and UC-Hastings (44), which – perhaps incidentally – are all public schools.

Peer assessment is an important component of U.S. News ranks, so we would expect the above schools to be included among responding schools ordered by peer assessment (a 5-point scale), and most are. The responding schools with the highest peer scores are North Carolina (3.6), Iowa (3.4), Ohio State (3.3), UC-Hastings (3.3), Arizona (3.2), Florida (3.2), and Colorado (3.1).

Assessment of schools by lawyers and judges (another 5-point scale) is also a component of U.S. News ranks.  The 7 responding schools with the highest cores on this dimension are North Carolina (4.0), UC-Hastings (3.9), Iowa (3.8), Arizona (3.7), Ohio State (3.6), Florida (3.6), and Colorado (3.4).

Now, as to the salary data ...

Fedders on North Carolina Marriage Amendment

My colleague Barb Fedders has an op-ed in today's Raleigh News and Observer about the aftermath of Tuesday's vote on the North Carolina constitutional amendment regarding marriage.  Barb responds to Mecklenburg County Commissioner Bill James' statement about the amendment that "The purpose is not just to prevent Massachusetts people coming down .... It’s also to put a big letter of shame on the behavior. We don’t want them here. We don’t want them marrying. If you’re going to do it in San Francisco, it’s your own business.” 

Barb focuses on some of the positives that emerged from the vote, even if the result was not what many had hoped for.  She says in response to James that 

I’m staying because I am inspired by the people in small, rural towns who came out for the first time, who lobbied fellow parishioners, who knocked on doors in their neighborhoods. Because I am moved by the ministers who spoke out in favor of marriage equality when their congregations weren’t with them. Because the NAACP did the best, most principled work imaginable, drawing links between all forms of discrimination.

I’m staying because more than 800,000 people voted FOR us and our families. 

Read the rest of it here.

Reparations Trivia Question

I'm looking forward to Attorney General Eric Holder's graduation speech tomorrow in Chapel Hill. Perhaps this is the reason that I thought that I'd post a trivia question related to reparations.  Who wrote the following:

Given the perceived failures of the traditional civil rights agenda in bringing about racial equality in the US, a number of black commentators argue that a program of reparations is the only legitimate means of making up for three-hundred plus years of slavery.  More recently, some white commenatators have also supported a variant of the reparations concept -- for example, the government financing a Community Reinvestment fund that would be controlled by the black community and render affirmative action obsolete.   Do such proposals have any realistic chance of working their way through the political system?  Would there be any legal impediments to such a broadly-conceived reparations policy?

One hint here -- it wasn't me.  Though I think those are really critical questions.

Update, as of August 2012: Stacey Gahagan and I have our paper on Obama's syllabus up on ssrn.

JP Morgan’s Whale

This will have to be a quick one today, but JP Morgan’s “whale fail” is going to make for some interesting news over the coming weeks.  The timing couldn’t be worse for JP Morgan and the industry generally, it seems to me.  Embattled over the Volcker rule, capital requirements, and numerous other issues, this is exactly the type of event that will lead reformers to call for a crack down, just as regulators are contemplating the final content of some important pieces of financial reform.  I’ll be back in the near future with more on this story and the implications for the Volcker rule, in particular.  In the meantime, news stories are in the WSJ, Forbes, and the FT, among others.  

As I’ve mentioned before, I’m spending quite a bit of time with the Volcker rule these days, and I’m especially interested in the implications of this news for the continuing manuevering over the final content of the rule.  According to news reports, the losses originated with the credit desk in the London unit of JP Morgan’s chief investment office, which the bank says “hedges positions and invests ‘excess deposits’.”  As more information on the exact nature of the trades emerges, I suspect the case will present a beautiful example of the hurdles to Volcker rule implementation – namely, differentiating from a regulatory perspective trades permitted by the hedging and other statutory exemptions from prohibited proprietary trading.  Surely it will impact the discourse surrounding the rule.

Back with more later . . . 

 

 

Obama and Same-Sex Marriage

The major media coverage of Obama's change of heart (a/k/a evolution) on same-sex marriage has been to assert that the President now is in favor of same-sex marriage, but that he thinks the issue is one for each state to decide on its own.  Some commentators in the blogosphere have noted that this position is at odds with the President's refusal to defend DOMA.  Now comes Lyle Denniston to argue that Obama's position on DOMA is consistent with state autonomy on this issue.  Denniston is an astute observer of constitutional issues, and thus I am loathe to disagree with him, but he's wrong on this matter.  His basic point is that the administration's refusal to defend DOMA stems from the belief that DOMA interferes with state autonomy.  As added evidence, Denniston cites the adminstrations's failure to add its voice to the legal opposition to California's Propostion 8. 

The flaw in Denniston's argument is that DOMA does not interefere with state autonomy.  DOMA does two things:  First, it states that no state is "required to give effect to any public act, record or judicial proceeding of any other state ... respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other state ... ."  Second, it limits the legal benefits accorded to married persons under federal law to married persons of the opposite sex.  Contrary to Denniston's assertion, it does not federalize marriage law, although, of course, it does limit the federal benefits of marriage to traditional marriages.  In that narrow sense, it "federalizes" an aspect of marriage law.  But the other aspect of DOMA preserves state choices on this volatile marriage issue. The President cannot credibly claim that his opposition to DOMA is all about fostering state discretion on same-sex marriage.  He wants it all ways -- he's for same-sex marriage, but he wants states to decide on their own, yet he's opposed to DOMA's preservation of state ability to do just that. 

Can't Blame the Youth

Holland & Knight (Jacksonville) hosts a program called Learning for Life, for high school students interested in law.  The firm invites speakers with various legal backgrounds to share their experiences with the students.  I had the privilege of being invited to provide remarks to this group last night.  Most of the students were freshmen and they were impressive.

I gave them a short reading assignment in advance.  The American University Law Review's 2009 Symposium commemorated the 40^th anniversary of Tinker v. Des Moines Independent School District. Mary Beth Tinker contributed an inspiring foreword.  Tinker wrote:

I have come to view the Tinker decision in the context of children’s rights and international human rights, and decided that if democracy means anything, it means that the ones affected by policies—including young people—should have a voice in those policies. By sharing my experience and the experiences of other youths, I found that I could empower students to be active participants in democracy, taking steps that may not always be popular, but could have important lasting effects and ultimately change history.

Tinker’s brief essay provided a good place to start our conversation and my theme: we live in a self-governing society and the youth have a voice.  One student commented that he admired Tinker’s perseverance and ongoing dedication to her cause.  Before discussing specific areas of law, I offered them four keys to empowerment: Read; Think for yourself; Engage in critical, analytical thought; and Question Everything.

The specific areas of law I covered were net neutrality, electoral reform and copyright.  While I am sure some of the material went over their heads, I am certain that students are capable of understanding quite a lot given the chance.  For example, I believe I successfully conveyed a sense of regulatory capture through this Q&A:

Me: What is your most difficult class?

Student: English.

M: What would you do if you could write the exam?

S:  I would probably create an exam with questions that I could answer.

M:  That makes sense.  Do you think that is right?

S: No.

To be sure, it’s not a perfect analogy, but I believe it conveys the idea that relational structures exist for a reason and that they can be abused.

Also impressively, a freshmen student was able to provide a good explanation of the how the Electoral College works.  (Because most of these students were four to six years old in 2000, I thought I’d better ask if they knew who the presidential candidates were in 2000.  At least one student knew the answer.)

When I discussed copyright, I explained the purpose of the copyright and patent clause to raise the issue of how long one must have exclusive rights to incentivize the creation of new works.  After showing the actual text of the clause on a powerpoint, I attempted to translate that text in the next slide: “We want people to write new books and create new inventions because it serves the public interest.  Thus, we will allow writers and inventors an exclusive right to make money off their work, but only for a limited time. Then, the whole public can use it.”

When I asked for how long they would need exclusive rights to be incentivized to create new works, the answers ranged from one year to a few years, a far cry from the life of the author plus 70 years after death that currently exists.  After showing them the current duration, I showed them that the original duration under the Copyright Act of 1790 was 14 years.  When I asked why this might have changed, it provided an opportunity to weave in the regulatory capture theme.

I hope the students enjoyed the experience and that my remarks help avoid what frustrates Calvin and many of us:

Today’s music is Peter Tosh’s, “Can’t Blame the Youth,” set to a user-generated collage video.

What Did Students Really Do in Pre-Civil War Southern Colleges?

The book I've been working on for some years now -- University, Court, and Slave -- is about jurisprudence in the old South.  Some of my key sources are writings by faculty and to a lesser extent students at southern colleges before the war.  In this way I follow a few other people who of late have made pretty extensive use of academics' writings, notably Peter Carmichael's The Last Generation.  One of the things I'm particularly interested in are student debates at their literary societies.  I think there are some great things to be done with those debates, such as using them collectively as a gauge of what's on students' minds.  We can also use them to assess the range and proportion of constitutional ideas in discussion in public.  If I can set some time aside this summer I'll write a little bit about my preliminary work in these sources at Washington College, UNC, and Davidson -- all rather unrepresentative of the south, but that's a separate story.

So this leads to a question of just how much thinking actually took place in college?  For another project -- the study of probate in Rockbridge County, Virginia -- I've been reading Washington College alumnus William Alexander Carruthers'  The Kentuckian in New York -- a very mildly anti-slavery novel published in 1834.  I was amused to see an extensive discussion of college life in the south around the 1820s.  Do you care to speculate on how much of it related to the ideas students were learning and how much to their antics?

Some "Friendly" Reading

Folks looking for summer reading suggestions may wish to add to their list David Dorsen's recent biography of Judge Henry Friendly, entitled Henry Friendly, Greatest Judge of His Era.  You'll find a description here, reviews here, here, and here, and an interview with the author here.

The book was published in March.  If you've read the book, please share your thoughts with others in the "comments."

Ward Farnsworth Named Law Dean At University Of Texas

Ward Farnsworth, Associate Dean of Academic Affairs and Professor of Law at Boston University, has been named the new dean at the University of Texas School of Law.  Farnsworth, a former clerk to Judge Richard Posner and Justice Anthony Kennedy, holds his JD from the University of Chicago.  Brian Leiter comments on his book The Legal Analyst here.

Touro Law Names Patricia Salkin New Dean

Touro Law Center announced the appointment of Patricia Salkin as its new dean.  Salkin is Associate Dean and Professor at Albany Law School.  She became Associate Dean in 1998.

Salkin holds a JD from Albany Law School and is an expert in the area of land use.  She has substantial political involvement in New York, having served  on the transition teams for Eliot Spitzer (as both Governor and Attorney General) and  Attorney Generals Andrew Cuomo and Eric Schneiderman.  

 

Asian American Student Enrollment and U.S. News Peer Assessment Scores

Following up on a couple of previous posts on my paper on the relationship between African American student enrollment and U.S. News peer assessment scores, I want to focus for a moment on Asian American student enrollment.  Most of the paper discusses the relationship between African American student enrollment and U.S. News peer assessment scores, but at the very end I looked briefly at Hispanic and Asian American student enrollment and U.S. News peer assessment scores and also percentage of minority faculty and U.S. News peer assessment scores.

There is a moderate and statistically significant relationship (r = .40, p < .001) between Asian American student enrollment and U.S. News peer assessment scores.  The figure at the upper right plots all 191 schools with 2012 U.S. News peer assessment scores against their percentage Asian American student enrollment.  This, you may recall, is a lot higher correlation than exists for African American student enrollment (except when you look at the top 16 schools -- in that case r = .46).  

I hope there will continue to be some discussion of the possibilites for -- and desirability of -- including some measure (or measures) related to student diversity as part of the U.S. News law school rankings.

History Buff? Check Out This Interesting New Digital Humanities Project!

My blogging has pretty much vanished since I got consumed in January by a new "half-time" (hah!) administrative position on UNC's main campus.  I surface, though, to share with you what in southern New England would be called a "wicked cool" new digital humanities project here at UNC:  Commemorative Landscapes.  I could describe it for you, but it describes itself pretty well:  It

enables users to visualize and analyze the historical memory of the state of North Carolina by viewing famous and little known sites of memory on modern and historic maps. Sites are linked to a wide variety of resources - postcards, photographs, printed publications, newspapers clippings, and manuscript materials - that reveal when, how, and where North Carolinians have commemorated their past. The collection also encourages users to reflect on what parts of their history North Carolinians have elected not to commemorate as well as how the commemorative landscape of the state is likely to change in the future.

If you want to get the flavor of how cool it is, go here and watch the video.  Forgive the Ken-Burns-style fiddling in the background.  What you see, powerfully, is the change over time in how the 1781 Battle of Guilford Courthouse has been commemorated at the battle site.  

Nearly as awesome is this close examination of one of the monuments at the site.

I think we are only beginning to see the ways in which digital media can enhance not just the dissemination but also the practice of scholarship in the humanities.

Routledge History of Slavery

The Routledge History of Slavery, co-edited by my friend Gad Heuman and Trevor Burnard, is now out in paperback.  It's a terrific resource for summaries of the latest  scholarship on slavery.

Cribbing now from the Routledge website:

The Routledge History of Slavery is a landmark publication that provides an overview of the main themes surrounding the history of slavery from ancient Greece to the present day. Taking stock of the field of Slave Studies, the book explores the major advances that have taken place in the past few decades of study in this crucial field.

Offering an unusual, transnational history of slavery, the chapters have all been specially commissioned for the collection. The volume begins by delineating the global nature of the institution of slavery, examining slavery in different parts of the world and over time. Topics covered here include slavery in Africa and the Indian Ocean World, as well as the Transatlantic Slave Trade. In Part Two, the chapters explore different themes that define slavery such as slave culture, the slave economy, slave resistance and the planter class, as well as areas of life affected by slavery, such as family and work. The final part goes on to study changes and continuities over time, looking at areas such as abolition, the aftermath of emancipation and commemoration. The volume concludes with a chapter on modern slavery.

Including essays on all the key topics and issues, this important collection from a leading international group of scholars presents a comprehensive survey of the current state of the field. It will be essential reading for all those interested in the history of slavery.

In Memoriam: Louis Pollak

Judge Louis Pollak, a huge figure in both legal academia and the federal judiciary, passed away yesterday.  He was 89.  Judge Pollak received his LLB from Yale and went on to clerk for Justice Wiley Rutledge on the U.S. Supreme Court.  He worked at the State Department as well as Paul, Weiss and he assisted Thurgood Marshall in preparing both briefs and oral argument in Brown v. Board of Education. In 1955 he joined the Yale Law faculty and served as dean from 1966-70.  He served as dean of Penn Law from 1975-78.  In 1978, he was appointed to federal bench as a judge in the Eastern District of Pennsylvania.  

I will particularly miss Judge Pollak with whom I came to have a very warm relationship here at Drexel.  Judge Pollak served as the Chair of the Board of Visitors at Drexel Law during our first two years and played a signficant role in important law school decisionmaking during his final years.  Feisty to the end, Judge Pollak published an article in the very first issue of the Drexel Law Review attacking the US News rankings. 

Faculty Hiring, and the Facebook Question

You are on your law school's faculty appointments committee.  You and your committee colleagues pull several FAR Forms that merit consideration and discussion, perhaps leading to an invitation to interview with your team at the AALS Faculty Recruitment Conference (memo to self:  block out October 11-13, 2012).

At some point during the recruiting process, your team is likely to request a current c.v., teaching evaluations, a law school transcript, a research agenda, a list of references, copies of scholarship, etc.

Will your team ask for a candidate's Facebook password?

If you are the candidate, how will you respond to such a request?

Some thoughts here.

Is It All The American Lawyer’s Fault?

American Lawyer editor-in-chief Aric Press keynotes the May print issue, which contains the 25^th-anniversary report on the AmLaw 100, with an exceptionally thoughtful, candid and concise essay (here, sub. req’d).  In it, Mr. Press faces the accusation that has often been leveled at his publication over the years:  That (and this is my paraphrase) the American legal profession wouldn’t be the indecorous, avaricious mess it is today if it weren’t for American Lawyer founder Steven Brill and the price of everything/value of nothing reportage he pioneered.

To his credit, Mr. Press takes the contention seriously.  To his even greater credit, he addresses it fairly and openmindedly, in the process offering some valuable insights about how we got here and where we’re going.  Near the beginning, he comments:

Information turned loose on any environment has the power to warp it, and law firms proved as susceptible as other human enterprises. Is there more talk now of commerce and earnings in the top echelon of a profession that once didn't engage in such open banter? Yes. Does that make for a healthier marketplace? We think so. Does it mean that profit is the only value or measure by which a firm should measure itself? No. And lawyers and firms that operate as though it were have only themselves to blame for their choices—and their pernicious influence on lawyers at large.

Press goes on to catalogue a number of “disruptive” real-world market forces operating on large law firms’ clients over the last 50 years or so that would inevitably have expanded the footprint of BigLaw in the service economy, driven up the scope and price of high-end legal services, engorged the income of the lawyers that provide them, and thus ignited greater competition among law firms for both legal talent and legal business.  You can quibble with Press’s choice of factors, how he characterizes them, and their relative importance; what you can’t argue with is his conclusion that, given the evolution of our national and world economy, the competitive and venal preoccupations of the profession widely bemoaned today were and remain inevitable.  Let me say it again:  inevitable.

Press then tries to imagine what a competitive market for legal services would look like without the market information The American Lawyer purveys:

Financial information would have been no less important; it just would have been held in fewer hands. There were other economic surveys when The Am Law 100 appeared: Pricewaterhouse's was fading, and Citibank's was surging. But their results were (and are) closely held, their comparison data purposefully limited and blinded. The traders—merger-minded consultants and recruiters—would have episodic data, again closely held. And we in the press, as we chronicled firm rises and falls, would have reported financials as we found them, occasionally, anecdotally, erratically.

This is one place where I disagree.  Information wants to be free, and if the trade press hadn’t freed it, someone else would have.  The early 20^th-century regime that viewed discussion of firm finances not only as unseemly but as an unethical form of (heaven forfend) advertising was bound to fracture one way or another in a free-market economy.  History chose Bates v. Arizona and its progeny, which (oversimplifying a bit) invoked the First Amendment to prevent guild regulation of speech designed to suppress competition among guild members.

In the absence of a transformation of commercial speech doctrine that seems unlikely in the foreseeable future, information on law firm economics will remain beyond the reach of parochial professional regulation.  It’s fair to ask whether that’s a good thing, and if so for whom.  I think there is an obvious answer that, while by no means original, is not nearly widely enough recognized.

In my next post, I’ll tell you what I think that answer is.  As thanks for making it to the end of this one, I’ll foreshadow by suggesting that, while the new game is not without its costs, its winners are ultimately the clients—if they play the game sensibly.  And that, I will argue, is just as it should be.

--Bernie

African American Student Enrollment and Peer Assessment at the Most Elite Law Schools

I want to continue with talk about my paper on the relationship between African American student enrollment and U.S. News peer assessment scores.   The bottom line is that there is little relationship when we look at all schools -- but when one focuses on the top 103 schools and top 26 schools there is a small correlation (around r = .20).  The illustration at right, which is taken from my paper, plots the percentage of African American students against schools' U.S. News peer assessment scores of the top 26 schools. 

What I want to do now is look at the most elite schools -- those with U.S. News peer assessment scores of 4.0 or better.  They are  Harvard, Stanford, Yale, Columbia, Chicago, NYU, California Berkeley, Michigan, Penn, Virginia, Georgetown, Duke, Cornell, Texas, Northwestern, UCLA.  For those 16 schools there is a substantially (but not statistically significant) higher correlation (r = .43, p = .10).  You can see a plot of the peer assessment scores against the percentage African American student enrollment of those 16 schools at right.  I'm now wondering if the percentage of African American student enrollment might be most useful for distinguishing between schools in one segment of the market, such as the most elite schools?

Derek Black to South Carolina

My friend and former colleague Derek W. Black is moving from Howard to the University of South Carolina School of Law.  Close readers of the faculty lounge may recall that Derek's been sitting with us some this spring.   

Derek's publications include Education Law: Equality, Fairness, and Reform (forthcoming Aspen 2012) and such articles as "Middle Income Peers as Educational Resources and the Constitutional Right to Equal Access" in the Boston College Law Review, "The Congressional Failure to Enforce Equal Protection Through the Elementary and Secondary Education Act" in the Boston University Law Review in 2010, and "Unlocking the Power of State Constitutions with Equal Protection: The First Step Toward Education as a Federally Protected Right," in the William and Mary Law Review in 2010.

Welcome to the SEC, Derek!

The picture is of the African American monument on the grounds of the Columbia capitol.

Dewey, McKay & Sandel

Today’s post weaves together the collapse of Dewey & LeBoeuf, the music of Nellie McKay, and Michael Sandel’s new book, What Money Can’t Buy: The Moral Limits of Markets.

But it seems so creepy. Winning can leave you feeling sleazy. – Nellie McKay, “Beneath the Underdog.”

On May 2, the New York Times quoted one of the approximately 30 unfortunate law students that lost his summer employment with the fall of Dewey:  “A firm may look like a corporation, yes, but we’re all part of a fraternity of lawyers.”  Two days later, James Stewart’s NYT article asserts that Dewey’s demise “shatters the perception” that “law is at heart still a guild . . . a profession more than a business.” Stewart supports his premise with a former Dewey partner’s lament that firms are partnerships in name, but that attorneys have become free agents and thus destabilized the legal profession. 

The debate that Sandel seeks to further in What Money Can’t Buy seems to have an important place in the changing landscape of the legal profession.  In short, we have transformed from a market economy to a market society.  This transition has been done thoughtlessly, has resulted in negative consequences and it is time to have a robust debate about where market systems should not exist or at least have greater limitations based on moral considerations.

While I share the optimism and belief of the law student quoted above about law being something more than a business, my experiences since law school lead me to simultaneously share the sentiments of Stewart about the legal profession (to a degree) and Sandel about our national dialogue beyond law.  To be sure, money cannot be wholly extracted from the legal profession, nor do I believe it would even be a positive development, let alone a practical one.  But, the calling of justice certainly cannot be solely (or most likely predominantly) market based without losing focus on the role that the profession of law plays in society.

As for Nellie McKay, she is an eclectic, edgy, independent musician whose lyrics often seem apropos as I reflect on the events of the day.  Another great line from her song quoted above:  “I don’t get people. I don’t get the things they think are reasonable.”  Here’s her somewhat bizarre video for Beneath the Underdog.  Another song that may be of interest to the Lounge is her Song for Troy Davis.