BLS Library Blog

Recently, legal blogs and the media have written about the impact on society of the increasing cost of attending law school. In yesterday’s Balkinization, Brian Tamanaha writes about “the implications of the astronomically high and ever-increasing costs of attending law school, combined with stagnating pay for all legal positions outside of corporate law”. The post addresses the financial implications of attending law school which few prospective students fully analyze (e.g. how much money will be borrowed, the expected amount of monthly loan payments upon graduation, and expected income upon graduation).

More important is what the high cost of law school means for social justice. The cost barrier is becoming increasingly burdensome so that people from low income backgrounds are less willing to assume the huge debt that comes from attending law school. This may result in a return to the past when lawyers came mostly from wealthy backgrounds.

Tamanaha writes: “Another implication relates to the provision of legal services. Students who enter law school with the desire to work in public service positions often instead go on to become associates at corporate law firms owing to concern about the hefty loan they must repay.”

An entry in yesterday’s Washington Post by Ian Shapira discusses this last point in greater detail. According to this article: “About 56 percent of law school graduates immediately enter private practice, 14 percent go into business, 22 percent enter government, and 5 percent work for a public interest organization or an advocacy practice such as Legal Aid.”

Earlier this month, Scott Moss in FindLaw discussed how high law school tuition may backfire on law schools unless they start self-imposing limits. He wrote that it is possible that market forces may respond to address the issue. It is possible that there will be a decline in law school applications resulting in declining student quality. High law school costs may result in increased drop out rates. If a large enough percentage of a law school’s students drop out, and only half of graduates pass bar exams, the school faces a loss of ABA accreditation.

The National Law Journal reports that the State University of New York at Binghamton is making plans for a new law school. Staff reporter Leigh Jones writes:

“Binghamton University President Lois DeFleur said that she has been in ongoing talks with State University of New York (SUNY) officials and with the American Bar Association about the school. The proposal would need the approval of state’s education department and the governor.

“The other publicly supported law schools in New York are the University of Buffalo, part of the SUNY system, and the City University of New York School of Law at Queens College.”

Source: National Law Journal, Leigh Jones, November 20, 2007

The use of cell phones in public places is an irritant that reminds us of the need for basic standards of etiquette. In courtrooms throughout the country, judges and court personnel impose serious consequences for the inconsiderate use of cell phones. The issue took an interesting turn this week when the NY State Commission on Judicial Conduct recommended the removal of an upstate judge for overreacting to the use of cell phones in his courtroom. The judge jailed an entire courtroom audience after no one admitted responsibility for a ringing phone.

“Every single person is going to jail in this courtroom unless I get that instrument now,” the judge told the courtroom’s audience, according to the commission. When no-one came forward, the judge ordered that the entire courtroom audience of 46 people be taken into custody and set bail at $1,500.

Details of the story are reported in the NYT and the Niagara Gazette.

Law students preparing for the upcoming final exams might find useful the free online constitutional law treatise that is available on GPO Access. The treatise is titled The Constitution of the United States of America, Analysis and Interpretation: Analysis of Cases Decided by the Supreme Court of the United States and is updated through 2006.

There are two editions, the 1992 Edition (with Supplements from 1996, 1998 and 2000, available in HTML and PDF) and the 2002 Edition (with Supplements from 2004 and 2006, available in PDF only).

The 2007 ABA Legal Technology Survey Report shows expected increases – and some perhaps unanticipated stagnancy – in lawyers’ use of technology.

Each year, the American Bar Association’s Legal Technology Resource Center surveys private practice attorneys to analyze their use of technology. This year, more than 1,800 ABA members responded, with results reported in five categories: law office technology; litigation and courtroom technology; Web and communication technology; online research; and mobile lawyers.
The 2007 survey results definitely reflect a small firm focus: More than half of respondents are either solo practitioners (24 percent) or work in firms of two to nine lawyers (28 percent). Only 18 percent are from firms of 10 to 49 attorneys, 7 percent from firms with 50 to 99 attorneys, and 23 percent of respondents are from large firms, with 100-plus attorneys.

Most respondents have a significant amount of experience: 47 percent have been admitted for more than 30 years, 14 percent for 20 to 29 years, 19 percent for 10 to 19 years, 10 percent for five to nine years and another 10 percent for less than five years.
Respondents do buy smartphones – 53 percent use a PDA outside the office, 32 percent check their e-mail. And they trust their systems: 49 percent send confidential or privileged communications to clients via e-mail one or more times a day, with 79 percent relying on a confidentiality statement accompanying the transmission, and 17 percent on using encryption. 

Litigation and E-Discovery
In the wake of last year’s e-discovery revisions to the Federal Rules of Civil Procedure, it is not surprising that the 2007 survey documented a substantial increase in the number of lawyers who make electronic discovery requests on behalf of their clients. This year, only 26 percent of lawyers said they have never made an electronic discovery request, compared with 69 percent in the 2006 survey.
Electronic discovery efforts are escalating in firms – 28 percent of respondents report e-discovery programs are in place; with 71 percent of large firms on board. Technology partners (26 percent), IS staff (18 percent) or litigation support specialists (15 percent) are primarily responsible for EDD programs.

Policies and Planning
Despite the lessons of Hurricane Katrina, disaster recovery planning held steady at 54 percent, equal to last year’s survey. Twenty-three percent of respondents have no disaster recovery plan, and another 23 percent said they did not know if their organization has a plan in place. Surprisingly, with discovery of e-mail and other electronic documents playing an important role in high-profile cases over the last few years, fewer respondents to this year’s survey report having relevant technology policies in place – 45 percent reported that their organization has an e-mail use policy; 29 percent reported an e-mail retention policy; and 38 percent reported a document management or records management policy as opposed to 56 percent, 33 percent, and 50 percent, respectively, in the 2006 Survey.
Training programs are not available to many lawyers and law firms: 34 percent of respondents indicated that they have no technology training available, including 61 percent of solos and 46 percent of small firm attorneys.

Online Research
Almost all respondents (96 percent) rely on the Internet for news at least once a week. The top five online resources are third-party Web sites (72 percent); e-mail newsletters (58 percent); e-mail discussion lists (38 percent); e-mail case alert services (37 percent); and online advance sheet services (30 percent). Used less frequently are podcasts (2 percent), RSS feeds (5 percent) and automated clipping services (10 percent).
Just about everybody (91 percent) conducts legal research online. But don’t rule out print: 52 percent regularly use print materials, and 38 percent use print materials occasionally. For more information about the survey reports see www.lawtechnology.org/survstat.

Source: New York Law Journal, Catherine Sanders Reach, November 20, 2007

The New York Times has an article in today’s NY/Region section reporting that “The Court of Appeals, New York State’s highest court, threw out the conviction yesterday of a man who was arrested for standing and not moving on a Times Square corner in 2004. The man, Matthew Jones, was on the corner of 42nd Street and Seventh Avenue in the early morning of June 12, 2004, chatting with friends as other pedestrians tried to get by.”

Jones was charged in Manhattan, by information, with disorderly conduct under New York Penal Law § 240.20. Writing for the court, Judge Carmen Beauchamp Ciparick concluded that the allegations in the document used to charge Mr. Jones did not meet the burden of factual proof required. “Nothing in the information indicates how the defendant, when he stood in the middle of a sidewalk at 2:01 a.m., had the intent to or recklessly created a risk of causing ‘public inconvenience, annoyance or alarm,’” Judge Ciparick wrote.

Yesterday’s ruling from the New York State Court of Appeals is available here.

In the November 18 edition of the Sunday New York Times, Adam Liptak has an article about a number of recent studies addressing the central justification for capital punishment: whether the death penalty deters murders. The studies conclude that executions save lives. Liptak writes: “For each inmate put to death, the studies say, 3 to 18 murders are prevented…The studies, performed by economists in the past decade, compare the number of executions in different jurisdictions with homicide rates over time — while trying to eliminate the effects of crime rates, conviction rates and other factors — and say that murder rates tend to fall as executions rise.”

Liptak goes on to write that there has been sharp criticism of these studies because they are grounded in theories of economists that do not apply to the violent world of crime and punishment. Some say that the studies are based on faulty premises, insufficient data and flawed methodologies.

Some interesting facts in the article include:
Only about one in 300 homicides results in an execution. In 2003, for instance, there were more than 16,000 homicides but only 153 death sentences and 65 executions.
The cost of a capital litigation case exceeds more than $1 million.
Canada has executed no one since 1962. Murder rates in the US and Canada have moved in close parallel since then, including before, during and after the four-year death penalty moratorium in the United States in the 1970s.

The US Supreme Court has granted certiorari in the case of Baze v. Rees and will decide this term whether death sentences carried out by lethal injection violate the Eighth Amendment ban on cruel and unusual punishment. As a result, a number of states that use the lethal injection method have indicated they will stay executions pending the Court’s decision.

Another New York Times article reports that the State of New Jersey is set to become the first state to repeal the death penalty since the United States Supreme Court allowed executions to resume in 1976. According to the article, a 13-member commission in New Jersey that studied the death penalty reviewed some of the studies and found them “conflicting and inconclusive.”

The studies referred to in the articles are:
Uses and Abuses of Empirical Evidence in the Death Penalty Debate, by John J. Donohue and Justin Wolfers (Stanford Law Review, December 2005)
Is Capital Punishment Morally Required? Acts, Omissions and Life-Life Trade-offs, by Cass R. Sunstein and Adrian Vermuele (Stanford Law Review, December 2005)
Does Capital Punishment Have a Deterrent Effect? New Evidence From Post-moratorium Panel Data, by Hashem Dezhbaksh, Paul H. Rubin and Joanna M. Shepherd (American Law and Economics Review 2003)
Deterrence Versus Brutalization: Capital Punsishment’s Differing Impacts Among States, by Joanna Shepherd (Michigan Law Review, November 2005)
Prison Conditions, Capital Punishment and Deterrence, by Lawrence Katz, Steven D. Levitt and Ellen Shustorovich (American Law and Economics Review 2003)
Getting Off Death Row: Commuted Sentences and the Deterrent Effect of Capital Punishment, by H. Naci Mocan and R. Kaj Gittings (Journal of Law and Economics, October 2003)
Capital Punishment and Capital Murder: Market Share and the Deterrent Effects of the Death Penalty, by Jeffrey Fagan, Franklin E. Zimring and Amanda Geller (Texas Law Review, June 2006)

On the international front, the UN General Assembly’s Third Committee voted Thursday 99-52 to place a worldwide moratorium on the death penalty. Thirty-three countries abstained from the vote. Opponents of the resolution included Singapore, Egypt, China and the US. The resolution will go to the UN General Assembly later this year. The resolution states that capital punishment “undermines human dignity,” that “there is no conclusive evidence of the death penalty’s deterrent value” and that “any miscarriage or failure of justice in [its] implementation is irreversible and irreparable.” Though non-binding, supporters of the resolution believe international opinion against capital punishment is growing.

Source: Jurist November 16, 2007

The National Association for Law Placement recently released a study indicating that almost 80 percent of attorneys at large law firms no longer work there five years later. This news comes as no surprise, considering the factors that drive this rate. The study found that “attrition is, of course, necessary, as large firms hire significantly more associates than they plan to share equity with as a partner.” According to the report, “attrition rates are, to some extent, the price of doing business.”

In her article for Law.Com, Kate Neville examines the forces that drive attrition to help attorneys on both sides of the table maximize their respective investments. “Regardless of why they came, what has kept them there or how long they stay, the majority of attorneys at large firms leave. While some do so because they are not made partner or are asked to start looking, most come to recognize on their own that they do not want a long-term future there.”
To read the full text of the article, click here.

Source: Law.Com’s Daily Legal Newswire November 14, 2007

In today’s Financial Times, Patti Waldmeir in her article The Renationalisation of American Justice praises the development of arbitration as a good thing. “Over the past 20 years, America has created a superior system of second-hand justice: arbitration, mediation, and other increasingly creative forms of privatised justice have replaced the elusive American trial,” she writes. “But in a world where only 2 per cent of lawsuits ever get to trial, second-hand justice from an arbitrator is better than none at all.”

She also raises some concerns in Congress and elsewhere that arbitration has some negative aspects. In Congress, she writes, “the complaint is that Americans are being denied their day in court when they sign contracts that force them to arbitrate disputes with companies that provide everything from their mobile phones to their jobs.”

A recent post in the WSJ Law Blog called The Supremes Arbitrate Arbitration reported that the Supreme Court is considering in Hall Street v. Mattel whether the Federal Arbitration Act prevents a federal court from enforcing a party’s clearly expressed agreement to appeal an arbitration award rather than the limited grounds of appeal provided for in the FAA. The FT article says that the case raises a host of important questions. “What role should the government have in supervising the private resolution of disputes? Should rivals who agree to arbitrate a dispute privately also have the right to call in a judge at the last minute, to pronounce on whether the deal is fair? Or would that defeat the whole purpose of privatising justice?”

Will arbitration replace the court house? Is it as good as or better than the courts? Is it biased in favor of corporate America?