[Note: This isn’t going to be a funny or salacious post. The first half is pretty boring, and I beg you to get through it. The subject is important, maybe even critical, to our profession.  At least I think so. I don’t ask much of readers, but do me the courtesy of reading through to the end.]

On the surface, law schools today are thriving. Enrollments are on the rise, and their resources are often the envy of every other university department. Law professors are among the highest paid and play key roles as public intellectuals, advisers, and government officials. Yet behind the flourishing facade, law schools are failing abjectly. Recent front-page stories have detailed widespread dubious practices, including false reporting of LSAT and GPA scores, misleading placement reports, and the fundamental failure to prepare graduates to enter the profession.

 

Addressing all these problems and more in a ringing critique is renowned legal scholar Brian Z. Tamanaha. Piece by piece, Tamanaha lays out the how and why of the crisis and the likely consequences if the current trend continues. The out-of-pocket cost of obtaining a law degree at many schools now approaches $200,000. The average law school graduate’s debt is around $100,000—the highest it has ever been—while the legal job market is the worst in decades, with the scarce jobs offering starting salaries well below what is needed to handle such a debt load. At the heart of the problem, Tamanaha argues, are the economic demands and competitive pressures on law schools—driven by competition over U.S. News and World Report ranking. When paired with a lack of regulatory oversight, the work environment of professors, the limited information available to prospective students, and loan-based tuition financing, the result is a system that is fundamentally unsustainable.

Look past the occasional vulgarity and disgusting pictures. Don’t dismiss the posters as whiners. To a person they accept responsibility for their poor decisions. But they make a strong case that something is deeply wrong with law schools.

In most states, you can’t be a lawyer unless you graduated from an ABA-accredited school. Law professors have run the ABA accreditation process, however, and have done so in ways that ensure that all ABA-accredited schools treat professors extremely well and that law schools are quite nice places to work. This has led to a surprisingly uniform educational system in which nearly every school adopts a high tuition model that gives professors low teaching loads, nice salaries, and lots of time for research. Some professors work extremely hard and produce important scholarship, which is the goal. But many other professors just coast and take advantage of their good fortune after making it past the (typically low) tenure hurdle. And Deans generally can’t treat the hard workers and productive scholars better than the dead wood because Deans generally require faculty support to stay in office: A Dean who favors the productive scholars and top teachers too much may not stay in office long. So salaries for all professors are high and course loads are low, whether the professors work 80 hours a week or 20.

Few criminal defense lawyers give a hoot about the demise of the once-glorious white shoe law firm, Dewey Ballantine (whose name was changed in 2007 to Dewey LeBoeuf to make it sound more international).  Biglaw’s problems aren’t ours, right?

Putting aside the schadenfreude of another Biglaw collapse, coupled with the salaciousness of watching wankers scramble for a new corner office in a down market, there was a paragraph in this  New York Times op-ed by James B, Stewart that’s worth some thought:

When I was a young associate at Cravath, one of my tasks was to compile the detailed billing records, organize them and submit them to the senior partner. What emerged for the client was a one-sentence bill in calligraphy on beautiful stationery: “For professional services rendered,” followed by the time period covered and a large number with a dollar sign. So far as I know no client ever objected or asked for a more detailed explanation, and had they done so, I suspect the senior partner would have deemed it a grave breach of trust.

In the years of writing about law schools and legal education, I’ve only mentioned  Thomas Cooley Law School in Lansing, Michigan, a few times.  It’s not that I like or dislike the school, as I really don’t know much about it beyond what I read.

Cooley’s claim is that it produces practice-ready lawyers rather than scholars.  I  take no issue with that purpose, though I have no clue whether it’s true or just a cool slogan.  But somebody at Cooley, in response to a dubious lawsuit alleging fraud in the inducement of inchoate lawyer to pay a lot of money to some day become a lawyer, thought it was a smart idea to shut up one of its critics by smacking him with a subpoena. If that’s their idea of practice-ready, then it’s time they met Streisand.

From Paul Campos at Inside the Law School Scam :

The Thomas M. Cooley Law School served me with a subpoena yesterday afternoon, commanding me to produce certain documents purportedly relevant to this civil action.  The documents in question include all my communications with the defendants, and “all documents and communications . . . that you had or exchanged with any person regarding how (i) Thomas M. Cooley Law School reports its post graduation employment rates or (ii) your communications with David Anziska regarding any inquiry or investigation he discussed with you about how law schools report post-graduate employment and salary data.”

Seriously?  There isn’t a legitimate argument of which I can conceive to justify serving Campos with a subpoena, and as Campos responds, there’s essentially nothing he’s got to discover.  The only explanation for this subpoena is that the Brain Trust at Cooley thinks this is a fine tactic to shut its critics up, and so they’ve chosen to go on the offensive after their critics.

They chose poorly.

Not only have they brought their scheme to the attention of the blawgosphere, with Paul Horowitz at  PrawfsBlawg and Orin Kerr at  Volokh Conspiracy raising the secondary alarms, but they pushed their primary blawgy nemesis, Campos, to lay it all out on the line:

I haven’t warned people about the dangers of enrolling at Cooley for the same reason it would be a waste of time to warn a parent that it’s a bad idea to hand a 15-year-old boy a bottle of Jack Daniel’s and the keys to a new sports car. Some things are so obvious that it’s pointless to belabor them.

Ouch.

After all, in the context of the gathering disaster that is contemporary American legal education, Cooley is without question the prime example of a shameless diploma mill that would be shut down immediately if American law schools were subject to more than the most cursory regulation by either the ABA or the federal government, which through its no-questions-asked student loan programs pays a large portion of Cooley’s operating budget.

Double ouch.

Graduating class of 2010:

Percentage of graduates who obtained jobs with law firms of more than 25 attorneys:

Cooley: 1.1%

Stanford: 51.1%

Percentage who obtained federal clerkships:

Cooley: 0.0%

Stanford:  29.3%

Percentage who were unemployed nine months after graduation, or whose employment status was unknown:

Cooley:  34.4%

Stanford:  0.6%

Percentage who were employed and reported a salary:

Cooley: 6.5%

Stanford:  88.5%

And so on.

Well, nobody said Cooley and Stanford were drawing applicants from the same pool, but then, even the raw numbers from Cooley, well, suck.

While much of Campos’ pedantic defense, not to mention his blog on the whole, conclusively demonstrates why some people made a wise choice in getting tenure rather than stand in the well, and as much as angry unemployed young lawyers adore him for validating their victimhood and narcissistic lack of responsibility for their poor choices, there’s one point that can’t be denied.

Cooley’s real problem has nothing to do with supposed defamatory claims on what, until it filed this suit, was a profoundly obscure blog, and everything to do with what has been dubbed the the Streisand Effect.

To the extent that lawyers really didn’t know much about Cooley, it not being Stanford excepted, we now know two things.  First, that it’s considered a “diploma mill” within the academic community, and second, that if this is any indication of what it considers “practice-ready” lawyers, it sucks.

And before anyone belabors the obvious, it’s certainly true that lawprofs, rallying against this SLAPP tactic directed at one of its own, remain as disingenuous as ever, as they want the blawgosphere to rise up against Cooley and decry its effort to silence its critic, even though no lawprof would spill a word in defense of a practicing lawyer against whom the same occurs.  Yes, they’re disgraceful, cowardly, self-absorbed hypocrites, who couldn’t care less about anyone outside their effete little pond unworthy of their intellectual attention.

But then, that’s what distinguishes real lawyers from scholars. We can afford to stand up for what’s right, and have the guts to do so while lawprofs either can’t be bothered or wouldn’t take the chance of standing up for anything that doesn’t elevate their sniveling self-importance within their pretentious community. 

So, Cooley’s tactic of subpoenaing a blawger to shut him up and send a message that anyone who disparages the school can expect to get SLAPP’ed is going to backfire.  And even though the lawprofs don’t deserve having practicing lawyers come to their defense, do it because it’s the right thing to do. Plus, it provides a bit of fun to seize the opportunity to remind ourselves why we work in the well and not in the marble hallways of academia.

My pals at  Avvo must be feeling really silly right about now.  Their big internet marketing conference, Avvocating, just concluded, and they’re probably wondering how to explain my absence as the keynote speaker.  Talk about a screw up.  If you see some red-faced guy cowering in the corner, that’s Mark Britton, Avvo’s CEO, trying to come up with an excuse for this huge mistake.

I’ve been dutifully checking the mailbox for days, awaiting my first class plane ticket to Seattle so I could take the stage at Avvocating.  As the mailman stuffed inconsequential things into the box, you know checks and legal papers, I would immediately rifle through the pile in search of my ticket.  The disappointment on my face when there was no ticket to be found was palpable.

But I like Mark, and Josh and the rest of the Avvo gang so much that I feel their pain about this horrendous screw-up.  While it’s hardly the same as being there, at least I can provide the insight here that I would have if I stood boldly in overcast Seattle.  I’m here for you, brothers.

What is Avvocating?

 Two days jam packed with advanced online marketing training for lawyers and legal marketers. We’ll have technology leaders discussing a range of topics including social media, pay-per-click advertising, search engine optimization, reputation management, website analytics and much more. We’ll also invite other web-savvy lawyers to share what strategies and tactics have worked for them.

The digital marketplace is changing rapidly and more competitive than ever before – hear the latest trends that are impacting the legal industry and learn the skills to enhance your online presence, stay one step ahead and ultimately drive more business to your firm.

My dear, sad, pathetic brothers  and sisters in the new world of law on the internet.  I feel your pain. Your practices are dead and your children are hungry.  How do I know this? Because you’re here rather than in your office working hard for paying clients.  Busy lawyers don’t attend conferences on internet marketing because they’re busy.  You, my friends, are the misfits, the losers, the desperate.

I have a blawg called Simple Justice. It’s pretty well-known and a lot of people read it.  I tell you this not to make you feel even more pathetic about your lives, but so that you will understand that I have a clue what I’m talking about.  I’m “real” on the internet, for better or worse. I “engage authentically.” I do what all the other speakers here are busy telling you to do, except for the fact that I’m not busy kissing every baby-bottom that follows me on twitter or posts some brilliantly absurd comment on my blawg.  But the give back for being a curmudgeon is that people know I’m honest.  After all, nobody would be dishonest by screaming at kids to get off my lawn.

So here’s what I’ve learned after a bit more than five years and many thousands of posts on the internet.  I never gave search engine optimization a chance, yet I have Google pagerank of 6. What that means is I can get stuff on the first page of Google pretty much any time I please.  You would have to hire half of Bangalore to get ahead of me, and that half of Bangalore would spend all night trying to leave spam comments on my blawg to get the benefit of my Google juice.

To get Google juice like me, you have to write a lot of stuff and get a lot of people to read it.  Can you do that? Maybe, but not likely.  Anybody can be a blawger, but everybody can’t. Few of you will have the interest or the patience.  Fewer still have the chops. Fewer still have the balls. And fewer still have the tenacity. I’ve been at this blawging thing for more than five years, and I’m still waiting to see that ROI start flowing. How long will you do it before walking around in a sandwich sign instead?

And what does all my effort get me?  Here’s my rule of thumb: For every thousand people who contact me because of my fabulous social media presence, there is one case, one case, that has potential.  You will hear from those who are trying to sell you something, whether it’s their services, products or agenda, about the anecdote of the guy from Iowa who got a seven-figure case from twitter.  Maybe it really happened. Who knows.  And it could very well be true, because there is always the one in a thousand good case that somehow finds its way into a lawyers hands through social media.

But it’s like winning the lottery.  We don’t all win. The vast majority lose.  The story about the one guy who does win fills your hearts with hope.  If that’s what appeals to you, then keep playing the lottery. You never know, and you gotta be in it to win it. 

In the process, however, you still have the 999 phone calls that have to be answered. About half are from people who “just have a question.”  Their question will take a half hour to ask, and if you try to interrupt them, they’ll get really angry with you, maybe even cursing and screaming at you.  The reason is that you’re a lawyer, and all lawyers love to answer questions for free.  And it’s their right to ask and your duty to answer. They know because Avvo Answers tells them so.

Another thirty percent are seriously looking for a lawyer. They have a whole list of conditions, as they want only the best lawyer possible and have the most important case ever.  At the very bottom of their list, the final criterion you must satisfy, is that they don’t have a pot to piss in and need you to represent them for free. Some will call it pro bono, while others will promise huge recoveries due to the vast injustices done them. Whatever it’s called, the point is clear: they can’t pay you a dime because they’re dead broke. 

What’s interesting about this group is that they’ve already spoken with every lawyer in town, and have been unceremoniously tossed out the door.  They’re a bit sensitive about the whole inability to pay thing, and have reached the conclusion that lawyers are scum who only care about money rather than them. Don’t you care about them? When you apologize about not being able to take their case, they’re not going to like you or appreciate the hour you just spent on the phone with them.

And the final fifth are the ones who should have called a lawyer before they closed their eyes and dove in.  And now, they’ve completely and irreversibly screwed up their lives and they need someone to save them.  These are the most painful callers.  They have no money, but unlike the ones who just want a free lawyer, their lives are so terribly sad.  And there is nothing you can do.  These are the calls that make you wish you did something more fun and societally useful, like selling used cars, for a living. 

Still want to be on the first page of Google, keeping a step ahead of the competition for these fabulous phone calls?  Well,  your competition isn’t taking it lying down.  The kid who just got his ticket three weeks ago says he’s tried 247 cases and regularly receives calls from the media.  I think he’s referring to the newspaper calling to find out when he’s going to pay the past due balance for home delivery. 

Sure, the kid doesn’t say that he graduated law school last month, but he claims to have won the National America Greatest Lawyer of All-Time Award.  And he may have, considering that he gives it out. What are you willing to do to beat this kid in the race to the bottom? Put on some lipstick and hot pants?  Call yourself America’s leading trial lawyer? Claim to be the only lawyer besides Gerry Spence who never lost a case?  I don’t know where the bottom is, but eventually someone will find it. Will it be you?

So you want to compete via social media, which is why you’ve scraped together your last few pennies to come to Seattle.  You will hear enthusiastic voices telling you that this is the future. You can hear how to achieve vast fame and success by the guys selling their internet guru services. You can hear how to carefully navigate your way to the first page of Google, slipping and sliding around your competition with only a few little tricks that others, ignorant jealous haters, may call outrageous lies. 

But what you won’t hear is me, telling you to work hard, put clients first, be honest and if you’re any good at being a lawyer, earning your reputation in the real world. 

East Patchogue’s voice in the New York State Legislature, Dean Murray (if that’s his real name), saw his chance and took it. Cyberbullying, the bane of the internet, is the hottest ticket around for politicos, and New York’s legislators are nothing if not happy to jump on the bandwagon. 

From Murray’s press release at the New York Exchange :

(Long Island, NY) Assemblyman Dean Murray (R,C-East Patchogue) held a joint press conference today with state Senator Tom O’Mara (R,C-Big Flats) and several of his colleagues in the Assembly to unveil the Internet Protection Act (A.8688/S.6779). The legislation would combat cyberbullying by allowing the victim of an anonymous website posting to request that the post be removed if the anonymous source is unwilling to attach his or her name to it.
 
“While the Internet is a wonderful resource for social networking, sadly it can also used to anonymously bring harm to others,” said Murray. “My legislation addresses the dangers of cyberbullying and protects the victims of this offense. By demanding these online abusers come out from anonymity and identify themselves, they will hopefully think twice before posting harmful comments about others.”

1. Definitions. As used in this section, the following words and terms shall have the following meanings:

(a) [“]Anonymous poster[“] is any individual who posts a message on a web site including social networks, blogs forums, message boards or any other discussion site where people can hold conversations in the form of posted messages.

(b) “Web site administrator” means any person or entity that is responsible for maintaining a web site or managing the content or development of information provided on a web site including social networks, blogs forums, message boards or any other discussion site where people can hold conversations in the form of posted messages, accessible via a network such as the internet or a private local area network.

2. A web site administrator upon request shall remove any comments posted on his or her web site by an anonymous poster unless such anonymous poster agrees to attach his or her name to the post and confirms that his or her IP address, legal name, and home address are accurate. All web site administrators shall have a contact number or e-mail address posted for such removal requests, clearly visible in any sections where comments are posted.

The bill is unconstitutional, see Talley v. California (1960) and McIntyre v. Ohio Elections Comm’n (1995); the First Amendment, the Supreme Court has held, protects anonymous speech (except in limited conditions related to election campaigns). The proposal is thus a fitting bookend to the four Democratic New York Senators’ paper on, among other things, how “[p]roponents of a more refined First Amendment argue that this freedom should be treated not as a right but as a privilege — a special entitlement granted by the state on a conditional basis that can be revoked if it is ever abused or maltreated,” though more New York Republicans are on board this bandwagon than New York Democrats were on board the other one.

Free speech is my right to say stuff you don’t like. Hate speech is my right to make you stop saying stuff I don’t like.

Whenever an awkward comment is left behind at SJ, I try to take a look at who wrote it and why.   This comment was particularly odd, so I checked out the website included in the link to see what the writer could possibly be thinking when he decided that linking his name to a peculiar comment was a good idea.

The “about” link at his website caught my eye, where he wrote that he started his firm without a single client and now had 500 in a mere few years. Obviously, he believes this to be the sort of thing worthy of promotion or he wouldn’t mention it. 

Cars are often advertised on television as being the “most popular,” apparently intended to convey the message that if lots of other people like it, you should too.  Sure, it will chase away the buyer who wants something different, or the buyer whose purpose in life is not to be one of the crowd. But most people aren’t unique, and want nothing more than to be utterly common.  That’s fine. If it were different, it would be impossible for others to stand out.

But does asserting that a lawyer has 500 clients serve the same purpose?  It immediately said two things to me. First, that the lawyer is high volume, low price.  Big numbers only appeal to someone for whom volume is seen as a positive. 

The other message it sent to me was that this lawyer had so many clients that the time he could give to any one was extremely limited.  That, of course, is the low price give-back for high volume, there being only so many hours in the day and too many demands on one’s time. It told me that this was the lawyer to use if I wanted my matter neglected.  I’m not saying this lawyer neglects matters, but that this was the message he was sending.

There are some historic notions about volume.  If memory serves, it was Tom Waits who wrote the immortal words:

Gonna go to McDonalds Hamburgers
Gonna wait on line
Gonna order me a million burgers
Watch ’em go outside and change the sign

The bill came in again yesterday, just as it has monthly for decades. The New York Times, the paper of record in New York and a couple of other parts of the world.  I’ve been getting home delivery for longer than many readers have been alive. 

It’s hard to say why yesterday was different than any other day the bill arrived, but I called the New York Times home delivery people and told them that I had enough.  For those who don’t get it, the monthly home delivery price is $42. Certainly not an earth-shattering price, but more expensive than my other dailies and, when combined with the multitude of other monthly costs that have arisen since I first started home delivery (like cable TV, internet, cellphone) it adds up.  The couple of “must-have” costs have multiplied into a half-dozen, and that’s only because I don’t use a smartphone.

So I told that gal on the other end of my landline that I was canceling my home delivery.  She made a sound of sympathy that comes easily to really good customer service representatives, and told me they were sorry to see me go after so many years.  I waited.  Then she told me not to let the door hit me on the way out.  It was done.

On the New York Times website, I searched for the button to push for serious blogger to get complimentary access to the Times. I couldn’t find the button, which apparently is only visible to people the Times loves more than me. 

In my twisted thoughts, it struck me that I’ve been pretty darned good to the Times over the years.  I’ve been paying for delivery long enough to build up some decent equity.  I get calls from their reporters pretty regularly, sometimes for background and sometimes for quotes. They’ve written stories about me and my cases, and I’ve rarely called their reporters bad names for getting it wrong (though it has happened).

At SJ, I link to the NYT regularly, as it’s the paper I read the most. I send a few readers their way. Maybe more than a few.  They get some free publicity from me as a credible source.  Sure, some criticism as well, but even in the criticism they enjoy attributed credibility.  After all, if they didn’t count, they wouldn’t be worthy of criticism.

I think it’s fair to say I’ve been pretty good to the New York Times over the years. I’m not saying they haven’t been good to me as well, as the paper arrives most days on my driveway as expected, and when it doesn’t, they are appropriately contrite if otherwise unhelpful.

But after a few decades, and under the circumstances, it struck me that they ought to show a little love in return and let me in for free.  I called them back and spoke with a young lady named Genay, who informed me that I was not eligible for a complimentary subscription. I asked her if, maybe, she wanted to know why I was asking for one before she told me to drop dead. No, she responded. It didn’t matter why.

I asked my pal David Lat, whose far more popular  Above the Law is a major jumping off point for readers to be sent elsewhere. whether he gets complimentary access to the Times.  He told me that he not only doesn’t get a free ride, but happily pays as one of the few patrons of dead tree media left.  I told him he was a better man than me, and obviously not nearly as cheap.  Then again, he doesn’t have a kid to put through MIT, and his blawg makes money as opposed to the mine, a sink hole despite the promise of internet marketers that blogs are the font of fabulous wealth and success.

As a last ditch effort, I sent the New York Times an email tell them what a dear friend I’ve been all these years, but that it was time for them to return the love.  I’ve checked my inbox a few times since then for their response.  Nothing.

In a few days, I’ll get a call from someone at the New York Times who has a question about a case or a post I’ve written, or needs a quote to fill out a story.  Before I respond to the question, I’ll ask them about my complimentary access, and they’ll tell me that they don’t know anything about stuff like that, and that belts are tight all around the paper, with great reporters and columnists being laid off right and left, and the remaining few being forced to write twice as many words a day.

And I’ll feel bad about being such a selfish person and give the reporter whatever they need.  But if you don’t see me linking to the New York Times here anymore, you’ll know why. I don’t feel that badly.

Via Eugene Volokh, the  Wilmington News-Journal reports that the alleged victim of a hate crime is double upset.

Wilmington criminal-defense lawyer Eugene Maurer, who is representing DiDonato, accused Baum of using the incident to seek attention.

“We feel this may have been an opportunity that was seized upon by the young man whereby he could politicize this situation, to draw attention to it,” Maurer said. “I think we’re going to be able to demonstrate in part that may have been part of his motivation.”

Baum called that criticism “terribly offensive.”

“I was a victim of an attack,” Baum said. “I didn’t ask to be attacked. To make that kind of allegation is so insensitive.”

DiDonato is accused of pushing Baum to the floor at a drunken fraternity party because of Baum’s sexual preference.  The defendant argues that he pushed Baum to the floor in the “early morning altercation” having nothing to do with the fact that Baum is gay.  Even gay guys get into beefs sometimes.

Who is telling the truth about the push, and whether any derogatory words were spoken, isn’t know. What is known is that DiDonato’s lawyer has been “accused” of insensitivity in his defense of his client.  Eugene explains:

On the other hand, if the incident was motivated by sexual orientation, and Baum is telling the truth, then the problem with Maurer’s response is that it’s incorrect. Maybe it’s innocently incorrect, if Maurer thinks his theory is right but it’s not. Maybe it’s deliberately false. But in any event, if it’s incorrect it should rightly labeled be as such — but quite regardless of whether Maurer’s statement is “so insensitive.”

This raises an issue that compels recognition, particularly in this time when extraordinary emphasis on hurt feelings has become a primary moving force in our perception of right and wrong.  The only thing missing from Baum’s reaction is calling the defense lawyer, Maurer, a bully for saying hurtful words.

There is a question of whether Baum’s accusation of insensitivity was deliberately irrelevant or merely inarticulate.  That his feelings are hurt by the defense lawyer raising the specter that he’s using his being on the losing end of a drunken push opportunistically, to become a hero of the anti-gay bullying crowd and pursue that agenda, may be accurate. Who can say whether Baum’s feelings are truly hurt?

But so what?

Drawing on the obvious comparison, what of the woman who falsely cries rape?  For a long time now, this was viewed not only as an impossibility, but as a misogynist slur.  No man could accuse of woman of lying about a rape.  Of course, some women did and their accusations were absolutely false, but a mythology arose around the sanctity of womanhood that precluded any man from openly arguing the point.  The man who tried to defend his actions this way was not only rapist (even though the accusation was false), but a woman hating one at that.

Is this going to be the case where an alleged victim of any crime is gay?  If a tussle breaks out on campus, and one of the participants turns out to have a sexual orientation other than straight, will the other person be subject to both a hate crime accusation and, should he dispute that sexual orientation had anything to do with the conduct, a secondary accusation of “insensitivity”?  Will his lawyer be precluded from raising the defense? Should his lawyer limit his defense to that which won’t hurt the victim’s feelings?

This is pretty dangerous turf.  Lawyers defend, but when the defense is over, live to fight another day for another defendant.  As much as they may be willing to do whatever the law allows to zealously represent their client, no one wants to be permanently tarred as a gay-hater any more than a misogynist (or racist, for that matter) as a by-product of presenting a legitimate defense.

While Eugene notes that the claim of insensitivity of the defense is irrelevant to the claim of a hate crime having been committed, that’s a distinction better loved by lawyers than the public.  Few people think that hard or care to separate the relevant from irrelevant.  Words like “insensitivity” from the victim-du-jour carry a punch, often broadcast by the media who seize upon the salacious but irrelevant because it’s fascinating to their readers.  Hate crimes are in. Stories about hate crimes are in. So what if the secondary insensitivity has nothing to do with the hate crime, but with a fair defense as to the motive to lie?

The fear is that this will have a chilling effect on a lawyer’s willingness to raise an insensitive issue in the defense.  Eugene Maurer challenges the allegation that his client gave a damn whether Baum was gay, and that DiDonato never uttered a derogatory word when he pushed Baum down.  Why would Baum lie?  Maurer explains, offering a valid if insensitive explanation for his position.

And now Maurer is insensitive to gays.  A gay hater.  Meet Wilmington criminal defense lawyer, Eugene Maurer, the lawyer who hates gays.

This is absurd, of course.  Maurer’s argument bears no reflection on his feelings toward gays. Or blacks, dolphins or Ford trucks.  It is nothing more than a rational explanation in support of his defense of his client.  And yet the story made the Wilmington News-Journal, and the implication is now hanging in the air for anyone who reads it and everyone who subsequently Google’s Maurer.

That Maurer said what he had to say to defend his client is not merely appropriate, but reflects his dedication to providing a zealous defense.  It says nothing of his being insensitive, and in the atmosphere where insensitivity has taken on a life of its own, the only message here is that Maurer won’t back down from his obligation to save himself from being accused.  He’s done what he has to do.  And he’s done what all of us have to do.

In the defense of a crime, there may be arguments that will hurt the purported victim’s feelings. It’s happened before and it will happen again.  Even in this atmosphere where the crime of hurt feelings has taken on a life of its own, an independent existence of wrongfulness which may well be imputed to the lawyer, our job doesn’t change.  The minute we become concerned about hurting the victim’s feelings, about how any backlash could impact our reputations or standing in the community, we trade off our responsibility for the latest political correctness and abandon our role as criminal defense lawyer.  We cannot defend if we’re worried that someone will call us insensitive.

If Baum is telling the truth about DiDonato’s push being motivated by anti-gay animus, then let DiDonato be damned for that. But there is no secondary insensitivity on Maurer’s part in questioning whether Baum’s claim is false and motivated by a secondary agenda. That’s his job, and there is no shame in his doing it.  Even if it hurts Baum’s feelings again.

In the never-ending search for academic legitimacy, Jack Chin  takes his best shot at arguing the importance of scholarly influence in criminal law.

For me, these cases brought to mind Chief Justice Roberts’ famous mockery of the contribution of scholars to actual law: “Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in eighteenth-century Bulgaria, or something. . . .” But at least in criminal law and procedure, the field I know best, Lafler and Frye seem like par for the course; the idea that good scholars are irrelevant to courts and and legal doctrine struck me as mistaken.

I looked at the 21 most cited criminal scholars according to Brian Leiter. The Leiter study looks at faculty who are most cited in law reviews from January 1, 2005 to January 15, 2010. By examining those who were most influential in recent law review citations, this study captures those now in fashion in the academy. All of these 21 teach at highly ranked schools (all are in the top 50, and 19 are in the top 20), where one might expect highbrow academic culture prevails.

1.  Love the students.  I think this is probably the most important.  If you don’t think the students are the most important part of teaching, I feel like you will never reach them.

2.  Teach so students can learn.  If a teacher is the most brilliant person in the world on the subject but can’t present it in a way that his listeners can understand, the teacher is completely ineffective.  Teaching requires not only someone presenting but also someone receiving.  I believe that many people learn in very different ways.  The best teachers I have known have been adept at presenting key concepts in ways that appealed to students with diverse learning modes.

3.  Love the subject.  If you love the subject and the students, your enthusiasm will be apparent and the students will feel it and catch it.

6.   Don’t require attendance.  If you build it, they will come.  Teach well, and you won’t have to compel your students to listen to you.

No, poor people can’t take their ’59 Rambler to the garage and get a free oil and lube as part of the auto mechanic’s pro bono duty.  No, saddled with debt and less hope for a job than winning the lottery, aspiring lawyers don’t deserve an unanticipated additional burden that no lawyer who is earning a living has to endure.  No, they aren’t suddenly competent to represent a rodent, no less a person, because they’ve managed not to flunk out after two years.

New York State Court of Appeals Chief Judge Jonathan Lippman’s  Law Day announcement that admission to the bar will require proof of 50 hours of pro bono service has raised quite a ruckus.  As has been admirably pointed out by pretty much all quarters, the idea is deeply flawed. No need to review every problem, as it’s all ready been done by the thoughtful, the angry, the disappointed, the angrier and the  self-serving and hysterical. 

So what is a smart guy like Judge Lippman thinking?  He’s got to know that he’s putting more weight on the shoulders of aspiring lawyers, who are already carrying more than their share.  He’s got to know that the sweet hype of helping indigent litigants is silly, since the poor don’t need representation by the incompetent.  He’s got to know that the burden of the legal system on the poor is a societal problem, and not one that demands lawyer pay the freight for a society unwilling to do so.  And he’s got to know that the legal profession is floundering on the whole, and he’s not helping.

Jonathan Lippman is a very smart man, and has proven himself well-intended many times. So what’s this really about?

Initially, the “burden” of 50 hours of pro bono services is a bit overwrought.  This is a grand total, not a monthly thing.  Given that law students can rack up the numbers fairly easily in law school, and most have plenty of time to get the rest in while waiting for their bar exam results, it can be accomplished without breaking much of a sweat. 

Is it a burden? Well, sure, just like the biennial dues and the CLE requirements. Burdens seem to come hand in hand with admission to a monopoly.  It’s not “indentured servitude” (or even involuntary servitude), since no one is forcing anyone to serve for free. No one forces you to be a lawyer, or to be admitted to the New York bar. Go to Montana. Become a carpenter. No pro bono requirement. There you go.

The poor in need of legal services, on the other hand, get squat out of this, making it far harder to understand why this was a battle worth fighting.  The 50 hours isn’t enough to cover their case, leaving them either high and dry in the middle, or forced to switch horses from one lame lawyer to another, neither of whom has a clue what he’s doing.

The blame game that invariably appears gets us nowhere, that it’s old lawyer shifting the burden onto young lawyers.  Of course it is, and that’s because old lawyers have more power than young lawyers. If young lawyers weren’t worthless slugs, they would have the power to impose burdens on old lawyers. You don’t. We win. Get over it.

And still, nothing about this requirement makes much sense on the surface. Plenty of anger. Almost no benefit. So why is Judge Lippman doing it?

Here’s my guess: This is where it starts.  Judge Lippman has figured out that as much as people need the hated lawyer when things go south, there is no way that legislatures are going to fund legal services for the poor. Nobody, but nobody, will ever get elected on that platform, and it will never come.  So while indigent litigants suffer for lack of representation, there is no hope of a fix in sight.

The need can only be filled by mandatory pro bono by experienced lawyers, which will not only prove invariably unfair, since the burden will eventually fall on the handful of lawyers with useful skills and the highest earners have no skills anyone needs. But by starting with the least powerful among us, the aspirants, and using his unilateral fiat to impose the requirement, since he can’t force the legislature to fund indigent representation and will be met by severe resistance if he tries to make admitted lawyers do pro bono off the bat, there is no better place to start.

Over the next decade or so, the duty will slide down the slippery slope, to lawyers with five years experience. Then ten. Then the rest of us, as part of registration renewal requirement. Sure it’s unfair to compel lawyers to fulfill societal burdens, when society hasn’t got the slightest interest in paying. Sure it’s unfair to single out lawyers, when no one else in society is required to do good against their will. But he has the juice to make it happen, and no one else will.

My bet is Judge Lippman knows that lawyers are hated, and this may be the only way to address fulfillment of the need for legal services while possibly getting back in the good graces of society.  He knows that we will bitch and moan about it, but that no one is going to burn their bar card and give up the profession over it. There’s no money to be made by walking away, and if lawyers are struggling to pay the rent, they can fill in the empty hours with some good deeds. We’ll find out it’s just not that big a deal. And we’ll do some good, maybe, in the meantime. And maybe people won’t hate us as much for it.

And since we’re professionals, and auto mechanics are not, and since we’re used to paying a price for the gift of a monopoly to practice law and this is just another mechanism to pay for the privilege, and since we can fit this into our not-terribly-busy day and help people in need even though it’s not exactly our sole responsibility to do so, maybe lawyers can become part of a long term solution to the problems plaguing society.  Not all the problems, but maybe some of them.

Yes, this scheme is replete with flaws. There’s a damn fine argument at every turn as to why it’s wrong and won’t work.  It is unfair. Plenty of good people will be harmed in the process, not the least of which are poor people who deserve better.  And still, it’s the only game in town to try and fix some vexing problems, and the only one that a chief judge can pull off on his own, without anyone else’s approval.

Jonathan Lippman is no fool, begging every twinkie law student to critique his idea like shooting fish in a barrel.  If you want to rip this plan to shreds, have at it, but look down the road and see where it’s heading before going after the low hanging fruit.  This is the start of a major overhaul, and Judge Lippman has everybody looking at the edges while he’s got his eye in the center. 

We’re all in this. It’s just a matter of time.  Bookmark this post and check it out ten years from now.