Rhetoric - Oddball Cases and Slaughtered Hogs

atrask@mcguirewoods.com (Andrew Trask) — Thu, 22 Mar 2012 10:20:05 GMT

At the DePaul symposium a few weeks back, Professor Suja Thomas argued that the Supreme Court should not take on "oddball" cases, because the outlying facts make for decisions that are too sweeping. (She's made this argument before about Iqbal and Twombly, so you don't have to wait for the DePaul Law Review's Symposium Issue to get the basics.)

As I've mentioned before, Professor Thomas is no fan of oddball cases. She argues that:

the Supreme Court and some scholars, including Professor Richard Epstein, have justified the new standard on the basis of the costs in Twombly, an “oddball” case—with massive costs and significant asymmetry of costs—and have not shown that the new standard should apply transsubstantively to cases that do not have such costs, including typical employment discrimination cases. This Essay also shows that Iqbal, while different than Twombly in types of costs, is similarly “oddball” in nature. Moreover, this Essay argues that, despite the lack of significant justification for why the new standard should apply transsubstantively, and also contrary to a prediction of Professor Epstein, the new standard will likely have a revolutionary impact on cases, without the same types of costs as Iqbal and Twombly, including employment discrimination cases.

In other words, what Professor Thomas doesn't like about oddball cases is that the extreme facts drive results that she believes undermine good legal rules.

While she didn't write in direct response to Professor Thomas, Professor Suzanna Sherry has produced an essay (to appear in the Supreme Court Review) that takes this argument head on: Hogs Get Slaughtered at the Supreme Court. Professor Sherry's argument starts from an interesting premise: the reason that the Supreme Court made the sweeping rulings it did in Concepcion and Dukes is not because the majority was necessarily pro-business or anti-plaintiff, but because the lower court (in this case, the Ninth Circuit) had overreached in each case.

And these two cases are not isolated tragedies; they provide a window into a larger problem. Rule 23 turns class counsel into powerful private attorneys general and tempts them to raise the stakes. It allows plaintiffs’ lawyers to chart a course not only for their own clients, but for future litigants. If that course is ill-advised – as it is when the lawyers have incentives, as they often do, to frame issues broadly for the “big win” – the consequences can be disastrous for those future litigants.

If anything, the largest flaw with Professor Sherry's argument is that it's incomplete: hogs don't just get slaughtered on the plaintiff's side. As the Halliburton and Smith v. Bayer decisions show, defendants who push radical arguments (and the appellate courts that endorse them) can also get reversed quite easily. (Although in those cases, there is more likely to be a client that constrains the attorneys from going too far afield.)

I'd say that in this debate, Professor Sherry has the better end. Oddball cases provide oddball results because they take the rules as they stand, and bring them to absurd results, and courts do not like absurd results. From a policy standpoint, that means that while Professor Sherry's position--courts that want to preserve current good rules shouldn't overreach--has practical policy implications, Professor Thomas's position--the Supreme Court should allow oddball results to stand to preserve otherwise good rules--really doesn't.

More importantly, Professor Sherry's approach provides some valuable advice for defense (and plaintiff's) counsel, particularly when arguing on appeal: don't get greedy. Appellate litigation, like class action litigation, is a long game . An decisive win at the motion to dismiss is a great outcome, but a defendant who structures their strategy to aim solely for that is likely to face avoidable strategic problems if going all in doesn't work out. On the other hand, planning carefully, and encouraging the court to make a series of well-grounded rulings that lead to a decision defensible on appeal? That's your jackpot.

ACC Embarks on New Strategic Plan, Building Upon Rich History of Success

Thu, 15 Mar 2012 17:06:41 GMT

ACC has served the professional and business interests of lawyers who practice in the legal departments of corporations, associations and other private-sector organizations around the globe for almost three decades. With almost 30,000 members employed by over 10,000 organizations in more than 75 countries, ACC is proud to be the world’s largest network of in-house counsel. Our... Continue Reading

Our market-leading position and high levels of member satisfaction have set the stage for exciting opportunities to evolve the organization. However, ACC’s new strategic plan does not represent a radical change in direction or focus. Instead, it clarifies and expands upon how ACC will build upon its strong foundation to advance its mission over the next five years.

Membership engagement and key findings

This strategic planning process incorporated unprecedented levels of member feedback, presenting a clear understanding of the value drivers that underlie the decision to join and remain an ACC member.

ACC thanks the 4,130 members who completed an online strategic plan survey, the 55 members who participated in focus groups held at the 2011 Annual Meeting, and the 16 members from six different countries interviewed for their thoughts on ACC’s mission, vision and past strategies. Respondents included board, chapter and committee leadership, as well as a broad spectrum of members.

Key findings include:

Members support ACC’s current mission and vision, and are highly likely to recommend ACC.
ACC’s mission attainment primarily relies on three value drivers: prominent market leadership, member satisfaction and retention, and organizational stability.
ACC is effectively meeting member needs in all key areas, and is most effective in the eight areas that most influence members to join and remain with ACC. They include:

1. Exchanging best practices and practical resources

2. Educational/professional development

3. Thought leadership

4. Access to networking opportunities

5. Member engagement and visibility

6. Brand value

7. Advocacy efforts

8. Sharing information and creating synergies

Members’ perceptions of ACC’s effectiveness in each of the eight key areas are aligned with their perceptions of its relative importance.
Education and professional development are highly valued by members. Member diversity suggests that ACC cannot be “all things to all members,” therefore, requiring the association to prioritize some member needs over others,
Members believe that it is important for ACC to build and develop a strong global presence and international network of in-house counsel.
Members recognize the potential of social media, but do not believe ACC should evolve its platform at this time.
CLOs of large law departments can significantly impact ACC’s success and are interested in offerings that better meet their needs.

Strategic themes and approaches

The cornerstones of ACC’s new Strategic Plan incorporate three simple, yet powerful themes, which will guide decision-making.These strategic themes describe what ACC will do over the next five years to advance its mission and vision, and the specific approaches for pursuing these themes. ACC will:

1. Combine and focus resources to streamline the exchange of information;

2. Optimize services and experiences to retain and engage members; and

3. Position the association for continued relevance and impact.

Revision of ACC’s mission and vision to reflect globalization strategy

More than a decade ago, ACC’s leadership decided to pursue becoming a global association and took steps to further that goal. Those steps included: a name change, four new chapters outside the United States, and an expanded membership base encompassing more than 75 nations.

In recognition of these advancements, the value that members place on globalization, and ACC’s plan to grow from its strong foundation, the board unanimously approved amending ACC’s mission and vision. The statements, like our plan, simply build upon the goals set forth by previous ACC leadership and supported by our membership. The slightly updated versions include the word “global,” reflecting the strategy to build and develop a strong international network and global presence.

After all, we are not just your in-house bar association, but an international one —working to bring you the resources and support needed to do your job, which is increasingly global in scope. See what else I had to say about the Strategic Plan to the authors of Association & Non-Profit Bisnow, in this recent article Plot Thickens at ACC

See the full Mission and Vision statements, and get more information on the Strategic Plan at www.acc.com/aboutacc/missionandvision.cfm

ACC Embarks on New Strategic Plan, Building Upon Rich History of Success

Thu, 15 Mar 2012 17:06:41 GMT

Membership engagement and key findings

Key findings include:

Members support ACC’s current mission and vision, and are highly likely to recommend ACC.
ACC’s mission attainment primarily relies on three value drivers: prominent market leadership, member satisfaction and retention, and organizational stability.
ACC is effectively meeting member needs in all key areas, and is most effective in the eight areas that most influence members to join and remain with ACC. They include:

1. Exchanging best practices and practical resources

2. Educational/professional development

3. Thought leadership

4. Access to networking opportunities

5. Member engagement and visibility

6. Brand value

7. Advocacy efforts

8. Sharing information and creating synergies

Members’ perceptions of ACC’s effectiveness in each of the eight key areas are aligned with their perceptions of its relative importance.
Education and professional development are highly valued by members. Member diversity suggests that ACC cannot be “all things to all members,” therefore, requiring the association to prioritize some member needs over others,
Members believe that it is important for ACC to build and develop a strong global presence and international network of in-house counsel.
Members recognize the potential of social media, but do not believe ACC should evolve its platform at this time.
CLOs of large law departments can significantly impact ACC’s success and are interested in offerings that better meet their needs.

Strategic themes and approaches

1. Combine and focus resources to streamline the exchange of information;

2. Optimize services and experiences to retain and engage members; and

3. Position the association for continued relevance and impact.

Revision of ACC’s mission and vision to reflect globalization strategy

See the full Mission and Vision statements, and get more information on the Strategic Plan at www.acc.com/aboutacc/missionandvision.cfm

Class Actions and Judicial Budget Cuts

atrask@mcguirewoods.com (Andrew Trask) — Thu, 15 Mar 2012 10:49:53 GMT

Yesterday, a number of outlets reported on the fact that the federal judiciary is--like many other government agencies--bracing for budget cuts. In the short term, the Judicial Conference is talking about curtailing services for probation and pretrial services. But in the long term, these cuts may also affect the ways in which class action lawyers litigate.

After all, if we're all legal strategists, the courts are the terrain in which we operate. So we have to pay attention to how it's shaped in any given year. And cutting funding to the judiciary can have two larger effects on how we litigate class actions. First, it means courts will have fewer resources with which to address any cases before them. But second, because judges are themselves strategic actors who worry about their backlogs, funding cuts may very well affect how judges handle complex cases like class actions. So what effects might we see? Off the top of my head:

Fewer complaint filings. In the long terms, budget cuts might lead to fewer complaint filings. How? If the budget cuts are longer-term, we might expect to see judges employ more scrutiny at early stages in the litigation, say granting more motions to dismiss or entertaining more motions to strike class allegations. After all, cutting cases from the docket early beats monitoring them for several years. Assuming the cuts last long enough, we might see plaintiffs begin to pull back from less-meritorious filings because they know they'll be dismissed.
Less supervision of discovery. If I were a betting man, I'd guess that a cash-strapped judiciary may actually lead to more intensive discovery. Why? Because (especially in the age renewed "rigorous analysis" under Dukes), we can expect that judges will put plaintiffs to their proof when certifying class actions. And that means plaintiffs will press harder on pre-certification discovery. And that greater effort is likely to combine with courts that are less inclined to hear discovery disputes. I'd say that bodes for a small edge for plaintiffs in the asymmetric world of class-action discovery.
A defense edge in merits arguments. In general, time favors the defense in class actions. (Often because it proves apocalyptic rhetoric from plaintiffs to be wrong.) To the extent less funds mean larger backlogs, which in turn mean longer waits, defendants may enjoy a small edge in merits arguments when they finally arrive.
Less reliable superiority arguments. Federal budget cuts present a double-edged sword for class-action defendants. On the one hand, the more strapped federal judges feel, the more attractive manageability arguments look to them. On the other, judges may be more likely to believe plaintiffs' counter to some superiority arguments that cash-strapped agencies don't have the resources to provide viable alternatives. Adjust your rhetoric accordingly.

These are, of course, all fairly off-the-cuff reactions to a single news item. But I find it's often worthwhile to think through what the possible effects may be of larger events like these.

So what's the bottom line to all this gazing at the bottom line? Just that it's worthwhile to pay attention to shifts in the strategic environment that may not seem to have immediate impact. Smart lawyers take account of lots of different factors, not all of which are the latest Supreme Court cert grant.

ACC Embarks on New Strategic Plan, Building Upon a Rich History of Success

Wed, 14 Mar 2012 21:59:35 GMT

Membership engagement and key findings

Key findings include:

Members support ACC’s current mission and vision, and are highly likely to recommend ACC.
ACC’s mission attainment primarily relies on three value drivers: prominent market leadership, member satisfaction and retention, and organizational stability.
ACC is effectively meeting member needs in all key areas, and is most effective in the eight areas that most influence members to join and remain with ACC. They include:

1. Exchanging best practices and practical resources

2. Educational/professional development

3. Thought leadership

4. Access to networking opportunities

5. Member engagement and visibility

6. Brand value

7. Advocacy efforts

8. Sharing information and creating synergies

· Members’ perceptions of ACC’s effectiveness in each of the eight key areas are aligned with their perceptions of its relative importance.

· Education and professional development are highly valued by members. Member diversity suggests that ACC cannot be “all things to all members,” therefore, requiring the association to prioritize some member needs over others,

· Members believe that it is important for ACC to build and develop a strong global presence and international network of in-house counsel.

· Members recognize the potential of social media, but do not believe ACC should evolve its platform at this time.

· CLOs of large law departments can significantly impact ACC’s success and are interested in offerings that better meet their needs.

Strategic themes and approaches

The cornerstones of ACC’s new Strategic Plan incorporate three simple, yet powerful themes, which will guide decision-making. These strategic themes describe what ACC will do over the next five years to advance its mission and vision, and the specific approaches for pursuing these themes. ACC will:

1. Combine and focus resources to streamline the exchange of information;

2. Optimize services and experiences to retain and engage members; and

3. Position the association for continued relevance and impact.

Revision of ACC’s mission and vision to reflect globalization strategy

See the full Mission and Vision statements, and get more information on the Strategic Plan at www.acc.com/aboutacc/missionandvision.cfm.

ACC Embarks on New Strategic Plan, Building Upon Rich History of Success

Wed, 14 Mar 2012 21:59:35 GMT

Membership engagement and key findings

Key findings include:

Members support ACC’s current mission and vision, and are highly likely to recommend ACC.
ACC’s mission attainment primarily relies on three value drivers: prominent market leadership, member satisfaction and retention, and organizational stability.
ACC is effectively meeting member needs in all key areas, and is most effective in the eight areas that most influence members to join and remain with ACC. They include:

1. Exchanging best practices and practical resources

2. Educational/professional development

3. Thought leadership

4. Access to networking opportunities

5. Member engagement and visibility

6. Brand value

7. Advocacy efforts

8. Sharing information and creating synergies

Members’ perceptions of ACC’s effectiveness in each of the eight key areas are aligned with their perceptions of its relative importance.
Education and professional development are highly valued by members. Member diversity suggests that ACC cannot be “all things to all members,” therefore, requiring the association to prioritize some member needs over others,
Members believe that it is important for ACC to build and develop a strong global presence and international network of in-house counsel.
Members recognize the potential of social media, but do not believe ACC should evolve its platform at this time.
CLOs of large law departments can significantly impact ACC’s success and are interested in offerings that better meet their needs.

Strategic themes and approaches

1. Combine and focus resources to streamline the exchange of information;

2. Optimize services and experiences to retain and engage members; and

3. Position the association for continued relevance and impact.

Revision of ACC’s mission and vision to reflect globalization strategy

See the full Mission and Vision statements, and get more information on the Strategic Plan atwww.acc.com/aboutacc/missionandvision.cfm.

ACC Embarks on New Strategic Plan, Building Upon Rich History of Success

Wed, 14 Mar 2012 21:59:35 GMT

Membership engagement and key findings

Key findings include:

Members support ACC’s current mission and vision, and are highly likely to recommend ACC.
ACC’s mission attainment primarily relies on three value drivers: prominent market leadership, member satisfaction and retention, and organizational stability.
ACC is effectively meeting member needs in all key areas, and is most effective in the eight areas that most influence members to join and remain with ACC. They include:

1. Exchanging best practices and practical resources

2. Educational/professional development

3. Thought leadership

4. Access to networking opportunities

5. Member engagement and visibility

6. Brand value

7. Advocacy efforts

8. Sharing information and creating synergies

Members’ perceptions of ACC’s effectiveness in each of the eight key areas are aligned with their perceptions of its relative importance.
Education and professional development are highly valued by members. Member diversity suggests that ACC cannot be “all things to all members,” therefore, requiring the association to prioritize some member needs over others,
Members believe that it is important for ACC to build and develop a strong global presence and international network of in-house counsel.
Members recognize the potential of social media, but do not believe ACC should evolve its platform at this time.
CLOs of large law departments can significantly impact ACC’s success and are interested in offerings that better meet their needs.

Strategic themes and approaches

1. Combine and focus resources to streamline the exchange of information;

2. Optimize services and experiences to retain and engage members; and

3. Position the association for continued relevance and impact.

Revision of ACC’s mission and vision to reflect globalization strategy

See the full Mission and Vision statements, and get more information on the Strategic Plan atwww.acc.com/aboutacc/missionandvision.cfm.

Negotiation Studies - Cases on Both Sides

atrask@mcguirewoods.com (Andrew Trask) — Wed, 14 Mar 2012 10:58:00 GMT

In honor of an approaching book deadline, I'm introducing a new feature. Most Wednesdays, there will be a brief piece here on negotiation strategy, pulled from a case study or scholarly literature on negotiations. (Negotiation is an important part of a class action lawyer's life, particularly because so many cases end in settlement.) This will likely continue until the book itself is out sometime in early 2013.

So, today's question: Why do so many lawyers make arguments during settlement negotiations, if the real goal is to reach some kind of an agreement? They can't possibly think they're going to persuade the other side, can they?

This is the question Robert Condlin asks in an old Maryland Law Review article: "Cases on Both Sides": Patterns of Argument in Legal Dispute Negotiation, 44 Md. L. Rev. 65 (1985). Condlin's thesis is that when it comes to negotiation, lawyers are terrible arguers:

Negotiation argument is seen as more simplistic, chaotic, predictable, and illogical than is generally believed to be the case, partaking more of stylized dance or game-playing than of political discourse or analytical investigation. These qualities suggest that it is discounted in negotiation because it ought to be.

As Condlin observes after reviewing several transcripts of a negotiation exercise, the law students engaging in the exercise offer "little more than unsupported, self-serving conclusions." Condlin doesn't have a great explanation for this phenomenon. He blames legal education in part, since in 1985, law school focused almost entirely on doctrinal analysis. However, 28 years later, most law schools offer at least some practical courses, including courses in negotiation. (The most famous at this point is Harvard's Program on Negotiation.) And yet, most lawyers engage in the same patterns of argument as they did then.

So we could blame law schools for teaching poorly, or we could look to see whether there's some use to the shallower legal arguments used in negotiation.

And there is. Condlin himself, while he doesn't focus on it, provides two telling pieces of evidence. The first comes from one of the exercise transcripts, where a law student roleplaying a Legal Aid lawyer says:

Let me just ask you one question. How much is it worth to you to litigate this question, to determine once and for all, to get a judicial determination as to whether this regulation creates a legally protected expectation not to be transferred absent, according to Meachum, serious misconduct or other occurrences? I mean, I think you will recognize that this regulation was only promulgated to get around the whole reclassification hearing requirement, the ICC [Institutional Classification Committee] reclassification hearing requirement. This is a blatant attempt to try to circumvent that. There hasn't been any judicial determination. The Legal Aid Society would just love nothing better than a case like this, which involves the transfer from a minimum security to a maximum security, and most importantly in our case, the fact that our prisoner, our client, was not given any medical treatment for his heroin addiction in a maximum security prison. I think that the Society would like nothing better than to have a case as egregious as that to test this regulation.

(Emphases added.) The other comes from the transcript of a negotiation training video, where the lawyer says:

I'm always agreeable to resolving cases at an early stage. There really is only one issue though and that is how much your client wants to pay my client before we get this matter into court. This is the type of case, Mr. Harris, that I like to try and I want to try. I think you know why. When you have someone ripping off the public as your client has been doing and I'll have no difficulty establishing fraud in this case. I've got a client who is an indigent gal, whose husband is an invalid. First of all, I can't understand why you even sued her. You're not going to collect any money anyway and you know that. And the counterclaim is as valid a counterclaim as I've ever filed, and you know I've been successful in the past and I'll be successful in the future. And as emotional as this case is, where you knock a gal out of her job because of selling her a car which is defective. I'm absolutely convinced we're going to prevail and we're going to get a substantial judgment of compensatory damages.

(Emphasis added.) These both provide, in the course of their bluster, a primary reason lawyers may argue (and do so shallowly) during negotiations. They're previewing the arguments they'll make during any substantive motions or trial. Since most class-action negotiations take place against the not-so-implicit threat of bet-the-company litigation, providing a preview of one's best arguments may in fact make for compelling leverage in negotiation.

So why not make the arguments better? Why are they so often off-the-cuff instead of carefully researched for maximum effect? Most lawyers are loath to give away their best arguments, even if that fear is largely groundless.

What can defense lawyers take from this? First, it pays to have some sense of your argument before going into negotiation. But more importantly, negotiations can be an important tool for seeing just what plaintiffs think they have as a case.

Notes from DePaul Class Action Symposium

atrask@mcguirewoods.com (Andrew Trask) — Thu, 08 Mar 2012 10:54:21 GMT

A few weeks ago, I had the distinct pleasure of participating in the DePaul Law Review's 22d Annual Symposium: Class Action Rollback? Wal-Mart v. Dukes and the Future of Class Action Litigation. The Law Review staff assembled an impressive array of speakers, all thoughtful, all interesting, only one of whom spoke too fast. As is my wont, I took a lot of notes, and here's a quick summary of them.

Oddball Cases. The opening presentation, by Professor Suja Thomas, focused on the Supreme Court's alleged predilection for deciding "oddball" cases, which Professor Thomas thinks make for less-than-ideal outcomes. What is an oddball case? It's one with (1) odd facts that creates (2) a significant change in the law, where the change is (3) motivated by the odd facts rather than the legal principles, and has (4) a significant effect on less-oddball cases in the same area of law. According to Professor Thomas, Dukes is an oddball case (mainly because of the expansiveness of the class), while something like Citizens United is not. Professor Thomas believes that, in oddball cases, the Court should leave any real rule making to Congress, and decide the case on as narrow grounds as possible.

Defending Dukes. Mark Perry (one of the defense counsel in Dukes) provided a one-hour deep dive into the strategy behind the Dukes defense, and the law governing class action defense in general. I don't say this often, but this was the presentation I wish I could have given. Mark's presentation was both comprehensive and comprehensible. He covered everything from the basics of Rule 23 to how to use the often-overlooked Taylor v. Sturgell in a class certification opposition. The biggest takeaway though, was that--by reiterating the need for a rigorous certification inquiry--Dukes has shifted the cost of class-action litigation forward, a development that will have clear implications for strategy on both sides.

The "New Rules" of Civil Procedure panel. We'll leave out one of the panelists here, and focus on what the others had to say. Professor WIlliam Hubbard wondered if, as a matter of economics, the class action can get too large to certify. Professor Wendy Netter Epstein argued that the Dukes ruling may unravel a number of verdicts and settlements reached under Rule 23(b)(2) in the last few years. And Professor Marcia McCormick looked at the kind of social science evidence that might be allowable post-Dukes. The biggest takeaway from the panel for defense counsel was Professor Epstein's warning about the finality of pre-Dukes judgments: this kind of unraveling has happened before, and it can happen again.

The Power and Promise of Procedure. This was the keynote speech, given by Professor Suzette Malveaux. Professor Malveaux focused on the class action's ability to afford access to justice. Admitting that she was "surprised" by the Court's unanimous ruling on the Rule 23(b)(2) issue, she worried that requiring plaintiffs to bring damages actions under Rule 23(b)(3) would reduce the ability of discrimination plaintiffs to bring lawsuits. She also predicted that plaintiffs' counsel would focus on smaller class actions with a tighter nexus to discriminatory conduct, more state court filings, and (like Mark Perry) more pre-certification discovery. Professor Malveaux offers a strong case for a plaintiff-oriented rhetorical theme: class action exist to balance the scales for small plaintiffs. While she and I continue to (congenially) disagree on the scope of Rule 23, her keynote provided an excellent reminder that defendants must take this rhetoric seriously.

Employer/Employee Panel. This panel largely focused on Dukes's effect on labor law. As a result, it tended to take a narrow view of Rule 23. (In fact, two of the panelists really didn't discuss Rule 23 at all.) Nonetheless, it provided a number of interesting ideas. Professor Leslie Wexler argued that, in the wake of the Dukes litigation, Wal-Mart has engaged in a "genderwashing" campaign--providing possibly insincere reforms aimed at scrubbing its public image on these issues (not, she pointed out, that this was necessarily a bad thing). Professor Steven Greenberger probed the possible effects of relying too much on a decentralized, subjective human resources policy. And Bigelow Fellow Naomi Schoenbaum probed further into the potentially discriminatory effects of Wal-Mart's relocation policy, a small but often-overlooked part of the larger Dukes case. The biggest takeaway for defense counsel grows out of Professor Wexler's "genderwashing" discussion, since "genderwashing" sounds an awful lot like the kind of prophylactic "firewall" defenses recommended in Verdict for the Defense.

Dukes in Litigation Panel. And, finally, there was the practitioner's panel. There was one defense counsel, who relied on the cheap gimmick of a top ten list. But Anthony Fata offered an excellent, wide-ranging presentation that argued that Dukes was not nearly as anti-plaintiff as one might think, particularly if one embraced the "rigorous analysis" standard. And George S. Robot told the behind-the-scenes story of the fresh-off-the-press McReynolds v. Merrill Lynch. The biggest defense takeaway from this panel--which came from both plaintiff panelists--was the reminder not to be complacent: smart plaintiff's counsel are already making the Dukes opinion work for them.

One final note as I look over my notes: with the exception of the practitioners' panel, where everyone said "Dukes," you could usually predict the scholar's attitude towards the Supreme Court's opinion by whether they called it "Dukes" or "Wal-Mart." I have no explanation for this phenomenon, but it struck me as an interesting bit of applied rhetoric.

[Many thanks to Chris Burrichter and the rest of the Law Review staff, who put together an amazing set of panels, and made sure everything ran smoothly.]

The Benefits of a Flashy Thingy

ewagonheim@wagonheim.com (Eliot Wagonheim) — Tue, 06 Mar 2012 15:18:09 GMT

Yesterday, a client asked me for a neuralizer. Of course, he didn’t call it that. (And why can’t they ever use its correct name?) He used the term Will Smith tagged it with in Men in Black – the “flashy thingy.” By either term, it was the first such request I received in 25 years in practice. To me, the request made a lot of sense.

My client’s company was being acquired and we were hours away from Closing. We had finished negotiating the final documents. The final documents were coming off the printer and all we had left to do was collate and sign. In the lull is when he brought up the flashy thingy.

When he said that, it struck me that once the ink is dry on the final documents, the lawyers move on to the next transaction. The principals, however – both buyer and seller – often have to live with each other. For them, many times, the transaction is not actually a “closing” as its name would imply, but rather the opening of a new and hopefully robust relationship.

In this case, my client was looking forward to a new role as an executive vice president directing what was, for the buyer, an entirely new line of services and products. The last thing either of the principals wanted was the lingering memory of a contentious negotiation. They had a company to build and it would not be well constructed on a foundation of emotional baggage and residual resentment.

There are typically two possible approaches to the sometimes tense negotiations surrounding significant issues: (1) avoid them; (2) address the issues and deal with the fall-out. Too many business owners choose the former only to regret that choice at their leisure.

In the past month alone, we have had clients:

Decide against having us send a demand letter out of fear that a request for money on legal stationery would cause the other side to “blow up.”
Justify a termination decision on a “lack of work,” rather than the real cause of deficient performance, only to send shockwaves through the company when rumors spread that people were being let go because the business was faltering.
Lean toward approval of a significantly larger stock grant to an employee than twice performance would justify, rather than risk the employee’s disappointment.

The exercise of planting one’s head in the sand inevitably yields bitter fruit. By far, the better approach is to tackle what’s in front of you, work through the business issues and then, by continuing to look forward, allow the more contentious encounters to fade in the rearview mirror. Often one of the primary benefits of experienced counsel is to act as a buffer between principals who must later work together such that each has some level of deniability…especially where the more difficult interactions are concerned. Regardless of an attorney’s involvement, however, I have rarely seen better advice in my 25 years of practice than to do what needs to be done as honestly, forthrightly, and unflinchingly as possible, even if you sometimes find yourself patting your pocket hoping to feel the reassuring bulk of a flashy thingy.

Why the "New" Rules of Class Actions Aren't So New

atrask@mcguirewoods.com (Andrew Trask) — Thu, 01 Mar 2012 10:13:06 GMT

I've had an exhausting (but very fulfilling) US travel week. As a result, I have not yet gotten together my notes on DePaul's Symposium on Class Action Rollback. My apologies; I will try to have a post on that later this week or early next.

Meanwhile, as a peace offering, please accept this slide deck from my first presentation at the Symposium. I think it gives a flavor for my remarks.

Book Review - Wholesale Justice

atrask@mcguirewoods.com (Andrew Trask) — Thu, 16 Feb 2012 10:34:35 GMT

Last month, I received a flurry of email from various people who wanted to point me towards Mark Herrrman's column on Above the Law, "Torpedoing Class Actions." In that column, Herrmann reviewed Martin Redish's 2009 book Wholesale Justice, which argues that class actions are an unconstitutional delegation of state power to private lawyers. He also called class-action defense lawyers "derelict" and asked "Where is the practicing bar?" when it comes to advocating Redish's arguments.

Where is the defense bar on these arguments? We've been here. I first took notice of Professor Redish's book soon after I started this blog. And I looked at it again when Professor Lahav reviewed the book in 2011. I've also repeatedly repented the fact that I sold his work short in my initial review.

But when I first wrote about Professor Redish's work, I wasn't yet writing full-length book reviews. So I resolved that I would take a look at Wholesale Justice again, and try to give it a fuller treatment. (Be warned, this post is a long one. Be also warned, this post will get theoretical. You will encounter terms like "communitarian," "Presentment Clause," and "chose in action.")

Here goes:

Professor Redish has two main critiques of the American class action:

(1) class actions wind up transforming plaintiffs' lawyers into unelected, unaccountable policymakers; and
(2) class actions undermine the Article III "case or controversy" requirement.

He builds his argument chapter by chapter.

First, in Chapter 2 (Chapter 1 is his introduction), he argues that, as a matter of political theory, policymaking in a democracy requires accountability to citizens. (Legislators and executive politicians have this accountability through election. Judges arguable are not policymakers under this theory, they simply interpret policy set by others.) In class actions however, the real parties in interest are not the litigants, but the plaintiffs' lawyers, who choose the subject matter of suits and the causes of action they will asset. As a result, they're accountable to no one. Professor Redish points out that these lawyer-driven policy actions would be legitimate if Congress specifically authorized them (as it does with private attorney-general actions, parens patriae actions, and qui tam actions), but it has not done so for Rule 23 generally. And, if it were to do so with Rule 23, it would be embedding a substantive change into a procedural rule, which would violate the Rules Enabling Act. (Congress could conceivably get around this by simply enacting a series of "bounty-hunter" provisions in each of its statutes. But what are the chances those would all get passed?)

In Chapter 3, Professor Redish takes on the Rules of Civil Procedure more directly. He argues that the Rules have a large substantive effect on lawsuits in the United States. That effect suggests that the Rules are, at least in part, substantive rather than procedural. These substantive effects lead to a politicization of class actions. In other words, both plaintiffs' attorneys and defendants wind up lobbying to reduce or expand the use of class actions, either by statute (say, CAFA, which gets surprisingly little mention), by more direct lobbying (like pay-to-play practices), or conceivably by lobbying judges. The problem, Professor Redish argues, is that the Rules Enabling Act wasn't supposed to delegate substantive lawmaking to the courts. To the extent it does so, it may violate the non-delegation doctrine. (This is where Herrmann's quip about the Presentment Clause comes in. If courts are making substantive law, they are arguably violating the Presentment Clause, which dictates the protocol for turning a bill into a law.)

In Chapter 4, Professor Redish turns to political theory, to set up his next constitutional argument. He points out that most academic justifications draw heavily on political theory, and identifies three schools of thought that justify class actions. The first is the utilitarian school (although most lawyers might recognize it as law and economics): which argues that class actions are justified because of the good effects they bring about. The second is communitarian (what class-action lawyers often call the "entity theory"): class actions basically function as group rights, and function as an entity unto themselves rather than a joinder of individual claims. The third is public action theory (which, as applied here, maps on to deterrence arguments justifying class actions): class actions are justified because they deter wrongdoing by large corporate entities. What we need, Redish argues, is an "individualist" theory that justifies class actions based on the fact that individuals have a right to control their own lawsuits.

In Chapter 5, Professor Redish makes his best attempt at an individualist theory. He starts out by recognizing that the common law system and constitutional law have given individuals personal roperty rights in any legal cause of action of which they are a part. (These are called "choses in action.") Because choses are a personal property right, they cannot be taken without due process. And yet, according to Professor Redish, class actions deprive individuals of choses all the time, either because they are "mandatory" (like those under Rule 23(b)(1) and 23(b)(2)), or because they rely on the passivity of the class member. This, according to Professor Redish is a serious problem.

Finally, in Chapter 6, Professor Redish takes on the phenomenon of settlement class actions, which he argues violate Article III's "cause or controversy" requirement, since they do not involve any adversarial practice.

Overall, Professor Redish's book is a thoughtful and gimlet-eyed critique of the modern class action, and of modern class-acton scholarship. Its largest problem is that, while it is long on theoretical critique, it is woefully lacking in analysis of in-the-trenches class action rulings. This deficiency matters because in some cases, Professor Redish is critiquing things that aren't really problems anymore. I'm no big fan of class-action settlements, but courts already frown on "settlement class actions," and have since the Supreme Court decided Amchem in 1998 and Ortiz in 1999. Certification of large settlement classes--even controversial ones--usually now comes after at least some adversarial practice. (This is a phenomenon Professor Nagareda addressed in his 2007 book Mass Torts in a World of Settlement.) It's this lack of practical engagement with the class action as it's actually litigated that makes Professor Redish's arguments difficult to apply. To see how, let's take each of his three constitutional arguments in turn:

(1) The non-delegation argument: because of its ability to confer a substantive right of action (a de facto "bounty hunter" provision) into statutes that don't otherwise authorize one, Rule 23 (and possibly the Rules Enabling Act) is an unconstitutional delegation of government power. This is a bold argument, but its boldness undercuts its likely effectiveness. Class Actions have existed in their modern incarnation for more than 45 years. It is extremely unlikely that a district court will decide to simply invalidate Rule 23 on non-delegation grounds, that a federal appeals court would reverse a district court's refusal to do so, or that the Supreme Court would grant certiorari on this question. One might eventually force this argument through the court system, but it would likely take a unified appellate campaign on the scope of Thurgood Marshall's against institutionalized segregation.

(2) The due process argument: given an individual's property right in a chose of action, it is unconstitutional to deprive one of a chose without due process. The largest problem with this line of argument is that a properly-certified class action arguably already meets the due process requirement. At least, that's what the Supreme Court has implicitly held when it has discussed the role of Rule 23 inensuring due process for litigants.

(3) The "case or controversy" argument: class actions (in particular, settlement class actions) don't address actual cases or controversies between parties. Instead, they are manufactured by plaintiffs' lawyers, fronted by class representatives who likely don't care, and the settlements are agreed to by defendants eager to buy global peace. The primary weakness to this argument is that it's just not that true anymore. Oh, plaintiffs lawyers still manufacture lawsuits, and class representatives are often disengaged or easily manipulable. But the "settlement class action" is much rarer than it was pre-Amchem. Moreover, while this is an outstanding challenge for an objector to keep in mind, you are unlikely to find many defendants who will want to torpedo their own settlements for the sake of a constitutional argument.

Does this mean that Professor Redish's book is (as one of Herrmann's commenters called academic scholarship in general) "useless and of little practical value"? Hardly. While I agree that too much class-action scholarship has too little connection to class-action practice, and while I wish Professor Redish had paid more attention to how courts were actually treating class actions in the wild, Wholesale Justice is still remarkably useful. Like I said then, you can't take Professor Redish's arguments off the rack and present them in a brief, but you can use them to make specific arguments:

Class actions cannot enlarge substantive rights. Defense lawyers make these arguments all the time, often citing many of the same sources that Redish does in his discussion of the Rules Enabling Act and the non-delegation doctrine.
Class actions are not superior to government action. This is another favorite of class-action defense lawyers. And this is somewhere that Professor Redish's work can be particularly useful. Drawing on his analysis of why it's important to leave individuals with control over their own litigation ties in directly to some of the superiority language in Rule 23(b)(3).
A class representative must be adequate. I've made no secret of the fact that I think adequacy is misunderstood and underenforced in class-action practice. Professor Redish provides a strong constitutional foundation for arguing for a more rigorous adequacy inquiry. After all, adequacy is the key to allowing a class action while preserving due process. Given its importance, why would a court give that requirement short shrift?

Each of these arguments is one defense attorneys already make. And each will be (and, frankly, have been in many cases) enhanced by a better understanding of Professor Redish's work.

So, when it comes to Wholesale Justice, where have the defense attorneys been? We've been here the whole time. Glad you could join us.

[Edited to more accurately describe one of the comments to Herrmann's post.]

British Columbia's New Energy Plan

wgb@cwilson.com (Warren Brazier) — Fri, 03 Feb 2012 17:12:06 GMT

Today, the BC Government announced another in a series of many energy plans and strategies. The 2012 Natural Gas Strategy actually puts energy front and centre for economic development in the Province. The policy is big on ideas, but short on details.

According to the Government, liquefied natural gas (LNG) is to be the key driver for the provincial economy for decades to come. The global demand for liquefied natural gas is strong and BC's estimated natural gas reserves are substantial. Local First Nations have expressed support for LNG facilities and the pipelines that will bring the natural gas from the North. Nominating LNG as a pillar of the BC economy makes good sense. How the new energy plan is implemented is of course, critical.

For the BC renewable energy industry, growing the demand for electricity in the Province is a good thing. The important decision is how much of the new LNG development will be powered by renewable energy and how much will be from natural gas. The Gas Strategy seems to state that the first two LNG facilities in Kitimat, BC will be required to be fueled by renewable energy. The problem right now is the Province is short on renewable energy generation and even shorter on transmission. Much needs to happen on both fronts before the Government's LNG objectives can be met.

Not to be forgotten are the Province's climate change goals. Extracting and exporting more natural gas will put increased pressure on the Province's greenhouse gas emission objectives.

British Columbia is at a cross-road with respect to climate change policy and economic growth. The Province is blessed with an abundance of natural gas and buyers in Asia are willing to pay for it. At the same time, to its credit, the Province has laws which restrict GHG emissions. A clear and obvious hedge against GHG emissions is renewable energy. The challenge for the Province is to balance economic growth with a GHG intensive industry with its climate change laws.

Renewable energy will play an important role in the development of the Provincial economy. New electricity infrastructure, both generation and transmission, is critical to meet the opportunity presented to the Province. Both mining for minerals and turning natural gas into liquefied form (LNG) for export, require massive amounts of energy. Meeting this new demand with renewable electricity with natural gas as a possible backup is smart fiscal and environmental policy. GHG emissions are lower when electricity from renewable resources is used rather than natural gas to power the Province.

In the coming days or months, we expect to see further details on the following issues:

The Province's definition of "clean". Does this mean renewables only?
The BC Hydro grid. Is there sufficient electricity on the existing transmission grid for Apache Phase 1, Apache Phase 2 and Douglas Channel LNG facilities?
Carbon capture and storage. Really? Where?
Infrastructure Royalty Program Credits. Will this be available for electricity infrastructure (ie, new or upgraded transmission lines) ?
Self-sufficiency changes. Drought insurance is gone. What now? Increase in imports?

Provided development of the natural gas fields and the mines in the North are in compliance with world class environmental practices, in cooperation and participation with First Nations and local communities, British Columbia is well positioned to be a major player in the new world economy. Some new thinking on old ideas is needed. But let's get it done while the opportunity is there.

Be sure to follow me or the Megawatt Blog on Twitter.

Insight from Other Strategists - Ronald Coase on Blackmail

atrask@mcguirewoods.com (Andrew Trask) — Thu, 26 Jan 2012 05:26:00 GMT

For those unfamiliar with Ronald Coase, he is the 101-year-old Nobel Laureate who laid a number of the foundations for law and economics when he published his Nature of the Firm (which explained why people would use corporate forms instead of just contracts) and Problem of Social Cost (which explained why law should seek to minimize transaction costs).

In 1988, Professor Coase turned his formidable intellect to another question that had vexed legal scholars for some time: why is blackmail illegal? As Professor Coase pointed out, the central paradox of blackmail is that it makes it illegal to threaten to do something (reveal facts that would embarrass or harm someone) that is perfectly legal to actually go out and do. In other words, if I know something embarrassing about, say Russell Jackson, it is perfectly OK for me to reveal those facts on this blog. But it is not OK for me to ask Russell to buy me an expensive dinner in exchange for not revealing those facts. Why is that?

Professor Coase's solution--no surprise--draws on his previous work about minimizing transaction costs. He starts from the principle that:

It is obviously undesirable that resources should be devoted to bargaining which produces a situation no better than it was previously.

Based on that principle, Professor Coase argued that blackmail transactions do not provide any benefit to the victim (since he is in the same state as before), but do impose a cost.

It is not difficult to understand why people feel this way. A blackmailer threatens to do something which will harm his victim unless he is paid a sum of money or receives some other benefit,and by emphasizing the unpleasant consequences for the victim of not meeting his demands (or even inventing them, as in the "Mr. A. Case"), he endeavours to extract as much as he can from him. It may be objected that this is exactly what happens in business negotiations. And this is correct. But the situations are not identical. The demands made by a businessman are constrained by the competition of other businessmen, by the fact that the party threatened is likely to have a good idea of whether the threat has to be taken seriously and by the adverse effects on future business of being difficult in negotiating. ...

Business negotiations (which may also cause anxiety) either lead to a breakdown of the negotiations or they lead to a contract. There is,at any rate, an end. But in the ordinary blackmail case there is no end. The victim, once he succumbs to the blackmailer, remains in his grip for an indefinite period.

(Emphasis added.) In other words, the real problem here is not the threat, it is the fact that there is no way for the blackmail victim to put an end to the threat. Paying once does not guarantee that

The logic of Coase's blackmail argument extends to class action defense. Let's leave aside for the moment the common argument that some class actions are no more than legalized extortion. Here are two other ways in which the argument might apply, both of which will be familiar to readers of this blog.

The Aqua Dots case: A manufacturer comes across a consumer issue. It attempts to solve that issue through voluntary action (sometimes while cooperating with government agencies). Despite its voluntary action, an entrepreneurial plaintiffs' lawyer demands to be cut in for some nominal "improvement" to the relief, plus an attorneys' fee. So the manufacturer faces the choice of paying the counsel a fee to go away, or adding the cost of litigation to the cost of remedying the problem in the first place. (Judge Easterbrook solved this by deciding that a plaintiff who would simply piggyback on a voluntary recall is not an adequate representative of the class.)

The Thorogood case: Plaintiff files a class-action lawsuit on questionable grounds. Defendant defeats it. Plaintiff files again in a new jurisdiction. Plaintiff writes a letter pointing out to the defendant that there are many jurisdictions left to file in, and defending lawsuits is costly. So the defendant faces the choice of paying plaintiff or facing multiple lawsuits until one wins. (The Supreme Court has decided this issue by encouraging courts to follow the practice of judicial comity, respecting other denials of class certification for the same subject matter. It's an open question still how successful this solution will be.)

This is why "blackmail" is a problem. It's a bargain for a promise not to do something. And that's what makes it analytically useful for class actions, because class actions can be viewed as an attempt to extract concessions in exchange for a promise not to sue, or at least a promise not to sue again.

From the defendant's standpoint, that's part of what makes them a bad deal. Signaling a willingness to bargain in that fashion just opens one up to more and more attempts to make similar deals.

Using the rhetoric of blackmail, while attractive, is unlikely to persuade some judges that there is a real problem. But using the logic behind prohibiting blackmail makes a great deal of sense: most courts can sympathize with the fact that some litigation does not actually promote any public benefit. And, if that is the case, there are real questions as to whether the lawsuit is really worth the court's resources.

What Great Basketball Coaches Can Teach Us About Trial Prep

areed@reinhartlaw.com (Anne Reed) — Tue, 24 Jan 2012 17:40:25 GMT

Dean Smith, the hall-of-fame University of North Carolina basketball coach, was a master at preparing his players for opponents. I once heard a story that described a time when Coach Smith had to get his Tarheels ready for an opposing team that had significant height at numerous positions around the court. Rather than having a normal practice, he gathered brooms and mops from the janitorial closet and distributed them to defenders as arm extenders to block shots. If Coach Smith’s players could shoot over brooms, then they could certainly shoot over their upcoming vertically-enhanced opponents. Like many of the best...

Ten Simple Ways to Improve Class-Action Scholarship

atrask@mcguirewoods.com (Andrew Trask) — Thu, 12 Jan 2012 10:00:44 GMT

Last week, my post on the Ten Most Interesting Articles in 2011 got linked by Professor Alexandra Lahav at the fine Mass Tort Litigation Blog. She recommended my list of ten interesting but unwritten articles to students looking for notes topics, although she cautioned that

I don't agree with Mr. Trask's assessment of my own work, legal academia or what people ought to write about …

Which is a completely fair opinion, even though I'm not entirely sure what those assessments are myself. Leaving aside what I think of Professor Lahav's work (I've featured it three times on this blog, and included it in one "Ten Most Interesting" list--I think her work is thought-provoking and worthy of serious discussion), I recently bemoaned the fact that 2011 was not a great year for interesting class-action scholarship. (Specifically, I complained that too many articles either previewed the same Supreme Court cases, or predicted the death of the class action.) And, in doing so, I stepped into a old debate that has grown heated in the past few months: what is the point of law school (and law professors) anyway?

The sources of that heat make this a particularly important question right now. The cost of legal education keeps rising, and so does legal-sector unemployment. While it grows more expensive, it also appears that legal education is becoming less relevant to actual law practice. Most of us have to justify our existence sometime, and law professors are taking their turn in the hot seat. They're not all doing it gracefully. While some have been thoughtful, others have been defensive, or self-congratulatory.

So what are legal scholars good for? They have two primary roles: they teach students and they research. I'll leave the teaching alone because it's been (let's just say "too long") since I was in law school, and I don't currently interview new hires.

But legal scholarship? Here I have an opinion, one that's been informed by reading pretty much everything published on class actions in the last four years through LEXIS or SSRN. I frequently rely on legal scholarship about class actions, on this blog, in my other writing, and in my own legal work. I think scholarship is more useful than most lawyers realize, even if you do have to sift a lot of silt to get to the gold. Since this is a defense-oriented blog, I focus on scholarship that is useful for class-action defense lawyers, but those are hardly the only worthwhile articles.

But I also think that legal academia is suffering from an ethos problem, one that stems from too much legal scholarship making too little effort to be relevant or interesting to those actually in the law. And, since law review articles may cost as much as $100,000 of student tuition each, that's a shameful waste of resources.

I'm a firm believer in academic independence. It enables scholars to follow where the facts and law lead for a given problem. That's something professional advocates can't do in the same way. And I accept that academic independence means that legal academia will never be merely a free R&D department for private lawyers.

But there is no reason, given the money law students (and, by extension, taxpayers, law firms, and clients) spend to fund those articles should result in so many proposals that ignore current law, faux dissents to existing opinions, jeremiads, or rehashes of the same Supreme Court cases. It should be eminently possible for academics to write articles that are original, useful, and still interesting to read.

So, based on those assumptions (and because I have a book deadline at the end of the week), here are ten simple things legal academics could do to make their work more relevant, and more interesting:

More looking for the overlooked. Professor Miriam Gilles wrote an excellent article on class-action arbitration--in 2005. It was good because lawyers weren't paying much attention to arbitration at the time. In the past year, as the legal status of class-action arbitration got resolved, we saw a flurry of articles rehashing Professor Gilles, but nothing focusing on emerging trends in numerosity, motions to strike class allegations, or new uses for superiority. Why not? Why weren't there any professors watching these trends?
More focus on district court cases. Where do you find the overlooked? On the front lines. And those are the trial courts. Based on two years' work with LEXIS, I can confidently say that the federal court system produces between 50 and 100 opinions in class actions each week. That's a lot of raw data, and a lot of overlooked trends. Who's looking there? Hardly anyone. Instead, everyone focuses on the same few appellate cases.
More focus on how the common law actually works. Many law review articles focus on Congressional action, what the Supreme Court should do, or arguments that are just plain contrary to existing law. But it takes little effort to come up with our own wish lists and invoke the genies of a unified Congress or Supreme Court. In our common-law system, most of the real change occurs when lawyers convince a trial court to rule their way. (That then generates those cases for appeal that the Langdell method loves so much.) So why aren't more articles proposing new arguments for lawyers to make?
More work with primary litigation documents. District court cases shouldn't even be a cutting edge. Lawyers breed documents like crazy, and in these days of ECF and PACER, it is entirely possible to get access to entire court dockets without leaving the comfort of your office. So why aren't law professors taking more advantage of these rich seams of raw data? Imagine a survey of the most common commonality arguments. Or the most common discovery requests, and whether they get actual responses.
More natural experiments. There are 13 federal judicial circuits, 89 federal district courts, and 50 state court systems. Each of these has different judges, and come up with subtly different lines of cases. Economists love stuff like this; it means they can test all kinds of crazy theories. Why haven't our law professors done that? Got two different rules on experts at class certification? You can test how that affects certification rates, or filings of class actions. Where are these articles?
More predictions and more followups. Scientists make predictions, and then follow up on them later. Legal scholars make predictions ("The class action will die soon!") but rarely follow up on them. And yet, the followup is the most informative part. It even adds some drama--everyone loved when Oprah would revisit her best stories.
More changing of minds. Unless a scholar knows everything when she starts out, she should encounter facts that will change her views at points. (It's certainly happened to me.) Yet we rarely see that in scholarship. Depaul professor Mark Moller recently did so in an interesting article on due process arguments. Why isn't this more common in articles? From a rhetorical standpoint, it adds credibility to an argument. And from a human-interest standpoint, it adds some drama.
Less overt ideology. Academics are certainly free to root for whomever they want and vote for whomever they like. But the ideal of the academic is that she is free to go where the facts lead. The appearance of partiality can harm even disciplines that should be immune from political controversy. So why not leave the partisanship to the lawyers and think tanks and tackle questions without preconceptions? I guarantee scholarship that aims toward neutrality is more useful to judges, and there is no question articles would be more interesting if we couldn't predict the results just from the author's name.
More fact-checking. Plaintiffs make one claim. (Class actions as a whole deter corporate wrongdoing.) Defendants argue the opposite. (Class actions in practice overdeter by focusing on government investigations.) The factual debate has a real impact on which legal rule is a better idea. Who's right? Legal scholars are ideally placed to referee these debates, particularly if they're seen as open-minded and not overtly ideological.
More identification of stakes. Legal debates happen for a reason, and it's rarely just that one side is good and the other is not. Instead, specific arguments often involve specific strategic and tactical choices in litigation. Identifying the practical stakes to various legal positions helps to put those debates in context--for students, for judges, and for practitioners new to an area.

These suggestions are simple, but not easy. Fact-checking takes work. Convincing student editors that district-court rulings have merit will be a slog. But they should lead to scholarship that's both interesting to read and actually relevant to how lawyers argue (and judges decide) cases.

I've had my fill of top ten lists, and I'm sure you have too. Next week, we're back to the usual "case and a thought" method. So come back then for the classic case In re General Motors Pick Up Truck Fuel Litigation, and a review of Judge Posner's How Judges Think.

Jumpstarting Your Practice: From Backpack to Briefcase

Thu, 22 Dec 2011 16:04:13 GMT

Eric Parker JD '86, discusses his upcoming presentation on marketing legal services in the digital age that will be part of a Suffolk Law Advanced Legal Studies conference January 13 and 20, 2012. Learn about the conference at http://bit.ly/uKxT4N.Eric Parker JD '86, discusses his upcoming presentation on marketing legal services in the digital age that will be part of a Suffolk Law Advanced Legal Studies conference January 13 and 20, 2012. Learn about the conference at http://bit.ly/uKxT4N.

Happy Birthday to US! Fashion Law Blog Turns Two

sriordan@foxrothschild.com (Staci Riordan) — Tue, 29 Nov 2011 03:17:10 GMT

I hope everyone enjoyed their Thanksgiving. As most of y'all know, it is my favorite holiday - a time to reflect on the things we are #grateful for, a time to spend with family and friends, and a time to start planning and making goals for next year.....and a time to celebrate this blogs birthday!!

Yup, we turned two over the Thanksgiving break and I wanted to take a moment to say thank you to all you out there for your ideas, feedback and support....for disagreeing with me, for your contributions and your friendship.

Last year, I thank you for:

making "Fashion Law" a reality and not something laughed at

And I never thought this would happen so soon, but this year Fashion Law became a Movement! I am still in awe that we made it happen.......I can only imagine what our future holds.

So thank you all for sharing your passion, love of the law, and commitment to all things fashionable.

And what's up next? Well, you know what they say about the terrible twos, nah. Just kidding.

We will be growing and maturing, only bound by the limits of our creativity and imagination. Hope you'll stick around for the ride!

Marketing Your Law Practice through CLE

Tue, 15 Nov 2011 16:06:21 GMT

On this month’s show, host Jared Correia, Law Practice Management Advisor with Mass. LOMAP, is joined by Tim Baran, Principal of BaranCLE and Community Manager at RocketMatter, as the two take a look at some ways to market a law practice through CLE participation. Tim and Jared talk about utilizing traditional and non-traditional marketing techniques for securing CLE faculty positions, discuss methods for approaching bar associations with respect to panel spots and cover the options that lawyers have for putting on their own CLE programming.On this month’s show, host Jared Correia, Law Practice Management Advisor with Mass. LOMAP, is joined by Tim Baran, Principal of BaranCLE and Community Manager at RocketMatter, as the two take a look at some ways to market a law practice through CLE participation. Tim and Jared talk about utilizing traditional and non-traditional marketing techniques for securing CLE faculty positions, discuss methods for approaching bar associations with respect to panel spots and cover the options that lawyers have for putting on their own CLE programming.

ABA Law Firm Marketing Strategies Conference 2011

dmk@denniskennedy.com (Dennis Kennedy) — Tue, 01 Nov 2011 02:35:22 GMT

Here’s a great conference for anyone interested in marketing a law firm or a law practice. The ABA Law Firm Marketing Strategies Conference 2011 will take place on November 8 & 9 in Philadelphia. The Conference is called titled “Reputation, Referrals, Rankings,” and has a great agenda of timely topics, including: Tuesday, November 8 Keynote [...]

Here’s a great conference for anyone interested in marketing a law firm or a law practice. The ABA Law Firm Marketing Strategies Conference 2011 will take place on November 8 & 9 in Philadelphia.

The Conference is called titled “Reputation, Referrals, Rankings,” and has a great agenda of timely topics, including:

Tuesday, November 8

Keynote #1: Lie to Me! “Emotion Management” of Your Marketing Will Invite Trust, Not Contempt
ROI: Examining the Return on Investment for Business Development Spending
The Business of You – Surviving and Thriving in Big Law
Luncheon: Effects of Rankings & Ratings on the Legal Profession
An Ethics Guide to Lawyer Marketing
The Power of Video in Lawyer Marketing
Golden Gavel Awards Ceremony and Reception

Wednesday, November 9

Keynote #2: “In Search of…Lawyers” How the Internet Has Changed Everything
Social Media: Does Your Firm Marketing Plan Need A Face Lift? (I’ll be Joining Tom Mighell and Tim Stanley on this panel)
Associate Business Development Training
Luncheon: 10×10 – 10 Topics, 10 Presenters, 10 Minutes Each. (It’s like speed dating, but better)

The best news is that there is still time to register and some seats still available. It’d be great to see you there.

For more information, see the conference website here (conference brochure).

Also, there’s also still time to register for the replay on November 3 of the very popular LinkeIn for Lawyers webinar Allison Shields, Michelle Golden and I presented in August. Details are available on the ALI-ABA website.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]

Follow my microblog on Twitter – @dkennedyblog. Follow me – @denniskennedy

The Lawyer’s Guide to Collaboration Tools and Technologies: Smart Ways to Work Together, by Dennis Kennedy and Tom Mighell. Visit the companion website for the book at LawyersGuidetoCollaboration.com. Twitter: @collabtools

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