lukegilman.com : The Blawgraphy
Life of a Law Student, University of Houston Law Center

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Please note: I'm no longer updating this particular blog, but keep it around for archival purposes. Visit me at the current blog at www.lukegilman.com

A Course on the Legal Profession

“Indiana Law faculty recently voted to revise our 1L curriculum to make room for a new 4-credit Legal Professions course.”

Bill Henderson at the Empirical Legal Studies Blog: A 4-Credit 1L Course on the Legal Profession

This seems like a very, very good idea to me. Did any of us have even the inkling of a clue of what we were getting ourselves into?

The course itself appears to be an empirical approach to Professional Responsibility. The texts Henderson is using (mentioned in the comments) look like fascinating and would reward a little self-study – Jerry Van Hoy: Franchise Law Firms and the Transformation of Personal Legal Services, Sara Parikh and Bryant Garth, Philip Corboy and the Construction of the Plaintiffs’ Personal Injury Bar, Michael Kelley, The Lives of Lawyers, Lynn Mather, Divorce Lawyers at Work: Varieties of Professionalism in Practice, Stephen Daniels and Joanne Martin, Texas Plaintiffs’ Practice in the Age of Tort Reform: Survival of the Fittest — It’s Even More True Now (.pdf).

Not so Long Ago… Race in Law School

This excerpt from a recent Texas Monthly article on the creation of Texas Southern University School of Law caught my eye -

… its original purpose was not to provide black Texans with educational opportunities but to justify denying them those opportunities. In 1946 a young black man in Houston named Heman Marion Sweatt applied to the University of Texas School of Law. He was refused admission because of his race. Sweatt filed suit against the university, and under the warped logic of segregation, he had a good case, because Texas had no “separate but equal” facilities. The trial court delayed the case so that the state could cobble together a law school for blacks, and UT officials announced that it would open one the following year. Its home would be a site south of downtown Houston, where the Houston Independent School District had operated a junior college for blacks with one permanent building and a collection of Quonset huts. In the spring of 1947, the Legislature authorized the purchase of the college from the HISD for $2 million and established it as Texas State University for Negroes. Sweatt still sought admission to UT, but the trial court, ruling that the state had complied with its duty to provide separate but equal facilities, refused to order university officials to admit him.

Only 60 years ago UT law was willing to spend $2 million to create a whole new law school rather than admit a black student. Law school admission has frequently been a focal point of civil rights cases, including Hopwood v. Texas and Grutter v. Bollinger. I’m told the University of Houston didn’t graduate a black law student until 1970. Minorities now represent 25.7% of our student body according to the Law School Minority Report. So the legal community has come a long way in the last 30-40 years. Many would say it has a ways to go yet.

Minority Representation in the Legal Community

The status of minority groups in the legal community has improved of course (See EEOC Report: Diversity In Law Firms); there was no where to go but up. However, minorities continue to be underrepresented in judicial Clerkships (See A Demographic Profile of Judicial Clerks) and are proportionally underrepresented both as associates in law firms, a disparity that is significantly widened in the ranks of law firm partners. According to a 2007 NALP report Women and Minorities in Private Practice, there are 1,335 associates at law firms in Houston and 15.88% are minorities, but of the 1,426 law firm partners in Houston, only 5.4% are minorities. This is in stark contrast to minority representation in other professions. The American Bar Association released a report in 2004 – Miles To Go 2000: The Progress of Minorities in the Legal Profession comparing minority representation in the legal profession vs others:

Total minority representation among lawyers is about 9.7 percent, according to the 2000 U.S. Census, compared to 20.8 percent among accountants and auditors, 24.6 percent among physicians and surgeons, and 18.2 percent among college and university teachers.

The Power of the Profession

The importance of this is magnified by the nature of the profession. Grassroots movements and demonstrations were instrumental in providing the social pressure that initiated the civil rights movements but it was lawyers such as Charles Hamilton Houston and Thurgood Marshall who secured the victory by winning cases and promoting the enactment of legislation that recognized and protected the rights of minorities in all aspects of life. Incidentally, one of our professors last year, Anthony Chase, is the son of one of the first black students to graduate from the University of Texas. Should it surprise us that all of his siblings are lawyers as well?

While the imbalance is apparent to just about everyone, consensus disintegrates on the question of what to do about it. From a preference for affirmative action following the civil rights movement, the pendulum has swung the other way in recent years. The Fifth Circuit’s decision in Hopwood which the Supreme Court declined to review, overturned the use of racial preferences in admissions to UT Law School. Pre-Hopwood, usually 30 to 40 African Americans enrolled in the UT law school. Post-Hopwood 11 African American students were accepted to UT Law. None enrolled.

But what does representation represent?

In the recently decided Parents Involved in Community Schools v. Seattle School District No. 1, Chief Justice John Roberts noted “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race . . . Racial imbalance is not segregation, and the mere incantation of terms like resegregation and remediation cannot make up the difference.” In his New Yorker piece Reversals, Nicholas Lemann focused his attention on the concurring opinion of Justice Clarence Thomas, the sole black Justice on our Nation’s highest court, who advocates an ‘absolute prohibition on taking race into account for any reason.’ Many find it baffling that the sole representative of the black race on the Supreme Court takes such a strident stand against affirmative action. Personally, I don’t find anything baffling about it at all. The racism we’re exposed to today is of a different form and it can cut both ways. As Thomas wrote, “What was wrong in 1954 cannot be right today.”

In a little comment discussion over at Part Time Law Mom the subject of mixed race came up. My father is anglo, my mother hispanic. I guess that makes me bi-racial, though I’ve never felt like a minority. The issue comes up in unexpected ways, however. At our orientation session last year, one of the first official hoops we jumped through as a newly minted UH law students was to declare exactly what it is that we are. It’s mostly a basic contact form but it contained a demographic information section, with the “check one” treatment under race that has become a particular pet peeve of mine. Are we really that out of touch, Admissions?

check-one.gif

Some of us might need to check more than one. Texas did finally decide to get rid of those miscegenation laws, after all. (Incidentally, what a bizarrely interesting practice area this would have been – mestizos were allowed to marry blacks, ‘white’ Mexicans were not. I wonder what the rules of evidence were for that one?) I seriously doubt there’s anything all that sinister going on here with this data, though I have no idea what it’s used for. The issue it raised for me though was this – is that really a question I want to have to answer?

What kind of statement am I making when I check one box but not another? Have I added or diminished anything from the student body, my legal education or the bar to which I aspire? Do I influence the admittedly fuzzy calculus of the admissions process? Does it change who I am or how hard I study? Does it change the perceptions of my achievement or advancement? Have I unwittingly closed or open certain doors of opportunity? or opportunism? Or is it just another name to be called?

Do-It-Yourself (DIY) Computer Forensics

I only have a week left of my summer “break” but I think I found one last project to sneak in – making a forensically sound copy of my hard drive – punk rock style.

Law Technology News: Do-It-Yourself Forensics

The Death of the Billable Hour, Wishing Does Not Make it So

Scott Turow notes that “[f]or too many litigators, our life increasingly is a highly paid serfdom—a cage of relentless hours, ruthless opponents, constant deadlines and merciless inefficiencies.” His culprit? The Billable Hour.

When I left the government for private practice in 1986, the hours expectation for young lawyers was 1,750-1,800 hours a year in the large Chicago firms. Today it’s 2,000-2,100—even 2,200 hours. And the only real outer boundary is that there are 24 hours in a day—and 168 in a week. Increasingly, if we allow time for trivialities like eating, sleeping and loving other people, it is clear, as a simple matter of arithmetic, that we are getting close to the absolute limit of how far this system can take us economically.

The death of the billable hour is of course, prematurely heralded. Even Turow does not seem to think the billable hour is disappearing any time soon. Rather than predicting its demise in the article, he concludes by merely wishing it would go away.

Scott Turow: The Billable Hour Must Die

The issue is one of incentives. While the client’s interest is in keeping costs as low as possible while still ‘winning,’ and the lawyer’s responsibility is to act in the interests of the client, the billable hour upends this little economic ecosystem. The lawyer – economically rational, rent-seeking, profit-maximizing mercenary that he is – has an incentive to bill as many hours as he can get away with. Clients are savvy enough to recognize the disconnect and billing becomes a source of suspicion and at times, contention in the attorney-client relationship.

So if we’re not counting off the hours of the day in sixths, how will we get paid? Ay, there’s the rub. Turow mentions one alternative, the “fair fee method” which is described as by a practitioner as “We do the work, and at the end we get together and agree about what’s a fair fee.” Gee, I can’t imagine any dispute would arise out of that arrangement. Hire that guy to write all my contracts. Turow does not seem to do more than sip from this kool-aid either, but neither does he make any other suggested alternatives. He hopes merely that somehow, we’ll figure out a way.

Some interesting responses from Daniel Solove at Concurring Opinions, Scott Greenfield at Simple Justice, David Giacalone at f/k/a, Carolyn Elefant at My Shingle.

Recommended Reading for before Starting Law School, The Legal Analyst, A Toolkit for Thinking about the Law

Before you start law school at Houston they give you a list of recommended books, most of which are at least marginally useful. I particularly recommend the Buffalo Creek Disaster and A Civil Action if you’re looking for the most interesting of the lot. I flipped through some of the other stuff such as Acing Your First Year of Law School and Law School Confidential at the bookstore and decided I’d rather flunk out of law school than wade through that schlock.

Via the Volokh Conspiracy, I learned of a new book by Ward Farnsworth, a law professor at Boston University and former clerk to both Judge Richard Posner and Justice Kennedy of the Supreme Court, called The Legal Analyst: A Toolkit for Thinking about the Law. I haven’t read the book, but judging from the sample chapters and subsequent posts from Farnsworth on Volokh, I can’t imagine a better primer for some of the concepts you’ll encounter. Rather than preview any of the substantive coursework (Contracts, Torts, etc.) Farnsworth tackles the analytical framework that is unique to the law. If you only had time to read one book before law school starts up, this wouldn’t be a bad choice.

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