Monthly Archives: October 2011

The Future of Law Firms: The Electronic Whip

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Former Big Law partner Stephen Harper loves to complain about law firms’ increasing tendency to focus on “metrics.”  Having enjoyed the good life by jacking up “billable hours” and “collectibles,” many big firm partners are trying to find new ways to squeeze more productivity–and thus more money–from their leveraged model.

I fear they may find their answer at Disneyland.  A recent piece in the Los Angeles Times details how Disney has begun cracking the “electronic whip” on its employees:

In the basements of the Disneyland and Paradise Pier hotels in Anaheim, big flat-screen monitors hang from the walls in rooms where uniformed crews do laundry. The monitors are like scoreboards, with employees’ work speeds compared to one another. Workers are listed by name, so their colleagues can see who is quickest at loading pillow cases, sheets and other items into a laundry machine.

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Isabel Barrera, a Disneyland Hotel laundry worker for eight years, began calling the new system the “electronic whip” when it was installed last year. The name has stuck.

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Employees in the Anaheim hotels are required to key in their ID when they arrive, and from then on, their production speed is displayed for all to see. For instance, the monitor might show that S. Lopez is working at an efficiency rate of 37% of expected production. The screen displays the names of several coworkers at once, with “efficiency” numbers in green for those near or above 100% of the expected pace, and red numbers for those who aren’t as fast.

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According to Barrera, the whip has led to a sort of competition among workers, some of whom have tried to race to the head of the pack. But that has led to dissension and made other employees worry that a reasonable pace won’t be enough to keep the boss happy. Barrera and Beatriz Topete, an official with Unite Here Local 11, said employees have been known to skip bathroom breaks out of fear that their production will fall and managers will demand an explanation. They say they felt bad for a pregnant employee who had trouble keeping up.

It’s easy to see how this kind of policy could be implemented at a law firm. Associates could have an application running on their desktop that tracks their billable hours in real time. Or perhaps the program could show how much “collectible” work the associate has done over some period of time. The program could then compare all associates’ performance in a ranking system, showing associates exactly where they stand and whether they need to pick up the pace. For a group of people already prone to competition and angst, that could provide quite the motivation to work harder. Maybe they could even have their status delivered straight to their Blackberries, where the numbers are there to “encourage” them at all hours of the day.

Nevermind that such a program could generate a spirit of competition amongst associates. Or that it might drive some people to work too much, just as the board at Disneyland encourages workers to skip bathroom breaks. I still have a feeling that we’ll be seeing this kind of tool put in place at some law firm somewhere at some point down the line.

-Michael

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A radical professor has proposed a troubling new law school curriculum, one which includes a required international law course but has no apparent constitutional law requirement.

No, I’m not talking about Elena Kagan. I’m talking about Gustavus Schmidt, founder of the Louisiana Law School, now the Tulane University Law School. In 1844, this rogue proposed making international law a required centerpiece of his new institution.

Shocking. I suppose this is yet another example of crazy liberals trying to force their new-fangled “foreign law” into our U.S. courts.

Is This Blog a Legal Liability? (Part Two)

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Just after Susan and I started this blog, I asked whether we were unintentionally opening ourselves up to liability. Today the Virginia State Bar issued a decision that might again suggest, at least at first glance, that we are.

A Richmond criminal attorney, Horace Hunter, ran (and continues to run) a blog. He wrote about things he knew: the law, the news, and, perhaps misguidedly, his own cases. The Virginia State Bar evidently didn’t care for Hunter’s writing, smacking him with a formal misconduct charge premised on his website. Among other things, they faulted Hunter for failing to include a disclaimer when he talked about prior cases. (Virginia felt he should include the ordinary stuff along the lines of, “Prior results do not guarantee future success.”) Today, the misconduct charge was upheld, evidently finding that the blog was indeed meant to market the firm and therefore amounted to advertising.

Some people are going to take this case and extrapolate big things from it. The bar is going to come after lawyers who blog! It’s the end of social media for lawyers! Delete all the blogs! But I think we needn’t panic yet. The ruling only covers blogs wherein an attorney talks about his own cases, which realistically can raise a number of issues even absent the VSB’s ruling. (Client confidences, anyone?) And Virginia’s disclaimer rule only seems to reach those “prior case” posts, so everyone else should be ok.

Still, I think this case provides another reminder that lawyers should think carefully before jumping into the social media frenzy. It seems a lot of lawyers–especially lawyers my age–think social media is the gravy train to success. Mr. Hunter’s unfortunate case reminds us that some caution might be in order before hopping on.

-Michael

“The Emergency Court”: Another Example of the Overcomplication of Government

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The AEI-Brookings Continuity of Government Commission (what an exciting title!) released a report yesterday that imagines an attack on the Supreme Court. It’s not that the Commission was trying to bring back 24; no, the report instead considers the consequences of a terrorist attack on the Court in the hopes of finding some possible solutions to the problems that would result. From the ABA Journal:

While the president of the United States would have the power to appoint temporary justices on an emergency basis without congressional approval, this could create political problems and legal uncertainty, especially if a large number of justices had to be replaced, the report explains.

It would thus be better, the report proposes, to create an emergency court ahead of time with an agreed panel of judges. Members of the emergency panel would fill in empty seats and decide cases, along with the surviving supreme court justices, until the nation’s top court could resume its usual operations.

The Commission’s report explains that any “emergency” court could be composed of either (a) the remaining Supreme Court justices and the chief judges of the Courts of Appeal; or (b) judges drawn from a pool of active judges (previously selected by the President), retired Supreme Court justices, and chief judges of the Courts of Appeal. The first option would produce a huge court of 18 or 19 people, many of whom might have been appointed by the same President. The second option would require a rather complicated process of appointments, lottery selections, and the like.

Perhaps I’m crazy, but I think simpler would be better in a time of crisis. If we’re really going to have an “emergency court,” why not make it the U.S. Court of Appeals for the D.C. Circuit? The court has eleven seats (with eight presently filled), making it a reasonable size. It represents a diversity of political perspectives. And from a practical standpoint, the judges are already in Washington and therefore well-positioned to hear cases there. It’s also a reality that the D.C. Circuit is perhaps the most well-respected of all the Circuit Courts (with apologies to my beloved Fourth Circuit), so these judges get a thorough vetting when they go through the nomination process in the first place. Given that the D.C. Circuit is often called a stepping stone to the Supreme Court, why can’t it be a stand-in as well?

But here’s hoping all this turns out to be a moot point.

-Michael

You Can’t Spell “Shpoonkle” Without “Poo”

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Update: At some point after I wrote this post, Shpoonkle took down the blog post I discuss below. I suspect that one could pick apart many of the posts on the site in the same fashion, but I simply don’t have time to do so.

Shpoonkle is a reverse auction site for lawyers, where clients post their legal problems and lawyers bid to provide the cheapest solution. The site was founded by a recent New York Law School graduate who couldn’t figure out what to do after law school. Above all else, this little web project is an awful idea with a terrible name. And now, a new blog post on the Shpoonkle website provides reason to question the competence of the people behind this project. I suspect folks using Shpoonkle are meant to be comforted by the fact that the managers of Shpoonkle are lawyers. But apparently, lawyers they ain’t.

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Bifurcated Habeas?

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Over at PrawfsBlawg, Lee Kovarsky of Maryland Law is raising some interesting points about the law of habeas. Professor Kovarsky believes that law schools are increasingly teaching habeas law as two separate bodies of law–”one that pertains to executive detention, and one that pertains to post-conviction review of criminal judgments.” Whereas executive detention (i.e., the Gitmo detainee issues) is a sexy issue right now that’s well-covered in law schools, post-conviction review is a less popular body of law that’s getting short shrift in CrimPro and FedCourts classes. Kovarsky theorizes that this split is then “reflected in the diminishing quality of habeas workmanship on the federal bench,” which treats executive detention issues seriously while writing almost summary opinions in the post-conviction context.

I completely agree that law schools–or at least the one I went to, GW Law–don’t give much attention to the post-conviction aspect of habeas review. I really have no idea why that is. Perhaps it’s because so many of the post-conviction cases are (at least in practice) entirely lacking in merit, or maybe it’s because the kind of student who attends a so-called “national” law student typically does not aspire to do post-conviction work. (An exception might be those who want to be prosecutors, but in my experience even prosecutors view post-conviction work as bitter medicine that must be tolerated to get to the “good” work.)

Still, I disagree with Professor Kovarsky’s suggestion that this “bifurcation” explains the inattention federal courts seem to give to post-conviction habeas cases. To some extent, I think the fact that the executive detention cases get a more thorough treatment stems from their novelty; the legal issues are really unsettled and judges can get excited about tackling some difficult questions. But more importantly, I think the difference comes from what’s actually being “reviewed” in each of the two types of cases.

In an executive detention case, a court essentially reviews the executive’s assurance that an individual is dangerous or has otherwise merited detention under the laws of war. Judges routinely question the choices made by the legislative and executive branches, and some judges particularly approach executive assurances with a heavy degree of skepticism. These cases are the bread-and-butter “constitutionality review” cases that federal courts have loved for hundreds of years.  See Marbury v. Madison, 515 U.S. 137, 177 (1803) (“It is emphatically the province and duty of the judicial department to say what the law is.”)

In the post-conviction context, on the other hand, federal judges are reviewing the decision of a state court judge (and usually a state court jury). In contrast to the executive and legislative branches, these state courts are supposed to be on equal footing with the federal courts when it comes to resolving legal questions. Moreover, federal judges are often intimately connected to the state courts they’re reviewing–many federal judges start their careers in state courts and maintain close connections there. Consequently, federal judges are likely less troubled by the decisions of their state court colleagues, a fact that’s reflected in the sometimes almost flippant treatment given to state post-conviction review.

In any event, I do think Professor Kovarsky is right in hinting that law schools should consider putting more emphasis on the post-conviction stuff, whether as part of a “unified theory” of habeas or otherwise. Post-conviction law has some really interesting stuff buried inside of it, so professors shouldn’t let the “hot” research trend take too much away from the time spent on tried-and-true post-conviction review.

-Michael

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“What we need to be focused on in this country today is not whether or not we are going to have this policy or that policy,”

-Rick Perry, during last night’s debate. It makes one wonder: if he doesn’t want to set policy, what does he plan on doing as President? Is he just excited about lighting the White House Christmas tree?

Law Professors Ask Ninth Circuit to Nullify the Alien Tort Statute?

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A group of law professors–in conjunction with the National Association of Manufacturers–recently filed an amicus brief in a Ninth Circuit corporate liability ATS case, Doe v. Nestle. The law professors make the standard arguments that (a) there is no well-established customary international law governing aiding-and-abetting liability; and (b) there is no well-established customary international law providing for corporate liability.  Earlier posts from Susan and me have pretty much beat these topics to death, so there’s no need to rehash all that here.

What I find more interesting is the professors’ third argument: that “principles of federal common law” would bar Plaintiffs’ claims. The argument is interesting because, if taken to its logical limits, it would effectively nullify the Alien Tort Statute (or, at the very least, freeze the law of the ATS in its present state).  The law professors chiefly rely on two principles: (1) that federal courts should avoid implying private causes of action; and (2) judicial interference in matters of international law and foreign policy is inappropriate (and better left to Congress).

First, the law professors are mistaken in suggesting that ATS courts should not permit corporate liability claims because to do so would inappropriately imply a private cause of action.  It’s important to recognize here that the cause of action could only be “implied” from international law itself, not from the ATS.  (This must be so given the Sosa court’s admonition that the ATS is merely a jurisdictional statute that does not itself provide a cause for relief.)  Even in the best case, “implying” a private cause of action from international law would be an exceptionally difficult task, especially compared to implying rights from Congressional statutes: while Congress could be expected to speak clearly and directly if it wished to make a private right, international law does not speak with the same specificity.  Cf. Sosa v. Alvarez-Machain, 542 U.S. 692, 727 (2004) (“[T]he absence of congressional action addressing private rights of action under an international norm is more equivocal than its failure to provide such a right when it creates a statute.”). In other words, an ATS court is not faced with the same task of limiting itself to a given set of words (that is, the statute), but would be “implying” things from a much more amorphous and abstract body of international norms and principles.

The deeper problem with treating ATS liability as an issue of “implication” in the usual sense is that it would be hard to find a single rule of international law that would meet the law professors’ test.  I cannot think of a single international rule of law that contemplated individual enforcement, including the infamous Blackstone Three. (“The principal offenses against the law of nations, animadverted on as such by the municipal laws of England, are of three kinds: 1. Violation of safeconducts; 2. Infringement of the rights of embassadors; and, 3. Piracy.”). Taking the law professors’ approach would strip out any conceivable claim for relief.

The simpler approach is to recognize the context in which this statute arose.  The phrase “cause of action” didn’t come about until the late 1840s, several decades after the ATS was passed in the late 1700s.  Instead, early law simply assumed that a violation of a legal principle to the detriment of a party provided that party a right to relief. See, e.g., Tex. & Pac. R. Co. v. Rigsby, 241 U.S. 33, 39 (1916) (“A disregard of the command of the statute is a wrongful act, and where it results in damage to one of the class for whose especial benefit the statute was enacted, the right to recover the damages from the party in default is implied, according to a doctrine of the common law.”). As such, Congress likely assumed that any specific, identifiable international law norm could create a private remedy for a harmed individual.

Second, the law professors make a related argument that courts must be cautious in interfering with foreign affairs (a domain typically controlled by the executive and the legislature).  They suggest that federal common law is ordinarily used to restrain courts in international affairs.  And they note that Congress has enacted more “specific” remedies (such as the Torture Victims Protection Act) for violations of international law, such that courts should hesitate to act beyond those specific statutory instruments.

The fact that the law professors would cite the TVPA as support for their position is galling. Congress only acted to pass the TVPA after an opinion by Judge Bork strongly endorsed the positions taken by these law professors and seemed to gut the ATS.  See Tel-Oren v. Libyan Arab Repub., 726 F.2d 774, 798 (D.C. Cir. 1984) (Bork, J, concurring).  In response, Congress–which had apparently assumed previously that courts understood what the ATS said–passed the TVPA to “reinforce” and “clarify” that extrajudicial killing and torture (the specific acts at issue in Tel-Oren) were undeniably actionable.

No, the fact that the ATS refers to the law of nations suggests that courts were never expected to wait for Congress to act (again). Certainly, some amount of caution should be taken in condemning the acts of another nation. But caution must be distinguished from paralysis. Virtually every ATS case involves some foreign interest; refusing to act when such interests are involved would write the ATS out of the code books. As the Supreme Court indicated more than 100 years ago, courts must not flee from a case upon any appearance by the scary specter of international law or matters of “foreign relations”:

International law, in its widest and most comprehensive sense — including not only questions of right between nations, governed by what has been appropriately called the law of nations; but also questions arising under what is usually called private international law, or the conflict of laws, and concerning the rights of persons within the territory and dominion of one nation, by reason of acts, private or public, done within the dominions of another nation — is part of our law, and must be ascertained and administered by the courts of justice, as often as such questions are presented in litigation between man and man, duly submitted to their determination.

Hilton v. Guyot, 159 U.S. 113, 163 (1895); see also Michael Tigar, Judicial Power, The “Political Question Doctrine,” and Foreign Relations, 17 UCLA L. Rev. 1135, 1178 (1970) (“In reality, if one examines the case law and history of judicial review [of matters involving foreign policy], deference has been a burden-shifting and burden-building device. … To refer to an absolute refusal to decide, grounded in no explicit congressional command, as ‘deference’ is to misdescribe what is in fact to surrender.”).

-Michael

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Susan and I have both been slammed over the past few days, so the site may have seemed a little slower this week. But one thing we did do recently is finally join the Twitter craze: you can find us @TheViewFromLL2.

Update:  Readers are clearly ecstatic.  One responded, “View From LL2 twitter?  Really?”