SBM Blog

Thinking About Affirmative Action

While we wait to see where affirmative action in U.S. public education is headed next with the soon-to-be released opinion in Fisher v. University of Texas at Austin, for some perspective you might find two recent New York Times stories on race and education elsewhere interesting. "In Its Efforts to Integrate Roma, Slovakia Recalls U.S. Struggles," describes how a small town in Slovakia is struggling to break down centuries of segregation of the Roma (Gypsies):

The most powerful lever working for desegregation in Slovakia has been the court system, which has been reinforced by antidiscrimination statutes adopted in the past decade to bring the code into conformity with European Union standards.

Inspired by the landmark 1954 United States Supreme Court decision in Brown v. Board of Education, which declared segregated schooling unconstitutional, Vanda Durbakova, a Slovak civil rights lawyer, filed a suit in 2010 against the Sarisske Michalany elementary school. 

Last week, Race to the Top described recent affirmative action efforts in Brazil:

In April of last year, Brazil’s Supreme Court ruled unanimously in favor of the University of Brasília, which introduced racial quotas in its admissions process in 2004. This validated the action of 70 of Brazil’s 98 state and federal universities, which had independently adopted some form of preferential admission based on race, income or a combination of the two. When the Law of Quotas, which derived from these principles a single model for all federal universities, came up for a Senate vote, it was approved 80-1.

The piece says that early reports suggest that students admitted through Brazil's quota system perform no worse than their peers.

Study: U.S. Legal System 50% More Expensive Than Europe's

Sure, no surprise that the U.S. legal system is the world's most expensive. But, one and half times more than the Eurozone average? Wow. Corporate Counsel reports that was the conclusion of a study commissioned by the Institute for Legal Reform (ILR) that compared liability costs as a percentage of a country’s gross domestic product.

The 13 countries included in the study have similar levels of regulation and legal protection, leading analysts to conclude that higher costs could be attributed to more frequent and/or costly claims. The U.S. costs were about 1.7 percent of GDP. Countries on the low end of the range—the Netherlands, Belgium, and Portugal—had costs around 0.4 percent. Legal liability costs in the U.S. were found to be about 50 percent more than costs in the U.K.

The ILR, which holds a dim view of the U.S. legal system generally, says that excessive litigation is putting U.S. companies at a competitive disadvantage globally. Presumably that means that if the U.S. had the Eurozone's legal system the our economy would be outperforming Europe's even more than it already is doing now.

Some Less Obvious Downsides of Legal Self-Representation

Lawyers especially know the obvious downsides of pro se litigation -- decreased chances of success, higher chances of gumming up the judicial system works. But a new study out of Canada points to some other downsides:

The study data illustrates a range of negative consequences experienced by SRL’s as a result of representing themselves. These include depletion of personal funds and savings for other purposes; instability or loss of employment caused by the amount of time required to manage their legal case; social and emotional isolation from friends and family as the case becomes increasingly complex and overwhelming; and a myriad of health issues both physical and emotionally.

HT: Slaw

The Pope's Favorite Movie - To Sue, Or Not To Sue, That Is The Question

 

Pope Francis's favorite movie is, according to this WSJ Law Blog post, the acclaimed 1987 Danish film, Babette's Feast. Such a fine choice; such a sensuous movie. And, also according to the WSJ Law Blog post, a movie that is the current subject of a international copyright dispute:

Under Danish copyright law, rooted in the European legal tradition of “moral rights,” artists retain substantial control over the licensing of their works. Artists can make deals allowing someone else to publish, license, distribute or market their work. But those rights can’t be sold to someone else without the blessing of the author, unless the transfer is “usual or obviously presumed.” It’s the equivalent of a tenant who must get landlord approval to sublet.

Please Keep This Strange Canadian Judicial Tic From Crossing Our Borders

Oh, the horror — a judge who yearns to be a novelist and takes it out on a poor innocent opinion. The following recitation of facts from a recent Ontario opinion exemplifies the problem:

1. “You should get out of town,” the man said.

2. And so began the journey that resulted in my path intersecting with Matthew Duncan’s path. And thence to these reasons, with a slight detour through territory that might have confused Lewis Carroll.

3. I suppose that I should clarify that there was no menace in the man’s directive to me to get out of town. He was a friend and a colleague in two careers. His suggestion had been that he and I should change positions for a fortnight, giving him exposure to the realities of the northern reaches of Toronto, while I would enjoy a similar change of environment in the more sylvan environs of Niagara Region. I might even see a few plays in the evenings, he pointed out.

4. And thus I came to meet Mr. Duncan.

Apparently, this genre-bending has become enough of a problem in Canada that Slaw's Simon Fodden, himself a sure-footed stylist, felt impelled to warn against it in this post, which includes observations like this:

[T]he common law, in its use of exemplars, i.e. stories with morals to be drawn from them, has always run close to fiction, which once was also meant to teach morally uplifting lessons. Judgments are full of facts that are not strictly relevant or even material. In an important sense not even the names of the parties are relevant. Knowing where to draw the line is important, and judges must often be tempted to stray from their field to greener fictional grass in the next meadow; but, as a playwright once said Quod licet iovi, non licet bovi, which, in this case may be roughly translated as "Hey, judge, get off the grass!"

It's important to note that judges can be accomplished fiction writers, distinctly apart from their opinion writing.  Michigan has two outstanding examples — John Volcker/Robert Traver, the Michigan Supreme Court justice who authored the immortal Anatomy of a Murder. And Court of Appeals Judge Bill Whitbeck, author of To Account for Murder and the first winner of the Michigan Bar Journal annual Short Story Contest. 

It's also worth noting that an opinion can be lively without straying into genre-bending territory — like this. And that a very occasional poetical diversion may not only be tolerated, but celebrated.

The 6 Top Recommended Books For Aspiring Law Students...In The U.K.

Per The Guardian. Chances are you've read one of them (at most):

• The Rule of Law by Tom Bingham
• Letters to a Law Student by Nicholas McBride
• Glanville Williams: Learning the Law (ATH Smith)
• What About Law? by Catherine Barnard et al
• Eve Was Framed by Helena Kennedy
• Bleak House by Charles Dickens

What Not To Wear To A Domestic Violence Arraignment

Answer: A t-shirt that says "I bust mine to kick yours." The AP reports that a Vermont judge told the wearer of the offending t-shirt that she would not proceed with the arraignment until he changed the shirt. The public defender then loaned his own suit coat to his client. The client wore the suit coat backwards, and pled not guilty.

HT: ABA Journal

Fallout From English Legal Reform? Government Shuts Down 250-Lawyer Law Firm

The passage of the UK's tradition-altering Legal Services Act of 2007, which sharply limited lawyer self-regulation and opened the ownership of law firms to nonlawyers, was hailed as the dawn of a new age of affordable, consumer-friendly legal services, and derided as the death knell of legal professionalism. Now comes word of the government-forced shutdown of a large Birmingham law firm whose business and marketing plan was awarded "'Most Innovative Marketing Idea 2010." From the Law Society Gazette:

All 250 solicitors and employees of Midlands firm Blakemores, owner of the consumer brand Lawyers2you, were today told to clear their desks and go home after an intervention by the Solicitors Regulation Authority.

The innovative and fast-growing firm appears to be the latest casualty of a crisis in the personal injury sector. One analyst blamed cashflow problems against the ‘toxic combination’ of legal aid cuts and the shrinking of the PI market.

The SRA said it intervened ‘in order to protect the interests of clients (or former or potential clients), or the interests of the beneficiaries of any trust of which Blakemores Solicitors LDP or any of the partners of Blakemores Solicitors LDP is or was a trustee’. Practising certificates have not been suspended.

Blakemores was founded in 1961 by Roger Blakemore to specialise in property conveyancing. In 2002 managing partner Guy Barnett (pictured) led the firm through a major expansion, which included setting up Lawyers2you stands at more than 20 public-facing sites including airports and shopping centres.

In 2010, Blakemores was awarded the title 'Most Innovative Marketing Idea 2010' by consultancy 360 Legal Group for launching Lawyers2you, one of the UK's first direct consumer legal marketing brands.

Callers to Blakemores today heard just two ringtones before a voicemail prompt invited them to leave a message. An insider told the Gazette that employees were summoned to a meeting mid-morning today, told to get their possessions from their desks and go home.

Staff who asked about redundancy payments were told they would need to claim anything they were owed from the government.

The comments to the Gazette story are well worth a read. Some days it feels lie the UK is conducting a giant experiment for the benefit of the U.S. legal profession, testing what works and doesn't. Today is one of those days. Back to you, Roberts P. Hudson:

No organization of lawyers can long survive which has not for its primary object the protection of the public.

Whether the Legal Services Act offers a better model for protecting the public is still very much up in the air.

HT: ABA Journal

England's "Marital Coercion" Defense Under Duress

If you are a fan of British legal history and politics, you won't want to miss this fascinating intersection of modern English liberal politics and a patriarchal law that may well be repealed as a result of the notoriety of this case.  As reported by the Guardian:

The defence of marital coercion is a relic of a bygone age. Vicky Pryce unsuccessfully argued that it absolved her from criminal liability for lying about driving her then husband's car when it was caught speeding. Many observers thought this was an extraordinary defence for any woman, let alone a former joint head of the government economic service. But a defendant is entitled to take the law as he or she finds it, and there was always a chance that the jury might have shown sympathy for a woman deserted by her husband.

Canada: No Drop In Law School Applications

Applications to law schools in the United States have been declining dramatically, but law school applications just across the border in Canada are holding steady, according to a report from the Law School Admission Council (LSAC).

Stephen Gillers at Legal Ethics Forum asks:

How can this be? Are we so overlawyered where by contrast Canada has found the market sweet spot? Are Canadian law graduates finding jobs, thereby explaining the continued strength in the Canadian application rate? And if so, why the difference?

A comment to the post offers these reasons as explanation: