SBM Blog

Dewey Bankruptcy

The latest chapter in the long unwinding of the venerable global law firm Dewey & LeBoeuf is the filing of this bankruptcy petition on Monday.  WSJ Law Blog not only has details of the firm's expenses, but also informs us that Dewey's "opulent" Manhattan office was featured in the movie Michael Clayton.  New York Law Journal explains why Dewey's bankruptcy raises novel issues, in part because Dewey will be the only law firm ever in bankruptcy that has issued bonds to support its finances.

Hey, Barnes Foundation -- How Is That Broken Trust Thing Working Out?

The epic legal struggle that finally resulted in the breaking of philanthropist Albert Barnes' trust indenture of his beloved art collection and the subsequent move of the collection from a Philadelphia suburb into downtown Philly was chronicled in the documentary, The Art of the Steal. As a successful effort to turn an excruciating probate problem into entertainment, it is probably second only to dramatizations of Bleak House. This 2010 post from the Probate Lawyer Blog describes the controversy.

So what do the critics have to say about the success of the move? At least one critic, Tyler Green at Modern Art Notes, is not impressed:

Once the keepers of the Barnes found a way to pry the art away from its founder’s John Dewey-influenced vision of art-plus-installation-plus gardens-plus-education-program, a unified field,  they should have devoted themselves to a smart, respectful, thoughtful and new presentation of great art, a place in which the art was The Thing. Instead, they have placed the emphasis not on the art, but on a Thomas Kinkadeian reminder of how it used to be-ish. Think of the team that brought you the new Barnes as the Administrators of Light. [Renoir, Nude from the Back, 1917. Collection of the Barnes Foundation.]

The new Barnes is part of an accelerating trend: Over the last generation, governments, private funders, philanthropies and administrators have increasingly pushed art and art collections out of contexts in which access to aesthetics, history and cultural knowledge are primary and into ‘civic service’ as rainmakers for tourism or development. There has been little concurrent examination — least of all in Philadelphia — of how or if art should be made most accessible. Instead the question has been how to use art to serve other goals. That’s how we got the new Barnes. That’s how we got the $25 art museum admission fee. That’s how we got art museums renting their art to Las Vegas casinos. And that’s how great art is becoming a hobby for the leisure class, something available to an increasingly narrower socioeconomic band of Americans, an enterprise in which dollars matter more than ideas, engagement or discourse. The biggest success of the new Barnes is that it draws those lines more starkly than any other museum in America.

Art: Matisse, Seated Riffian, 1912, Barnes Foundation, Pennsylvania.

Defamation Case: When Wholly Truthful Is Just Half The Story

Eugene Volokh points out that defamation by half-truth cases are rare, but in his post about a recent such case, he urges us to think about the news story that brought it on before reading the judge's decision: 

WOMAN HURT BY GUNSHOT

Mrs. Ruth A. Nichols, 164 Eastview, was treated at St. Joseph Hospital for a bullet wound in her arm after a shooting at her home, police said.

A 40-year-old woman was held by police in connection with the shooting with a .22 rifle. Police said a shot was also fired at the suspect’s husband.

Officers said the incident took place Thursday night after the suspect arrived at the Nichols home and found her husband there with Mrs. Nichols.

Witnesses said the suspect first fired a shot at her husband and then at Mrs. Nichols, striking her in the arm, police reported.

No charges had been placed.

The omitted facts were that several people were sitting around in a living room talking when the shooting occurred. The judge decided the story could be libelous, if negligence were shown.  The story reminded Volokh of this famous hypothetical half-truth -- a first mate who, upset at his teetotaling captain, writes in the ship’s log, "Captain sober today."

Super-Sized Opinions

The Centers for Disease Control's revelation that burgers today are three times bigger and meals four times bigger than they were in the 1950s comes as something of a relief.  Our meals are four times bigger, but we're not!  It looks like we're only about 20% bigger.*  Clearly someone is watching out for us. As a lawyer I was naturally led to wonder whether judicial opinions have also become supersized. And sure enough, someone's done a study on it, revealing that the answer is a big fat yes. From "An Empirical Analysis of the Length of U.S. Supreme Court Decisions:"

Of particular note in the last one hundred or so years are two substantial and sudden changes in the median length. First, we observe a sharp decrease occurring over a three-year period starting in 1949, when the median length dropped from 3,064 words in 1948 to 2,129 words in 1951 -- a 30% decline. Indeed, the average size of majority opinions did not return to the 1948 level until nearly three decades later, in 1972. The second dramatic change, this one a substantial increase, occurred shortly after the start of the Burger Court. In 1969, the median length was 2,530 words. By 1974, just five years later, it had jumped by more than 80% to 4,656 words. Indeed, the change in opinion length over these few years is one of the starkest transitions in the entire data series and likely is what sparked interest and commentary on the increasing length of the Court's opinions.

*I am actually about 105% bigger than my peak weight in the 1950s, but that's a different story.

Rep. McCotter To Address Primary Ballot Access Problem on Tuesday

The news that Rep. Thaddeus McCotter, Congressman from Livonia (and member of the State Bar of Michigan) may have failed to file enough valid petition signatures to qualify for the primary ballot in this year's race for the Congressional seat for parts of Wayne and Oakland counties has made attracted attention throughout the country. In addition to these stories from the Detroit News, the Detroit Free Press, and MLive, see also the National Journal, Politico, The Hill, and CNN. McCotter told the Detroit News, "I'm not sure what happened." He said his campaign used the same team of volunteers they always do and handled everything the same way.  A Detroit News opinion piece called the situation a "monumental mess."

Cell Phones and Driving: Do As I Say, Not As I Do

The Washington Post's story "Employees use of cellphones while driving becomes a liability for companies" contains this warning from a Texas lawyer about juries holding employers responsible for accidents linked to cell phone use:

“People think there’s a good defense here by saying, ‘Everybody does it,’ ” Clements said. “Well, that’s not true, because the jury doesn’t want everyone to do it. They just want to do it themselves. It’s a huge disconnect.”

HT: ABA Journal

Should The Path To Attorney Licensure Look More Like The Medical Profession's?

A wide-ranging report sponsored by the Massachusetts Bar Association on underemployment of lawyers urges consideration of applying features of the medical/dental model of education to legal education, including more selective admissions, rotations, and residencies:

[T]he number of students admitted to medical school is tightly controlled; only 43.6 percent of applicants are admitted. By contrast, according to the Law School Admission Council (LSAC), in the 2010–11 academic year, 87,900 individuals applied to law school and 60,400 students were admitted, an admission rate of 68.7 percent. The number of medical school openings has been increased slightly in recent years because of a predicted physician shortage. There is little doubt that the national organizations that control medical education regulate the number of medical school graduates with a close eye on the number of available medical positions.

Download the Report here.

"Corporations Are People, Too"

Richard Epstein blasts Jeffrey Toobin's much-discussed New Yorker piece on Citizens United and the Roberts Court in an essay today in the Hoover Institution Journal.

His cartoonish understanding of Supreme Court history dooms him to a systematic misunderstanding of Citizens United’s critique of McCain-Feingold. The narrow issue in Citizens United was whether Hillary: The Movie, a 90-minute attack documentary, counted as “electioneering communication” that could be banned from running within 30 days of the election. The larger constitutional issues would not disappear if Citizens United only handed down a narrow decision that the McCain-Feingold Act did not apply to that movie. The next case down the road would be sure to raise the same overarching issues. It is therefore incumbent on Toobin to explain why the general guarantee that Congress shall “make no law abridging the freedom of speech” does not apply to political speech in the run up to a national election.

Clearly, it makes no sense to exclude corporations systematically from the First Amendment simply because corporations, whether or not they are persons, are not mentioned in the constitutional text. After all, the First Amendment doesn’t refer to citizens either. But the logic for bringing corporations under its protection parallels those used in connection with the Fourteenth Amendment. Does Toobin really think that the New Yorker, as part of the press, could be somehow prevented from publishing because it is a corporation bereft of any First Amendment protection? No: The magazine did not lose the protections of the First Amendment when its partners decide to incorporate it.

"Jesus is not a Homophobe" Update

Remember the Ohio school district that told a gay high school student he couldn't wear this shirt to school because it was (take your pick) "disruptive," "too religious," or "indecent and sexual in nature?" Volokh Conspiracy reports that the school district has now settled the lawsuit against it, on these key terms:

• The Defendants are enjoined from prohibiting Plaintiff Maverick Couch from wearing the “Jesus Is Not A Homophobe” T-shirt, which is more fully described in paragraph 7 of Plaintiff’s Complaint. Plaintiff is expressly permitted to wear the “Jesus Is Not A Homophobe” T-shirt to school when he chooses….
• Defendants are ordered to pay damages and costs, including reasonable attorneys’ fees, in the amount of $20,000 to Plaintiff on or before July 5, 2012.

Chilling About Change: That Iceberg May Be A Lifeboat

Here's a generalization that is constantly affirmed in my work as executive director of the State Bar -- lawyers as a rule hate change. The ongoing turmoil in the legal marketplace has thus proven to be the source of acute misery for many of us, even those whose economic well-being has not been directly threatened by the changes underway in the provision of legal services. For those of you who fit the description of change-averse I offer this intriguing and ultimately encouraging reflection from the Harvard Business Review, "Why We Can't See What's Right In Front Of Us":

The most famous cognitive obstacle to innovation is functional fixedness — an idea first articulated in the 1930s by Karl Duncker — in which people tend to fixate on the common use of an object. For example, the people on the Titanic overlooked the possibility that the iceberg could have been their lifeboat. Newspapers from the time estimated the size of the iceberg to be between 50-100 feet high and 200-400 feet long. Titanic was navigable for awhile and could have pulled aside the iceberg. Many people could have climbed aboard it to find flat places to stay out of the water for the four hours before help arrived. Fixated on the fact that icebergs sink ships, people overlooked the size and shape of the iceberg (plus the fact that it would not sink).

Just as some very smart people lost their lives in the Titanic tragedy, some very smart lawyers have  gone down with law firm ships that, just a short while ago, were thought to be unsinkable. The chances for survival go up significantly for those who are not afraid to scan the horizon and think creatively about change.

A survey 792 large law firms by legal consulting firm Altman Weil suggests that law firm leaders are already starting to adjust their thinking. Reporting on the survey in "Law firm leaders expect permanent change to the industry," Inside Counsel says there has been a radical shift in attitudes since 2009, and summarizes the survey results as follows:

• 92 percent of respondents believed that there will be more price competition in the long-term, as opposed to 42 percent in 2009
• 46 percent expect that outsourcing legal work will become a permanent fixture, compared with 12 percent in 2009
• 80 percent anticipate more firms will adopt nonhourly billing, whereas only 28 percent believed that in 2009. (This might not be a bad thing, though. InsideCounsel’s own career expert, Mike Evers, explained in a recent column why nonhourly billing may make for happier lawyers.)
• 68 percent of those surveyed expect there will be fewer equity partners in law firms, as opposed to 2009, when only 23 percent thought that would be the case
• Law firm leaders gave themselves a median rating of 7 out of 10 on their confidence to deal with these upcoming issues
• Respondents felt that in the face of these challenges, sustaining and growing profitability was their biggest concern