My writing is 'not very good,' and other reasons you can't get ahead in our not-really-a meritocracy

Pxhere CC0

A purported mentor once told me that probably I couldn't find a job in academics because my "writing is not very good."

'Tis the season when the law professor should be writing exams, yet is inundated and distracted by requests for recommendation letters to aid students on the career track. The distraction has caused me to ponder the futility of it all. Aside from the fact that my laboriously and meticulously drafted letters scarcely will be read, I'm saddened by how little a person can do to move the needle on ultimate potential in our supposed meritocracy.

In the 20-aughts, I was looking for my second job in academics, hoping to leave Arkansas and the curse of flyover country. My job search took five years. I lost count of how many applications I put in. It had to be more than there are law schools in the United States.

At some point, through a program I won't identify, as not to identify the person, I was paired with a mentor, an academic at a U.S. News "top 10" law school. After a couple of telephone counselings in which he told me nothing I did not know already, he suggested that maybe I needed to accept that I could not score a job because my "writing is not very good."

That was hurtful. Not because it wasn't a fair consideration to put on the table; it was. It was hurtful because it was his go-to conclusion, and rather the end point of the short arc that was his mentorship. There were countless other explanations for my struggle in the job market. He blew past all of them to rest on one: I suck.

Implicit in the suggestion was that he was at a top-10 school because he was so much better at the job than I. That's what hurt. And as I've matured in my career, I've come to realize how wrong he was.

I have a lot of experience now on the hiring side of hiring, almost three decades, at least in legal academics. And I've worked out a formula, though sometimes I tweak the apportionment, I feel like about describes the factors at play in getting a job, certainly in legal academics, but maybe anywhere:  

• 60% privileges; 
• 30% right-place-right-time; and 
• 10% merit.

I'm not one of these "privilege walk" organizers who use loaded questions to make people feel guilty about socioeconomic advantages, and then to feel good about having felt guilty, and then relish telling everyone how privileged I now know I am, without actually doing anything to make the world better. But I do try to be conscious of privileges, especially the ones that I have and did nothing to earn.

I did not start at the bottom of the ladder. That I'm not a person of color, thus not subject to unfair biases manifesting as implicit assumptions about aptitude and potential, nor followed by security in stores and distrusting of police; that I went to K12 in reputable suburban school districts with dedicated teachers and was a child of two parents with college degrees: these factors have worked immeasurable benefits in my life, no thanks to anything I did.

I didn't start at the top, either. My divorced, usually single parents were college educated thanks to community-college access and the military. My family was the typical penniless-20th-century-immigrant story, and my parents and grandparents were victimized by ethnic discrimination with real socioeconomic consequences. I was able to go from public school to a first-rate undergrad with mostly private-schooled kids only because I earned a full scholarship.

On the inside of hiring in academics—I can tell another time cringe-worthy stories of before academics—I have seen it all, and candidate merit is only weakly indicative of outcome.

Because of the prevalence of liberal politics in academics—I do not suggest that preferences ordinarily run in these directions in the job market in general—I had a dean who announced the race (not mine) and gender (not mine) of an intended hire at the beginning of the search process; and I've had colleagues announce, also in advance of a search, that they would vote against any candidate of a certain race (mine) or gender (mine). I've likewise heard colleagues openly favor or disfavor candidates based on perceived sexual orientation (minority favored) and religion (belief disfavored). So to pretend that these factors are not in play, whether or not they are verbalized, would be willfully ignorant.

But race, gender, etc., are easy targets to exemplify pernicious discrimination. There are other factors that are more subtle, yet equally well effect socioeconomic exclusion, and thus indirectly race discrimination. And these factors are embraced by persons both liberally and conservatively minded.

When I was at a "tier 3" law school looking for a job, a colleague at a "tier 2" school—who knew I was looking for a job—asked me whether I might recommend anyone—not me—to fill an open position at her school. I was disqualified presumptively for the open position, because I did not do a judicial clerkship after law school. My colleague iterated this hiring expectation as if it were a self-evident sine qua non. She assumed I knew my place, and I was in it. One does not advance to tier 2 without a clerkship on the resume. "We prefer people who've clerked at the Supreme Court," she said breezily.

I didn't do a judicial clerkship after law school for various reasons. A big reason was that I was sick over the profound debt I had incurred paying for law school 100% with loans. 

I had turned down full scholarships at two other law schools to pay full freight at a top 10, because I hoped the top 10 would open doors the others could not. I could not see, after law school, how I could take a job in which I would struggle to make monthly payments, or worse, postpone them, with interest accruing. For the same reason, I didn't go back to journalism after law school, which had been my plan. I also did not have anyone in law or legal academics to advise me on the value of a clerkship—an opportunity, perversely, that one never has again—for my later career.

I was the beneficiary of many privileges at that time in life. Not among them was the luxury of choosing a clerkship or any job because it would be a smart resume builder, rather than because it would pay my bills. Not among them was having anyone to model a career in legal academics, or tell me what to do to get there. And yet, with no undergrad debt, I already was much better off than most of the students I teach now. I did not yet have a family to take care of. I was able to put every spare dime from my attorney earnings into paying off my debt.

My top-10 choice paid off some, because I would not otherwise have scored my first job in academics. A key faculty player in hiring had gone to the same law school I did. The hiring school was in urgent need of an immediate start, and I was willing to quit my job and move halfway across the country at Christmas. The hiring school was especially vexed over poor student writing skills, and I was a former journalist and capable copy editor. There it is: 60% privileges, 30% right-place-right-time, and 10% merit.

Yet I would be limited thenceforth by not having clerked, and by other, similar factors. I never volunteered abroad, as many aspiring academics do. I wanted to—because of my family ties, a passport was a privilege I did have—but, again, I had to work 50 weeks per year to pay on my debt.

At my attorney job, I had little to no mentorship; it was all about billable hours. I had no role models to show me how to navigate in that world. I had no business contacts; no matter how hard I worked, I never would have made partner. The media lawyer I worked for when I started left for an in-house position after a year, and I was reassigned to the grind of mass-tort discovery.

In my first academic post, I had little to no mentorship in my professional development at my "tier 3" school. I had not even a scholarship requirement for my first years, when I was a contract instructor, not tenure track. I did not know to publish, what to publish, or where. I wrote and published only because I wanted to, about whatever I wanted. It was the law-professor equivalent of being a journalist; if you have writing in your heart, it's a compulsion.

I did not know that the choices I was making, from starting as an instructor rather than an assistant professor, to the lack of an overarching research agenda, to everything from subject matter to placement strategy to the titles of my articles: all was part of a portfolio that I had only one chance to do right. I didn't.

Sometimes a student comes to me and expresses a desire for an academic career. My heart breaks. I have a rehearsed presentation to explain, as gently as I can, that the student already is behind on that goal: by definition, as we are having the conversation at a "tier 4," or bottom tier, law school. An academic career probably is foreclosed because of "poor" choices the student already has made unwittingly, such as having a family and living on a budget.

Mostly, the track is foreclosed by circumstances beyond the student's control: Urban childhood. Weak K12. No jobs for youth. No college counseling. Ailing parents. Delayed higher education. Being the wrong race, ethnicity, religion, or sexual orientation and identity for whatever is in fashion.

Even the brightest and most determined candidate cannot cause 10% merit to control the outcome.

The "mentor" I mentioned at the top: I take nothing away from his merit. But does he appreciate why he is where he is? Does he think that when he submits an article for publication, its merits are the principal driver of an offer? Does he think that when he submits a job application, his hard work is the principal driver of an invitation?

He's a white man who started adulthood before I and in the "Morning in America" Reagan heyday. I don't want to say what college he went to, but suffice to say, it's one you've heard of in connection with Presidents and Supreme Court Justices. Law school too. Maybe he was plucked from child labor in an Appalachian mine to be gifted with these opportunities, but odds are not. He then clerked for a federal appeals court, and then for the U.S. Supreme Court. He diversified the resume with a short stint abroad. He worked briefly in public and private sectors. He won a teaching fellowship in the top 10, and never worked lower: from there to tenure track, named professorship, center director, etc.

Brilliant bloke. 10%. 

But not that brilliant. 60% privileges, 30% right-place-right-time.

I think my writing is very good.

Mass. attorney board rushes to racialize, shun 'overseer,' ignores word's ancient, biblical usages

A proposal published for public comment would change the name of the Massachusetts Board of Bar Overseers to the "Board of Bar Oversight" to avoid connotations of slavery in the term "overseer."

The new name means the "BBO" will keep its popular initialism. The BBO was formed in 1974, so the "overseer" usage originated independently of the negative connotation. It seems what's changed in the last half century is sensitivity to language, for better and for worse.

Frederick Douglass
and grandson Joseph Douglass, 1894
Smithsonian NMAAHC

The BBO stated its reasoning:

The word "overseer" has a pernicious history in our country, tied inextricably to chattel slavery. On southern plantations, an overseer was the slaveowner's delegate in day-to-day governance, trusted to enforce order and obedience. Overseers were the most visible representatives of white supremacy. As defined in the Online Etymology Dictionary, an overseer was "one who has charge, under the owner or manager, of the work done on a plantation." In autobiographies by slaves such as Frederick Douglas [sic] and Solomon Northup ("Twelve Years a Slave"), overseers were described as heartless, brutal and cruel. They were an inevitable and indispensable product of an economy built on human chattel. As noted by University of Louisville president Neeli Bendapudi, "The term overseer is a racialized term. It hearkens back to American slavery and reminds us of the brutality of the conditions and treatment of black people during this time." We agree with this statement.

I don't. To "racialize" is "to give a racial character to: to categorize, marginalize, or regard according to race." I agree that Bendapudi racialized the term. The BBO did not, before now. But therein lies the power of a passive structure, "is ... racialized," allowing one to accuse without responsibility to prove.

The BBO moreover is almost irresponsibly selective in its sourcing. First, the Online Etymology Dictionary is a project of a Pennsylvania writer, Douglas Harper. It's good and interesting to read; I'm not meaning to denigrate Harper's labor of love. But I'm not sure any one person's internet project should be anyone else's first stop for denotation, especially in a legal context. The BBO's sourcing is on par at best with high-school-term-paper standards.

Second, "one who has charge ... of the work done on a plantation" is not exactly what the Online Etymology Dictionary says. Rather, here's the entry in full:

late 14c., "supervisor, superintendent, one who looks over," agent noun from oversee (v.). Specifically, "one who superintends workmen;" especially with reference to slavery, "one who has charge, under the owner or manager, of the work done on a plantation."

So it's not true, even in the source referenced, that "overseer" on its face is defined as, or means, a plantation supervisor. The meaning arises in the especial context of slavery.

Maybe I'm a little sensitive to the whole thing because I once served as an "overseer" in my church. The BBO doesn't mention that the word has any meaning outside of slavery, much less that it has ancient and Biblical origins.

Episkopos (ἐπίσκοπος) in Ancient Greek translates literally as onlooker, or overseer, and that's the word used in the Iliad, the Odyssey, and the Bible. Epi (ἐπί) is a preposition meaning on or upon, and skopos (σκοπός) means to watch or look intently. Skopos is used variously (and in the Iliad) to refer to a lookout, a guardian, or a spy or scout.

In Ancient Greece, an episkopos referred specifically to a kind of imperial agent sent by Athens to distant municipalities to make sure they paid their taxes (Balcer 1977). (An interesting point of historical-comparative legal studies is that having a highly functional tax system is a common feature of successful ancient civilizations, from the Greeks to the Aztecs.) 

In the Iliad (22:255), A.T. Murray translation, Homer refers to the gods as witness to an agreement, using episkopoi (ἐπίσκοποι), the plural, to refer back to the gods. Murray beefed up the translation to say "witnesses and guardians of our covenant," thus articulating the added connotation of safeguarding.

In the Odyssey, also the Murray translation, below, Homer used episkopos more abstractly to indicate a role of authority:

τὸν δ᾽ αὖτ᾽ Εὐρύαλος ἀπαμείβετο νείκεσέ τ᾽ ἄντην:
‘οὐ γάρ σ᾽ οὐδέ, ξεῖνε, δαήμονι φωτὶ ἐίσκω
160ἄθλων, οἷά τε πολλὰ μετ᾽ ἀνθρώποισι πέλονται,
ἀλλὰ τῷ, ὅς θ᾽ ἅμα νηὶ πολυκλήιδι θαμίζων,
ἀρχὸς ναυτάων οἵ τε πρηκτῆρες ἔασιν,
φόρτου τε μνήμων καὶ ἐπίσκοπος ᾖσιν ὁδαίων
κερδέων θ᾽ ἁρπαλέων: οὐδ᾽ ἀθλητῆρι ἔοικας. 

Then again Euryalus made answer and taunted him to his face: "Nay verily, stranger, for I do not liken thee to a man that is skilled in contests, such as abound among men, but to one who, faring to and fro with his benched ship, is a captain of sailors who are merchantmen, one who is mindful of his freight, and has charge of a home-borne cargo, and the gains of his greed. Thou dost not look like an athlete."

In none of several English versions of this passage did I find episkopos translated directly. Poetically inclined translators such as Murray carried over the subject "captain" with either a pronoun or an implied subject. "Captain" here is "ἀρχὸς," or "chief." So it looks like Homer saw ἀρχὸς and ἐπίσκοπος as functionally equivalent in this context.

The New Testament accordingly uses episkopos several times to refer to church leaders. Indeed, "bishop" in English derives from the Greek episkopos—episcopus in Latin and obispo in Spanish.

Shepherd in 1 Peter 2:25
© Saint Mary's Press, licensed for non-commercial use

The First Epistle of Peter (2:25) (NIV) uses episkopos abstractly, as a metaphor for Jesus: "For 'you were like sheep going astray,' but now you have returned to the Shepherd and Overseer of your souls" ("ἦτε γὰρ ὡς πρόβατα πλανώμενα· ἀλλ᾽ ἐπεστράφητε νῦν ἐπὶ τὸν ποιμένα καὶ ἐπίσκοπον τῶν ψυχῶν ὑμῶν").  

Other usages are more concrete. In Acts 20:28 (NIV), Paul admonishes disciples: "Keep watch over yourselves and all the flock of which the Holy Spirit has made you overseers. Be shepherds of the church of God, which he bought with his own blood" ("προσέχετε οὖν ἑαυτοῖς καὶ παντὶ τῷ ποιμνίῳ ἐν ᾧ ὑμᾶς τὸ πνεῦμα τὸ ἅγιον ἔθετο ἐπισκόπους ποιμαίνειν τὴν ἐκκλησίαν τοῦ θεοῦ ἣν περιεποιήσατο διὰ τοῦ ἰδίου αἵματος"). Similar usages appear in Philippians 1:1, 1 Timothy 3:2, 1 Titus 1:7, and Hebrews 13:17.

The BBO needs to be called out here for shoddy work (really, misspelling Frederick Douglass?) and results-oriented reasoning. The board is myopically intent on sacrificing a word on the pyre of cancel culture—a move indicative more of wanting to look righteous than of wanting to be righteous. I might rather, as a general rule, strive for education and enlightenment, at least as a first-order response.

Yet, as it happens, I agree with the BBO's conclusion and proposal. Despite the board's woke pandering, the risk is significant that "overseer" will import for some hearers a connotation that should be foreign to the board's role. For me, it's not about "racialization"; it's about relationship. 

When I moved to New England and started to learn the ropes of the local legal culture, I bristled at the term "Bar Overseers." To be fair to Massachusetts, I have had the same feeling in other jurisdictions about boards of attorney and judicial "discipline." 

"Overseer" and boy in Yazoo City, Miss., yarn mill, 1911.
U.S. Library of Congress

I fear that these words connote a top-down style of austere supervision, a system of the powerful and the powerless, that does not comport with a profession of mutually supportive equals (dare I say, a brethren, which is and should be gender encompassing). "Overseer" is suggestive of a dramatic power imbalance; the word was used not only in connection with slavery and plantations, but in the context of child labor in the early 20th century.

That doesn't mean that the time never comes when persistent or willful misconduct requires a firm response; the profession owes its highest duty to the public. But using terms such as "overseer" and "discipline" has the unintended consequence of encouraging officeholders to misunderstand their roles. Lawyering and judging are among jobs that endow persons with authority over others, whether through power, like policing, or through access to knowledge. Some people attracted to these jobs are prone to use, or abuse, their power for its own sake. Those same people might gravitate to a job such as "overseer" or arbiter of "discipline" for the wrong reasons.

I was more amenable to the term "overseer" in my church, because the biblical usage is, or should be, utterly alien to abuse of power. Similarly, a church speaks of spiritual "discipline" with only the affirmative connotation of accountability to God. As a church overseer, I felt the weight of guardianship in the term. Being an overseer was a stern reminder of my responsibilities to others and sometimes, too often, of my own duties and failures of spiritual discipline. Anyone truly called to church leadership is humbled by the call, not lured by empowerment.

Even so, when my board of overseers overhauled the church constitution, we changed to "elder" leadership. At the same time, we changed the governance model. We studied and prayed over many church governance models. The Bible says remarkably little about specifics, so the art of church governance becomes part spiritual endeavor and part sociological experiment. We designed a variation on governance that we believed would work well for our congregation, better, at least, than what we had in an aging constitution. 

"Elder" aligned better with our new model, which emphasizes biblical knowledge, experience, and mentorship. There's nothing technically deficient in the term "overseer" for our new model, and we were not afraid of "racialization." It was just semantics. Different Christian writers have committed to different terms, so those terms now carry connotations of the writers' observations and recommendations.

So connotation, like context, matters. And given the connotation of barbarism that even sometimes attaches to "overseer," especially in secular contexts, the BBO's modest proposal is sensible.

I simply would prefer that the proposal were backed by an evenhanded and honest analysis. Then we might be able to say, more modestly, that we are just pushing pause on "overseer": giving its deplorable connotation time to fade in our social consciousness, rather than committing a word of ancient import to the dustbin because of a modern-era abomination.

South American visitor wonders at lawyer billboards; artist imagines canine advocates instead

A young man I know from Paraguay recently visited the Philadelphia area for a week, his first time in the United States.

I texted to check on him when he returned home to Asunción. He had a great visit, was home safe and exhausted, he texted back, and had seen so much, it would take a while to process it all.

But one question, he wrote.

 

Hmm.

I guess Americans get in a lot of accidents, I said. 

No, actually, I just texted, "🤑." I think that covered it.

Lawyer advertising is the theme of some delightful imaginings in a canine vein by Kensington Campbell: Instagram embed below. See more there or on TikTok. Hat tip @ Molly Sullivan and Frances Fendler.

View this post on Instagram

A post shared by Golden Retriever | Kensington (@kensingtoncampbell)

Sherman speaks on lawyering, Spotlight investigation

Ambassador Robert Sherman
RJ Peltz-Steele CC BY-NC-SA 4.0

Attorney Robert A. Sherman, U.S. ambassador to Portugal from 2014 to 2017, spoke to students, staff, and faculty at the University of Massachusetts Law School today about his experience as a lawyer and diplomat.

Sherman's work experience spans criminal and civil practice, as well as politics and diplomacy. In a tort vein, from 2002 to 2004, Sherman was lead counsel for plaintiffs in sex abuse claims against the Roman Catholic Archdiocese of Boston. Those were among the cases investigated by the Boston Globe "Spotlight" team, whose work was dramatized in the 2015 feature film, Spotlight.

Early in the wave of sex-abuse litigation against the church, Sherman said, plaintiff attorneys faced daunting hurdles, such as statutes of limitations and charitable immunity for the church in state law. Another problem was simply identifying victims. Many victims self-blamed, and a powerful stigma attached to the first persons who came forward. 

As is problematically common in American tort litigation, secrecy in negotiated dispute resolution and non-disclosure agreements in settlements prevented the public from knowing who the perpetrators were and from understanding the scope of the wrongs. The same conditions impeded the Spotlight investigation.

Sherman said that he's spoken publicly only recently about his connection to Globe editor Walter V. Robinson and the Spotlight team. Because of his work on the cases, Sherman said, he knew more than the public, and more than the Spotlight team, about the magnitude of the problem. And he knew who the perpetrators were. Yet bound by attorney-client confidentiality, Sherman said, he could not speak freely. He wrestled with his ethical responsibilities, he said.

Occasionally, Sherman met Robinson on a park bench—like in a spy thriller. Robinson wanted names. Sherman couldn't give them. But Robinson might say, for example, "Our sources tell us to look into Father Shanley." Sherman would respond, "I've heard of Father Shanley." That was all Robinson needed to hear to know that his lead was good.

Sherman and his law firm resolved 385 of 525 victim claims against the church in arbitration, he said.

Law school and working as an attorney well prepared Sherman to be an ambassador, he said, because the job of ambassador boils down to resolving conflicts, if between nations rather than between people.

Lawyers on social media delight, inform, raise ethics questions about attorney-client relationships

An attorney panel earlier this month shared the joys and hazards of lawyers addressing the general public through social media.

A hat tip to Mississippi attorney Kye C. Handy, Balch & Bingham, for introducing me to California attorney and influencer Reb Masel on TikTok, the J.D. genius behind Reading Iconic Court Transcripts and other legal commentary.

@rebmasel i dedicate this one to Kohl’s cash #transcripts ♬ original sound - reb for the rebrand

Reb Masel's Rebuttal
(Spotify, Apple, YouTube)

Reb Masel hosts the Rebuttal podcast at Spotify, Apple, and YouTube. Read more about her at Tubefilter, where she said in fall 2023 that she practices in defense-side civil litigation "for now." If you must know more about Pepperdine Law alumna Reb Masel in the muggle world, the Daily Mail wrote about her in 2022.

Handy served on an ethics panel at the Next Generation and the Future of Business Litigation program of the Tort Trial & Insurance Practice Section (TIPS) of the American Bar Association (ABA) at the 2024 ABA Midyear meeting in Louisville, Ky., earlier this month.

A key takeaway of the panel for attorneys: be careful you don't create an attorney-client relationship through social media posts. If giving legal advice, disclaim, disclaim, disclaim.

Florida attorney Richard Rivera said that ethical obligations may arise merely from a viewer's subjective belief that an attorney-client relationship exists. I presume there is a reasonableness check on that, but the objective measure would be lay perception, not the knowledge and experience of the attorney. Thus, a social media post can trigger an attorney's duties of confidentiality and timely response to questions.

Accordingly, Washington attorney Matthew Albrecht warned attorneys to keep up with their inboxes in all media. If a viewer or listener reaches out through a web form, social media direct messaging, etc., asking a question in response to a post, failure to respond promptly can be an ethics violation.

Moreover, an attorney must be wary of questioners who overshare, Albrecht said. They might post comments on a public website that compromise their cases, and the attorney may be obliged to delete the comments to protect the prospective client. A questioner also might provide information that puts the attorney in conflict with prior or existing clients. So an attorney with any online presence should have and adhere to a careful policy for receiving and processing incoming communications.

I wish I could count on a response from a doctor's office when I ask a question. Clearly, the bar for attorneys is higher.

Probably needless to say, some attorneys give advice in mass media that might be accurate in context and not run afoul of ethics rules, but might at the same time invite trouble in problematic misunderstanding. For example, many online videos present Texas lawyers schooling viewers on the use of force in defense of property under the state's generous castle laws. Handy shared one video by a lawyer who described a property owner vs. trespasser confrontation in which the property owner might lawfully "beat her ass."

To inform professionalism, Handy recommended to law students and new lawyers the podcast Young Lawyer Rising from the Legal Talk Network, an ABA partner.

The ABA TIPS panel comprised Albrecht, Handy, Rivera, and D.C. attorney Josephine M. Bahn.

AI can make law better and more accessible; it won't

Gencraft AI image

Artificial intelligence is changing the legal profession, and the supply of legal services is growing even more disconnected from demand.

The latter proposition is my assessment, but experts agreed at a national bar conference last week that AI will change the face of legal practice for attorneys and clients, as well as law students and professors.

Lexis and Westlaw each recently launched a generative AI product, Lexis+ AI Legal Assistant and AI-Assisted Research on Westlaw Precision. One might fairly expect that these tools will make legal work faster and more efficient, which in turn would make legal services accessible to more people. I fear the opposite will happen.

The endangered first-year associate. The problem boils down to the elimination of entry-level jobs in legal practice. Panelists at The Next Generation and the Future of Business Litigation conference of the Tort Trial Insurance Practice Section (TIPS) of the American Bar Association (ABA) at the ABA Midyear Meeting in Louisville, Kentucky, last week told audience members that AI now performs the work of first- and second-year associates in legal practice.

The change might or might not be revolutionary. Popular wisdom routinely describes generative AI as a turning point on the evolutionary scale. But panelists pointed out that legal research has seen sea change before, and the sky did not fall. Indeed, doomsayers once predicted the end of responsible legal practice upon the very advent of Lexis and Westlaw in displacement of books and paper—a transformation contemporary with my career. Law practice adapted, if not for the better in every respect.

It's in the work of junior attorneys that AI is having the greatest impact now. It can do the background legal research that a senior lawyer might assign to a junior lawyer upon acquisition of a new client or case. AI also can do the grunt work on which new lawyers cut their teeth, such as pleadings, motions, and discovery.

According to (aptly named) Oregon attorney Justice J. Brooks, lawyers are under huge pressure from clients and insurers to use AI, regardless of the opportunity cost in bringing up new attorneys. Fortune 500 companies are demanding that AI be part of a lawyer's services as a condition of retention. The corporate client will not pay for the five hours it takes an associate to draft discovery requests when AI can do it in 1.5.

Observers of law and technology, as well as the courts, have wrung their hands recently amid high-profile reports of AI-using lawyers behaving badly, for example, filing briefs citing sources that do not exist. Brooks said that a lawyer must review with a "critical eye" the research memorandum that AI produces. Insofar as there have been ethical lapses, "we've always had the problem of lawyers not reading cases," Illinois lawyer Jayne R. Reardon observed.

Faster and cheaper, but not always better, AI. There's the rub for newly minted associates: senior lawyers must bring the same scrutiny to bear on AI work that they bring to the toddling memo of the first-year associate. And AI works faster and cheaper.

Meanwhile, AI performs some mundane tasks better than a human lawyer. More than cutting corners, AI sometimes sees a new angle for interrogatories in discovery, Brooks said. Sometimes AI comes up with an inventive compromise for a problem in mediation, Kentucky attorney Stephen Embry said. AI can analyze dialogs to trace points of agreements and disagreement in negotiation, Illinois lawyer Svetlana Gitman reported.

AI does a quick and superb job on the odd request for boilerplate, North Carolina attorney Victoria Alvarez said. For example, "I need a North Carolina contract venue clause." And AI can organize quickly large data sets, she said, generating spreadsheets, tables, and graphics.

What AI cannot yet do well is good jobs news for senior lawyers and professors such as me: AI cannot make complex arguments, Brooks said. In fact, he likes to receive AI-drafted memoranda from legal opponents. They're easily recognizable, he said, and it's easy to pick apart their arguments, which are on par with the sophistication of a college freshman.

Similarly, Brooks said, AI is especially bad at working out solutions to problems in unsettled areas of law. It is confused when its training materials—all of the law and most of the commentary on it—point in different directions. 

In a way, AI is hampered by its own sweeping knowledge. It has so much information that it cannot readily discern what is important and what is not. A lawyer might readily understand, for example, that a trending theory in Ninth Circuit jurisprudence is the peculiar result of concurring philosophical leanings among involved judges and likely will be rejected when the issue arises in the Fifth Circuit, where philosophical leanings tend to the contrary. AI doesn't see that. That's where human insight still marks a peculiar distinction—for now, at least, and until I retire, I hope.

It's that lack of discernment that has caused AI to make up sources, Brandeis Law Professor Susan Tanner said. AI wants to please its user, Oregon lawyer Laura Caldera Loera explained. So if a lawyer queries AI, "Give me a case that says X," AI does what was asked. The questioner presumes the case exists, and the AI follows that lead. If it can't find the case, it extrapolates from known sources. And weirdly, as Tanner explained it, "[AI] wants to convince you that it's right" and is good at doing so.

Client confidences. The panelists discussed other issue with AI in legal practice, such as the importance of protecting client confidences. Information fed into an open AI in asking a question becomes part of the AI's knowledge base. A careless lawyer might reveal confidential information that the AI later discloses in response to someone else's different query.

Some law firms and commercial services are using closed AIs to manage the confidentiality problem. For example, a firm might train a closed AI system on an internal bank of previously drafted transactional documents. Lexis and Westlaw AIs are trained similarly on the full data sets of those proprietary databases, but not, like ChatGPT, on the open internet—Pornhub included, clinical psychologist Dan Jolivet said.

But any limited or closed AI system is then limited correspondingly in its ability to formulate responses. And closed systems still might compromise confidentiality around ethical walls within a firm. Tanner said that a questioner cannot instruct AI simply to disregard some information; such an instruction is fundamentally contrary to how generative AI works.

Law schools in the lurch.  Every panelist who addressed the problem of employment and training for new lawyers insisted that the profession must take responsibility for the gap that AI will create at the entry level. Brooks said he pushes back, if sometimes futilely, on client demands to eliminate people from the service chain. Some panelists echoed the tantalean promise of billing models that will replace the billable hour. But no one could map a path forward in which there would be other than idealistic incentives for law firms to hire and train new lawyers.

And that's a merry-go-round I've been on for decades. For the entirety of my academic career, the bar has bemoaned the lack of "practice ready" lawyers. And where have practitioners placed blame? Not on their bottom-line-driven, profit-making business models, but on law schools and law professors.

And law schools, under the yoke of ABA accreditation, have yielded. The law curriculum today is loaded with practice course requirements, bar prep requirements, field placement requirements, and pro bono requirements. We have as well, of course, dedicated faculty and administrative positions to meet these needs.

That's not bad in of itself, of course. The problem arises, though, in that the curriculum and staffing are zero-sum games. When law students load up on practice-oriented hours, they're not doing things that law students used to do. When finite employment lines are dedicated to practice roles, there are other kinds of teachers absent who used to be there.

No one pauses to ask what we're missing.

My friend and mentor Professor Andrew McClurg, retired from the University of Memphis, famously told students that they should make the most of law school, because for most of them, it would be the last time in their careers that they would be able to think about the law.

Take the elective in the thing that stimulates your mind, McClurg advised students (and I have followed suit as an academic adviser). Explore law with a not-nuts-and-bolts seminar, such as law and literature or international human rights. Embrace the theory and philosophy of law—even in, say, your 1L torts class.

When, like my wife once was, you're a legal services attorney struggling to pay on your educational debt and have a home and a family while trying to maintain some semblance of professional responsibility in managing an impossible load of 70 cases and clients pulling 24/7 in every direction, you're not going to have the luxury of thinking about the law.

Profit machines. What I learned from law's last great leap forward was that the "profession" will not take responsibility for training new lawyers. Lawyer salaries at the top will reach ever more for the heavens, while those same lawyers demand ever more of legal education, and of vastly less well compensated legal educators, to transform and give of themselves to be more trade school and less graduate education.

Tanner put words to what the powers-that-be in practice want for law schools to do with law students today: "Train them so that they're profitable."  In other words, make billing machines, not professionals.

Insofar as that has already happened, the result has been a widening, not narrowing, of the gap between supply and demand for legal services. Wealthy persons and corporations have the resources to secure bespoke legal services. They always will. In an AI world, bespoke legal services means humans capable of discernment and complex argument, "critical eyes." 

Ordinary people have ever less access to legal services. What law schools have to do is expensive, and debt-burdened students cannot afford to work for what ordinary people are able to pay.

A lack of in-practice training and failure of inculcation to law as historic profession rather than workaday trade will mean more lawyers who are minimally, but not more, competent; lawyers who can fill out forms, but not conceive new theories; lawyers who have been trained on simulations and pro bono hours, but were never taught or afforded an opportunity to think about the law. 

These new generations of lawyers will lack discernment. They will not be able to make complex arguments or to pioneer understanding in unsettled areas of law. They will be little different from and no more capable than the AIs that clients pay them to access, little better than a human equivalent to a Staples legal form pack.

These lawyers will be hopelessly outmatched by their bespoke brethren. The ordinary person's lawyer will be employed only because the economically protectionist bar will forbid direct lay access to AI for legal services.

The bar will comprise two tribes: a sparsely populated sect of elite lawyer-professionals, and a mass of lawyer-tradespeople who keep the factory drums of legal education churning out form wills and contracts to keep the rabble at bay.

The haves and the have nots. 

It's a brave new world, and there is nothing new under the sun.

The first ABA TIPS panel comprised Victoria Alvarez, Troutman Pepper, Charlotte, N.C., moderator; Laura Caldera Loera and Amanda Bryan, Bullivant Houser Bailey, Portland, Ore.; Professor Susan Tanner, Louis D. Brandeis School of Law, Louisville, Ky.; and Justice J. Brooks, Foster Garvey, Portland, Ore. The second ABA TIPS panel referenced here comprised Svetlana Gitman, American Arbitration Association-International Center for Dispute Resolution, Chicago, Ill., moderator; Stephen Embry, EmbryLaw LLC and TechLaw Crossroads, Louisville, Ky.; Reginald A. Holmes, arbitrator, mediator, tech entrepreneur, and engineer, Los Angeles, Cal.; and Jayne R. Reardon, Fisher Broyles, Chicago, Ill.

Taxpayers help to fatten Big Law in prosecution that Chinese community chalks up to racial profiling

Rawpixel CC0

The American trend to embrace attorney fee-shifting is a cash cow for the corporate defense bar. A pending case speaks to the problem, as the Government seeks more than $600,000 in fees on behalf of white-shoe law firms from a man whom civil rights advocates say was racially profiled.

Waning of "the American Rule."  The American legal system is unusual in the world for its default rule that every party pays its own way in litigation. This "American rule" contrasts with "the English rule," adopted in most of the world's jurisdictions, by which "loser pays."

But in part in acknowledgement of the abnormally high transaction costs, especially attorney fees, of litigation in the United States, some statutory systems have adopted the English rule. In civil rights, for example, key federal statutes require fee-shifting to victorious plaintiffs. The concern is that the victims of civil rights violations will not otherwise be able to incentivize lawyers to take their cases.

That logic has leached out of civil rights, though, into ever more adjacent areas of legal practice. Most civil claims are filed against corporations, and most civil claims are unsuccessful. So corporations and their lawyers have been keen to think of new ways to be paid for their trouble, if not to deter lawsuits to begin with. 

A key such area is anti-SLAPP, that is, legal measures against "strategic lawsuits against public participation." Anti-SLAPP, about which I have written many times, is wildly popular with lawmakers: now the law in a majority of states, perennially proposed in Congress, and presently being drafted into EU law.

Anti-SLAPP began as a modest and rational means to deter corporations from weaponizing frivolous litigation against protestors, silencing them with legal fees. Thus, many anti-SLAPP laws penalize unsuccessful civil plaintiffs by charging them for the defendant's attorney fees. But the corporate media defense bar fell in love with anti-SLAPP. It's now a potent weapon for corporations to silence persons who dare say they've been defamed, or had their privacy invaded, in mass publication. 

It's important to remember that just because a plaintiff is unsuccessful in civil litigation does not mean that the plaintiff was not wronged. Defamation and privacy law is rife with defendant-friendly mechanisms designed to over-protect media defendants from even meritorious claims, from evidentiary privileges, to limitations on discovery, to daunting burdens such as the New York Times Co. v. Sullivan (U.S. 1964) "actual malice" standard. Anti-SLAPP piles on another prophylactic defense, one that works so fast, a defendant need not even answer the complaint.

I've been consistent in my opposition to anti-SLAPP's poisonous growth, especially its fee-shifting penalty. Frequent litigant Donald Trump, by the way, has been on both sides of anti-SLAPP fees, having been awarded nearly $300,000 in attorney fees against Stormy Daniels in response to her claim of defamation. It sometimes amuses me and sometimes saddens me to see civil rights advocates, journalists, and media law professors align themselves with mega-corporations in publishing, eager to line the pockets of Big Law.

United States v. Yu. The instant case is criminal, not civil. But the case involves a civil restitution statute that allows for a criminal defendant to be charged with the legal fees incurred by a "victim." 

Haoyang Yu, a naturalized U.S. citizen of Chinese descent, was a Boston-area engineer charged with 21 crimes in connection with his work developing chip technology for Analog Devices, Inc. (ADI). The court dismissed one charge and acquitted Yu of another before submitting 19 charges to the jury. The jury acquitted Yu of 18 charges and convicted him of one only: illegal possession of trade secrets. 

More or less, Yu took his work home with him, and his work included a proprietary chip design. The government had accused Yu of much worse: intention to steal ADI tech either to start his own company or to pass research to the Chinese government. Yu was caught up in a government crackdown amid fear of foreign espionage in the American tech industry. The evidence did not bear out the suspicion.

Critics point to Yu's Chinese origin and ancestry to allege that he was a victim of racial profiling. The trial judge in the case even acknowledged, "It's hard to say that Mr. Yu’s race or ethnicity was not a factor here" (Lexington Observer, June 2, 2023). APA (Asian Pacific American) Justice has tracked Yu's case. The Intercept covered the case in 2022. Critics pointed out that allegations such as those in Yu typically are resolved in mere civil litigation over theft of trade secrets. Yu was sentenced to six months' imprisonment and a fine, and then was sued by ADI.

The part of the case pertinent here is the Government's motion in federal district court that Yu be ordered to pay $606,879 to ADI attorneys at high-end firms WilmerHale and Quinn Emanuel. The Government invoked the Mandatory Restitution to Victims Act (MRVA).

The MRVA was enacted in 1996. A U.S. Department of Justice (DOJ) summary of the law doesn't much conjure a corporation as the kind of "victim" the law was meant to help. DOJ imagined "[v]ictims of crimes such as telemarketing, child exploitation, interstate domestic violence and sexual assault." The summary contemplates victims' "lost income and necessary child care, transportation, and other expenses related to participation in the investigation or prosecution of the offense."

In contrast, the fat legal bills in Yu include, according to, e.g., Brian Dowling at Law360 (subscription), $1,865 per hour for a Quinn Emanuel partner to watch the trial from the gallery. Other hourly rates at Quinn range from $320 for a paralegal, $880 for a second-year associate, and $1,095 for a fourth-year associate, to $1,440 for "counsel."

When I was in practice in the mid-1990s, as a first- and second-year associate, my billing rate with Big Law in Baltimore and Washington, D.C., was in the neighborhood of $120 per hour. I made about $25 per hour. Today, in academics, I make about $115 per hour (unrealistically assuming I work only 40 hours per week for nine months). According to public data, my students graduating UMass Law today will make about what I did in 1995, public or private sector. No adjustment for inflation.

Multiplying out the Quinn counsel rate yields $2.88m per year. Even if only 20% is paid out in salary, that's $576,000 per year. Not bad. I bet, though, that the $1,865/hr. attorney, a former Acting U.S. Attorney, takes home better than 20%. I guess the difference between the 1990s and now is that back then, shame was still a thing. 

Meanwhile, the bar is eager to tell law schools that it no longer can afford to mentor and train lawyers on the job, and that we should purge from the curriculum the esoteria of legal theory and public policy in favor of producing "practice ready" billing machines.

Quinn Emanuel has an entertainment and media litigation group that defends defamation and privacy claims for mass-market publishers. If I find myself defamed or otherwise wronged by a Quinn Emanuel media client, I shudder to think what the tab might be if I sue, but can't prove actual malice. Thanks to anti-SLAPP fee-shifting, Quinn Emanuel can be very well compensated even if one of its clients is negligent in decimating a person's reputation.

Next time a purported champion of the First Amendment or Fourth Estate tells you what a good idea anti-SLAPP is, think about the mahogany furniture and extravagant lifestyle of the Big Law Boston lawyer.

In an MRVA case, Big Law even gets the benefit of taxpayer-funded litigation to get paid, as the Government carries on the demand on behalf of the "victim."

The parties in Yu are now wrangling over the fee demand. The court asked the Government to break down the ask in a spreadsheet. The Government filed a data disc in December.

The case is United States v. Yu (D. Mass. indictment filed 2019), Judge William G. Young presiding.

Lawyers spotlight persecution of profession in Iran

Taymaz Valley via Flickr CC BY 2.0

Yesterday the International Law Section (ILS) of the American Bar Association (ABA) recognized the International Day of the Endangered Lawyer with a spotlight on Iran in a webinar, "Iranian Lawyers: Risking Their Licenses, Their Liberty, and Even Their Very Lives."

U.S. Court of International Trade Judge Delissa Anne Ridgway moderated a discussion with Margaret L. Satterthwaite, NYU law professor and U.N. Special Rapporteur on the Independence of Judges and Lawyers, and Stuart Russell, a Canadian lawyer and co-director of the International Association of People's Lawyers Monitoring Committee on Attacks on Lawyers, based in Bordeaux, France.

To suppress opposition to the ruling regime, especially since the 2009 "Green Movement," the speakers explained, the government of Iran has persecuted lawyers who dare to represent dissenters. Lawyers themselves have been imprisoned, and bar organizations have been disempowered in their regulatory oversight of the profession, Russell reported.

Judge Ridgway lauded a documentary, Nasrin (2020) (IMDb), which is available for $3 on multiple platforms. I'm adding it to my watch list (trailer below). Exemplary of Iranian lawyers' travails, Nasrin Sotoudeh, an activist and advocate for the rights of women and children in Iran and subject of the documentary, has been imprisoned multiple times, sentenced to lashes, and severely beaten. Voice of America reported Sotoudeh's most recent release from prison, on bail, in November 2023.

I note, DW also published a documentary piece on Sotoudeh, Protecting Human Rights in Iran (2023), available on YouTube.

The ABA ILS program was co-sponsored by the Middle East Committee, the International Human Rights Committee, and the Women's Interest Network. I am a member of the ABA ILS Legal Education and Specialist Certification Committee.

'Fisk' is the civil-practice lawyer you've been looking for

If you're looking to fill that Netflix queue as the writers' strike drags on, check out the Australian sitcom, Fisk.

When I put together a church message on ethics recently, I was looking to fill out a line about civil practice attorneys and coming up short. I wanted to make the point that when someone says "personal injury lawyer," we are quick to think of iconic unethical characters, and it's harder to conjure up the ethical ones. I didn't at first realize how much harder.

I ran the thought experiment on myself first. Even for me, a torts prof, it's hard, first, to filter out criminal lawyers. When I work the problem chronologically, the first character lawyer I remember adoring in my youth is Star Trek's Samuel T. Cogley (Elisha Cook), who defended Captain Kirk in a court-martial: criminal. The first civil selection that comes to mind is Boston Legal's Alan Shore (James Spader). But even he first appeared on The Practice, a criminal-law show.

Solidly on the civil side, unethical characters do come to mind quickly. For the message, I settled on My Cousin Vinny's Vinny Gambini (Joe Pesci), who was a civil-practice attorney out of his depth in a criminal-law storyline, and, to cross generations, Breaking Bad and Better Call Saul's Jimmy McGill/Saul Goodman (Bob Odenkirk). 

Then the ethical characters....  There are plenty in criminal, both prosecution and defense. Jack McCoy (Sam Waterston) is most often cited as admired when I survey 1L students. Ben Matlock (Andy Griffith) and Atticus Finch are classics.

Civil? Alas, so few people remember Alan Shore. I briefly considered Victor Sifuentes (Jimmy Smits). But on close inspection, nobody on L.A. Law holds up well as memorable and consistently ethically. There was Ally McBeal (Calista Flockhart), but she had a lot of balls (and dancing babies) in the air besides law practice. I interrogated the staff of The West Wing; none of the leads was a lawyer. I'm fond of Madam Secretary's Mike B. (Kevin Rahm), but he was as often as not a devil's advocate to test Elizabeth McCord's righteousness. Erin Brockvich? Real-life hero, but, to be technical, paralegal and consultant, not lawyer. Maybe Ralph Nader, though then it gets political.

John Calvin (1509-1564)
Public domain via Wikimedia Commons

For the church message, I settled on the real-life John Calvin, the 16th-century French theologian. He trained as a lawyer before he got caught up in the Reformation. It's a reach, I know.  But the bench is not deep, and Calvin was a stalwart for his faith.

So I come back around to Fisk, the title character of which is lawyer Helen Tudor-Fisk, created and played by comedian Kitty Flanagan. Tudor-Fisk was a high-powered corporate lawyer in Sydney until a bitter divorce and a workplace meltdown prompted her to upend her career and move to Melbourne. There she struggled to find a bed and a job, landing as a temporary fill-in for a suspended trusts-and-estates lawyer at a scrappy two-partner shop.

Fisk is not about law or legal ethics. The show, and its comedy, derive from Flanagan's delightfully dry-witted character as she navigates the ups and downs of her shattered life. The law practice is setting and background. But then—I don't think it's a big spoiler to say—her quiet diligence in her new job suddenly and gratifyingly comes to the fore in the finale of the six-episode season 1.

When I finished Fisk s1 last week, my own biases were laid bare. I had tried to think of what an ethical civil-practice attorney looks like. I pictured a renowned, tough-as-nails civil litigator, a silver-haired Matlock analog, dazzling jurors in the courtroom in "ripped from the headlines" cases.

Forget all that. Helen is the real deal.

I fell for Fisk.

Season 1 of Fisk is streaming now on Netflix. Season 2 ran on Australian Broadcasting last year; to my knowledge, it has not yet been licensed to stream in America.

UPDATE Oct. 22, 2023: Fisk s2 is now available to purchase in America from services including Amazon Prime.

Does law school make students 'comedy-ready'?

Zarna Garg (from Press Kit)

Zarna Garg is a comedian known for her identity as an Indian-American mom. She's also a lawyer.

A lot of comedians went to law school. I can think of many reasons for the overlap. Some of it probably just has to do with a level of affluence to support both the luxury of graduate school and the opportunity to pursue, in the alternative, a usually unprofitable career.

I bet more has to do with the requisite wordsmithery of both careers. And lawyers' penchant to view the world through a pessimistic, or at least risk-anticipatory, lens surely makes for a better comedic edge than one would expect from the beaming optimism of the other classical professions, healers and clergy.

For Enhance Entertainment, Gav George opined that law school and comedy are not so different:

Getting through law school is no walk in the park—it takes hard work, a thick skin and dogged perseverance. The 3 a.m. study sessions, nerve-wracking exams and risk being cut down to size by peers in mock trials (or the front lobby), they all take their toll.

When you think about it, comedy is just as cut-throat. They have to always re-write material, survive the inevitable flop performances and harsh critics, hecklers and yes, occasional boos, all while quashing those niggles of self-doubt into a small black ball in the pit of their stomach.

A comedian’s neck is always on the line in the world of comedy until they get their big break.

Then stuff gets real.

John Cleese has a law degree.  He cut his teeth writing comedy for the Footlights Club while reading law at the University of Cambridge.  He never practiced.  Rebel Wilson might be my favorite lawyer-comedian. She's still not a half-bad lawyer if she had anything to do with her advocates' prosecution of her Australian defamation case.

I also like Demetri Martin. He left NYU Law School after two years to pursue comedy. I first saw Martin on The Daily Show in 2005, but already he had created a TV show for the BBC and written late night for Conan O'Brien—whose mother was a partner at Ropes & Gray.

A good friend of mine from law school came from a comedy background. He never practiced after school, but complemented K12 teaching—for which you really do need a sense of humor—with occasional stand-up. Yours truly wrote a weekly humor column for a newspaper once upon a time.

There's even a former-tenured-law-professor comedian, Liz Glazer. She taught at Hofstra.

I first heard Zarna Garg on a characteristically thought-provoking story on This American Life about her relationship with her daughter, Zoya. Garg's path to law school was unlike any I had heard before: she was avoiding an arranged marriage. Law school was like a draft deferment.

Later in her life, Garg found something still missing, a space that neither law practice nor beloved children had fully occupied. Ira Glass recounted for TAL, "Four years ago, when she was 16, Zoya saw how unhappy her mom was. She had trained to be a lawyer but didn't like it and stopped when she had her kids."

Garg said, "'Oh, I'll just be a secretary or somewhere. Or I got a law degree. I could go exercise my law degree. I could go practice law.' [And Zoya] was like, 'Mom, you hated practicing law. You love telling stories.'"

Now Garg tells stories that make people laugh. But like the best of comedians, she also makes people think. I hope I'll get the chance to hear her live one day. Or at least to see her on her very own Netflix special.

Judge teaches, supports professional development by encouraging appearance of junior attorneys

In multi-district civil antitrust litigation over turkey prices, a federal magistrate judge in Illinois in the fall issued an unusual order, calling on litigating firms to designate only junior attorneys to argue motions.

Pending before the court at the time were three pretrial matters, a discussion of expert testimony, a motion to preclude a deposition, and a motion to amend a scheduling order. On October 20, 2022, Magistrate Judge Gabriel A. Fuentes wrote:

[T]he Court would like to offer junior counsel an opportunity to speak to the expert discovery issue and to argue the two motions. The Court strikes the [planned telephonic] hearing and resets it to [Nov. 1,] when there will be ample time to address all three issues. If the parties do not indicate that they will permit junior associates to argue the motions, the Court will hold the hearing telephonically on the expert discovery issue only and will decide the two motions on the paper submissions.

The Court kindly requests that the parties confer and notify the courtroom deputy ... whether counsel with less than four years of experience after law school will be permitted to speak and argue; ideally, different counsel would argue the two different motions for the arguing parties. Also, multiple junior counsel could divide a party's arguments on a single motion if it makes logical sense to do so. Senior counsel of course may and should attend in a supervisory role and will be permitted to add or clarify as they see fit.

No inferences should be drawn about the importance of any motion to the Court based on the Court's attempt to create professional development opportunities for junior counsel. Additionally, the status hearing on the expert discovery issue strikes the Court as one that could be addressed by junior counsel.

(Paragraph breaks added.)

Judge Fuentes has served on the bench for almost four years, since May 2019. Before his appointment to the bench, Fuentes was an accomplished lawyer, and before law school, an accomplished journalist.

Fuentes wrote news and sports for local papers as a secondary-school student, and he worked his way up to managing editor of the Daily Northwestern while at the Medill Journalism School. He worked for four years as a reporter for The Los Angeles Times before going back to the Northwestern Pritzker Law School. After six years as an attorney associate, Fuentes made partner at Jenner and Block; left to serve about five years as an assistant U.S. attorney; then returned to Jenner and Block for 13 more years.

While practicing as a litigator in white collar defense, antitrust, and media law, Fuentes maintained a heavy docket of pro bono practice. In 2015, the Chicago Bar Foundation recognized his work "on indigent criminal defense, prisoner rights, the protection of voting rights for minorities, and First Amendment issues." In particular, Fuentes never stayed true to his journalistic roots, for example, once negotiating with counsel for Western University Illinois University on behalf of a student investigative journalist.

Being also a product of journalism and law schools, and likewise having represented student journalists pro bono, I identify with Judge Fuentes's experience. More importantly, as a law professor, I appreciate Fuentes's initiative to help new attorneys in big-law practice to get real forensic experience. 

Much of what is wrong with legal education today can be traced to the bean-counter orientation of administrators, universities, and the American Bar Association as accreditor, all of which are more concerned with bar pass statistics, superficial diversity, and, above all else, revenues, than with whether students actually learn anything worthwhile or grow as moral actors. Yes, law schools do care about making students "practice ready," but that only because the bar, unlike the medical fraternity, has shirked its historic responsibility to teach. The responsibility has devolved wholly on law schools, where practical skills training has all but supplanted the policy, theory, and moral deliberation that are supposed to make law a profession rather than mere occupation.

Fuentes has counseled students at Medill and taught adjunct at Pritzker, so he's kept a hand in the classroom, too. I don't know Fuentes. But to me, his apparent ability to synthesize his career experiences into simultaneous roles of servant and mentor represents the very model of professional identity. His minute order entry of October 20 should be the norm, not a headline.

Judge Fuentes ruled on the motions on November 9, and entered into the record: "The Court extends its thanks to the parties and counsel for allowing junior associates to argue and address these matters, and the associates are commended for an excellent performance."

The underlying case is In re Turkey Antitrust Litigation, No. 1:19-cv-08318 (N.D. Ill. filed Dec. 19, 2019). HT @ Adrian Cruz, Law360.