Ohnesorge on Regulation of the Legal Profession in China @WisconsinLaw

John K. M. Ohnesorge, University of Wisconsin Law School, is publishing Regulation of the Legal Profession in China: An Historical Overview in the China Law & Society Review. Here is the abstract.

This essay begins with an exploration of the role of law and “proto lawyers” in imperial China, followed by a survey of the legal profession and its regulation in Republican China before 1949 (Section II). Section III addresses lawyer regulation during the high tide of Soviet and the Maoist influence (III.A.), and in the post-1978 reform period (III.B. and III.C.), including the regulation of foreign lawyers and law firms in the China market. Section III.D. turns to developments since Xi Jinping took power in 2012, and Section IV offers concluding observations.

Download the article from SSRN at the link.

Bandes on Feeling and Thinking Like a Lawyer: Cognition, Emotion, and the Practice and Progress of Law @BandesSusan @DePaulLaw @FordhamLRev

Susan A. Bandes, DePaul University College of Law, is publishing Feeling and Thinking Like a Lawyer: Cognition, Emotion, and the Practice and Progress of Law in volume 89 of the Fordham Law Review (2021). Here is the abstract.

Generations of lawyers have been taught that thinking like a lawyer requires putting emotion aside. They are warned, for example, that anger will blind them to the facts as they really are. Yet cognitive science rejects the notion that emotion and reason are autonomous, warring spheres. Recently there has been increasing recognition of the harmful consequences of the narrow conception of “thinking like a lawyer” to lawyers’ well-being, but these consequences are generally portrayed as a necessary trade-off between the well-being of lawyers and the preservation of analytical rigor. This Essay will argue that the harm the narrow conception of “thinking like a lawyer” poses to lawyers’ well-being is not simply an ancillary issue or an unfortunate but necessary collateral consequence of engaging in rigorous, logical thinking. A conception of law that attempts to cordon off emotion is poorly suited to the complexities of legal practice and is inconsistent with modern knowledge about how legal, ethical, and moral reasoning—and indeed, legal change and reform—actually occur. This Essay will focus in particular on the emotion of anger and the consequences of attempting to banish it from the realm of legal reasoning.

Download the article from SSRN at the link.

Wells on Adolf A. Berle and the Modern Legal Profession

Harwell Wells, Temple University Beasley School of Law, has published 'All Lawyers are Somewhat Suspect': Adolf A. Berle and the Modern Legal Profession at 42 Seattle University Law Review 641 (2019). Here is the abstract.

Adolf A. Berle was perhaps the preeminent scholar of the modern corporation. He was also an occasional scholar of the modern legal profession. This article surveys his writings on the legal profession from the 1930s to the 1960s, from the sharp criticisms he leveled at lawyers, particularly corporate lawyers, during the Great Depression, to his sunnier account of the lawyer’s role in the postwar era. I argue that Berle’s views were shaped both by the reformist tradition he inherited from Louis Brandeis and his writings on the corporation, which left him convinced that the fate of the legal profession would be determined by that of the modern corporation.

Download the article from SSRN at the link.

Journal for Civil Rights and Economic Development:CFP: Navigating the Laws of Fashion: Professional Appearances in the Legal Field

A CALL FOR PAPERS FOR A SYMPOSIUM ISSUE

Journal for Civil Rights and Economic Development

Navigating the Laws of Fashion: Professional Appearances in the Legal Field

              Presentation is everything, especially in the legal field: how you speak, where you went to law school, and how you dress or style your hair. Still true today is the fact that women face more challenges with presentation than men. Serious critique of women’s appearances is an unfortunate reality for many female lawyers. People conflate how women dress and style their hair with how well they do their job. Judges and juries form opinions of female attorneys based solely on their looks and attire. Women face an impossible obstacle: look good, but not too good; pay attention to your appearance, but do not be too obvious about it; be different, but about the same as everyone else. Even local and state bar associations and law schools sponsor events about attire and presentation, including events on “properly applying make-up.” These challenges and criticisms can be even greater for women of color or LGBTQ women.

              These criticisms have continued to spark heated discussions about sexism and gender inequality in the legal field. The Journal of Civil Rights and Economic Development invites enthusiastic scholars, commentators, and practitioners who wish to add their voice to these discussions and present a perspective on this topic.

              The Journal for Civil Rights and Economic Development and the Ron Brown Center for Civil Rights invite you to be part of our exploration.

We welcome full-length traditional law review articles with a maximum of 75 pages, as well as shorter essays and commentaries with a minimum of 10 pages. Authors will be selected based on brief abstracts of their articles, essays, or commentaries. We aim for an array of perspectives, methodologies, and expertise.

To submit, please send:

• Your name, title, and professional affiliation;
• Your curriculum vitae/resume;
• Your contact details including phone number and email address;
• A two to three page abstract summarizing your essay or article and indicating what your expected page length will be.

Optional: Full Manuscripts are also welcome

• Manuscript between 25 and 75 pages for full-length articles and between 10 and 20 pages for essays and commentaries.

Please submit your abstract (or manuscript/essay/commentary) for consideration to: jcred@stjohns.edu

Submission Deadlines:

Abstract Deadline: August 15, 2019

Selected Author Notification Date: September 15, 2019

Essay/Book Review Deadline: December 31, 2019

If you have any questions about this call for papers or the Journal, please contact the Editor-in-Chief, Hunter Igoe, at hunter.igoe17@stjohns.edu.

Call for Nominations, AALS Section on Women in Legal Education, 2020 Ruth Bader Ginsburg Lifetime Achievement Award @WomenInLegalEd

Call for Nominations for the AALS Section on Women in Legal Education 2020 Ruth Bader Ginsburg Lifetime Achievement Award

The AALS Section on Women in Legal Education is pleased to open nominations for its 2020 Ruth Bader Ginsburg Lifetime Achievement Award. In 2013, the inaugural award honored Justice Ruth Bader Ginsburg. Subsequent winners include Catharine A. MacKinnon (2014), Herma Hill Kay (2015), Marina Angel (2016), Martha Albertson Fineman (2017), Tamar Frankel (2018), and Phoebe Haddon (2019). All of these remarkable women were recognized for their outstanding impact and contributions to the Section on Women in Legal Education, the legal academy, and the legal profession.

The purpose of the Ruth Bader Ginsburg Lifetime Achievement Award is to honor an individual who has had a distinguished career of teaching, service, and scholarship for at least 20 years. The recipient should be someone who has impacted women, the legal community, the academy, and the issues that affect women through mentoring, writing, speaking, activism, and by providing opportunities to others.

The Section is now seeking nominations for this most prestigious award. Only individuals who are eligible for Section membership may make a nomination, and only individuals—not institutions, organizations, or law schools—are eligible for the award. As established by the Section’s Bylaws, the AALS Section on Women in Legal Education Executive Committee will select the award recipient, and the award will be presented at the 2020 AALS Annual Meeting. 

Please submit your nomination by filling out this electronic form​ by August 30, 2019. Please note that only nominations submitted via the electronic form by the deadline will be accepted. If you encounter difficulties completing the survey, please contact Lisa Mazzie at: lisa.mazzie@marquette.edu.

Yoon on Academic Tenure

Albert Yoon, University of Toronto Faculty of Law, has published Academic Tenure at 13 Journal of Empirical Legal Studies 428 (2016). Here is the abstract.

In academia, a subset of faculty has tenure, which allows its beneficiaries to retain their professorships without mandatory retirement and with only limited grounds for revocation. Proponents of tenure argue it protects intellectual freedom and encourages investment in human capital. Detractors contend it discourages effort and distorts the academic labor market. This article develops a framework for examining academic tenure in the context of U.S. law schools. We construct a unique data set of tenured U.S. law professors who began their careers between 1993 through 2002, and follow their employment and scholarship for the first 10 years of their career. Across all journal publications, tenured faculty publish more frequently, are cited with roughly the same frequency, and place in comparable caliber of journal. These productivity gains, however, largely disappear when excluding solicited publications. These results suggest that legal academics continue to produce after tenure, but channel more of their efforts toward less competitive outlets.

The full text is not available from SSRN.

Wald on Lawyers' Identity Capital

Eli Wald, University of Denver College of Law, is publishing Lawyers’ Identity Capital in volume 22 of the International Journal of the Legal Profession (2016). Here is the abstract.

Lawyers’ commodification of personal identity is nothing new. For generations now, white male lawyers have benefitted from positive racial and gender stereotypes regarding their competence and loyalty to clients and firms to secure job offers, promotions and elevated status within the profession. Yet the concept of identity capital – the value one derives from one’s personal identity – warrants attention for two related reasons. While prevalent, lawyers’ use of identity capital has historically been implicit. As explicit and visible use of identity capital grows, however, lawyers must reckon with the meaning of and consequences of using identity capital in their practice. In addition, because women and minority lawyers are increasingly criticized for undermining professional standards by actively using identity capital or by passively allowing its commodification, fairness dictates that the profession comes to terms with the relationship between merit and capital. This essay examines the commodification of women and minority lawyers’ personal identity in the context of the ongoing commodification of lawyers’ personal identity more generally. Specifically, it explores several qualities of identity capital that ought to inform both the decision-making of individual lawyers who either actively deploy it or passively tolerate its commodification by others in representing clients and of the profession as it assesses the use of identity capital by its members: inevitable and avoidable uses of identity capital, the desirability of lawyers’ commodification of personal identity, active and passive uses of identity capital, the impact of identity capital exchanges on third parties, the interplay of merit and identity capital and the appropriate terms of identity capital transactions.

Download the article from SSRN at the link.

Cantrell on Love, Anger, and Lawyering

Deborah Cantrell, University of Colorado Law School, is publishing Love, Anger and Lawyering in the Richmond Journal of Law and Public Interest. Here is the abstract.

This essay explores how mindfulness practices helped one lawyer, now legal scholar, explore the roles of love and anger in lawyering.

Download the essay from SSRN at the link.

LoPucki on Disciplinary Legal Studies, Legal Scholarship, and Legal Academic Hiring

Lynn M. LoPucki, UCLA Law School, is publishing Disciplinary Legal Empiricism in volume 76 of the Maryland Law Review (2017). Here is the abstract.

This Article reports on an empirical study of one hundred and twenty empirical legal studies published in leading, non-peer-reviewed law reviews and in the peer-reviewed Journal of Empirical Legal Studies. The study is the first to compare studies by disciplinary empiricists – defined as Ph.D. holders – with those by non-disciplinary empiricists – defined as J.D. holders who are not also Ph.D. holders. Three differences identified in the study suggest that Ph.D. hiring is on a collision course with the demands of legal educators, the organized bar, and students that the law schools better prepare students for practice. First, disciplinary legal empiricists focus their studies less directly on legal issues and materials. Second, disciplinary legal empiricists are only half as likely as non-disciplinary empiricists to create new datasets. Instead, they analyze existing datasets statistically, conduct experiments, or administer surveys. Because most J.D.-Ph.D.s have no practice experience when they begin teaching and pursue scholarly agendas that do not engage them with lawyers or legal materials, they are unlikely to become sufficiently familiar with the world of legal practice to effectively prepare students for it. Third, Ph.D.s tend to collaborate with other Ph.D.s. That finding is in tension with the claim that hiring small numbers of Ph.D.s who collaborate with the non-Ph.D.s on law faculties can meet the law schools’ need for pervasive empiricism. This Article concludes that Ph.D. hiring will continue to increase across all levels of the law school hierarchy as a share of tenure-track hiring. But the numbers of tenure-track law faculty hired will shrink as the law schools shift resources to hiring full-time, non-tenure track faculty with legal experience.

Download the article from SSRN at the link.

Weinrib on Civil Liberties Lawyering Between the World Wars

Laura M. Weinrib, University of Chicago Law School, is publishing From Left to Rights: Civil Liberties Lawyering between the World Wars in Law, Culture, and the Humanities. Here is the abstract.

In the formative years of the modern First Amendment, civil liberties lawyers struggled to justify their participation in a legal system they perceived as biased and broken. For decades, they charged, the courts had fiercely protected property rights even while they tolerated broad-based suppression of the “personal rights,” such as expressive freedom, through which peaceful challenges to industrial interests might have proceeded. This article focuses on three phases in the relationship between the American Civil Liberties Union (ACLU) and the courts in the period between the world wars: first, the ACLU’s attempt to promote worker mobilization by highlighting judicial hypocrisy; second, its effort to induce incremental legal reform by reshaping social values; and third, its now familiar reliance on the judiciary to insulate minority views against state intrusion and majoritarian abuses. By reconstructing these competing approaches, the article explores the trade-offs — some anticipated and some unintended — entailed by the ACLU’s mature approach.

Download the article from SSRN at the link.

David Bowie and Law

From LegalITInsider:

While David Bowie was still David Jones, he had a day job at Legastat (litigation support) (in London, near Lincoln's Inn). Oh, yes. Pix and more info here.

Earthlings
I don't want knowledge
I want certainty
I don't want knowledge
I want certainty

-- David Bowie and Reeves Gabrels

Influence of the French Bar on the Development of the Russian Legal Profession

Elizaveta Blagodeteleva, National Research University Higher School of Economics (Moscow), has published The French Bar and the Emerging Legal Profession in Russia as Higher School of Economics Research Paper No. WP BRP 110/HUM/2015. Here is the abstract.

The complex and seemingly inconsistent use of the social vocabulary has been on the research agenda of those who study the Russian Empire for quite some time. Historians have long believed that the indiscriminate use of such terms as "estate" ("soslovie") and "corporation" reflected Russian backwardness and eventually impeded further social and economic development, especially when it came to professional groups. The paper examines this assumption by focusing on the terminology deployed for the designation of Russian lawyers, in comparison to their French counterparts. Therefore, it dwells at length on the references to the French Bar in the bureaucratic discussion and in current press at the time of drafting the basic principles of the future Bar organization in Russia between 1857 and 1864. The comparison of the two sets of references provided plenty of evidence that the French notion of the estate (l'ordre des avocats) had a dramatic impact on the interpretation of Russian soslovie of legal practitioners. The French model seemed to spur social imagination and eventually helped Russian political and intellectual elites envisage a new type of social organization encompassing free, well-educated and politically engaged men.

Download the paper from SSRN at the link.

Machiavelli and the Nature of Law Practice

David Barnhizer, Cleveland-Marshall College of Law, has published The Moral Lawyer and the Machiavellian Nature of Law Practice as Cleveland-Marshall Legal Studies Paper 15-288. Here is the abstract.

In Western culture the name Niccolo Machiavelli has become Machiavellianism, a pejorative signifying the willingness to do anything to achieve desired ends. American lawyers do have limits, however, and are expected to operate according to an ethical code that is at least intended to prevent the worst abuses. The effectiveness of this ethical code has often been questioned, as have the questionable efforts of the organized bar to enforce its rules, but on the surface it differentiates law practice from hand-to-hand combat and military struggles. Even though I have sometimes used the concepts of the warrior lawyer, the general and the Machiavellian to communicate insights into the essence of the legal strategist, this does not signify that “anything goes.” This is particularly important to emphasize because becoming an effective legal strategist gives an individual more power, which for the responsible lawyer also means there is a greater need to be constantly aware of the dangers of going too far. Strategy as practiced by Sun Tzu in The Art of War and Musashi in A Book of Five Rings evolved in a different era and culture. Sun Tzu reportedly had two women who mocked him executed as his payment for winning the bet that elevated him to prominence with the Chinese emperor. Musashi claims to have killed more than sixty opponents in duels and has often been referred to as “a bloody old man.” In one situation he is reported to have accepted a duel from a challenger and set it up for a small island on the following morning. When the man landed on the island the skulking Musashi won the duel by sneaking up behind him and smashing his head in with an oar. The idea of a “fair fight” was obviously not at the core of the “bushwhacking” Musashi’s system of strategy. A fair number of lawyers most likely see nothing wrong with equivalent tactics in representing their clients and depending on the circumstances honesty requires me to include myself in that group. Lawyers work within a culture of deception, manipulation, and power. The advocate’s role is inherently deceptive rather than truth-directed. Aristotle captured this idea more than two millennia ago in describing the role of the advocate as one in which: “you must render the audience well-disposed to yourself, and ill-disposed to your opponent; you must magnify and depreciate [make whatever forms your case seem more important and whatever forms his case seem less].” Plato phrased it more poetically in saying the advocate “enchants the minds” of the courts of law, remarking, “rhetoric [is]...a universal act of enchanting the mind by arguments...[H]e who would be a skillful rhetorician has no need of truth — for that in courts of law men literally care nothing about truth, but only about conviction.” As these observations clearly suggest, manipulation of other humans is an inevitable and inescapable fact of our personal and professional lives. But there are moral limits to manipulation. All lawyers manipulate words, concepts, symbols, people and institutions. So do other people. If you practice law and don't manipulate the conditions of the environment in which you are operating (and especially other people), you aren't a very good lawyer. You may like to think of yourself as being a non-manipulative human being who doesn't take advantage of other people, but, for a lawyer, that is a disingenuous posture. We continually manipulate in our pleadings, interviews, investigations, discovery, and negotiations. We manipulate in trial, or we ought not be there. It is impossible for an effective advocate to avoid manipulating people, but not impossible to make moral choices about the limits of our behavior, and how far we are personally willing to go.

Download the article from SSRN at the link.

True (Legal) Grit

Emily Zimmerman, Drexel University School of Law, and Leah Brogan, Drexel University, are publishing Grit and Legal Education in the Pace Law Review. Here is the abstract.

Although research indicates that grit predicts successful performance in a variety of contexts, grit is underexplored in the context of legal education. We investigated the relationship between grit and law school grade point average (GPA) among recent law school graduates. Contrary to expectations, a statistically significant correlation did not emerge between grit and law school GPA. However, average grit scores of women and men did significantly differ, with women reporting higher overall grit scores than men. Female and male participants’ law school GPAs did not significantly differ. This article discusses our research project and the questions regarding legal education that our findings raise. We also identify areas for further research regarding grit, legal education, and law practice.

Download the article from SSRN at the link.

The International Legal Academic and Her Responsibility

Gleider I. Hernandez, Durham University, is publishing The Responsibility of the International Legal Academic: Situating the Grammarian within the 'Invisible College' in International Law as a Profession (A. Nollkaemper, W. Werner,J. d'Aspremont and T. Gazzini, eds.; Cambridge University Press, 2016). Here is the abstract.

It has been said that it is narcissistic for an international legal scholar to reflect on the role of the academic within the international legal profession. Yet international law is simultaneously constituted by and constitutes the community of international lawyers who engage with it. The relationship is ‘co-constitutive’, meaning on the one hand that it is the community of international lawyers who come to create, interpret and render operative the international law with which they engage in their professional practice; and simultaneously, that certain argumentative rules pervade the international legal discipline, generating background ideas that come to constitute, or at least structure, the professional vocabularies of all international lawyers.

This Chapter presents some reflections on the specific function of the international legal academic, and how our teachings come to structure the international law profession more generally, consider the extent to which the metaphor of a grammar common to international lawyers, which enables the creation and justifies the validity of international legal rules, constitutes the role of the international legal academic, using the metaphor of the grammarian. It will explore the international legal profession as a wider ‘community’ of practice, bound by interpretive canons or even a shared episteme rather than by a mere shared object of engagement. It will engage with so-called ‘activist’ scholarship that is mindful of its law-creative (normative) potential and seeks to take full advantage of it, acknowledge the social reality of international legal scholars being in constant engagement with practitioners, governmental officials, international judges. This Chapter will conclude with a few thoughts on how Koskenniemi’s famous call for a ‘culture of formalism’ can serve to acknowledge that the use of the international legal vocabulary is fundamentally a choice. Understanding the parameters of that choice can, above all, better understand and situate the role of the international legal scholar within the wider phenomenon of international law, and give rise to a wider ethic of responsibility on the part of international lawyers.

Download the essay from SSRN at the link.

The Role of the Jurist

Neil Walker, University of Edinburgh School of Law, is publishing The Jurist in a Global Age in Methodology in the New legal World (Van Gestel, Micklitz, and Rubin, eds.; Cambridge)(forthcoming). Here is the abstract.

The jurist comprehends law as something more than technical expertise. The jurist is concerned not only with serving the needs of her professional clients, whatever these needs may be, but also with the wider purpose of enhancing the well-being of law as a practical idea. What implications does this longstanding if highly open-ended conception of the jurist have for legal research and education today? The paper begins to address this question by exploring some of the general and enduring tensions and divisions within our understanding of law as an academic discipline; between a humanities-based approach and a social scientific approach, and also between service, detached and critical orientations towards the law. It then proceeds to re-examine these divisions in the context of the intense development of transnational and global law in the contemporary age. The paper argues that the challenge to state-centred legal authority accompanying that development has enhanced the role of jurists as co-producers of legal norms and authority frameworks. It has also required jurists to become more invested both in the kind of reflective historical inquiry into and evaluation of our common cultural productions associated with the humanities, and in the analysis of emergent trends associated with certain of the social sciences. And in its focus on the new fluidity of legal authority, the globalisation of law also increasingly questions the force of the opposition between a conservatively-inflected service or detached orientation and a (potentially transformative) critical orientation. The role of the jurist in a global age, in sum, is significantly altered, and requires us to revise some of the distinctions that have traditionally attended our thinking about legal teaching and learning.

Download the essay from SSRN at the link.

Whither the Law Review, and Of What Use Is the Blog, If We Want To Have Fruitful Conversations About Law

Katharina Isabel Schmidt (Yale Law School) offers a comparative look at US and German law journals, blogs, and their uses in the transmission of legal ideas here in a post at the Völkerrechtsblog (English translation: Public International Law Blog). Here's an excerpt.

American law journals are interesting for the most part, if not necessarily always useful. German law journals, in turn, while useful for the most part, are not necessarily always interesting. As adumbrated above, this is due to the particular division of competences within the German legal profession on the one hand and the American legal profession on the other hand. German scholars, unlike their American counterparts, are routinely cited in court decisions. As such, they have no choice but to deliver the doctrinal goods expected of them. In the United States, unlike in Germany, placing articles in top-tier journals constitutes a necessary step on the long and winding road to tenure. As such, one can hardly blame aspiring academics for pretending to reinvent the wheel one case note at a time. In addition, trans-Atlantic divergences in the structure of legal education naturally influence the extent to which German and American jurists are able to produce and consume interdisciplinary knowledge. The – admittedly overblown – distinction between the common and the civil law tradition further contributes to making matters look positively discombobulated.

For some folks, that last sentence conveys fighting words! ;) Ms. Schmidt goes on to suggest that one way to further invigorate the intellectual tradition is to exploit the blog format.

At the same time I would argue that blogs like the present one hold the potential to facilitate conversations about law that are free from the intricate constraints of national legal science. In particular, the kind of jurisprudential writing they make possible confronts scholars and practitioners alike with ideas that lie outside the realm of their necessarily limited intellectual experience. It is in this way that blogs and other non-traditional platforms allow for a much-needed re-appreciation of what it means to be a jurist in the 21^st century. Therefore, the goal of law blogs and similar projects should be an attempt to counterbalance the deficits inherent in traditional approaches to the exchange of ideas about law and the legal profession – deficits exemplified by my discussion of contemporary American and German law journal culture.

Hannah Birkenkötter (Humboldt University) responds to the notion of evolving structures of intellectual transmission in a post here. An excerpt:

In her insightful and very pertinent blog post on legal formats, Katharina Isabel Schmidt takes a comparative look at law journals and legal formats in the US and Germany, the two systems that she is familiar with. Most of her observations correspond to my experience (although I have only spent a few weeks in the US, so most of my observations are grounded in conversation with colleagues and friends as well as reading American-authored scholarship rather than first-hand experience “on the ground”) and I wholeheartedly agree that comparative looks at legal formats allow us to “re-imagine the future of legal knowledge production”. I am skeptical, however, whether non-traditional means of knowledge production, in particular blogs, truly have the “potential to facilitate conversations about law that are free from the intricate constraints of national legal science” (emphasis my own). I’ve rather found legal blogs, or blawgs, especially of the academic type, to be quite different depending on the legal culture they are rooted in. I certainly agree that blogs have the potential, and are actually used as a means to disturb existing hierarchies and conventions of scientific communication, and that on both sides of the Atlantic. But at the same time, they are not free of their respective legal traditions.

But as Ms. Birkenkötter notes, blogs do allow new identities, regardless of the tradition, to emerge, more so in the US, perhaps less so in Germany, "While not free from constraints, they provide alternative platforms and thus room for alternative topics, actors and approaches. This very conversation is, in my view, proof of it. So let’s continue the talk."

I fully agree. I would point out that, in addition to blogs, other formats have emerged, including online law review journals, such as Stanford Law Review Online.  The Library of Congress has a listing of journals available online, although not all journals listed are exclusively "online" journals; some are print journals with an online presence and/or online "exclusives." Such an online approach allows frequent updating and permits a publication to address "up to the minute" topics and breaking news. It allows academics to "be relevant." It lets us use the more effective and efficient features of the web, including the ability to be interactive and to respond to critiques quickly, so that we really can engage in conversation on a frequent basis, rather than wait until those pleasant but increasingly expensive conferences roll around. Maybe we'll now get more out of them.

The Very Model of a Modern Law Professor?

Carlo A. Pedrioli, Barry University School of Law, has published Professor Kingsfield in Conflict: Rhetorical Constructions of the U.S. Law Professor Persona(e) at 38 Ohio N. U. L. Rev. 701 (2012). Here is the abstract.

At least since the 1960s, a “‘two cultures’ phenomenon” has become quite apparent within the legal field in the United States. On one hand, some lawyers, usually those within the university, have been more academically oriented, and, on the other hand, other lawyers, usually those in legal practice or sitting on the bench, have been more pragmatically oriented. Problems arise when these two groups begin to talk differently from each other. In a way, the field of law has developed into at least two different legal professions, and, not surprisingly, scholars and practitioners have experienced tension because of this situation. The problem comes to a head when, through rhetoric, lawyers envision their ideal role(s) for the law professor. Calling upon rhetorical theory, this article traces the contours of the conflict over the construction of the role(s), or persona(e), of the U.S. law professor from 1960 to the present. The article draws an initial line at 1960 because, by the 1960s, law schools in the United States had matured to the point at which they clearly were thinking of themselves as graduate programs within the university system. After a discussion of persona theory and persona analysis, this article addresses the two major personae that have emerged in the conflict, the law professor as scholar and the law professor as practitioner. As appropriate, each subsection of the article that considers a persona also addresses the type of rhetoric that lawyers have employed in developing their preferred persona. In this study, the term lawyers refers to both practicing lawyers and academic lawyers. A concluding section synthesizes some of the communication problems that have emerged in this ongoing conflict, usually due to a heavy reliance on traditional Aristotelian rhetoric, or persuasion, as a rhetorical strategy. Although descriptive in nature, the current article sets the stage for a subsequent article, normative in nature, that will open the door to an alternative approach to this ongoing conflict.

Download the article from SSRN at the link.  

The Image of Lawyers and Legal Ethics

Amy Salyzyn, Yale University Law School, is publishing John Rambo v. Atticus Finch: Gender, Diversity and the Civility Movement in volume 16 of Legal Ethics (2013). Here is the abstract.

The need for increased civility has been a recurring theme in conversations about lawyer professionalism in the United States and Canada over the last several decades. In addition to having many advocates, however, the civility movement has also been subject to criticism. In large part, the critiques made to date have focused on the problems or risks created when civility rules or guidelines are enforced against lawyers. This article takes a different focus to provide a complementary, yet distinct critique. The object of analysis is the discourse of the civility movement. More specifically, the assumptions and concepts of lawyer professionalism embedded in our conversations about civility are explored.

Upon review, the discourse of the civility movement reveals a dominant narrative framed in terms of competing masculinities: the aggressive, testosterone fueled Rambo-lawyer is cast as the anti-hero to be vanquished against renewed calls for the return of the gentlemanly Atticus Finch. I argue that this ‘Rambo-Finch narrative’ is hostile to inclusive understandings of lawyer professionalism in three inter-related ways: (1) it renders women and other ‘outsider’ lawyers largely invisible; (2) it romanticizes past discriminatory concepts of lawyer professionalism; and (3) it reflects anxieties about the destabilization of traditional, exclusionary claims or modes of authority in the legal profession. The exclusionary understandings of lawyer professionalism contained in the Rambo-Finch narrative should be of concern to those interested with improving gender equity and diversity in the legal profession as there is good reason to believe that this discourse translates into ‘real world’ consequences in how ‘outsider’ lawyers are viewed and treated within the legal profession.

Download the article from SSRN at the link. 

They're Not Lawyers, But They Play Them In the Movies

Attorney Alan L. Rupe discusses what movies have taught him about how to present a case in What I Learned at the Movies. Among the films he lists as worthy of legal study are Legally Blonde, North Country, Norma Rae, Philadelphia, and the lesser-known Office Space.