from another prominent legal futurist, this time Jordan Furlong.
On the observation that regulation will wither away, this hasn’t been the path of legal change has predicted over many years. Regulation in the legal profession (and in legal education) has proved remarkably resilient, even in the face of competitive pressures. Just consider the stunning lack of bar reciprocity and also the various restrictions on pro se representation. Or, in the law school context, the limitations on supervised student representation, even where there are enormous unmet legal needs. So perhaps Furlong is right that regulation is under especially sustained assault and will crumble. But we shouldn’t count our chickens.
On the “creating new markets” message: yes indeed. I have written about this elsewhere on this blog. In the future — indeed, in the present — lawyers are entrepreneurs and regulatory engineers, business professionals and risk managers. The business of lawyering is going through significant change, and how JD holders can deploy their skills to improve structures and institutions and business decision-making is an essential modern question. Law is important for folks other than lawyers; and lawyers are important for business performance in spaces other than traditionally legal.
field trip report from Aric Press of the American Lawyer.
As one of our colleagues mentioned: it is not clear why the innovation analogy to law and the modern legal profession is apt. What underlies the claim, he asks, that law firms are too skittish or unimaginative to embrace technological innovation in their business models? And, indeed, what is the evidence that such innovation has not in fact been embraced in key parts of the practice (e.g., the use of predictive analytics in discovery)?
All of which is to say that the debate about the dynamics of professional change is not one between the “futurists” and the “luddites,” but is actually much more nuanced and complex (and interesting!).
from today’s L.A. Times:
Legal ‘standing’: Obama’s executive branch escape hatch
President Obama delivers a statement on the Affordable Care Act in the Brady Press Briefing Room of the White House.
BY EUGENE KONTOROVICH
March 2, 2014, 2:00 a.m.
President Obama’s proclaimed strategy to “bypass Congress” — most conspicuously his broad rewriting of the Affordable Care Act — has given unusual prominence to a fairly arcane legal doctrine: standing. Standing is what is preventing a potential blizzard of litigation against the president’s unilateral decrees, and ironically, it’s a doctrine liberal jurists have long decried.
To challenge the government in federal court, it isn’t enough to simply believe that the government’s conduct is illegal or even unconstitutional. Federal courts can hear only specific disputes about the law as applied to particular people. To be heard in court, a person must have a concrete complaint that he or she has suffered or will suffer a distinct injury stemming from the government action.
This limit, rooted in Article III of the Constitution, is designed to prevent courts from becoming arenas for endless ideological rehashing of the merits of government policies. But the upshot is that federal courts cannot simply review any allegation of illegality by the government. And further, when the government has a policy that does not directly affect particular individuals, there may be no plaintiff with standing.
For example, on Monday, the Supreme Court heard arguments in a major case about the Obama administration’s regulation of greenhouse gases, which the plaintiffs claim vastly exceeds what Congress has authorized. Yet the court will review only a portion of their complaints; several were thrown out in the lower courts for lack of standing.
The counterintuitive thing about standing is that it can result in situations in which the government may well be violating the law, even the Constitution, and yet there may be no vehicle for judicial review. Problems of this sort arise when governmental action affects most everyone uniformly. In such cases, the political process — working through Congress — is a more efficient and proper solution than piecemeal adjudication. Congress is where wholesale policy is made; the federal judiciary works in retail decision-making.
The Obama administration’s unilateral decision to delay implementation of parts of the Affordable Care Act, or give waivers for compliance to certain businesses, is a perfect example. This may well be a violation of the separation of powers. But because the law is not being enforced against anyone — indeed, it is not being enforced at all — there is no one who has a specific beef. Rather, everyone has the same beef: The president is defying the Constitution by in effect rewriting the law, a role reserved for Congress.
An inability of federal courts to immediately deal with such alleged official lawlessness is certainly a cost of the standing doctrine. But it is one that the Constitution accepts as the price for preventing judicial tyranny. If the judiciary could take up any issue it wanted, whenever it wanted, the court would become omnipotent.
This can be seen by looking at countries such as Israel, where a hyper-activist Supreme Court succeeded in eliminating standing limits and emerged as perhaps the most powerful institution in the nation. U.S. federal courts already have great power as the primary arbiters of constitutional cases. But if they could also seek out such cases, they would become a constitutional Spanish Inquisition, with an open mandate to hunt down constitutional heresy.
That is not to say that there is never anyone with standing in situations like the rewriting of the Obamacare mandates. Proper plaintiffs often take time to emerge. One might imagine an employer that already took measures to comply with the law as required, and is now at a competitive disadvantage to companies that hadn’t bothered. But we have to wait for such a plaintiff to surface; this is not a mere ritual formality but a necessary part of limiting the power of courts to decisions on a particular sets of facts, rather than allow a judicial slash-and-burn approach.
Standing is one of the jewels in the Constitution. But it remains a very controversial doctrine, with conservatives supporting it and liberals seeking its contraction. Obama’s former regulatory czar, Cass Sunstein, even argued that standing was essentially a constitutional myth. At the Supreme Court, standing rulings often break down 5 to 4 along ideological lines.
Conservatives see standing as essential to the separation of powers, while liberals see it as implicitly favoring old-fashioned property and personal injuries over more inchoate regulatory ones; standing, for example, makes it very hard to challenge governmental mismanagement of the environment.
The standing doctrine enables the White House to “go it alone” by largely keeping the administration out of court and potentially sparing it legal embarrassment. Liberals today seem less vociferous about how standing limits are preventing the courts from defending the substance of the Constitution.
What has been most impressive about the Republican reaction to the legal wall they’ve run into in opposing the White House’s policies is the notable absence of arguments to ignore or dismantle standing. This is constitutionalism at its best: principled limitations on one’s own actions and desired goals out of an understanding that the restraint of government power is ultimately in everyone’s best interest.
Hopefully, the current episode will be a lesson to all sides that the only thing more dangerous than unbridled executive power is unleashing unchecked judicial power to defeat it.
Eugene Kontorovich teaches constitutional law at Northwestern University School of Law.
Big sports news this week is the effort underway by Northwestern athletes to seek collective bargaining rights. Northwestern Law prof and employment law expert, Zev Eigen, offers his interesting perspective on this development;
By: Zev. J. Eigen
Kain Colter is a senior at Northwestern University. He has been the co-captain of the school’s football team for two years now. He plays quarterback. How would he describe himself in relation to the school? Would he call himself a student attending a university to receive a college education? Or, would he call himself an employee of Northwestern?
That question will likely determine whether Mr. Colter and a group of athletes at Northwestern will be allowed to form a union under the National Labor Relations Act (“NLRA”). That is the federal law that says that only “employees” may form unions in the private sector.
Ramogi Huma is the president of the newly formed College Athletes Players Association. He is assisting Mr. Colter in his efforts along with the United Steelworkers Union in filing the petition with the National Labor Relations Board for recognition of the union. As Mr. Huma pointed out in a radio interview yesterday, the football players “work” for forty hours per week on football, are directed and controlled by the university, and receive “compensation” in the form of scholarship funding directly tied to students’ playing ball. Those characteristics make them seem at least partially like employees, or at least student-employee hybrids. But the National Labor Relations Board has flip-flopped on the issue of whether another category of student-employee hybrids, namely, graduate students (who receive both an education and are directly paid for teaching classes) are primarily students who happen to work, or whether they are employees who happen to be students receiving an education. It’s not clear how the Board will rule on student-athletes like Mr. Colter, who do not receive direct compensation like grad students do, but receive scholarship funding, and are expected to play a sport, not teach classes. As I have suggested elsewhere, I think student-athletes have an uphill battle ahead of them.
Perhaps a more interesting question than how the law will characterize these student athletes is how the law should characterize them. The NLRA is a 1935 statute that regulates the relationship among unions, employees, and employers. It has not been substantially updated at all except in 1947. I think everyone can agree that a LOT has changed about how work is performed and structured in this country in between then and now. Most importantly, the law does not cover independent contractors and other categories of non-full-time work. In the ’30s and ‘40s, these categories of workers were the exception, now they are becoming more of the rule. More workers now are part-time, temporary workers, freelancers, and independent contractors. It would make sense to update the law to extend coverage to categories of work that now dominate the employment landscape. If for no other reason, this would merely extend protections of the NLRA to the approximate percentage of the workforce that the law initially covered when it was passed.
Don’t hold your breath for change in labor law. This is the most polarized area of law one can imagine. There are pro-labor groups, and there are pro-management groups. Both groups have made proposals to update the laws, but these have been dismissed outright as too partisan by the other side. This is an unfortunate form of what negotiation scholars refer to as “reactive devaluation”—when one assumes that anything proposed by one’s counterpart is automatically not in one’s best interest. The extreme dichotomization is a perfect storm for legislative stalemate. Everyone assumes that the other side’s proposals are partisan, and therefore nothing gets changed, and everyone is made worse off. I have discussed this problem in two articles—here, and here.
My hope is that we are headed towards a tipping point. The law’s intentions to protect collective employee voice and to promote “labor peace” will become so attenuated that it would make sense to either scrap the law entirely or amend it to bolster its modern relevance. Efforts like the Northwestern football players, and others, like mixed martial artists, raise awareness of the need for the laws to be modernized to reflect the more fractured non-traditional forms in which many employment relationships now occur.
The ALI has had just a handful of directors in its 91-year history, each of them giants in the law. Prof. Lance Liebman, former dean of the Columbia Law School, has served for the past fifteen years. Today, the ALI names a new director, Prof. Ricky Revesz, former dean of NYU Law School. The press release is here.
This is exciting news for this prestigious organization (on whose governing council I am privileged to serve), an organization that continues to be involved in an enormous range of projects involving contemporary law, including torts, foreign relations law, sentencing, sexual assault and native American law.
Report on report from Hildebrand consultant on law firm health. Generally positive news as law firms show recovery during 2013. Report notes, however, that this recovery is unevenly distributed. Also notes that law firms are increasingly turning to mergers and lateral hiring to bolster their productivity and success.
Although it comes near the end of the report, one notable takeaway is the increase in alternative billing arrangements. It will be very interesting to see whether and to what extent this trend continues in the coming year. If so, this portends a fairly significant structural change in the economics of the large law firm.
From the Nat’l Law Journal.
Will be interesting to see whether this portends a shift in emphasis in corporate legal office from pure lateral hiring strategy to entry-level hiring. The principal roadblock has been the costs of training. But perhaps establishing creative relationships between imaginative corporations and innovative law school (note Cisco-Colorado partnership described in the article) will augur a new approach to in-house hiring and training.