02 May 2016

[F]law Day

So there was an almost-invisible Law Day last week, on which we're supposed to celebrate the majesty of the Rule of Law, and this year in particular the Fifth Amendment and Miranda. These are important topics... but not nearly as important as they seem, especially given the black mark of the Panama Papers and its century-old cause: Balkanization. <SARCASM> But Balkanization never led to any real problems, or the collapse of the Rule of Law, did it? </SARCASM>

The Rule of Law beats the alternatives, but it has a lot of flaws in practice that can be addressed by both the profession and by structure. The Panama Papers epitomize one of them. There's a big difference between uniform policy everywhere and uniform law (or at least process) everywhere: The latter marks the Rule of Law, the former marks a crushing conformity. There is a wide overlap, but there is a difference.

The Second Circuit did nobody any favors recently by reifying "federalism concerns" as reflected in New York's overtly protectionist/Balkanized requirement that attorneys living outside the state of New York must maintain a physical office in the state of New York in order to practice in New York — even if they live just across the state line in New Jersey or Connecticut. The majority opinion in Schoenefeld (PDF) isn't just divorced from the reality that physical location has had little to do with either the practice of law or accessibility to clients for a century, since the dominance of Shepherd's and the National Reporter System became impregnable. If it did, we wouldn't have had the indigestible diet of multiple-state-of-origin cases in contract law casebooks since the misbegotten days of Langdell.1 If it did, nobody would have fax machines, let alone electronic document transmission. If it did, no client would have a New York dispute but live in a neighboring (or even-more-distant) state. More to the point, if it did... choice-of-law and choice-of-venue clauses pointing to New York as selected by a party with extreme, and perhaps unfair, bargaining advantage (notice the silence?) would not force authors' heirs into Manhattan courtrooms for seventy years after the death of the author. And it's not just New York, either; California's goofy out-of-state counsel rule which, in practice, requires attorneys who appear even ephemerally, even in federal courts, three times in a five year period to become members of the California Bar — even when arguing non-California law as selected by underlying contracts or the Supremacy Clause! — is another of a near-infinite variety of examples. <SARCASM> Them carpet-baggin' Yankee civil rights lawyers must be stopped. As must anyone else who would question the rightness of local interests... and local bar setting (and collection) of legal fees. </SARCASM>

It's not just choice of law and local protectionism of entrenched bar leadership and law-firm structures that cause Balkanization problems. Differences in legal ethics rules across state lines (let alone national lines, as — again — epitomized in the Panama Papers) also undermine the effectiveness and respect for the Rule of Law. There is no excuse whatsoever for one state (again, California) virtually encouraging litigation-by-press-release when it is prohibited not just in neighboring states, but virtually everywhere else. More subtly, there's no excuse for one state's bar essentially refusing to enforce conflict-of-interest rules that are shared by neighboring states... especially when not one, but two major metropolitan areas in the first state spill over into those neighboring states, and many of the most-prominent lawyers practicing in those metropolitan areas commute across state lines to work every day (let alone to court). This is a perhaps-foreseeable consequence of the simultaneous deference of courts to the state bars to enforce ethics rules... with the corresponding deference of state bars to courts to enforce ethics rules. Leaving, of course, nobody enforcing ethics rules in a uniform manner resembling the Rule of Law, and a disturbingly ironic counterpoint to the concerns underlying Schoenefeld — especially those implicated by the comfort of local/state bars in rules and provisions that unduly favor their commercial self-interests, let alone their clients. Now throw in legal ethics standards that are so low that lawyers generally try to live down to them... and fail...

So I see this as a flaw in the profession and the Rule of Law that would make an excellent theme for 2017. Not going to happen.

  1. Misbegotten because the "case method" is so divorced from the underlying facts, relying as it does on selective recitation by appellate judges who never saw the actual evidence or its presentation. And the less said about the so-called "Socratic Method" as the (purportedly) only appropriate means to teach the basics, the better.