Third Branch of Government Takes a Stand

With the passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act, a/k/a H.R. 4173, and now known as PL 111-203, a cleaner, more accountable and open financial industry, seems to be at hand. This is particularly so for what now pass as "banks." [Of course, a banker from the 1930's whisked to 2010 by a time machine would be hard pressed to equate his definition of a bank what what we consider to be a bank today.]

But laws mean nothing without enforcement and enforcement, even of existing law, seems lacking at times. Well, here comes the third branch of government to the rescue. As reported in this articles from morning's NY Times - Judges Sound Off on Bank Settlements - federal district judges are declining to approve settlements offered up by the Justice Department to resolve cases pending against banks. From the story -

In a scene that is becoming increasingly common, Judge Emmet G. Sullivan of Federal District Court chewed out federal prosecutors at a hearing in Washington last week for a proposed settlement with Barclays.

“Why isn’t the government getting tough with banks?” he asked.

Just one day earlier in the same courthouse, Judge Ellen Segal Huvelle refused to sign a settlement between the government and Citigroup, demanding, “Why would I find this fair and reasonable?” She ordered government lawyers to return with answers next month.

The scoldings from the bench are a striking departure from a long tradition of judicial deference to settlements formulated by federal agencies, reflecting broad disenchantment not just with Wall Street, but with its government overseers.

As populist, anti-establishment, anti-bank fervor grips the country it seems almost incongruous that what is often considered the most conservative branch of government is taking the lead in bringing the financial industry to heel. Will this trend of judicial concern continue?

More on the Move of Legal Jobs to India

You may recall the last post about the outsourcing of legal jobs to India. Here's another post on that same theme this time by Larry Ribstein at Forbes in his op-ed Where Have All the Lawyers Gone? His concise and spot on summary of the situation can be found in this comment:

The days when associates fresh out of law school billed hundreds of dollars an hour to learn their trade have been ended by global competition for legal services. Clients once stayed with the same big law firm for generations because they needed the comfort of the brand. Then law firms got greedy and imagined their brand could justify billing out the time of associates in perpetuity. Clients got leaner and more cost-conscious, and their in-house legal departments became much more sophisticated consumers of legal services. Global transportation, communication and computing got cheap enough that legal projects did not have to be done in a single physical space.

Ribstein makes probably the most telling characterization of graduating law students to date when he calls them "canaries in the coal mine."

Outsourcing Legal Work Continues to Evolve

We all know by now that outsourcing of legal work, including legal research, has become a legitimate part of the current practice environment. See this previous post about domestic and offshore outsourcing. Now outsourcing seems to have taken the next step toward becoming even more important and useful. According to this NY Times story - Outsourcing to India Draws Western Lawyers - attorneys more familiar with the landscape of American legal practice are moving to India to direct the outsourcing efforts.

The story highlights, among others, the efforts of Christopher Wheeler, a former assistant attorney general for New York, to manage a team of 100+ Indian lawyers that is providing services that are traditionally performed by incoming associates. According to the story:

The number of legal outsourcing companies in India has mushroomed to more than 140 at the end of 2009, from 40 in 2005, according to Valuenotes, a consulting firm in Pune, India. Revenue at India’s legal outsourcing firms is expected to grow to $440 million this year, up 38 percent from 2008, and should surpass $1 billion by 2014, Valuenotes estimates.

“This is not a blip, this is a big historical movement,” said David B. Wilkins, director of Harvard Law School’s program on the legal profession. “There is an increasing pressure by clients to reduce costs and increase efficiency,” he added, and with companies already familiar with outsourcing tasks like information technology work to India, legal services is a natural next step.

At this point it appears that only "Big Law" firms and in-house counsel divisions of major corporations are affected but if the trend continues outsourcing may become even more prevalent as smaller firms become more comfortable with the notion and discover the economic benefits.

The Yahoo!-Bing Search Alliance

Readers may recall yesterday's post about the "features war" between Google and Bing. But don't think that's all there is. Coming soon to a computer near you, is the Yahoo!-Bing Search Alliance. Yahoo! is Beta testing Bing powered search results on its platform. According to Search Engine Land blog, the change should be completed by September or October of this year. Right now the primary thrust of the Search Alliance is for commercial purposes. In fact, some commercial software companies are selling packages to ease that transition.

Ultimately, however, the conjoining of parts of the search functions of Bing and Yahoo could produce a new form of search engine. Right now Yahoo is providing Bing organic search results for 25% of their traffic. (An organic search result is a result that is relevant to the search terms. A non-organic search result is commercial based, i.e., advertisement based. Any search on any search engine will bring up both. The organic results usually bear some relation to the original search terms while the advertisement results may not.)

One of the most powerful parts of the Yahoo search interface has always been the ability to use of the Yahoo hierarchy, or what's left of it. Admittedly, as searching behavior has changed, a hierarchical structure is not as important as it once was. Still, for legal researchers, imposing a Yahoo-like hierarchy onto a search engine algorithm may produce something that looks and feels like the West digest system. Think about the power of using a hierarchical system (like the digest) that is supplemented (think focus or locate - distinctly Westlaw and Lexis terms) by the use of keywords. Only time will tell if this is what the final product will look like or act like but it does present the possibility of an intriguing future.

Google v. Bing

This story - Bing and Google in a Race for Features - published in the NY Times on Monday puts the escalating war between Google and Bing in some context. The story focuses on the features that users of these search engines might see. This is where the competition between Google and Microsoft will be being played out for the majority of casual users.

For sophisticated researchers, however, the real benefit of these changes is not in what the interface looks like but in the result set. And, although the Times story focuses on what a user sees, that is, the interface, the story does point out that for some purposes, Bing appears to be (for now) the better search engine. The authors note that according to Danny Sullivan - the EIC of the Search Engine Land blog - as well as other analysts Google has been making "significant but subtle behind-the-scenes changes that make it better at responding to obscure and complex queries." These changes include "tweaks to its secret search algorithm last year..." This is one way of saying that Google, in its race with Bing, is improving not only the way the page looks but the kind of results you get.

For legal researchers this change has been immediately apparent in the functionality of Google Scholar. Results just seem better. By going toe-to-toe with Bing in the fight for user share it is possible that members of the legal research community may be the unintended beneficiaries of Google's efforts.

Best Law School Rejection Letter

Hmmm. It appears that this law school applicant was not aware that Princeton does not have a law school. Things have become significantly more complicated since 1957. Still, one wonders if Princeton has a special office to deal with law school applications. And where would applicants send their LSAT scores?

Legal Clinics Under Fire

In a recent New York Times story, Ian Urbina reports on four significant challenges to law school clinics. Legal clinics at the University of Maryland School of Law, Tulane Law School, the University of Michigan, and Rutgers University have been attacked for the way they are handling cases or the information they have acquired while representing clients.

This is a recurrent theme. Tulane, for example, has an Environmental Law Clinic that was in a major fight with the petrochemical industry in 1998. As a result, the Louisiana Supreme Court restricted the cases that students could handle in state courts. (Louisiana Supreme Court Administrative Rule XX.)

Complaints against school-based legal clinics will continue to increase as long as they continue to expand the role they take in the legal system. When clinics were only representing certain kinds of low income clients there was not much controversy. When clinics file class action suits that affect major industries they will draw fire. When they represent unpopular high profile clients they will draw fire.

Outsourcing Redux

A law firm that decides to outsource some of its work is making a decision that is in step with the times. Although outsourcing is not right for every firm, there are factors that weigh heavily in favor of a considered approach. At least that's what Ron Friedman argues in this recent LLRX post - Law Firms Now Outsourcers? Friedman's short article draws together a number of sources that review the state of outsourcing today. Friedman makes two points to ponder:

1. Using outsourcing can certainly save your clients money. Obviously, it costs less for legal talent from Cleveland than the same talent from New York.
2. Ethical issues still abound. Friedman quotes Professor Stephen Gillers - "There is no problem with offshoring because even though the lawyer in India is not authorized by an American state to practice law, the review by American lawyers sanitizes the process." The answer may not be that simple. A more complete analysis is set out in Mark Ross' article on LLRX - Ethics of Legal Outsourcing White Paper.

This is a complicated issue. The fact that firms are seriously entertaining the idea of outsourcing - whether offshore or domestic - is a sign of the difficult economic times and maybe a harbinger of the change in the shifting paradigm of what it means to practice law.

Best Jucicial Decisions of 2009?

Since 2005, The Green Bag has published the annual Green Bag Almanac & Reader. Find it here in our collection. This is a compendium of "good legal writing from the past year, selected by the luminaries and sages on our board of advisers." This year, those "luminaries" chose the following lead opinions as the best judicial decisions of 2009:

Frank H. Easterbrook - Buchmeier v. United States, 581 F. 3d 561 (7th Cir. 2009) Found via Google Scholar.

Ruth Bader Ginsburg - United States v. Hayes, 129 S. Ct. 1079 (2009) From the USSC official website.

Jed S. Rakoff - SEC v. Bank of America Corp., 2009 WL 2916822 (S.D.N.Y. 2009) From the Southern District of New York website.

Which one is best? You be the judge. So to speak.

Coming soon - the best concurrences and dissents.

You Know the Recession is Bad When...

You know that the recession has really hit the legal profession hard when the latest article about the legal job market - No Longer Their Golden Ticket - is in the Styles section of the NYTimes. There have been many articles in such law-related publications as Above the Law with its weekly (what else) feature This Week in Layoffs. But when the fortunes of recent law school graduates begin to share space with the Wedding Page you've got to know that this downturn has really reached the mainstream. The Styles article even mentions LawShucks with its famous (or infamous) Layoff Tracker.

What's the alternative? Take a look at this short video that accompanies the online version of the article in Styles. It seems that some new lawyers are doing what many law students originally had in mind when they applied for law school - provide services for the poor.