Fictional Attorney of the Month: Atticus Finch

Few fictional lawyers are recalled as readily and as fondly as Atticus Finch. It helps that he is the star of both a Pulitzer Price-winning novel, published by Harper Lee in 1960 and assigned to most school children in middle or high school, and of a popular 1962 film adaptation featuring Gregory Peck, who won an Academy Award for his role.

With so much written about his fictional lawyer, it's a challenge to write something novel and valuable. He is perhaps so memorable for his astonishing integrity. Lawyers of integrity, bent upon observance of the rule of law, have a particular mythology about them: consider Thomas More succumbing to the deeds of Henry VIII, John Adams representing soldiers involved in the Boston Massacre, and Robert Jackson prosecuting war criminals at Nuremburg. These, of course, are all real examples. Lawyers in fiction, for some reason, often do not draw artistic depictions of similar scope--or, perhaps, because it is too challenging to do in fiction without feeling forced.

But Atticus Finch rises above "majority rule" in Maycomb County, taking on the defense of a black man who has been accused of raping a white woman. He is deeply empathetic in representing his client. He communicates moral values clearly, and quietly, to his children and those around him, even if he often does not use words. And in anticipation of reading more about him in a second Harper Lee novel this summer, he's the Fictional Attorney of the Month.

No substantive changes in Voting Rights Amendment Act of 2015 over last year

Last week, Representative James Sensenbrenner introduced the Voting Rights Amendment Act of 2015, H.R. 885. I compared the bill with last year's version, the Voting Rights Amendment Act of 2014, H.R. 3899. Apart from the year in the title and the initial list of co-sponsors, there are no substantive changes, and only a couple of very minor alterations at all.

First, the bill formerly cited Title 42, the old home of the provisions of the Voting Rights Act. Since there is now a compilation of election laws in Title 52, the new bill properly identifies all of the Title 52 provisions that would be amended.

Second, there were two definitions of "minority" and "nomminority" that referred to persons who were "white." Those have been amended to capitalize the W and read "White."

And that's it. So if you had any praises or criticisms of last year's version of the VRAA, know that they are just as applicable to this year's version.

Can foreign governments fund Hillary Clinton's presidential campaign?

The Wall Street Journal recently reported that foreign governments have increasingly been funding the Clinton Foundation since the organization, a non-profit operated by members of the Clinton family, recently began again accepting contributions from those governments. The Journal notes, "Recent donors include the United Arab Emirates, Saudi Arabia, Oman, Australia, Germany and a Canadian government agency promoting the Keystone XL pipeline."

As Hillary Clinton faces a prospective presidential campaign ahead, could these foreign governments fund her campaign?

The answer is no--foreign nationals may only give money to the Clintons' non-profit for its activities.

Despite raising half a billion dollars from foreign nationals, including foreign governments, in the last two decades, the Clintons cannot use money from foreign nationals to fund a federal election. The ban on foreign campaign contributions and expenditures stretches back nearly fifty years.

Some may remember President Barack Obama's State of the Union address in 2010, in which he criticized the Supreme Court's decision in Citizens United v. FEC (PDF) for a decision, he claimed, that "will open the floodgates for special interests– including foreign corporations – to spend without limit in our elections." Justice Samuel Alito visibly disagreed, PolitiFact found the claim "mostly false," and, shortly thereafter, the Supreme Court summarily affirmed the ban.

Foreign governments, then, may contribute to non-profits in the United States, like the Clinton Foundation. But they cannot contribute money to politicians or political action committees. And because the Clinton Foundation is organized as a 501(c)(3), the Foundation cannot engage in political campaigning. (There are political activities that foreign governments and non-profits can engage in, but they much narrower than activities related to specific candidates: they are usually tied to specific issues, like a ballot measure, or to non-partisan or general "awareness" activities.)

The only issue, then, is not a legal risk, but merely one of appearance--that a prospective presidential candidate is simultaneously heading a non-profit that is accepting contributions from foreign governments. And whether one views that as a real or potential conflict of interest or ethical dilemma is, I suppose, a matter of perspective.

Correcting the National Jurist piece on bar pass rates

In its February 2015 issue, National Jurist published a story about bar pass rates. It quoted my earlier work on the subject. But, apparently, the editing process at the magazine is relatively slow and does not respond to new information well. For some time, I suspected the NCBE had some role in the decline in the bar pass rates (which National Jurist notes). But after the NCBE provided additional data in December 2014, I was convinced that much of the decline could be attributed to a decline in student quality. For more on this area, consider my previous posts about the bar exam.

Fictional Attorney of the Month: Evangeline Whedon

Evangeline "Vange" Whedon is an attorney in the Marvel Comics Universe. She was a successful prosecutor until she was discovered to be a mutant--when she comes into contact with blood, she has the power to shapeshift into a red dragon.

After the discovery, she lost her job as a prosecutor and was estranged from her family. She now represents the X-Men in a variety of legal battles (no doubt illustrating the versatility of an ideal legal professional).

In one case, for instance, she helps an anti-mutant terrorist secure a reduced sentence of probation as the X-Men give the terrorist a second change and hire her to work for them. Vange served as in-house counsel for the X-Corporation, a support agency for mutant populations around the world. She also helps with a number of family law disputes to ensure that child mutants whose parents disown them have new legal guardians.  In one critical legal dispute, she ensures that a child mutant in the custody of the X-Men remains in their custody after the child's parents, who had previously given him away, engage in a custody dispute.

Not all attorneys can shapeshift into dragons, but it's this versatility that set her apart. Vange Whedon is this month's Fictional Attorney of the Month.

Three charts to illustrate the present market for law schools

We often read about the "crisis" in legal education, and the "drastic" steps that law schools are taking. All that being said, I'm actually surprised that law schools are taking such modest steps in the face of fairly long-term declines. That is, given trends, the Class of 2018 is likely to be still a smaller group of students than the 40-year low of the Class of 2017. And even if it's the bottoming out, we even a rebound would likely not return law schools to any sense of "normalcy" until the year 2020. But we see very few schools reacting with a serious, long-term focus like one might expect.

Below are three charts illustrating the total LSAT takers, total JD applicants, and total JD matriculants from 2004-2014, with a projection for 2015 (i.e., the Class of 2018) based on presently-available data. (Data derived from LSAC and ABA resources.)

Ranking the Law School Rankings, 2015

On the heels of the first-ever ranking of law school rankings, and last year's second edition, here's the third edition.

The rankings tend to measure one of, or some combination of, three things: law school inputs (e.g., applicant quality, LSAT scores); law school outputs (e.g., employment outcomes, bar passage rates); and law school quality (e.g., faculty scholarly impact, teaching quality). Some rankings prefer short-term measures; others prefer long-term measures.

Lest anyone take these rankings too seriously, there is no inherently rigorous methodology I use. It's largely my idiosyncratic preference about what rankings I think are "better" or "worse."

And, as always, I'll decide what rankings to rank. I've removed a couple and added a couple. The year listed is the year the ranking was last updated (not the self-described year of the ranking).

1. NLJ 250 Go-To Law Schools (2014): It's a clear, straightforward ranking of the percentage of graduates from each school who landed a position at an NLJ 250 law firm last year. It does not include judicial clerkships, or elite public interest or government positions, but it is perhaps the most useful metric for elite employment outcomes. As a methodological point, only 178 firms answered the survey, and NLJ relied on its database and independent reporting to supplement. To its great advantage, it includes many interactive charts of the data it has.

2. Sisk-Leiter Scholarly Impact Study (2012): The study has not been updated in a few years, but it's still useful for what it does. Drawing upon the methodology from Professor Brian Leiter, it evaluates the scholarly impact of tenured faculty in the last five years. It's a measure of the law school's inherent quality based on faculty output. In part because peer assessment is one of the most significant categories for the U.S. News & World Report rankings, it provides an objective quantification of academic quality. Admittedly, it is not perfect, particularly as it is not related to law student outcomes (of high importance to prospective law students), but, nevertheless, I think it's a valuable ranking.

3. Princeton Review Rankings (2014): Despite a black box methodology that heavily relies on student surveys, the series of rankings gives direct and useful insight into the immediate law school situation. It is admittedly not comprehensive, which I think is a virtue.

4. Above the Law Rankings (2014): The methodology is heavily outcome-driven (and perhaps driven by an outcome in mind). It relies on a very narrow "employment score" (full-time, long-term, bar passage required, excluding solo practitioners and school-funded positions). It conflates "tuition" with "cost," and it relies heavily on a couple of narrow categories (e.g., Supreme Court clerks). But it's a serious and useful ranking.

5. Enduring Hierarchies in American Legal Education (2013): Using many metrics, this study evaluates the persistence of the hierarchies among law schools. There are few things that have changed in determining which law schools are high quality over the last several decades. This study tries to figure out the traits of the hierarchies, and it categories the schools into various tiers.

6. Law School Transparency Score Reports (2013): It's less a "ranking" and more a "report," which means it aggregates the data and allows prospective students to sort and compare. The data is only as useful as what's disclosed--and so while it provides some utility, it's limited by the limited disclosures.

7. Witnesseth Boardroom Rankings (2014): Professor Rob Anderson's analysis is extremely limited: it evaluates which law school graduates end up as directors or executive officers at publicly held companies. But I think it gives a nice data point in an area that's under-discussed: law school graduates, after all, may find success in business and not simply in the practice of law.

8. Roger Williams Publication Study (2013): It selects a smaller set of "elite" journals and ranks schools outside the U.S. News & World Report "top 50." There are a few issues with this, as it relies on a fixed data set of "top 50" journals established years ago, and as it hasn't been updated in a couple of years, but, given its narrow focus, I think it does a nice job filling in some gaps left by the Sisk-Leiter study.

9. AmLaw BigLaw Associates' Satisfaction (2014): It surveys associates for how well their law schools prepared them for firm life. It highly correlates with job satisfaction. It's a nice, small post-graduate measure of law schools.

10. PayScale Rankings by Mid-Career Salary Salaries (2014): While this survey mixes all graduate schools together, and while it has some obvious selection bias in the reported salary data, it's another rare ranking that attempts to evaluate mid-career employment outcomes, which, as an under-evaluated area, makes this study something worth considering.

11. QS World University Rankings (2014): I think this ranking tends toward comparing apples, oranges, kumquats, rhododendrons, and lichen: all living things, but extremely hard to compare. But its use of h-index and citations per paper increases the objectivity of this academic-driven ranking.

12. SSRN Top 350 U.S. Law Schools (2015): The total new downloads give you an idea of the recent scholarship of a faculty--with an obvious bias toward heavy-hitters and larger faculties.

13. U.S. News & World Report (2014): Before, I've said that it isn't that this ranking is so bad that it's so low. Over time, I've concluded that, no, it's because this ranking is bad. It relies heavily on a few metrics that are not beneficial to measuring anything meaningful. It distorts student quality by incentivizing pursuit of the median LSAT and UGPA at the expense of all other quality factors, especially the bottom quartile of the class; it rewards silly categories like high-spending schools and library resources; it prints metrics unrelated to its ranking formula; its "lawyers/judge assessment score" has a notoriously low response rate; peer academic ranking scores have deflated over time as schools sandbag each other when ranking each other; and so on. It might be the case that they are exceedingly influential. It's true. Bu they are pretty poor. They may mostly get the "right" results, but for all the wrong reasons.

14. Tipping the Scales (2015): The metrics are simply a bit too ad hoc--and that's saying something coming behind U.S. News & World Report. The factors are idiosyncratic and, while they reflect a superficial appreciation of things like student quality and outputs, the measures used (salary data, which is inherently bimodal and notoriously underreported; acceptance rates, which are not uniform indicators of quality; etc.) are not a serious appreciation of those things.

15. PreLaw Magazine Best Law School Facilities (2014).

16. Top Law Schools for Social Life (2014).

Everything you need to know about Hickenlooper v. Kerr, the Guarantee Clause case before the Supreme Court

Tomorrow, the Supreme Court will consider a petition for a writ of certiorari in Hickenlooper v. Kerr. Colorado legislators challenged an enacted ballot initiative that prohibited legislative tax increases from taking effect without a popular vote, arguing that it violated the Guarantee Clause. A federal district court, and the Tenth Circuit, agreed that the legislators had standing and that the Guarantee Clause claim was justiciable.

I started tracking this matter over a year ago. I provide the background in these links; below that, I'll discuss the briefs in the case that the Court will consider.

Several amici were filed in the case, available at SCOTUSBlog. Of note (and these are very brief summaries of the major arguments):

  • The Colorado Union of Taxpayers Foundation, the Mountain States Legal Foundation, and 22 Colorado state legislators filed a brief in support of the petitioner. They focused primarily on the fact that respondents' injury was abstract, because legislators never enacted a tax increase for the people to vote upon--instead, they simply alleged a dilution of legislative power. That cannot comport with existing standing doctrine. Only if the Colorado legislature enacted a tax increase, then saw the people reject it, would standing exist.
  • The National Federation of Independent Business, along with several policy institutes, filed a brief in support of the petitioner. They emphasized the breadth of the impact of a finding that such a case is justiciable, because the decision invites judicial invalidation of direct democracy in a number of states on matters ranging from marijuana legalization to charter schools. They also noted that in the partisan gerrymandering context (Vieth v. Jublier), the Supreme Court has essentially required an articulation of judicially-manageable standards before the case could proceed. Here, the district court insisted (in a rather bizarre fashion) on holding a trial to determine what the Guarantee Clause demands.
  • The Center for Constitutional Jurisprudence (with John Eastman) filed a brief in support of the petitioner. It focused upon the inability of the Tenth Circuit to distinguish existing precedent finding the Guarantee Clause usually non-justiciable. Regardless, the case presents a good vehicle for clarifying the language in cases like New York v. United States (1992) suggesting that the Guarantee Clause may be justiciable, and articulating that the standards for justiciability are not met in this case.
  • Texas joined by five other states filed a brief joined in support of the petitioner. They argue that the text of the Guarantee Clause protects not the state legislature, but the people, and the States. They also cite other provisions like line-item vetos and supermajority voting requirements that may be called into question if this case is found justiciable.
  • The Cato Institute (with Ilya Shapiro) and several other policy institutes filed a brief in support of the petitioner. It asked the Court to avoid addressing the issue of whether the Guarantee Clause is per se non-justiciable and instead emphasized that Colorado's Taxpayer Bill of Rights met the standard of a "Republican Form of Government," drawing heavily from source material at the founding.

The Supreme Court will consider the case tomorrow--and we'll eagerly await their decision as to whether to hear this case.