Blog

It’s a surprisingly good interview.

O: What did you think when you heard President Obama was considering you for the Supreme Court?

SS: I thought he was crazy. No, seriously—I am not a betting woman, but I kept telling my friends, “He’s never gonna pick me.” Not in a million years. I’m very rational, and I’m another New Yorker—at the time there were a few others—and I’d had a very contentious nomination to the Court of Appeals for the Second Circuit. I couldn’t figure out why he’d elect to go into a battle over me. And so I was in total disbelief when I was called that day.

O: Was it something you’d aspired to, the Supreme Court, or ever thought about?

SS: The minute I began to understand the importance of the Supreme Court, which really wasn’t until law school, I also understood how unlikely it was to become a justice. It’s said that you have to be struck by lightning. So it’s not something you can live your life aspiring to. In the deep, deep recesses of your fantasies, you think, “Wouldn’t that be cool?” But really, it’s just a fantasy.

O: So when he called you…

SS: I was at home. I’d had an interview with him earlier that day—it was the first time we’d met—and he told me that he’d call to tell me his decision.

O: That he would personally call you.

SS: Yes. His staff had sent me home to New York to pack, just in case he picked me. I was standing in my dining room, the phone rang, and the first thing I heard was, “This is the White House switchboard operator; please wait, the president’s coming on the line.”

O: Oooooooh!

SS: He got on the phone and said, “Judge, I have decided to make you my nominee to the U.S. Supreme Court.” Now, I don’t cry. But the tears just started to come down. My heart was beating so hard that I actually thought he could hear it. I realized I’d put my right hand to my heart to try to quiet it. It was the most electrifying moment of my life. The next day I was walking to the East Room at the White House, where the press statement of my nomination was about to happen, flanked by the president and vice president. They have longer legs than me, so I whispered, “Please wait.” And they turned around and smiled and waited for me to catch up. In that moment, I had an out-of-body experience. I was so overcome with emotion; I knew that if I stayed within my body I couldn’t deal with what I had to do. So it was like all of that energy came out of my body and started watching me from up here [motions to the sky].

O: You had to let some of it go, because it wouldn’t have been good to start crying in that moment.

H/T DC Dicta

In order to be a full-time law professor, under ABA accreditation standards, one must limit their practice of law. However, according to the rules of profesional conduct, a member of the bar can only limit their practice of law in very narrow circumstances. Would ABA accreditation standards be in tension with ABA model rules, such that a full-time professor who certifies that they are not engaged

ABA Accreditation Standard 402(B) places certain limitations on what a full-time member of the faculty can do outside of teaching. Specifically, it severely limits the professor’s ability to engage in the practice of law.

A full-time faculty member is one whose primary professional employment is with the law school and who devotes substantially all working time during the academic year to the responsibilities described in Standard 404(a), and whose outside professional activities, if any, are limited to those that relate to major academic interests or enrich the faculty member’s capacity as a scholar and teacher, are of service to the legal profession and the public generally, and do not unduly interfere with one’s responsibility as a faculty member.

As part of this accreditation standard, I had to certify to the law school that any outside-practice is minimal.

An interpretation of this standard makes clear that full-time faculty should not have a relationship with a law firm:

Regularly engaging in law practice or having an ongoing relationship with a law fi rm or other business creates a presumption that a faculty member is not a full-time faculty member under this Standard. This presumption may be rebutted if the law school is able to demonstrate that the individual has a full-time commitment to teaching, research, and public service, is available to students, and is able to participate in the governance of the institution to the same extent expected of full-time faculty.

Many state professional rules of conduct place strong restrictions on an attorney’s ability to limit his practice of law.

ABA Model Rule 5.6 (Restrictions On Right To Practice) provides:

A lawyer shall not participate in offering or making:

(a) a partnership, shareholders, operating, employment, or other similar type of agreement that restricts the right of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement; or

(b) an agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a client controversy.

Similarly, California Bar Rule 1-500 provides:

(A) A member shall not be a party to or participate in offering or making an agreement, whether in connection with the settlement of a lawsuit or otherwise, if the agreement restricts the right of a member to practice law, except that this rule shall not prohibit such an agreement which:

(1) Is a part of an employment, shareholders’, or partnership agreement among members provided the restrictive agreement does not survive the termination of the employment, shareholder, or partnership relationship; or

(2) Requires payments to a member upon the member’s retirement from the practice of law; or

(3) Is authorized by Business and professions Code sections 6092.5 subdivision (i), or 6093.

(B) A member shall not be a party to or participate in offering or making an agreement which precludes the reporting of a violation of these rules.

The form I had to certify for purposes of ABA accreditation perhaps could be considered an “employment” contract, or maybe  “other similar type,” though ejusdem generis, those agreements all seem to apply to law firm partnership matters, not ABA accreditation standards.

Could it be that full-time law professors who certifies such a form would be in violation of this rule of professional conduct? There seems to be ethical issues here–and maybe even antitrust concerns?

Of course, a professor who has to make this certification could choose to withdraw from the bar in order to avoid this conflict, though that would hardly be a desirable result, as that would limit even the ABA’s permitted practice of law related to academic matters.

H/T Michael Tenenbaum

Update: I think I may have read the statute too hastily. As David pointed out in the comments, the rules seem to allow restrictions during the employment relationship. An agreement can’t “restrict[] the right of a lawyer to practice after termination of the relationship.” I seem to recall something from professional responsibility that strongly disfavored any contracts that limit representation, but this rule does not quite capture that.

Chimpanzees: 1. Nate Silver: 0.

The Times continues its focus on how the proliferation of robots in industry will displace workers. This article acknowledges the pros of automation, but stresses the likely cons.

In hindsight, historical fears of technological change look foolish, given that automation has increased living standards and rendered our workweeks both safer and shorter. In 1900, when nearly half the American labor force was employed in backbreaking agriculture, the typical worker logged 2,300 hours a year, according to Joel Mokyr, an economic historian at Northwestern University. Today that number is 1,800. (If you believe “The Jetsons,” by 2062 we’ll be working only two hours a week; Keynes had similar forecasts.)

That said, creative destruction is undoubtedly painful. Historically, the children of displaced workers have benefited from mechanization, but the displaced workers themselves have often been permanently passé.

“Every invention ever made caused some people to lose jobs,” says Mr. Mokyr. “In a good society, when this happens, they put you out to pasture and give you a golf club and a condo in Florida. In a bad society, they put you on the dole, so you have just enough not to starve, but that’s about it.”

And many economists today believe the transition will be even more difficult this time around.

Who will be the only people saved? That’s easy. Those with tenure.

An optimist like Mr. Mokyr might note that the economy is actually becoming unusually good at scaling up retraining programs just as we need them most. The technological shocks that have affected manufacturing and office administration, after all, are now infiltrating education: with online courses, an expert can teach 60,000 students at a time rather than the 60 Mr. Mokyr lectured on Tuesday.

Mr. Mokyr is not too worried about what this will mean for his own livelihood, despite the mass layoffs that similar cybernetic developments have wrought over every other industry he has studied.

“I can be displaced by technology, but they still can’t fire me,” he says. “I have tenure.”

Why?

 “Within search results, information tied to verified online profiles will be ranked higher than content without such verification, which will result in most users naturally clicking on the top (verified) results. The true cost of remaining anonymous, then, might be irrelevance.”

And who is coding those search results, may I ask. Schmidt’s prediction is in fact a self-fulfilling prophecy.