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Bernie Burk
Chapel Hill, NC
Bernie Burk teaches and writes about the Legal Profession, the Legal Academy, and Professional Responsibility. He is currently visiting at Campbell Law School.
Recent Activity
Because to take a VAP before a tenure-track position, you have to move twice. And moving twice in two or three years is quite hard on spouses and children. Moving once is hard enough.
Thanks to Dan Katz for quite a different perspective on the question of what a legal education ought to be for. Dan, I wonder why you think that "many of the law jobs of the not to[o] distant future are likely to be hybrid - (i.e. of the law & __ ) manner." Technology has been changing at an accelerating pace for at least a hundred years or more, and yet it seems to me that lawyers are, at bottom, doing essentially the same things today they did in 1930, 1960 and 1990. They are, to be sure, using new and different tools and, as a result, doing some of those same things in rather different ways. But you seem to be suggesting a transformation of the profession and its core functions never seen heretofore. If you're right, why now? Or am I misinterpreting your PowerPoint? Bernie
Kendall is advised to read my Comment responding to anon. Nothing in my post or in my comments suggests that a private law firm job is "better" or is more worthy of encouragement than any other use of a law degree. My perspective is pretty simple: Anyone considering pursuing a law degree should give some thought to what they might be able to do with it when they're done, and whether their investment of time, money and attention to matters outside the workplace is likely to serve their goals and needs. Law schools should be providing prospective applicants all the information they need to make this decision in an informed and thoughtful way. For many people, the pursuit of a law degree is not all about the benjamins; they have social, political or personal interests and goals that they believe the degree will help them serve. That is completely legitimate and, indeed, admirable. They should have the information they need to decide whether law school is the right path for them. Similarly, for those whose goals significantly or predominantly include the earning power of a law degree, they should have the information to evaluate how likely they are to achieve their aspirations. If you think that people might misunderstand financial or placement statistics, the solution is to make sure they have the information to assure that they don't. Bernie
Brian makes a fair and (to the best of my knowledge) completely accurate point: Current Villanova Law Dean John Gotanda has been outspoken about disclosing the school's past misstatements (which happened prior to his tenure as Dean), has promised a full accounting and accountability, and has taken steps to make it happen. For this he deserves a great deal of credit and admiration. I was under the impression that the misreporting of entering class statistics was one reason Dean Gotanda's predecessor resigned. A quick review of the limited factual resources I have to hand suggests that this may be less than clear. Perhaps we will find out more about that in time. Bernie
Anon, you make an important and serious point. I don't take you to be suggesting that we should report less information to prospective law students so they won't be confused. But watch for this paternalistic dodge on the part of others who may be more interested in reporting less information and less interested in avoiding confusion. So let's be clear: there are, as anon points out, lots of fulfilling and admirable career paths for which a law degree may be useful, but would not be literally required as they do not involve the practice of law strictly defined. Anyone who wishes to pursue a law degree because they do or just might want to pursue such a career can legitimately be encouraged to do so. Law schools that consider themselves particularly accomplished at preparing students for such careers should emphasize to prospective students that they provide a congenial environment for (among others) students with such interests, and can explain that this is why they place disproportionately more students in "JD preferred" jobs than other schools. They may even wish to provide MORE detail in the placement data they report so that prospective applicants and matriculants can appreciate where such schools have especially strong placement records. Sunshine is not only the best disinfectant, it is a superior reading light. Bernie
HERE IS PART III: What all this shows is that the disciplinary rules we've been discussing were never intended, and should not be construed, to authorize professional discipline on account of public debate over politics or policy. And the reason they were never so intended is to avoid difficult First Amendment problems when other remedies for unprotected falsehoods already exist. One other point on which I think we disagree: You suggest that one reason this discussion is needed is because the Crowell lawyers are doing something new to the legal profession, and this new role tests the formulations and limits of the existing disciplinary rules so that we should question and rethink them. I don't see that at all. Lawyers have been participants in public discourse since time immemorial as legislators, as advocates in legislative, regulatory and dispute resolution processes, and in public debate. Louis Brandeis was advancing scientific studies to support the adoption of progressive legislation, and to defend that legislation both publicly and in court, a hundred years ago. This is nothing new. All that said, your observations are timely and thought-provoking, and I appreciate the time and effort you devoted to them. I hope to hear from you again next time I post. Bernie
Toggle Commented Oct 15, 2011 on Lawyer, Discipline Thyself at The Faculty Lounge
HERE IS PART II: This is illustrated by your attempt to explicate Rule 4.1 in this context. You point out that Rule 4.1 requires a false statement of "material" fact, and then question whether the statement Crowell made here is "material." You argue that it isn't, because in your view consanguinity (or lack thereof) in Appalachia has little to do with mountaintop mining. But that is precisely the OPPOSITE of what Crowell was arguing. Crowell was challenging a study that said mountaintop mining causes toxic runoff, which causes excess birth defects. Crowell's argument was that the excess birth defects in question were caused by inbreeding, not toxic runoff. It was obviously "material" to the argument they were making, which ultimately is that mountaintop mining doesn't hurt local residents. The whole problem with approaching Rule 4.1 in this manner is that it suggests that the more "material" a factual assertion is to a question of public policy or debate, the more likely the lawyer is to be disciplined for it. And what this shows is that the qualifier "material" is in the Rule because the Rule itself applies only to what we might loosely call face-to-face negotiation or advocacy: The misrepresentation is "material" if it is significant in inducing the person to whom it is made to do or refrain from doing something to his or her detriment. (That's why it's the first rule in the section of the rules entitled "Transactions with Persons Other Than Clients.") It was never intended to, and should not, have any role in regulating public discourse on matters of politics or policy. Practical example: Michelle Bachmann states that the HPV vaccine causes schizophrenia. She is roundly criticized by scientists and lay people for having made a really dumb argument. Should she also be brought up on disciplinary charges to deprive her of her law license (assuming she has one)? What if she makes the argument while stumping across the country to support legislation to ban the vaccine? Another example: Creationism is (according to some) devoid of scientific support or (according to others) at least weakly scientifically arguable. A lawyer argues on behalf of his School District client that creationism is "legitimate" science, so that it is within the prerogatives of the School Board to include it in the District's curriculum. (Note that I am ignoring the pertinent Establishment Clause issues here because for these purposes they don't matter.) The lawyer (or more accurately, his client) loses. Should the Bar be allowed to deprive him of his license because he publicly argued a "fact" (the falsity of evolution) that has been proven "wrong"? Should he even be forced to defend his license from such a challenge? A PART III FOLLOWS
Toggle Commented Oct 15, 2011 on Lawyer, Discipline Thyself at The Faculty Lounge
OK, WE'LL TRY THIS AGAIN. APPARENTLY I AM SUCH A YAMMERHEAD THAT I NEED TO BREAK THIS COMMENT RESPONDING TO SCOTT INTO TWO PIECES. HERE'S PART I: Scott, you make some interesting and valuable observations. Let me try to sort out where we may agree and where we may disagree. At the outset, it seems to me that you have misunderstood one key point I was trying to make in my original post, a point that perhaps I should have made more clearly. When I criticized the Crowell lawyers for their bad argument that disproportionate rates of consanguinity in Appalachia caused greater incidence of birth defects there, I did not "posit" that what they said was "false." One study based on birth records (which is the study the Crowell lawyers ignored) does not remove the question from all scientific doubt. It does make the white paper look sloppy, incomplete, tendentious and unreliable; if the paper were an expert's report, I'd be expecting some pretty ugly cross-examination. But it was a bad argument. It was not a false statement of fact. What do I mean by "false statement of fact," and why does it matter? It matters because the phrase "false statement of material fact" in Rule 4.1 and "false and misleading" in Rule 7.1 were both crafted in reference to definitions of categories of speech not protected by the First Amendment, and thus reflect free-expression concerns. We know this both from the drafting history of the Model Rules, and from the Supreme Court's multiple decisions making clear that imposing professional discipline for protected speech is unconstitutional. See, e.g., Bates v. Arizona. Without getting into a lengthy digression, I think it would be a reasonably accurate oversimplification to say that the First Amendment does not protect statements that are provably factually false. Thus, in the context of scientific debate, propositions that are even weakly arguable are often considered non-factual, and thus often considered protected. For this reason, contrary to the assertions at the beginning of your last comment, in this context we MUST be "talking about whether the lawyers argued for or against mountaintop removal or whether mountaintop removal causes birth defects [and] about the validity of the scientific study on which the white paper was focused," and about "remotely debatable issues of scientific inference." And thus we are inevitably "discussing 'whether lawyers have First Amendment rights to make dumb arguments.'" No one has a "right" to make a false statement of fact (of the type left unprotected by the First Amendment). There may be various consequences if you do, including (among others) public criticism, civil liability for defamation, civil or criminal liability for fraud, and (for lawyers) professional discipline. But not every false statement of fact the First Amendment does not protect should be considered a basis for professional discipline, and no responsible authority reads the rules that way. The disciplinary rules that deal with false or misleading expression are limited by scope, context and consequences to narrow circumstances that reflect the drafters' understanding of how ill-suited the professional discipline system is as a tool to regulate public debate. PART II FOLLOWS
Toggle Commented Oct 14, 2011 on Lawyer, Discipline Thyself at The Faculty Lounge
I am trying to post a comment here continuing my very interesting conversation with Scott, and the site is not letting me do so. Argh! Stay tuned.
Toggle Commented Oct 14, 2011 on Lawyer, Discipline Thyself at The Faculty Lounge
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Oct 11, 2011