An Empirical Study of Supreme Court Justice Pre-Appointment Experience

This Article compares the years of experience that preceded each Justice‘s appointment to the United States Supreme Court. This Article seeks to demonstrate that the background experiences of the Roberts Court Justices are quite different from those of earlier Supreme Court Justices and to persuade the reader that this is harmful. To determine how the current Justices compare to their historical peers, the study gathered a database that considers the yearly pre-Court experience for every Supreme Court Justice from John Jay to Elena Kagan. The results are telling: the Roberts Court Justices have spent more pre-appointment time in legal academia, appellate judging, and living in Washington, D.C., than any previous Supreme Court Justices. They also spent the most time in elite undergraduate and law school settings. Time spent in these pursuits has naturally meant less time spent elsewhere; the Roberts Court Justices have spent less time in the private practice of law, in trial judging, and as elected politicians than any previous Court. Having demonstrated that the Roberts Justices are outliers across multiple studied experiences, this Article argues that the change is regrettable for multiple normative reasons

Economists on Deregulation of the American Legal Profession: Praise and Critique

Article published in the Michigan State Law Review

The ABA, the Rules, and Professionalism: The Mechanics of Self-Defeat and a Call for a Return to the Ethical, Moral, and Practical Approach of the Canons

In this Article I argue that there was once a single animating goal for American legal ethics - providing moral, ethical, and practical guidance on practicing law. Throughout the 20th Century lawyer regulators worked to bisect that goal, and we now have two quite distinct, and frequently conflicting goals. On the one hand, bar regulators pushed ceaselessly to narrow the regulations governing lawyer conduct to black-letter minimum, and eliminated the broadly moral from the Rules. On the other hand, bar regulators sought to raise lawyers\u27 ethical and moral standards through professionalism and other non-mandatory efforts. These bisected goals clash in several notable ways. First, separating the mandatory from the hortatory creates cynicism about both projects. Second, theorists have long argued that criminal prohibitions are most effective when they overlap with commonly held morality, because people tend to obey those laws regardless of enforcement. As lawyer regulators have eliminated the broadly moral from the Rules of Professional Conduct they have greatly decreased the odds of compliance, since lawyers will not feel ethically bound to obey, and lawyer regulations are notoriously under-enforced. Lastly, black-letter rules trigger a particular lawyer heuristic I call boundary seeking. Lawyers are trained to find the border between the legal and the illegal, and this heuristic replaces any broader ethical consideration. I suggest eliminating these inconsistencies by returning to the original, unitary goal of legal ethics, and redrafting a general statement of ethical, moral, and practical principles to govern the legal profession, i.e. we should return to the approach of the ABA\u27s 1908 Canons of Professional Ethics

Harry Potter and the Half-Crazed Bureaucracy

What would you think of a government that engaged in this list of tyrannical activities: tortured children for lying; designed its prison specifically to suck all life and hope out of the inmates; placed citizens in that prison without a hearing; ordered the death penalty without a trial; allowed the powerful, rich, or famous to control policy; selectively prosecuted crimes (the powerful. go unpunished and the unpopular face trumped-up charges); conducted criminal trials without defense counsel; used truth serum to force confessions; maintained constant surveillance over all citizens; offered no elections and no democratic lawmaking process; and controlled the press? You might assume that the above list is the work of some despotic central African nation, but it is actually the product of the Ministry of Magic, the magicians\u27 government in J.K. Rowling\u27s Harry Potter series. When Harry Potter and the Half-Blood Prince was released this summer, I, along with many others, bought and read it on the day of its release. I was immediately struck by Rowling\u27s unsparingly negative portrait of the Ministry of Magic and its bureaucrats. I decided to sit down and reread each of the Harry Potter books with an eye toward discerning what exactly J.K. Rowling\u27s most recent novel tells us about the nature, societal role, and legitimacy of government