Out of Practice: The Twenty-First-Century Legal Profession

Lawyering has changed dramatically in the past century, but scholarly and regulatory models have failed to keep pace. Because these models focus exclusively on the practice of law as defined by the profession, they ignore many types of work that today\u27s lawyers perform and many sources of ethical tension they encounter. To address these shortcomings, I examine significant twentieth- and twenty-first-century social dynamics that are fundamentally altering contemporary lawyers\u27 work by broadening and blurring the boundary between law and business. Within the resulting boundary zone, a growing number of lawyers occupy roles for which legal training is valuable but licensure is not required. I argue that the ambiguity surrounding these roles—regarding what constitutes legal practice, what roles lawyers play, and what professional obligations attach—creates opportunities for abuse by individual lawyers and for ethical arbitrage by sophisticated corporate clients. The proliferation of these roles gives rise to key ethical tensions, ignored by existing models of the profession, that threaten to extinguish the profession\u27s public-facing orientation in favor of its private interests. I conclude that we cannot effectively understand and regulate the twenty-firstcentury legal profession until we move beyond the rigid constraints of existing models and begin to study the full range of roles and work settings—both in and out of practice—that today\u27s lawyers occupy

Reconstructing Professionalism

Amidst widespread calls of crisis in the American legalprofession, scholars, commentators and bar leaders areproposing that we rely on market logic to address theproblems and challenges of contemporary lawyering.Proposed reforms seek to unbundle, commoditize, andautomate as many legal services as possible; to allow non-lawyers to capitalize law firms and litigation; and topermit services providers with limited or no legal trainingto perform a wide range of legal tasks. In much the sameway that policymakers in the 1980s and 1990s came toaccept market-based deregulatory reforms to industriesacross the country, today\u27s ethics committees and law firms are reconstructing lawyering as a commodityexchange, disciplined primarily by the market.This Article examines and critiques this growing trend.It argues that the market vision of lawyering ignores andundermines important democratic roles that lawyers playin enabling and empowering citizens to participate in thelegal system. Individually and collectively, lawyers guideclients through the legal system as trusted advisors andadvocates; they empower clients against powerfuladversaries or state over-reaching; they challenge andconstrain client demands that contravene the law; andthey involve clients in the creation of law on the books andin action. Lawyers perform this work by employingrational dynamics that market exchange fails to accountfor, such as trust, loyalty, judgment, empowerment, andservice. These dynamics are undermined or eliminatedwhen we ground professional regulation in a conception oflawyering as an arms\u27length exchange of services for a fee.Drawing on nineteenth century social thought thataccompanied the rise of the modern professions, thisArticle advocates a different approach to reform. Theprofessions were initially embraced as institutions thatcould intermediate between the state, society, and theeconomy, without being captured by the market. Buildingon this vision, modern reforms should seek to harness andconstrain market forces in productive ways, rather thanallowing market forces to dictate the profession\u27s future indeleterious ways. Properly reconstructed, the legalprofession can and should facilitate and mediaterelationships pursuant to law rather than wealth orpower

The Institutional Politics of Federal Judicial Conduct Regulation

The conventional story of the federal judiciary\u27s institutional growth begins with Marbury v. Madison and Chief Justice Marshall\u27s establishment of judicial review. From there, it proceeds through the history of landmark Supreme Court decisions that pushed back against the power of the political branches and advanced the judiciary\u27s institutional position. In this familiar story, the judiciary participates in the separation of powers through its case law

Advocacy revalued

A central and ongoing debate among legal ethics scholars addresses the moral positioning of adversarial advocacy. Most participants in this debate focus on the structure of our legal system and the constituent role of the lawyer-advocate. Many are highly critical, arguing that the core structure of adversarial advocacy is the root cause of many instances of lawyer misconduct. In this Article, we argue that these scholars’ focuses are misguided. Through reflection on Aristotle’s treatise, Rhetoric, we defend advocacy in our legal system’s litigation process as ethically positive and as pivotal to fair and effective dispute resolution. We recognize that advocacy can, and sometimes does, involve improper and unethical use of adversarial techniques, but we demonstrate that these are problems of practice and not of structure and should be addressed as such

Advocacy Revalued

A central and ongoing debate among legal ethics scholars addresses the moral positioning of adversarial advocacy. Most participants in this debate focus on the structure of our legal system and the constituent role of the lawyer-advocate. Many are highly critical, arguing that the core structure of adversarial advocacy is the root cause of many instances of lawyer misconduct. In this Article, we argue that these scholars’ focuses are misguided. Through reflection on Aristotle’s treatise, Rhetoric, we defend advocacy in our legal system’s litigation process as ethically positive and as pivotal to fair and effective dispute resolution. We recognize that advocacy can, and sometimes does, involve improper and unethical use of adversarial techniques, but we demonstrate that these are problems of practice and not of structure and should be addressed as such

Canagliflozin and renal outcomes in type 2 diabetes and nephropathy

BACKGROUND Type 2 diabetes mellitus is the leading cause of kidney failure worldwide, but few effective long-term treatments are available. In cardiovascular trials of inhibitors of sodium–glucose cotransporter 2 (SGLT2), exploratory results have suggested that such drugs may improve renal outcomes in patients with type 2 diabetes. METHODS In this double-blind, randomized trial, we assigned patients with type 2 diabetes and albuminuric chronic kidney disease to receive canagliflozin, an oral SGLT2 inhibitor, at a dose of 100 mg daily or placebo. All the patients had an estimated glomerular filtration rate (GFR) of 30 to <90 ml per minute per 1.73 m2 of body-surface area and albuminuria (ratio of albumin [mg] to creatinine [g], >300 to 5000) and were treated with renin–angiotensin system blockade. The primary outcome was a composite of end-stage kidney disease (dialysis, transplantation, or a sustained estimated GFR of <15 ml per minute per 1.73 m2), a doubling of the serum creatinine level, or death from renal or cardiovascular causes. Prespecified secondary outcomes were tested hierarchically. RESULTS The trial was stopped early after a planned interim analysis on the recommendation of the data and safety monitoring committee. At that time, 4401 patients had undergone randomization, with a median follow-up of 2.62 years. The relative risk of the primary outcome was 30% lower in the canagliflozin group than in the placebo group, with event rates of 43.2 and 61.2 per 1000 patient-years, respectively (hazard ratio, 0.70; 95% confidence interval [CI], 0.59 to 0.82; P=0.00001). The relative risk of the renal-specific composite of end-stage kidney disease, a doubling of the creatinine level, or death from renal causes was lower by 34% (hazard ratio, 0.66; 95% CI, 0.53 to 0.81; P<0.001), and the relative risk of end-stage kidney disease was lower by 32% (hazard ratio, 0.68; 95% CI, 0.54 to 0.86; P=0.002). The canagliflozin group also had a lower risk of cardiovascular death, myocardial infarction, or stroke (hazard ratio, 0.80; 95% CI, 0.67 to 0.95; P=0.01) and hospitalization for heart failure (hazard ratio, 0.61; 95% CI, 0.47 to 0.80; P<0.001). There were no significant differences in rates of amputation or fracture. CONCLUSIONS In patients with type 2 diabetes and kidney disease, the risk of kidney failure and cardiovascular events was lower in the canagliflozin group than in the placebo group at a median follow-up of 2.62 years

Insterstitial Exclusivities After Association for Molecular Pathology

The high profile cases Bilski v. Kappos and Association for Molecular Pathology v. United States Patent and Trademark Office have renewed public debate about the proper scope of patentable subject matter. The subject matter inquiry has traditionally been treated as a threshold inquiry in patent law, serving a gate-keeping function by defining the types of inventions that are eligible for patent protection. The Patent Office and courts have approached the subject matter inquiry both by determining whether an invention falls into a statutory category-processes, machines, manufactures, or compositions of matter-as well as by determining whether an invention falls into a category excluded from subject matter eligibility-often described in recent decades as laws of nature, natural phenomena, and abstract ideas. In this Essay, we suggest that by focusing solely on shaping judicial interpretation of the exclusions from patentable subject matter, proponents of an expanded public domain fail to consider the possibility that states will expand what we term interstitial exclusivities -state-based legal rules, such as trade secret law and unfair competition law, that grant certain market exclusivities in inventions and that are not subject to federal constitutional limits on their duration. We argue that the expansion of existing interstitial exclusivities and the creation of new ones would alter existing incentive structures of intellectual property law, potentially provoking serious negative unintended consequences such as increased uncertainty surrounding patent validity, increased business costs, and increased secrecy in scientific research. We suggest instead that the creation of a public domain envisioned by ACLU and PUBPAT may be best achieved through concurrent efforts to enact legislative change, which would explicitly dedicate such inventions to a public domain

Aggregate Litigation Goes Private

In Disaggregative Mechanisms, Professor Jaime Dodge documents how corporate defendants increasingly design their own mass resolution systems to avoid collective litigation-what she calls disaggregative dispute resolution. According to Dodge, such schemes promise benefits not only to putative defendants, but also to plaintiffs-resolving disputes quickly, handling large volumes of claims predictably, and sometimes, offering more compensation than would be available through aggregate litigation. She observes, however, that these systems also risk underdeterrence. Dodge concludes by endorsing disaggregative mechanisms while suggesting a need for more public oversight