New Millennium, Same Glass Ceiling? The Impact of Law Firm Compensation Systems on Women

Joan C. Williams and Veta Richardson

Volume 62, Issue 3, 597-676

This Article reports on a survey of 694 law firm partners, virtually all women, who filled out an online survey about the impact of law firm compensation systems on women. The results were analyzed through the lens of thirty-five years of experimental social psychology studies of gender bias. Survey results showed considerable dissatisfaction among women partners with respect to their firms’ partner compensation systems. Thirty to forty percent of respondents were dissatisfied or extremely dissatisfied with their firm’s system, and minority partners were more dissatisfied than majority ones. Many respondents believed that their firms overvalued individual cash flow factors (origination, revenue and billable hours) and undervalued institutional investment factors (contributions to enhance the firm’s human capital), and that the systems lacked transparency. Disputes over origination credit were very common, with minority attorneys more likely than majority ones to experience them. About a quarter of majority equity women partners, and a third of majority income and minority women partners reported feeling “bullied, threatened or intimidated” in a dispute over origination credit. Respondents’ reported experiences track patterns of gender bias as described in the experimental literature. The Article ends with an extensive list of best practices to help firms address the problems identified in law firm compensation systems.

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Resolving Client Conflicts by Hiring “Conflicts Counsel”

Ronald D. Rotunda

Volume 62, Issue 3, 677-706

A general principle of legal ethics is that a law firm may not represent a client suing someone who is also a client of the law firm (1) even though the two matters are unrelated, (2) a different law firm represents the client in that law suit, and (3) there is no risk that the lawyer would violate the confidences of any client. Other ethics rules magnify the significance of this rule by imputing the disqualification of every lawyer in the law firm to every other lawyer in the same firm. Courts enforce these rules by disqualifying the offending law firm.

In general, sound reasons support these ethics rules. Yet, there are situations where these rules require disqualification although there is no legitimate client expectation of loss of loyalty or confidence. There is nascent case law in the lower courts that recognizes this problem and offers a solution: using what I call “conflicts counsel,” meaning that the client retains a new lawyer from a different law firm to handle a discrete, severable matter—the matter that created the conflict. Although these cases— typically in the area of discovery and bankruptcy—do not discuss their rationale, their instincts are correct: using conflicts counsel in certain situations mitigates the burden of disqualification while protecting the underlying reasons behind disqualification. Courts should follow these decisions, which are typically unpublished.

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How Different Are Originalism and Non-Originalism?

Peter J. Smith

Volume 62, Issue 3, 707-736

Several prominent and self-described “new originalists” have begun to contend that the objective original meaning of many of the Constitution’s provisions should be ascertained at a very high level of generality. They have also urged recognition of a distinction between constitutional “interpretation,” which involves the determination of the meaning of the constitutional text, and constitutional “construction,” which involves the formulation of legal rules to apply the text to concrete situations. These scholars have noted that because the constitutional text often is phrased at a very high level of generality, originalist interpretation alone simply cannot answer many difficult questions of constitutional law, and thus courts must formulate rules that are not themselves dictated by the original meaning.

If this is what originalism entails, then there is no obvious distinction, at least in practice and possibly in theory, between new originalism and non-originalism. After all, most non-originalists treat the original meaning as the starting point for any interpretive inquiry, but are willing to look elsewhere—to history, precedent, structure, and policy, among others—to construct constitutional meaning when the text is vague or indeterminate.

All of this naturally leads one to question how different originalism and non-originalism really are. The short answer is that it depends on whom we ask, because not every originalist—indeed, not even every “new originalist”—accepts these recent modifications to originalist thinking. Given modern originalism’s origins as a response to the perceived excesses of non-originalism, it is not surprising that many originalists have resisted refinements to the theory that would tend to collapse the distinction between originalism and non-originalism. But the growing rift among originalists poses a greater risk to originalism than the mere prospect of intramural disagreement. Much of the force of the case for originalism has long derived from its claims to neutrality and objectivity. As the originalist tent grew, embracing scholars with a broad range of substantive commitments, these claims became perhaps more plausible. But originalists’ rejection of the claims of the “new new originalists”—claims that follow quite naturally, even if not inevitably, from the important refinements of new originalism itself—and their continuing insistence on an approach to constitutional interpretation that usually produces substantively conservative results have threatened once again to undermine their claims to neutrality and objectivity.

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Essay – Finding the Error in Daubert

Mark Haug and Emily Baird

Volume 62, Issue 3, 737-756

The Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc. laid down the standard for admissibility of expert testimony. We believe the best standard is simpler than the one chosen by the Court: The Daubert standard really is about discerning the trustworthiness of expert, and trustworthiness is best determined through an expert’s accounting of the error within his testimony. Lower courts have struggled with the Daubert standard. We offer evidence of the problem and propose a new standard that would capture the essence of Daubert but significantly simplify its application.

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Note – Efficient Proximate Cause: Is California Headed for a Katrina-Scale Disaster in the Same Leaky Boat?

Jacqueline Young

Volume 62, Issue 3, 757-794

The threat of natural disaster looms each year over many states in the U.S. Although major disasters are, in that sense, predictable, they nevertheless strike without warning. The private insurance industry has proven incapable of absorbing the risk. Adding to the problem is the fact that the law, in many states, allows insurance companies to skirt around disaster coverage by inserting anti-concurrent causation (“ACC”) clauses into their property insurance policies. Even in states where the law appears to bar such clauses, state programs aimed at increasing disaster insurance have failed to yield sufficient coverage to support the total amount in claims that would be produced following another Katrina-scale event. The extensive privation following Hurricane Katrina is proof-positive that America is not yet equipped to deal with large-scale natural catastrophe. Unfortunately, while the federal government can and does becomes the de facto “insurance plan” for all disaster-prone states, its response to past episodes has been ad hoc, at best.

This Note examines the concurrent causation question and takes a close look at the courts’ troubling treatment of ACC language following Hurricane Katrina. It goes on to contrast the stat of the law in the Gulf region with that of California, arguing that while California seems to have established a bright-line rule barring ACC clauses, recent decisions have brought the integrity of this rule into question. While California’s approach to the concurrent causation question could produce a workable solution for other disaster-prone states to observe, the California courts must first revitalize the rule barring ACC clauses, and the state must develop a solution to encourage more homeowners to purchase catastrophe insurance. Finally, the Note proposes a twopronged solution, advocating both a judicial response, as well as the reintroduction of the Homeowners’ Defense Act of 2009. By enacting the Homeowners’ Defense Act, the federal government can take a proactive, instead of reactive, approach to natural disaster relief.

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Note – Don’t Steal My Sunshine: Deconstructing the Flawed Presumption of Privacy for Unfiled Documents Exchanged During Discovery

Mary Elizabeth Keaney

Volume 62, Issue 3, 795-820

Courts encourage settlement as a way to resolve disputes efficiently and clear congested dockets, but settlement agreements can have a sinister effect too. It is becoming common in modern litigation to draft settlement agreements that require the return of discovery materials and the sealing of court documents from public view. Legitimate privacy concerns warrant sealing pretrial discovery and other court documents. However, the practice of keeping information vital to the public health and safety sealed for a price is illegitimate, and should be prohibited.

Legislative efforts are being made to monitor the impact that secret settlement agreements have on public health and safety and to make the litigation process more transparent, but opponents have succeeded in blocking such legislation thus far. The primary objection raised by opponents to the Sunshine in Litigation Act and similar legislation is that there is a presumption of privacy for materials exchanged during pretrial discovery that is not filed with the court. Opponents rely upon a distinction between filed and unfiled discovery to support this presumption of privacy.

This Note demonstrates that such a presumption has no place in the debate over this legislation, and relies on a close examination of the history of the Federal Rules of Civil Procedure (“FRCP”) for filing and discovery to unwrap the mistaken presumption advanced by the Judicial Conference and other opponents to the legislation. From the inception of the FRCP, there has been a public right of access to discovery materials, whether filed with the court or not. The advent of technology has resulted in voluminous document exchange in pretrial discovery. Any changes to the filing requirements were aimed at relieving the burden and expense associated with storing discovery information, and not intended to create a presumption of privacy for documents not filed with the courts.

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