A Personal Constitution

Michael Serota[*]

[download pdf]

"[M]ost lawyers . . . hope that their work will be a source of satisfaction in itself.  Indeed, many hope that the intrinsic satisfactions it affords will be important enough to play a significant role in their fulfillment as human beings.”[1]

Introduction

Today’s law school graduates face two disturbing trends in the professional world.  Each is well known, but neither is openly discussed in the law school setting.[2]  First, lawyers suffer from chronic professional dissatisfaction.[3]  Approximately one out of every four lawyers is dissatisfied with her job.[4]  Second, this dissatisfaction exacts an extraordinarily high price on lawyers, the legal profession, and society as a whole.[5]  Most startling, however, is the fact that the widespread dissatisfaction and the associated mental health-related problems prevalent in the legal profession actually begin in law school.[6]

Volition and Voltaire: A Response to Professor Bagenstos

By Tom Lininger[*]

[download pdf]      

[Editor's Note:  This piece is the third part of a dialogue between Lininger and Samuel Bagenstos.  Bagenstos's previous post is here; it was a response to Lininger's article, From Park Place to Community Chest: Rethinking Lawyers' Monopoly, 101 Nw. U. L. Rev. (forthcoming 2007), 101 Nw. U. L. Rev. Colloquy 155 (2007) (link).]          

My hat is off to Professor Sam Bagenstos.   Not only has he made a number of incisive points in his reply to my essay, but his record as a civil rights attorney provides a superlative model of public-spirited lawyering.   Unfortunately, most attorneys lack Professor Bagenstos's motivation to advocate for the public good.   Given this reluctance, a system that relies primarily on lawyers' voluntary choices will continue to underserve the legal needs of the poor.   The status quo simply isn't working.

Mandatory Pro Bono and Private Attorneys General

By Samuel R. Bagenstos[*]

[download pdf]      

[Editor's Note:  This piece is a response to Tom Lininger's article From Park Place to Community Chest: Rethinking Lawyers' Monopoly, 101 Nw. U. L. Rev. (forthcoming 2007), 101 Nw. U. L. Rev. Colloquy 155 (2007) (link).]          

Not to put too fine a point on it:  Professor Lininger[1]  thinks Professor Rhode[2]  wimps out.  Her "heart is in the right place," but she too readily draws back from proposing mandatory pro bono service.[3]  In this brief response, I want to up the ante.  If Professor Lininger thinks Professor Rhode is a wimp, I think they're both hopeless goo-goos.[4]  We currently have a system of civil rights enforcement that harnesses the profit motive of plaintiffs' attorneys to encourage the prosecution of violations of civil rights laws.  That system may seem crass and disreputable to those who believe that lawyers should bring civil rights actions out of the goodness of their hearts (perhaps while singing "Kumbaya" or, for those of a more lefty persuasion, "If I Had a Hammer").  But it's the best system of civil rights enforcement we've found.

From Park Place to Community Chest: Rethinking Lawyers' Monopoly

By Tom Lininger

Editor’s Note:  This week we deviate from our standard Colloquy Essays and Posts format to publish a special feature, a Review Essay forthcoming in the Northwestern University Law Review.   In this Essay, Professor Tom Lininger reviews Pro Bono in Principle and in Practice:   Public Service and the Professions by Deborah L. Rhode, and pleads to the legal community to exceed Prof. Rhode's rather modest suggestions for curing our current pro bono crisis.   He suggests several courses of action aimed at mitigating our current dearth—indisputable whether measured against other professions or other nations—of altruistic legal representation, including greater focus in law schools and a mandatory minimum hours of pro bono commitment by members of state bars.

Download the PDF here.

On Affirmative Action and "Truly Individualized Consideration"

By Andrew Koppelman & Donald Rebstock

Abstract:

In its most recent affirmative action decisions, the Supreme Court has declared that, in order for an admissions program to permissibly take race into account, it must give each applicant "truly individualized consideration."  Each applicant, it has said, must be "evaluated as an individual."  The rhetorical power of the opinion rests on the contrast between crude, mechanical sorting and an admissions process in which applicants are treated as the unique people they are, and in which each of them gets precisely the result that he deserves.

This rhetorical move is a cheat.  Nobody ever gets exactly what he deserves.  In any case, giving people what they deserve is not the business of an admissions office.  The Michigan Law School process that the Court approved flunks this standard.  So does Northwestern's, which is even more individualized.  So does any other possible admissions program.  Truly individualized consideration is impossible.  The Supreme Court has tried to make a vain dream into a constitutional requirement.

This essay has four parts.  Part I reviews the "individualized consideration" requirement laid down in Gratz and Grutter.  Part II describes what an actual law school admissions process is, at an unusually prosperous, small, and selective law school.  This process has many virtues, but it would be an exaggeration to say that it achieves truly individualized consideration.  Part III contrasts admissions decisions with the one other area in which the Court has demanded individualized decisions:  the administration of the death penalty.  The admissions process is far cruder than anything the Court would accept in the death penalty context.  Part IV argues that when the actual goals and methods of the admissions process are understood, it becomes clear that racial diversity is continuous with, rather than in violation of, those goals and methods.

Click Here to Download This Short Piece

Copyright 2006 Northwestern University

Cite As: 101 Nw. U. L. Rev. (forthcoming 2007), 101 Nw. U. L. Rev. Colloquy 49 (2006), http://www.law.northwestern.edu/lawreview/Colloquy/2006/6/.

Persistent URL: http://www.law.northwestern.edu/lawreview/colloquy/2006/6/

(Comments)

Translating the U.S. LLM Experience: The Need for a Comprehensive Examination

By Carole Silver & Mayer Freed [*]

The process of globalization has generated increasing interest in United States law.  One consequence of this interest is the development of a new market for U.S. legal education:  foreign nationals, both those who have previously studied law and those who are licensed to practice law in their home countries.  These students frequently seek to gain fluency in U.S. law by enrolling in U.S. law school LLM programs.  This essay will discuss the mismatch between the career interests of LLM graduates and the state bar licensing systems in which they participate, and will propose a unique comprehensive examination tailored to meet the needs of foreign LLMs.