Thursday, September 22, 2016

Do Lawyers Make Better Presidents?

What do the following Presidents have in common: Thomas Jefferson, Abraham Lincoln, Woodrow Wilson, and Franklin D. Roosevelt? All are frequently voted by historians as amongst the 10best U.S. Presidents – and all were lawyers or law school graduates.

And what do the following Presidents have in common: Millard Fillmore, Franklin Pierce, James Buchanan, and Richard Nixon? All are frequently voted by historians as among the 10 worst U.S. Presidents – and all were lawyers or law school graduates.

Combined with the fact that many highly regarded presidents were not trained in law – including George Washington, Harry Truman, and Dwight Eisenhower – these lists suggest that legal training is not necessarily correlated with the good judgment, political acumen, and leadership skill necessary to excel in the Oval Office. But there’s more to the story than the best-and-worst rankings.

The most important number may be that 25 out of 44 presidents graduated from law school or practiced law. (The two are not the same thing, especially in earlier times when most lawyers entered the profession through apprenticeship.) Lawyers represent only 0.36% of the U.S. population, but over 56% of presidents. The electorate, it seems, considers legal training a useful characteristic in presidents – or least not a disqualifying one.

It stands to reason that legal credentials would be common among the people who excel at politics and public service. People with an interest in government tend to gravitate toward law, since most government posts involve law in one capacity or another, whether it be making it, interpreting it, or enforcing it. As a result, the pool of credible presidential candidates is more lawyer-heavy than the public at large. This helps explain why three out of four of this year’s presidential and vice-presidential candidates – Hillary Clinton, Tim Kaine, and Mike Pence – were practicing lawyers before running for public office. And why one former president – William Howard Taft – and one serious presidential candidate – Charles Evans Hughes – later became chief justices of the U.S. Supreme Court.

The modern J.D. degree builds knowledge and skills useful for office-holders even if they never represented clients. President Barack Obama, for example, never had a private practice comparable to that of First Lady Michelle Obama. But like President Bill Clinton before him, he taught constitutional law at a law school (where one eye could also be kept on political opportunities). For which of our past lawyer-presidents was the daily practice of law a major part of their personal and professional identity? President John Adams considered one of his greatest professional accomplishments to be his successful defense of some very unpopular criminal defendants: British soldiers charged in the Boston Massacre. President Abraham Lincoln was a self-taught lawyer renowned for his courtroom skills. His “country lawyer” persona remains a defining part of his legacy. Rounding out this list of presidents whose outlook on life may have been shaped by their legal practice is Richard Nixon, who practiced law both before entering Congress and during his mid-1960’s political hiatus. Nixon’s most well-remembered statement – “I am not a crook” – interacts poignantly with Lincoln’s advice to young lawyers: “Resolve to be honest at all events; and if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer.”

A law degree is of course no guarantee that today’s student will win tomorrow’s election. It does not guarantee how history will remember future lawyer-presidents. But as a credential that is both relevant for the job and respected by the voting public, a law degree seems to be a sound political investment.

Monday, September 19, 2016

Should the Education Department Hear Class Actions When Colleges Collapse?

By Adam Zimmerman

This op-ed originally appeared on the Huffington Post.

Last week, one of the nation’s largest for-profit colleges, ITT Educational Services, announced that it was shutting its doors in the wake of several state and federal fraud investigations. The closure comes as the Department of Education cracks down on shady colleges that lure unwitting students with false promises of money and jobs. But behind the controversy over “predator schools” lies a more vexing problem: how the government will handle thousands of claims by ITT’s former students to forgive their federal loans.

Federal law entitles students to federal loan forgiveness when they are left in the lurch by colleges that commit fraud or go bankrupt. The principle behind this long-standing rule is that students are doubly punished when they rack up crippling debt in schools that can never provide them with a marketable degree. But after the closure of the Corinthian Colleges, which collapsed two years ago under similar circumstances, the backlog of students seeking debt relief from the Department of Education swelled to over 25,000 claims. If another 30,000 ITT students go down the same road, it could be years before the Department decides whether they are entitled to relief under federal law. As important, no existing process ensures that students with similar claims will be treated in the same way and that independent experts will make these determinations.

Friday, September 16, 2016

Pro Bono Bill Veto Was a Shock

By Cindy Thomas Archer
Associate Dean, Clinics & Experiential Learning

This op-ed originally appeared in the Friday, Sept. 16, 2016 edition of the Daily Journal.

On Aug. 29, Gov. Jerry Brown vetoed Senate Bill 1257, which would have required those seeking admission to the California State Bar to complete 50 hours of free legal services for those who could not otherwise afford to pay a lawyer for her services.

I was shocked, as were most of the lawyers I knew, by Brown’s veto because for years there have been signs that such a requirement seemed inevitable.

Let’s go back a few years. In 2012, the State Bar Board of Trustees approved the appointment of the Task Force on Admissions Regulation Reform. For almost four years, TFARR studied proposed competency training requirements for admittees to the California Bar. The seemingly least controversial of its proposals was the requirement that those seeking admission complete 50 pro bono service hours. I spoke with law school public interest and pro bono project directors across the state and, while other aspects of the TFARR recommendations were hotly contested and debated, everyone thought this requirement would easily be instituted.

Further, I have spent the last 16 years at Loyola Law School, Los Angeles, the first ABA-approved law school in California with a pro bono legal service hours graduation requirement. It’s an extension of Loyola’s social justice mission from its founding. It is part of our identity and a tool for helping to address the access to justice gap in the community. In fact, many students choose Loyola recognizing and appreciating the school’s commitment to service. And our students annually contribute 60,000 hours or more in pro bono services. Similarly, as of Aug. 23, the ABA Standing Committee on Pro Bono and Public Service reported on its website that of the 184 law schools responding to the survey, 41 have a pro bono or public service requirement for graduation. Another 127 have formal voluntary pro bono programs; 16 others have independent student pro bono projects.

Then State Sen. Marty Block entered the conversation with SB 1257, an answer to the access to justice gap for the masses who cannot afford a lawyer. A no-brainer, right?

Tuesday, August 30, 2016

In New Law Review Article, Prof. Guttentag Urges Supreme Court to Update Insider Trading Law

Loyola Law School, Los Angeles Professor Michael Guttentag’s newest law review article, “Selective Disclosure and Insider Trading: Tipper Wrongdoing in the 21st Century” discusses the first Supreme Court insider trading case in almost twenty years. In Salman v. United States, which is scheduled for oral argument on October 5th, the Supreme Court will consider when an insider’s tip to a friend or relative can trigger insider trading liability. Professor Guttentag, a securities law expert, provides background and context about what is at stake in this Supreme Court consideration of when tips can violate federal securities statutes. The article will be published in the Florida Law Review.

“I am hoping the Supreme Court will be bold enough to admit that the old rules about what counts as an illegal tip, developed in the era of the fax machine, are pretty much obsolete now,” said Guttentag, John T. Gurash Fellow in Corporate Law & Business. “In 2016, company policies and securities regulations strictly prohibit leaking confidential information. Insider trading law needs to reflect this new reality.”


The Supreme Court in deciding Salman v. United States should update a confused and increasingly obsolete aspect of insider trading doctrine: the rule that the selective disclosure of material nonpublic information can only trigger insider trading liability if “the insider personally will benefit, directly or indirectly, from his disclosure.”

When it was introduced in Dirks v. SEC in 1983 this “personal benefit” test represented an imperfect effort to balance four competing rationales for determining when providing a tip should trigger insider trading liability. Two developments since Dirks was decided have made problems with this personal benefit test insurmountable. First, the SEC’s enactment of Regulation Fair Disclosure in 2000 supplanted federal common law regulation of selective disclosures by public companies and, more pointedly, prohibited public companies from making precisely the types of selective disclosures to Wall Street analysts that the Dirks personal benefit test was designed to protect. Second, the adoption of the misappropriation theory of insider trading in United States v. O’Hagan greatly expanded the types of deceptive conduct that might lead to insider trading liability with important ramifications for how to identify tipper wrongdoing.

After Regulation FD and O’Hagan, the best approach going forward for identifying tipper wrongdoing would be to go back to the underlying statutory prohibition against deceptive conduct. Receipt of a personal benefit should be a sufficient, but not necessary, condition for finding that a selective disclosure is sufficiently deceptive to trigger insider trading liability. Based on this updated standard, the Salman conviction should be upheld.

Thursday, August 25, 2016

Prof. Zimmerman Publishes Inside the Agency Class Action in Yale Law Journal

Loyola Law School, Los Angeles Professor Adam Zimmerman’s newest law review article, Inside the Agency Class Action, sheds light on an often-overlooked bottleneck in ordinary citizens’ access to justice: the thousands of cases stuck in administrative courts. Cases brought in this system of shadow litigation often languish for years without remedy – delaying justice for plaintiffs ranging from veterans seeking compensation for medical care and children harmed by vaccines to students duped by fraudulent private universities and others in dire financial straits. Zimmerman and co-author Michael Sant’Ambrogio’s solution of using techniques developed for mass litigation has been met with enthusiasm by the federal government, which adopted recommendations permitting class actions in administrative hearings.
Federal agencies in the United States hear almost twice as many cases each year as all the federal courts. But agencies routinely avoid using tools that courts rely on to efficiently resolve large groups of claims: class actions and other complex litigation procedures. As a result, across the administrative state, the number of claims languishing on agency dockets has produced crippling backlogs, arbitrary outcomes and new barriers to justice.

A handful of federal administrative programs, however, have quietly bucked this trend. The Equal Employment Opportunity Commission has created an administrative class action procedure, modeled after Rule 23 of the Federal Rules of Civil Procedure, to resolve “pattern and practice” claims of discrimination by federal employees before administrative judges. Similarly, the National Vaccine Injury Compensation Program has used “Omnibus Proceedings” resembling federal multidistrict litigation to pool common claims regarding vaccine injuries. And facing a backlog of hundreds of thousands of claims, the Office of Medicare Hearings and Appeals recently instituted a new “Statistical Sampling Initiative,” which will resolve hundreds of common medical claims at a time by statistically extrapolating the results of a few hearing outcomes.

This Article is the first to map agencies’ nascent efforts to use class actions and other complex procedures in their own hearings. Relying on unusual access to many agencies — including agency polticymakers, staff and adjudicators — we take a unique look “inside” administrative tribunals that use mass adjudication in areas as diverse as employment discrimination, mass torts, and health care. In so doing, we unearth broader lessons about what aggregation procedures mean for policymaking, enforcement and adjudication. Even as some fear that collective procedures may stretch the limits of adjudication, our study supports a very different conclusion: group procedures can form an integral part of public regulation and the adjudicatory process itself.

Friday, August 19, 2016

Scrutinizing the Candidates' Tax Policy Proposals

Professor Katherine Pratt, who teaches Tax Policy and related subjects, scrutinizes the tax policies of the Democratic and Republican presidential candidates:

Hillary Clinton’s Tax Plan
Hillary Clinton’s tax plan would increase federal revenue by over $1 trillion in the next 10 years, by increasing taxes on very high-income Americans, but not on middle-class and poor Americans. Her tax proposals, which are detailed and complex, combine a new surtax (an income tax rate increase) on the top 1 percent of earners, a new minimum 30% effective tax on taxpayers earning $1 million or more per year, limitations on the tax benefits of itemized deductions, and estate and gift tax increases. She also proposes an “exit tax” on U.S. corporations that try to avoid U.S. taxes by moving to low-tax jurisdictions overseas.

Follow-up questions for Hillary Clinton:
What do you propose to do with the additional $1+ trillion of revenue your tax plan would raise in the next decade? For example, would you prioritize federal deficit reduction, funding the infrastructure improvements or new child care programs you’ve proposed already, or funding new proposals for tax cuts for middle-class or poor Americans?

Donald Trump’s Tax Plan
Donald Trump has scaled back an earlier tax plan that would have dramatically reduced income taxes, but also would have reduced federal revenue by many trillions of dollars and risked serious, negative macroeconomic effects. His revised tax plan proposes tax rate cuts for taxpayers at all income levels, but disproportionately benefits high-income Americans, through individual income tax rate cuts, corporate tax and business tax rate cuts, repeal of the estate tax and alternative minimum tax, and the conversion of certain tax credits into tax deductions. The revised tax plan is difficult for economists to model because it quite vague and lacks details. In light of the extensive tax cuts in the revised plan, it probably would reduce federal revenue and increase deficits and interest costs over the next 10 years, which ultimately would undermine the intended pro-growth effects of the Trump tax plan unless Trump proposes enormous new spending cuts.

Follow-up questions for Donald Trump:
  • How would you pay for your tax cut proposals? Both liberal and conservative economists agree that “pro-growth” tax cuts don’t pay for themselves. Your proposals are intended to promote economic growth, but that assumes that your tax cuts are not deficit-financed. If you plan to fund tax cuts through spending cuts, what spending programs would you cut? “Discretionary” federal spending already has been slashed. Would you propose spending cuts in any of the mandatory spending programs (such as Medicare and Social Security) that comprise over half of federal spending? 
  • How and when will you fill in the details of your revised tax plan, so that economists can model the revenue effects of your plan?
  • Are you being vague about your tax plan to deflect attention away from federal taxes and your refusal to disclose your tax returns? 
  • Why do you propose converting tax credits (such as the child tax credit), which benefit all taxpayers, into deductions, which do not benefit non-itemizers at all and disproportionately benefit Americans in the highest tax brackets? Respected scholars in economics and law (Lily Batchelder, Fred Goldberg, and Peter Orszag) recommend the opposite of what you are proposing; they suggest that we convert tax deductions and exclusions into tax credits, to contain the runaway costs of unlimited tax benefits and to eliminate upside-down tax subsidies that disproportionately benefit high-income Americans. Why are you proposing the conversion of tax credits into deductions?

Friday, August 12, 2016

Prof. Lapp Publishes 'Taking Back Juvenile Confessions'

Professor Kevin Lapp's law review article, "Taking Back Juvenile Confessions," addresses some of the key issues that undermined the confession and subsequent conviction of Brendan Dassey. A federal magistrate judge recently overturned the conviction of Dassey, whose story was featured in the Netflix series "Making a Murderer," on grounds that his confession was unconstitutional.