Like a wedding guest who shouts, “I object!” at the ceremony, those who appeal the certification of a class action settlement are frequently viewed as officious intermeddlers who would best go away.[1] But federal law protects the rights of those who disagree with the terms of a class action settlement, recognizing the potentially divergent interests of class members—whose individual claims are often dwarfed by the attorney’s fees awarded in a given case—and their counsel.[2] Class members must be informed of their right to opt out of the action and proceed individually,[3] and a district court is obligated to conduct a fairness hearing in which the court reviews the settlement to determine whether it is fair, adequate, and reasonable under the circumstances.[4] This determination is entitled to significant deference under an abuse of discretion standard.[5] Still, there is a broad right of appeal for all members of the class, rather than just named parties.[6]

The broad right of appeal of class action settlements creates disproportionate incentives for individual, unnamed members of the class to file frivolous appeals of a district court’s ruling that a settlement is fair, adequate, and reasonable under the circumstances.[7] A single plaintiff can potentially hold up millions in settlement funds while an appeal is litigated, creating an economically-measurable detriment to the other class members which can be expressed in terms of the lost time value of the settlement funds; this encourages the parties to simply settle with the individual plaintiff in order to avoid a lengthy appeal and protect the interests of the class as a whole.[8] The result of these competing incentives has been referred to as a “scandalous state of affairs,” wherein “collusion and inadequate representation are everyday features of the class action world.”[9]

Thankfully, courts have found a solution to this serious problem—namely, the appellate and supersedeas bonds authorized by Rule 7 and Rule 8 of the Federal Rules of Appellate Procedure.[10] These bonds are intended to guarantee the availability, in advance, of funds for cost-shifting on appeal.[11] Rule 7 authorizes a district court to “require an appellant to file a bond or provide other security in any form and amount necessary to ensure payment of costs on appeal.” Generally, this amount includes the costs incurred to the class as a result of litigating the appeal, including court costs, the cost of notifying the class of the appeal, and anticipated attorney fees if those are awardable under the statute creating the plaintiffs’ cause of action.[12] Under Rule 8, a district court may require an appellant to post a supersedeas bond in order to remunerate the lost value of the settlement to the class in the event that the settlement is upheld.[13]

Once an appellee submits a motion requesting an appeal bond, the district court will determine whether a bond is appropriate and its amount.[14] The first question turns on a four factor test that considers “(1) the appellant’s financial ability to post a bond; (2) the risk that the appellant would not pay appellee’s costs if the appeal is unsuccessful, (3) the merits of the appeal, and (4) whether the appellant has shown any bad faith or vexatious conduct.”[15] Factor one is presumed in the absence of specific evidence of significant financial hardship,[16] and factor two favors imposing a bond whenever an appellant-objector resides outside the jurisdiction of the court.[17] Bad faith or vexatious conduct can be shown by an appellant’s choice of counsel, specifically whether appellant’s attorney is a “professional, or serial [class action] objector.”[18] The third factor—the merits of the appeal—is generally weighted against appellants because the district court’s determination that a settlement is fair, adequate, and reasonable under the circumstances is entitled to significant deference.[19] Finally, courts have cited attorneys’ professional histories—for example, whether the attorney has filed settlement appeals later deemed frivolous or withdrawn an appeal once a bond was imposed—in decisions finding “bad faith or vexatious conduct” and imposing a bond.[20]

Bond amounts in class action appeals have been set at hundreds of thousands,[21] and even millions,[22] of dollars. Generally, the amount will depend on the size of the class, the court’s estimate of how long the appeal will take, whether the jurisdiction allows the Rule 7 component of the bond to include attorney fees, and whether the objector can make a showing of financial hardship such that the appellees’ requested bond amount would constitute an impermissible barrier to appeal.[23] An appellant who refuses to pay the bond will forfeit his or her right to appeal the court’s approval of the class action settlement.[24]

Academic literature on the theoretical validity of class action lawsuits has focused on the relationship and divergent interests between the members of a class and their attorneys.[25] The unnamed plaintiff’s right to appeal is one way to monitor this relationship and prevent abuse; unfortunately, however, this mechanism is itself ripe for abuse. A district court’s decision to post a substantial appeal bond under Rules 7 and 8 of the Federal Rules of Appellate Procedure should be viewed as an opportunity to set the up-front costs of the appeal at a level that will deter frivolous litigants, but not those who present serious challenges to the validity and/or value of a settlement. However, the inherent difficulty of calibrating this exact amount will require district courts to peer through the pleadings and evaluate the merits of the appeal using any tools which are available—including the past conduct of the objector’s counsel and the care with which the court has reviewed the proposed settlement.[26] This is the precise reason why Rule 7 gives the court discretion to set the bond amount.

Class action settlements are an area of the law where traditional relationships (attorney-client, plaintiff-defendant) begin to break down. For example, a motion for an appeal bond may be submitted to a district court under the names of both the named plaintiff and the defendant, and a meddling serial objector may effectively steal from the class in the name of protecting it.[27] Appeal bonds present a solution for reining in frivolous appellate litigation that is contrary to the interests of the class, the defendant, and the court. To extend the metaphor of appellant-as-wedding-objector, the imposition of a substantial appeal bond tells guests that they should hold their peace during the ceremony unless they are willing to pay for the reception.


[1] See Lawrence W. Schonbrun, The Class Action Con Game, 20 Regulation 53 (1997) (“Objectors are as welcome in the courtroom as is the guest at a wedding ceremony who responds affirmatively to the minister’s question, ‘Is there anyone here who opposes this marriage?”’); see also Edward Brunet, Class Action Objectors: Extortionist Free Riders or Fairness Guarantors, 2003 U. Chi. Legal F. 403, 472 (2003) (referring to class action objectors as “perhaps the least popular parties in the history of civil procedure”).

[2] John E. Lopatka & D. Brooks Smith, Class Action Professional Objectors: What to Do About Them?, 39 Fla. St. U. L. Rev. 865, 867 (2012) (stating that “[t]his well-known dynamic has prompted Congress and the Supreme Court to design procedural measures intended to protect the class from overreaching by its lawyers”).

[3] See Fed. R. Civ. P. 23(c)(2)(B)(v).

[4] See Fed. R. Civ. P. 23(e)(2).

[5] See Fidel v. Farley, 534 F.3d 508, 513 (6th Cir. 2008) (“We review a district court’s approval of a settlement as fair, adequate, and reasonable for abuse of discretion.”).

[6] See Devlin v. Scardelletti, 536 U.S. 1, 14 (2002) (holding that an objecting nonnamed class member is a “party” to the action and therefore has a right to appeal a final judgment approving a settlement).

[7] See Lopatka & Smith, supra note 2, at 868 (“It is this broad right of appeal that enables a professional objector to find nonnamed class members willing to lend their names to a dubious objection and a meritless appeal in the expectation that class counsel will pay a handsome sum to make the complainants go away.”).

[8] See Susan P. Koniak & George M. Cohen, In Hell There Will Be Lawyers Without Clients or Law, 30 Hofstra L. Rev. 129, 155 (stating that the situation is “ripe for abuse” because “[i]t is in the interest of all the participants in the class action—save the absent members of the class—to settle class actions by collusively transferring money from the class to class counsel”).

[9] Id.

[10] See Fed. R. App. P. 7; Fed. R. App. P. 8.

[11] Fed. R. App. P. 7.

[12] Compare In re Cardizem CD Antitrust Litigation, 391 F.3d 812, 817 (6th Cir. 2004) (ruling that attorney fees may be properly included in the amount of a Rule 7 bond where a statute includes attorney fees as part of the costs that may be taxed on appeal) with Tennille v. Western Union Co., 774 F.3d 1249, 1255 (10th Cir. 2014) (citing In re Am. Presidential Lines, Inc., 779 F.2d 714, 716 (D.C. Cir. 1985)) (limiting the amount of the bond “to only costs listed in [Federal Appellate Rule] 39”).

[13] Fed. R. App. P. 8.

[14] See Gemelas v. Dannon Co., No. 1:08 CV 236, 2010 WL 3703811 at *1 (N.D. Ohio Aug. 31, 2010).

[15] Id. (citing Tri-Star Pictures, Inc. v. Unger, 32 F.Supp.2d 144, 147-50 (S.D.N.Y. 1999)).

[16] In re Cardizem, 391 F.3d at 818 (“It is [the appellant’s] burden to demonstrate that the bond would constitute a barrier to her appeal.”).

[17] In re Polyurethane Foam Antitrust Litigation, 178 F.Supp.3d 635, 641 (N.D. Ohio 2016).

[18] See id. (citing Roberts v. Electrolux Home Prods., Inc., 2014 WL 4568632 at *10 (C.D. Cal. 2014)).

[19] Fidel, 534 F.3d at 513 (stating that the standard is abuse of discretion).

[20] Id. (collecting cases).

[21] See, e.g., Gemelas, 2010 WL 3703811 at *2 (requiring a single objector to post a $275,000 appeal bond which included $250,000 for attorney fees).

[22] See Allapattah Serv., Inc. v. Exxon Corp., 2006 WL 1132371 at *18 (S.D. Fl. April 7, 2006) (setting appeal bond at $13.5 million for any individual plaintiff who appealed its judgment that the proposed settlement was fair, adequate, and reasonable under the circumstances).

[23] Seee.g., In re Polyurethane Foam Antitrust Litigation, 178 F.Supp.3d at 645 (reducing the ultimate amount of the appeal bond from $250,000 to $145,463 to avoid “unduly burdening Objectors’ right to appeal”).

[24] See In Re Cardizem CD Antitrust Litigation, 391 F.3d at 818 (“A litigant cannot ignore an order setting an appeal bond without consequences . . . failure to secure an appeal bond can result in dismissal of the appeal.”).

[25] Seee.g., Brunet, supra note 1, at 405 (“The theoretical attack on class actions rests heavily upon the agency cost problem: class members, including their leaders—the representative parties—simply cannot efficiently monitor their attorneys—class counsel.”); See also John C. Coffee, Jr., Rethinking the Class Action: A Policy Primer on Reform, 62 Ind. L. J. 625, 629 (1987) (“[T]he members of the plaintiff class usually have very little capacity to monitor their agents.”).

[26] Seee.g., In re Polyurethane Foam Antitrust Litigation, 178 F.Supp.3d at 643-45 (conducting the balancing test outlined above).

[27] See Koniak & Cohen, supra note 8, at 155 (“Even when objectors and their lawyers have sufficient incentive and funding to challenge the class settlement, however, they are often motivated not by the chance to protect the class from a sellout settlement but by the prospect of being paid off by class counsel and/or the defendant to drop their objections and walk away.”).

Note: this article first appeared on the forum for the Michigan State Law Review, available here: Citations may link to the original article.

Cloud Computing and Third-Party Access to Personal Information

Cloud computing offers users the ability to store information and run programs over the internet rather than relying on their personal computer’s local storage. The cloud service provider operates a set of connected servers which distribute tasks among the servers to increase computing efficiency. Google Drive provides one example of cloud computing; the files and documents stored on the drive “exist” on Google’s servers, not the users’. Moving files from physical storage on a personal computer to distributed storage on a connected “cloud” avoids the inefficiency of leaving unused memory on the individual’s computer and creates networking redundancies that can prevent data loss in the event of technological failure. If your laptop crashes, files stored on Google Drive will not be lost. These features will inevitably encourage a shift toward cloud computing. Even now, many of the services we use on a day-to-day basis have cloud-like features that result in third-party access to data. Understanding how these data are stored and used is crucial to effectively regulating cloud services.

Indeed, cloud computing creates serious privacy concerns. Beyond the threat of hacking, there is the possibility that the use of a cloud will subject the user’s private information to third-party subpoenas, even without notice to the user. This is due to the antiquated framework of the Stored Communications Act, which addresses the circumstances under which a court may compel the disclosure of stored wire and electronic communications and transactional records. The Act is notoriously confusing and subject to conflicting interpretations by reviewing courts, and has even prompted calls for Congressional action.[1] It limits the government’s ability to compel disclosure of communications stored by a third  party and regulated the voluntary disclosure of such information. In doing so, the Act distinguishes between electronic communications services (ECS) and remote computing services (RCS), with the former receiving additional protection.

Categorizing Cloud Services Under the Stored Communications Act

In order to qualify as an “electronic communications service,” a platform must provide the ability to send or receive electronic communications and keep those communications in “electronic storage.” But the Act defines electronic storage narrowly as only encompassing “any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission” and the storage of communications for backup purposes. The definition contemplates unopened emails and potentially not much else. In reality, Google Drive and other cloud computing services are not merely passive receptacles for data—they use user data to sell targeted advertisements, generate profiles of users, and even simply to look for ways to improve their services. Their very purpose is to provide permanent, rather than temporary, storage. This takes them out of the category of electronic communication services. By contrast, a “remote computing service provider” is an entity that provides to the public “computer storage or processing services by means of an electronic communications system.” This definition applies to the majority of cloud applications.

If the distinction doesn’t immediately make sense, that’s because it stems from a 1980s conception of internet technology and architecture. At that time, email was understandably seen as analogous to a wire or telegraph function. Users would sign into their email client and download emails to their computers, where they would be locally stored. Then, the email service provider would delete its backup copy after a certain period (thus the statute’s reference to “temporary, intermediate storage”). Back then, prior to the rise of the personal computer, information was mostly stored on remote third-party mainframes. As such, the functions of information transmission and storage were separate. Today, this is largely no longer the case. Gmail, for example, both transmits and stores users’ emails. In other words, the basic distinction upon which the SCA rests has been rendered obsolete by technological innovation.[2] This has created a widening disconnect between the factors courts must consider in determining the privacy rights of users and those that actually inform users’ subjective expectations of privacy.

Updating the Stored Communications Act to Accord with Modern Usage of the Internet

Short of stretching the definition of electronic communications services under the SCA, courts are left with few tools to protect information maintained on the cloud. In Theofel v. Farley-Jones,[3] the Ninth Circuit held that an opened e-mail remains in “electronic storage” and is protected by the Act’s ECS provisions. The decision expanded the scope of protections afforded by the SCA, but has received significant academic and judicial criticism for running contrary to the text of the Act and falsely assuming that the user downloads a copy of their emails. Still, because the Ninth Circuit hosts a number of technology companies offering services under the SCA, the Theofel decision has some functional weight.

But judicial interpretation alone will not fix the problems with the Act.

The SCA itself provides for circumstances where an individual’s information may be given up without his or her knowledge and lacks a suppression remedy in the evidentiary context. This means an aggrieved party must file a separate action to enforce their rights under the Act, which can be difficult or not worth litigating. Scholars have proposed eliminating the distinctions between ECS and RCS and instead focusing on the type of file at issue.[4]

Locally-hosted mainframe servers are presently a far better solution than the cloud in terms of offering Fourth Amendment protection since they do not rely on the transmission of data to a third party. But these are less efficient and generally too costly for individual users. Because the current scheme does not protect the public, Congress should reform the SCA and update its basic framework to accord with the modern uses of technology. Until that happens, cloud services will subject users to the Faustian bargain of giving up privacy in favor of efficiency and additional capacity.


[1] Hien Timothy M. Nguyen, Cloud Cover: Privacy Protections and the Stored Communications Act in the Age of Cloud Computing, 86 Notre Dame L. Rev. 2189, 2191 (referring to the statute as “confusing”); see also Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 874 (9th Cir. 2002) (“We observe that until Congress brings the laws in line with modern technology, protection of the Internet . . . will remain a confusing and uncertain area of the law.”).

[2] Or considered another way, the analysis reveals the dirty secret of cloud computing, which is that it basically represents a scaled-up version of the central mainframe. Indeed, the largest difference between a mainframe and a “cloud” is where the physical hardware is located. See Caitlin Hughes, Mainframes: Are They More Secure Than the Cloud?, Advanced Software Products Group, Feb. 11, 2015, (“The biggest difference between cloud and on-premise computing is that on-premise computing allows you to maintain control over the hardware and everything that runs on it.”).

[3] 341 F.3d 978 (9th Cir. 2003), amended by 359 F.3d 1066, 1075-76 (9th Cir. 2004).

[4] See Orin S. Kerr, A User’s Guide to the Stored Communications Act, and A Legislator’s Guide to Amending It, 72 Geo. Wash. L. Rev. 1208, 1235 (2004).

robot adr

The Rise of Artificially Intelligent Arbitration

Can a computer resolve a legal dispute? At first blush, the idea sounds ludicrous—even dystopian. But AI technology currently being developed seeks to predict how a judge will rule given a set of facts. Why not cut out the middleman, and simply have computer programs that adjudicate?

In the context of commercial dispute resolution outside traditional legal fora, the prospects for adjudication by algorithm, or even AI, are bright. Considering the main goals of alternative dispute resolution (ADR)—reducing costs, promoting adjudicatory expertise, and preserving business relationships between the parties—artificially intelligent arbitration will increasingly come into focus as the technology allowing digital decisionmaking develops. The rise of “smart contracts,” which are written in terms of machine-readable “if-then” statements, will also enable artificially intelligent arbitration.

Due Process and Contracts that Speak for Themselves

In my most recent post on legal automation, I wrote that the true value of hiring an attorney lies in making a real person responsible for your problems. In the context of commercial contracts, however, there is a particular drive to take the human element of interpretation out of the dispute. The goal, in other words, is to let the contract speak for itself. Technology makes this possible in a much more literal way than could ever have been envisioned by the framers of traditional, “four corners” contract law.

Arbitration by AI also sidesteps some of the due process concerns that would prevent, for example, replacing federal district court judges with supercomputers. Parties in digital arbitration would consent to the dispute resolution process in advance and a court could review the decisions of the “arbitrator” under the same principles as current arbitration jurisprudence. Arbitration rules, such as the American Arbitration Association’s Large, Complex Commercial Disputes procedures, can be easily adapted to fit AI adjudication. Parties could limit the issues that go before the digital arbitrator. For example, if the parties wanted to argue about discovery in front of a person, rather than a computer, they could so contract.

The Value of a Human Judgement

What is the value of human judgement in adjudication? It’s easy to imagine questions of law or fact that can be best resolved by a computer, such as the calculation of damages or applicability of certain contractual language to a particular interpretive issue. More difficult judgements involve considerations of justice, such as the weight that should be given to parties’ bargaining power in determining consent or the materiality of information to a particular dispute. Short of hooking witnesses up to a heart monitor during deposition, it’s nearly impossible to rely solely on objective information in determining the credibility of testimony. Over time, however, an artificially-intelligent arbitration program could conduct a number of these adjudications and “learn” how to balance considerations of justice and fairness. AI adjudicators are only as cold as their programming.

Over repeated iterations, AI will gain sufficient experience to enable it to conduct all but the most difficult, fact-intensive adjudications. Consequently, the value of a human adjudicator will diminish. Human arbitrators will assist, rather than direct, the process of submitting evidence and conducting interrogatories. Again, all this is consistent with the movement aimed at reducing the human element in contract law. Moreover, the decision to use automation will be driven by the same consideration that primarily drives arbitration in the first place: cost.

Recommendations for Automated Arbitration

Arbitration rules should provide for judicial review in exceptional circumstances or under a deferential standard such as “clear error.” In order to facilitate judicial review and preserve notions of due process, the program should issue a reasoned judgement in natural text; this would form the basis for a record on appeal. An arbitration program should also be able (similar to a jury) to certify questions to the parties or an overseeing judge. There should be a presumption that certain issues, such as contract formation, are to be handled by a human being. Having a computer determine whether you have consented to its authority crosses the line from efficient to dystopian. In the end, automated arbitration will succeed in contexts where the parties seek to eliminate the ever-fallible human element. In some sense, then, this is but the logical endpoint of the alternative dispute resolution movement.

light up brain

The Specter of Artificial Intelligence

In 2014, General Counsel for IBM predicted that the company’s artificial intelligence software, Watson, would be able to pass a multistate bar exam “without a second thought.” While Watson hasn’t sat for the bar yet, the possibility that lawyers might be replaced by computers has long been a nightmare for many attorneys. The release of ROSS, Watson for legal services, makes what was once the subject of fiction seem not so far-fetched.

Indeed, the specter of artificial intelligence asks fundamental questions about the nature and value of the legal profession as a whole. What does a lawyer do, other than collect information about a client’s problem, search for and find the governing law, and apply it to the facts at hand? Is there a human element to persuasion that simply cannot be automated? And perhaps more to the point for firms: can a robot bill hours?

How Automation Replaces (and Doesn’t Replace) Attorneys

AI will start by automating basic legal tasks—serving in an assistant, not a replacement role. Algorithms can reduce a legal task into a simple set of instructions in order to automate it, “replacing” the lawyer for that individual task. It’s easy to think of tasks that involve collecting information as being susceptible to automation: searching legal databases, reducing decisions down to a holding and precedent, finding splits of authority, etc. But the harder tasks that arguably constitute the real substance of lawyering—advocating for clients, persuasively analyzing conflicting authority, and making judgment calls on litigation strategy—involve an element of information processing, not just collection. This is where things get interesting in terms of automation, raising the specter of data-driven AI that could predict how a particular judge would rule in a given case under defined parameters. Why not go further, and have AI systems conduct arbitration? The technology might not be there yet, but it’s not very difficult to imagine.

There is also an element of equity and access at play in the background of debates over legal AI. Again, consider that automation is most easily able to conduct routine tasks that involve collecting, condensing, and reproducing information. This could have very counterintuitive implications for the balance between large and small firms. On the one hand, automating routine tasks that drown smaller firms in paperwork could level the playing field. But it’s far more likely that automation, like so many other technologies, will lead to an arms race. If the value in terms of cost-savings is as robust as some proponents (and detractors) of automation have predicted, larger firms with upfront capital will be the primary first adopters. They can better shoulder the initial costs in order to realize a long-term benefit from the technology. Given the follow-the-leader nature of Biglaw, once one or two firms demonstrate the value of automation to clients by showing that they can do more with fewer billed hours, widespread adoption by larger firms will be inevitable. If smaller firms and solo practitioners are left behind in the automation race, massive resource disparities will result as their cost advantages erode.

Moreover, even within firms AI may affect the balance of power by reducing the need for associate lawyers whose tasks—often the “grunt work” of the law—are increasingly automated. This is less of an issue for young attorneys, though, because the general trend has already turned toward outsourcing these tasks to non-lawyers. There will always be grunt work at law firms, and since many firms see associates as talent to invest in, the distributive impact of automation will not be qualitatively different from, for example, the shift from paper to digital drafting. The upside for young attorneys is that learning about automation and integrating it into their practice can place them on the cutting edge of legal technology.

Automation and the Law’s Human Element

The power of legal automation is clear. What direction it will take, however, is still undetermined. Visions of a technology-wielding lawyer/cyborg are not yet ripe for serious commentary, though they may haunt the dreams of overworked and indebted law students. In truth, automation is but the logical endpoint of the movement towards unbundling and outsourcing legal services.

The true value of a lawyer lies beyond the mechanistic application of law to fact, something easily forgotten in a world where demonstrating value for services delivered—in other words, the bottom line—is increasingly paramount. Moreover, many of the legal developments of the last century, including the vanishing jury and mandatory minimum sentencing, have served to take the “human element” out of the law. But the law is intrinsically human; it involves real people settling disputes with real implications for their lives and livelihoods. At bottom, retaining an attorney means making someone else responsible for your problems. This is something that AI—no matter how advanced—simply cannot do.

Thus, for lawyers, answering the questions posed by legal AI means standing up for and thinking creatively about our role in a technology-enabled society. It means developing one’s practice in a manner that centers around people, rather than billable fee structures. And finally, it means reckoning with the fact that one day computers might become smarter than us even without replacing us. If and when Watson does pass the bar, it’s unlikely that our jobs will be in immediate jeopardy.

Killings by Police and Structural Reform Litigation

1,154 people were killed by police in 2016—an average of more than three killings per day. #BlackLivesMatter has reinvigorated academic and policy discussions of the problem of police misconduct. In response to the movement, President Obama commissioned the Task Force on 21st Century Policing to recommend police practices that build public trust and strengthen community relationships. The U.S. Department of Justice also began investigating police shootings more frequently, through a process of structural reform litigation.

In structural reform litigation, the United States Attorney General initiates action against local police departments engaged in a pattern or practice of unconstitutional misconduct, seeking injunctive or equitable relief. The Department of Justice investigates the police department and prepares a report, which then forms the basis for a consent decree between the DOJ and the police department. Academic research into the efficacy of these agreements has found them relatively successful. However, the process has been criticized for putting enforcement in the hands of the DOJ, as consent decrees do not confer standing to third parties. Despite these limits, structural reform litigation offers an avenue for forcing notorious police departments to engage in reform. One out of five Americans lives in an area governed by a police consent decree, despite the fact that the DOJ has only investigated roughly 3 departments per year. Thus, structural reform litigation is one way for the federal government curtail the worst police abuses in urban communities.

Enter Jeff Sessions

The appointment of Jeff Sessions to Attorney General is a serious obstacle for advocates of structural reform litigation to reduce police misconduct. As a Senator, Sessions referred to consent decrees as an “end run around the democratic process.” Given that the president has indicated his aversion to federal “interference” with law enforcement, the future of structural reform litigation—and police reform in general—seems bleak.

This is a shame, especially given the magnitude of the problem of police misconduct. Even the mere specter of structural reform litigation encourages departments to proactively update their policies regarding the use of force and the conduct of internal affairs investigations. And because consent decrees result from negotiation between the Department of Justice and the local police department, the process balances the legitimate concerns of police with the need for reform. Scholars have argued that structural reform litigation even pays for itself in the long run, as it reduces the number of claims against the department stemming from officer misconduct.

Unfortunately, the current president seems to view any criticism of police as “vilification.” As such, robust federal enforcement and initiation of structural reform litigation will likely be one of the first political casualties of the new administration. Attorney General Sessions has made his position on the matter clear.  Given that the DOJ alone has standing to challenge a department’s implementation of its consent decree, whatever progress has been made by structural reform litigation is now under threat.

Additional Commentary: 

John Felipe Acevedo, Restoring Community Dignity Following Police Misconduct, 59 How. L.J. 621, 633 (2016).

Sunita Patel, Toward Democratic Police Reform: A Vision for “Community Engagement” Provisions in DOJ Consent Decrees, 51 Wake Forest L. Rev. 793 (2016).

Stephen Rushin, Structural Reform Litigation in American Police Departments, 99 Minn L. Rev. 1343 (2015).

Seth W. Stoughton, Principled Policing: Warrior Cops and Guardian Officers, 51 Wake Forest L. Rev. 611  (2016).

The class of 2020 will face a changing legal landscape

This time of year, many future attorneys are making the first important decision of their legal careers—deciding where to go to law school. As an admissions worker for my school, I’ve had the opportunity to read a tiny slice of the application materials that these students have prepared and have learned about how the class of 2020 will remake the practice of law in its image. The insights in this article are loosely drawn from this experience, but obviously do not represent any claims about the composition of the applicant pool.

Students are prepared to face changes in the legal landscape

Incoming law students are savvy about the limits and pitfalls of traditional legal practice—including the billable hour model. Recently, Thomson Reuters’ Legal Executive Institute declared the billable hour model “effectively dead.” By 2020, alternative fee arrangements will play a key role in the attorney-client relationship, with serious implications for the profession as a whole.

Indeed, the Reuters report shows how firms that use alternative fee arrangements are seeing greater profitability—even for the work being done under these nontraditional arrangements. Large clients are also driving the trend by insisting on billed hour caps and seeking a measure of control over the litigation process. Even in commercial litigation, firms are increasingly being asked to share in the risk of failure. Internally, firms have adopted systems to calculate the value of legal services being delivered. Over 90% of firms with more than 250 attorneys have already adopted such practices, and a trickle-down effect is likely as the profession moves into the third decade of the twenty-first century.

comparison by firm size

Source: 2016 Law Firms in Transition,

Incoming law students are generally aware of the changes that have occurred in the legal profession over the last ten years. The upside to the decreasing importance of the billable hour model creates new opportunities for non-traditional career paths, such as administrative work or legal outsourcing; this gives new attorneys the ability to actively manage work-life balance. Law school applicants frequently emphasize experiences that have given them a perspective on these issues in their personal statements. In addition, many of the strongest applicants have experience working in a legal setting—as a paralegal, for example—and seek to garner the all-important “J.D. Advantage” by attending law school. In other words, the class of 2020 values legal education as more than just the first step in a career as a traditional litigator.

Legal practice stemming from personal experience

More than half of the Americans that have had a legal issue in the last two years were millennials. In every category other than estate planning, millennials make up a plurality of potential legal clients:

millenial client plurality

Source: Nika Kabiri, Director of Strategic Insights at Avvo,

This has two implications for the class of 2020. First, many of these future attorneys have a personal connection to some aspect of the law—be it immigration, family law, or simply traffic violations. Personal statements from soon-to-be law students back this up; many are extremely candid about the myriad ways in which the law has affected their personal growth.

The second implication is that millennial clients will increasingly seek out millennial lawyers. The same study from Avvo contained interviews from millennial legal consumers which indicated that for these potential clients, youthful attorneys seem hungrier, if less experienced. While this obviously isn’t true as a rule, the class of 2020 will have the opportunity to connect with their peers in order to deliver legal services to people who otherwise would be disinclined to seek them. This, combined with robust social media usage, will allow the class of 2020 to be pivotal in changing the ways that firms seek out clients.

Social media will play a pivotal role in the success of the class of 2020

In 2020, attorneys will use social media to connect with potential clients and build their individual brand. Kevin O’Keefe of LexBlog, Inc. and Real Lawyers have Blogs recently wrote that for attorneys, social media is more important than traditional methods of reaching clients in the modern legal landscape. Social media outreach individualizes the attorney-client experience, ensuring that lawyers are more than just their firms. It allows for attorneys to develop their niche—whether it be a geographic area or particular type of practice—and participate in the broader legal community. While actual client advocacy rarely takes place on social media platforms, the process of finding and retaining clients will increasingly be digital.

The legal class of 2020 will be ready to take on this challenge. Many will have grown up in the era of ubiquitous social media use, and are familiar with the professional dimensions of social media. A 2015 poll of millennials found that social media use has increasingly become an aspect of career development; over 20% had recently began using platforms like Facebook and Twitter for professional reasons.

While the same study also found some evidence of a general social media fatigue among the category, the aforementioned changes to the legal landscape and increasing importance of social media will encourage young attorneys to see these platforms as a means of branding and networking, rather than checking up on their “friends.” The social media savvy class of 2020 will almost certainly have a leg up on more experienced attorneys in using this form of marketing, creating upward pressures for all attorneys to engage in social media outreach.


The legal class of 2020 will face a changing and uncertain legal market, just like every graduating class in the last ten years. But there is some reason to believe that they will also be better-equipped to handle the changes in the legal profession which have occurred and are currently ongoing. The death of the billable hour model, the use of personal experience in animating one’s legal practice, and the development of social media platforms as a source of client recruiting and retention will have important and likely counterintuitive effects in the coming years. The class of 2020 will conceive these changes as opportunities, rather than challenges. To those currently practicing the profession—watch out. The world of legal services is changing with every graduating class.

You are an advocate. If you care about something—be it funding for the arts, international human rights, or the fate of your favorite Game of Thrones character—and talk or write about it, you engage in advocacy. Lawyers tend to think of advocacy in a formal sense, as in the establishment of an attorney-client relationship, but in reality most advocacy occurs informally. On social media networks, article comment sections, and in everyday conversations, individuals advocate for the principles they believe in and encourage others to support their viewpoint.

Indeed, opinions are socialized through dialogue; in a marketplace-of-ideas model of democracy, advocacy plays a vital role in promoting valuable discourse. The best ideas rise to the top after percolating through the channels of formal and informal advocacy, affecting individual choices and public policy. Debate hones advocates in on their best ideas by forcing them to defend and develop their principles. In other words, effective advocacy—regardless of its underlying merit or political viewpoint—adds value to society.

Sophistry is the enemy of advocacy in the marketplace of ideas. Unlike advocacy, which seeks to elucidate and expound, sophistry obscures and obfuscates. Advocates ardently defend their beliefs in good faith; sophists hide their true aims behind a wall of specious logic, formalism, and false equivalency. You cannot fact-check a sophist whose argument is a perennial moving target; your “evidence” will always miss the point or be subject to an epistemological bias known only to the sophist. Advocacy takes place on a neutral argumentative playing field—sophistry will always shift the goalposts.

Sovereignty + sophistry = tyranny. It is bad enough when sophistry infects the private marketplace of ideas. But when the government engages in this type of dangerous rhetoric, the inevitable result is tyranny. The combination of sovereignty and sophistry turns the marketplace of ideas into an oligopoly. Access to information is restricted, dubious logical reasoning is routinely overlooked, and the once-unthinkable becomes the new normal. Truth bends to the will of power.

Lawyers have the tools to be both advocates and sophists—regardless of political affiliation. While our professional rules guide our arguments when we represent clients, no such rules exist in the political arena. The upshot is that lawyer-advocates can identify sophistry and ultimately defeat it by creating alternative channels of information (not “alternative facts”) and holding the line on what constitutes an argument. The position of the sophist-sovereign is inevitably precarious, doomed to collapse into farce under the cold light of fact-based scrutiny. That said, the struggle is a long one. If I have any advice for arguing with a sophist, it is this: be patient and never fight fire with fire. Sophists and tyrants alike rely on exhausting their opponents’ energies through repetition and by baiting them into engaging in sophistry themselves (thus controlling the rhetorical playing field).

We need a new strategy for defending political discourse. In light of the assault on the marketplace of ideas, a new paradigm is necessary to take back the terms of the discussion. Once you identify sophistry, take a step back, stick to your principles, and relentlessly advocate for them using the logical tools available to you. Anything less is an abdication.

As such, I commit myself to using this space as a forum for advocacy and reason-based argument. Since my own work centers on administrative law (particularly FOIA issues), this will likely be a common topic as I develop my own ideas. I will also periodically provide my own perspective on law school and legal practice for those who are interested. My primary focus, however, will be on the logic and power of the law—its ebbs and flows, uses and abuses. I hope that you decide to come along for the ride.

This time of year, many first-year students visit their school’s career services department seeking information about summer opportunities, internships, and externships. The purpose of this article is to offer advice about what to do BEFORE walking into that first appointment with an advisor. Following these tips can ensure that you get the most out of your career services experience. Ultimately, the process “works” best when the student and advisor work together on a specific goal, such as tailoring a resume or cover letter to a particular position. So, without further ado:
1. For the love of all that is legal, UPDATE YOUR RESUME
It’s shocking—every day, someone walks into a legal career services office with the resume that they used when applying to law school. I know this because a year ago I was one such student; my first meeting with a career services advisor involved deleting half of what I’d put on my law school application resume and reformatting it in a professional, rather than “eye-catching” (in other words: unreadable) format.

On the one hand, it’s true that most law students aren’t working a new job during the first semester. But it’s also true that potential employers are not looking for the same things as your law school’s admissions office; attorneys bringing on 1L summer interns care less about your academic and personal development, and more about professional experience and marketable legal skills. In fact, having some professional experience or familiarity with an area of the law can be just as important as your first semester grades. Emphasize these when updating your resume, and not your study abroad experience (that I’m sure was awesome). If you worked in an office or as an intern prior to attending law school, highlight that. If you had academic experiences prior to law school that directly bear on the positions you’re applying for, highlight that as well.

Most important is to put some thought into this prior to walking into career services so that you can identify the marketable skills and experience that you can leverage in landing your first legal position!

2. Learn about the opportunities offered by your school
Most law schools have networking events, including some form of a career fair. In my experience, this was a wonderful starting point for connecting with potential employers and simply gauging what my summer experience would look like. I met my future boss at a career fair put on by my school and made a positive first impression during the course of a two-minute conversation. These types of events are great not only for meeting potential employers, but also as practice for interviews and professional employment. Like almost all social activities, networking is a skill that can be practiced in a manner that makes you more confident. For me, simply shaking twenty hands and briefly introducing myself made me much less anxious when it came time to visit firms for an off-campus interview.
Being knowledgeable about events of this sort can help you plan out your job search prior to visiting career services, which brings me to the next point.

3. Create a job search strategy
I cannot emphasize this enough! Having a plan for how you will go about finding that first legal position can reduce the stress involved and help you prioritize what’s important. Ideally, this would include:
a) The type of positions you are looking for (full time/part time, extern/internship, paid/unpaid, government/private sector).
b) A timeline for preparing the materials necessary and applying for positions, with specific dates (and not just application deadlines).
c) The location(s) where you will be looking.
For me, this involved creating a spreadsheet of the positions I would apply to, along with the date I would apply and checkboxes for completion/submission of application materials and cover letters. When I was called back for interviews, I would create a new column containing information about the position, the firm/agency, and the person who I had contacted.

Your first legal job—whether it’s an internship, externship, or paid position—should be an exciting experience, but it isn’t necessarily determinative of the rest of your career. With that in mind, be open to exploring new possibilities during your first visit to career services. If you follow the advice in this post, you’ll be ready to pounce on whatever opportunities are available!

It’s every student’s worst nightmare: you sit down to write an essay answer, and you’re prompted with information that you don’t know how to handle. Your mind goes blank, your palms start to sweat, and you ask yourself—what do I do?

First, don’t panic. Essay exams are not solely about legal knowledge, and you certainly know something about the topic. With the right tools and some confidence, you can fake it till you make it (or even better, come up with some solid analysis).

Here are some tips from a seasoned exam-taker that will help you write a strong essay, even if your legal knowledge has some gaps.

1.    Respond to the specific question presented in the essay prompt with a definitive answer.

There are many different types of essay questions; you might be asked to advise a client, write an opinion for a judge, or opine on the likelihood of success of a given claim. Each of these scenarios requires a different framing for your answer. For example, a Contracts or Property essay might invite you to offer practical advice, in addition to legal analysis. In such a situation, the difference between an A and an A- might be the quality of your practical advice. Indeed, this mirrors legal practice by encouraging you to think outside the box of litigation. Practicing the different types of essay questions prior to exam day can supplement the knowledge you’ve learned in class and help you write better answers. On the other hand, the failure to respond to the specific question can sometimes be catastrophic. If your professor asks, “what is the plaintiff’s best claim under the facts,” and you answer “the plaintiff will likely lose on the merits of the claim,” you’ve missed the boat, and will be penalized. Careful reading of the “call of the question” is vital to essay and short-answer success.

It’s also important to provide a definitive answer to the question presented. An answer such as “it depends on whether the plaintiff passes the equal fault bar” might seem like an attractive essay thesis, but your professor is probably first going to look for a yes or no answer to the question. Start big picture, and work your way through the legal analysis in an organized fashion. Most often, your professors will write essay questions that involve arguable issues, so don’t fret about whether you “chose the right answer.” As my Business Enterprises professor likes to point out, usually there are no answers. Consistency, organization, and depth of treatment matter far more than whether you fell on the “right” side of the case.

2.    Consider organization and time management before you write the first word.

As I alluded to above, the structure of your answer matters in an essay exam. Ideally, your response should mirror the format of an abbreviated legal memo, where you state the conclusion, identify the governing rule(s), apply those rules to the facts presented, and restate your conclusion in a manner that responds to the call of the question. I’d also build on a point above by suggesting that practical advice can fall in the final conclusion paragraph, if applicable. If there are multiple issues in a single essay prompt, identify all of them as clearly and as early as possible, then deal with each in turn in your rule and application sections. Your professors will look for systematic treatment of the issues and coherent flow, in addition to whether you correctly state rules.

Time management is another feature of essay exams that may be new to law students. First, let me note that speedy typing and writing longer answers is not the only, or even necessarily the best, strategy for time management. Professors don’t want their exams to be a typing test, and in my personal experience talking to my colleagues, TAs, etc. it’s often the mid-length rather than the longest essays that score the highest. I think there are two reasons for this. For one, it’s easy for a lengthy essay from a student who isn’t maybe the most familiar with the material to turn into word vomit. I call this the shotgun strategy. Sometimes it works, but more often an essay following the shotgun strategy includes some brilliant points, some awful points, and some irrelevances. Moreover, these essays very frequently lack an overarching structure and points simply get lost because they aren’t concisely restated in the conclusion and the professor “forgets” how well they were argued.

Don’t follow the shotgun approach to essay-writing. Instead, take the first two minutes after reading the prompt to jot down the issues (examsoft and other programs make this even easier because you can simply outline in the text box, then edit it into an essay), decide on a definitive answer to the call of the question, and organize your thoughts into sections identifying and applying the important rules. Indeed, even if you run out of time following this strategy, at the very least you’ll have identified the important issues for the professor grading your exam; thus, effective organization can capture the benefits of the shotgun strategy by allowing you to hit everything early on. Check back on your organizational outline as you complete the response to ensure that you aren’t forgetting anything. If you write nothing down, it can be easy to forget an important issue even when you’ve identified it while reading the question.

3.    Decide how to use cases prior to exam day.

All of the cases in your expensive textbooks have ostensibly been selected for a reason other than to consume paper; still, many law students memorize case names and points of law without ever asking themselves why or how they will use the information come exam day. Some 1L classes (torts, criminal law, contracts) don’t have landmark cases that will almost certainly need to be cited in your essays (whereas in Civil Procedure, on the other hand, you’re likely to cite International Shoe no matter who your professor is or what facts are presented). In these classes, where the cases simply illustrate issues and points of law, rather than standing for the law directly, you’ll likely only cite to cases by way of comparison. This is okay, and indeed offers you an opportunity to stand out from your peers by distinguishing cases from each other. But in that light, it becomes more important to remember facts and pick out two or three cases for each given issue that you’ll likely be presented with, rather than attempting to memorize your entire casebook. In other words, consider how each case could have been decided differently under different facts, and critically evaluate everything you’ve studied rather than blindly memorizing case names and points of law.

Conclusion: lean on your skills!

Taking your first law school essay exams can be a nerve-wracking experience, but by thinking in advance about how to use your newly-developed legal writing skills you can give yourself the tools you need to excel! Ultimately, your writing ability—which you can develop well in advance—is just as important to your success as any particular subject-matter knowledge. This is true in your classes as well as when you take the bar exam. Hopefully these tips can help you start to think systematically about how to approach essays. By simply responding definitively to the question, logically structuring your answer, and using cases effectively, you can make up for gaps in your legal knowledge by maximizing the impact of the information you do know. With that in mind, no matter the context there’s no need to panic when you sit down to take your first exams. Please comment with any other questions or additional advice, and feel free to share!

This post is for all those first-year law students who are beginning to develop a strategy for exam preparation and feel like they’ve fallen behind. Once I was one such student, and (hopefully!) I learned enough to warrant giving some advice. Really, these tips are generally applicable to any student whose exams will constitute a large portion of their final grade and consist of mostly essay questions.

1.    It’s not too late to catch up

Trust me on this one. Effective preparation in the last month/week/days before finals can make a huge difference. Especially in your first year when everyone is still adjusting to a new academic environment and skill set, it’s possible to play catch-up and still succeed—especially if you follow the advice below.

Moreover, keep in mind that the first semester, while important, isn’t a reflection of your self-worth or wholly determinative of your career prospects. I say this because sometimes the rhetoric surrounding first-semester finals often borders on alarmist. Do your best on your exams, but don’t agonize. Ultimately, your ability to handle competition and stress will be more valuable in your career than anything you learn during the first semester of law school.

2.    Use the resources at your disposal

This was something I didn’t learn until my second semester. No matter what program you’re in, there are likely a wealth of academic resources available to you. Don’t ignore these! For example, my library has secondary resources—practice tests, nutshell summaries, and example problems—that I wasn’t even aware of until my second semester. While there’s value in producing your own outline, it can also be helpful to use other resources to double-check that your notes are complete and see the material written in another way.

Even more importantly, use EVERYTHING that your professor provides in terms of test prep. If there are practice exams from years past available, take them. It’s very likely that your exam will contain similar fact patterns, phrasings, or topics. Exam answers from years past can also reveal what your professor is looking for in terms of essay structure and application of law to fact. For example, some professors may prefer a CREAC-style answer, with a roadmap and transitions, while others may simply be looking for a short answer that identifies the main issues. Reach out to successful past students or visit office hours to gain additional perspective!

3.    Prioritize skills over knowledge

Contrary to popular belief, law school is not about “learning” the law. The vastly more important skill, often undervalued by first-year students going into exams, is the ability to sort through a set of facts and apply the law. By the time you take your exam, most of the students in the class will have a fairly similar level of understanding of the various points of law in a given course. The difference between A+ exams and B+ exams will likely come down to how the test-takers apply the law and deal with the scenario they’ve been given. Moreover, professors grading essays reward good legal writing, even if only subconsciously. Thus, essay-writing skills, which translate from course to course, can be a bigger factor in first-semester success than how much you actually learn in class. Especially in time-pressured exams (more on this topic below), your writing skills are your most important tool in achieving academic success.

Specifically, I’d list these skills as critical to exam success:

·      Issue spotting: finding the legal issues that your professor wants analyzed

·      Recognizing “the call of the question”: what exactly am I being asked?

·      Reading statutes and provisions for ambiguity: presented with a legal provision or contract, can you identify reasons why it may or may not apply?

·      Summarizing the law: briefly and quickly inserting as much relevant law into the question as possible

·      Identifying jurisdictional issues or splits of authority: Will this issue come out differently under the common law, rather than the [UCC, MPC, state statute]?

·      Exam structure: have a plan to either make a quick outline or to follow a CREAC/IRAC or similar format; this can improve the logical flow of your answer and make your writing sound better!

4.    Emulate test-taking conditions

This advice is often underrated, and those law students who took LSAT prep courses have probably already heard it ad infinitum. But I would argue it applies even more in actual law school exams, where there are no breaks and everyone is competing to write the same essays. If you’ve never spent three hours typing into a computer program nonstop, you probably don’t realize that these exams are often as much an endurance test as a test of knowledge. So if your exam is three hours, do practice exams for three hours. Learn how to apportion your time among multiple questions so that you aren’t top-heavy come the day of the exam. If you need to plan on a bathroom break mid-exam, you’ll know if you’ve practiced under test-taking conditions. Practicing in this manner will allow you to feel comfortable on exam day, which is the ultimate goal of test preparation.

5.    Resist your true enemy: fear

Fear is your worst enemy – not just on exam day, but also during test preparation. Cognitive research demonstrates that fear can impact the areas of your brain responsible for recall and critical thinking. Therefore, one of the goals implicit in all of the above advice is to make yourself feel comfortable and confident when you walk in to take your exams. Each time you sit down to study, remind yourself that you have the ability to master the material. Remind yourself that the skills you’ve learned will help you succeed, no matter what specific points of law make it onto the exam. Finally, remind yourself that exams are just an opportunity to show what you’ve learned and to prepare yourself for the rigors and stresses of legal practice. In that vein, I urge you to judge yourself not on the quality of your grades, but on the quality of your preparation.