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Jack, I gather from the end of your post on whether Bush administration officials will be charged with war crimes that if it were up to you, you would want some members of the administration to be so charged. So, which officials would you want charged, and why?
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Watching the debate on family-friendly firms, I can't help but think that the conversation's focus is a bit too narrow.
A midlevel associate at a large law firm who moonlights as a father and husband, I'm familiar with the difficulty of maintaining "work-life balance." (I use that goofy term under protest.) That said, I've found that pursuit of partnership is no more daunting than pursuit of an academic post. Let me explain.
As much as I genuinely enjoy my job, I will confess that from time to time I've longed to pursue an teaching position. Such a move, however, seems almost impossible to pull off without imposing substantial burdens on my family. Because a fairly substantial body of written work is now a prerequisite to applying seriously for academic posts, a young associate's path to the ivory tower now nearly requires a one- or two-year stint in a research fellowship, "VAP," or other pre-teaching program.
Thus, pursuit of an academic post requires, above all else, mobility—the ability to move among perhaps three cities in three years. Combine that with the financial burdens of spending one or two years in fellowships/VAPs and the geographical flexibility favored in the AALS "meat market," and you get a nightmare scenario for a young father or mother.
Granted, my observations are not from experience; I've not subjected myself to the trials of pursuing an academic post. That said, I'd be curious to see the demographic data on the last couple of years' hires. I would bet that the last few years' new professors tend not to have kids older than 3. I would love to be proved wrong, but I strongly suspect that I'm right.
These family-unfriendly aspects of the teaching-job market don't strike me as nefarious; they're fairly predictable. After all, there are only so many teaching jobs to go around, so of course they'll go to the applicants best-suited to endure the trials necessary to build up CV and move to the available jobs.
Of course, such are the very reasons why big-city, high-salary law firms are relatively family-unfriendly: There are only so many jobs to go around, and the attorneys willing to put in the hours and effort are the ones who will collect the prestige and paychecks. People looking for less job responsibility can find it in smaller cities or in big-city firms with lighter workloads (and smaller paychecks).
I've managed to find a job that offers me interesting work, good pay, and a manageable workload. I could move to a firm that pays more and expects more, or I could move to a firm (like the one pitched to me by a headhunter recently) that offers a much lighter workload with a concomitant reduction in pay. Neither option has tempted me.
What's the comparable set of options when it comes to the entry-level teaching market? I've not yet seen it.
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ABC News reports that Condoleezza Rice, Colin Powell, and John Ashcroft were part of a Principals Committee that discussed in great detail and specifically approved harsh interrogation techniques for detainees held by the CIA.
Highly placed sources said a handful of top advisers signed off on how the CIA would interrogate top al Qaeda suspects—whether they would be slapped, pushed, deprived of sleep or subjected to simulated drowning, called waterboarding.
The high-level discussions about these "enhanced interrogation techniques" were so detailed, these sources said, some of the interrogation sessions were almost choreographed -- down to the number of times CIA agents could use a specific tactic.
John Ashcroft, it appears, repeatedly signed off on the legality of the techniques but was squeamish about going into details, arguing "that senior White House advisers should not be involved in the grim details of interrogations." "According to a top official, Ashcroft asked aloud after one meeting: `Why are we talking about this in the White House? History will not judge this kindly.' "
Morever, the committee's approvals, it appears, continued even after Jack Goldsmith disavowed the Yoo torture memos:
[T]he CIA had captured a new al Qaeda suspect in Asia. Sources said CIA officials that summer returned to the Principals Committee for approval to continue using certain "enhanced interrogation techniques."
Then-National Security Advisor Rice, sources said, was decisive. Despite growing policy concerns—shared by Powell—that the program was harming the image of the United States abroad, sources say she did not back down, telling the CIA: "This is your baby. Go do it."
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continue reading at Balkinization ...
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Phil—to echo Orin’s skepticism about part-time at law firms, I wonder whether flexibility isn’t actually part of the same phenomenon that also accounts for heavier and heavier workloads. While it’s true that firms are becoming more flexible in terms of part-time arrangements to accommodate working parents and flexible partnership tracks, isn’t a lot of this just a move toward an eat-what-you-kill system generally? The demise of lockstep for partnership, for instance, does mean people who take time off aren’t fired (so long as they are otherwise productive and valuable to the firm), but it also has meant longer probationary periods before partnership generally and the rise of a whole range of demi-partnership statuses (such as the somewhat puzzling status of “non-equity partner”—basically a glorified associate who gets to pay self-employment tax). Large firms now routinely fire or demote partners (technically vote them out of the partnership) who fail to perform to expectations; conversely, rainmakers demand salaries that rival those of investment bankers and necessitate higher billable-hours requirements across the board for associates and partners alike.
This has made things more equal in a sense because there’s less room for favoritism and gender bias in a world of ruthless competition and an unyielding focus on the bottom line—as any economist will tell you, highly competitive markets tend to punish irrational discrimination. But they reward rational discrimination. For women and men who want more time off, this means they can get whatever they can negotiate in a competitive market. Maybe this is better than a system where part-time is out of the question, but it’s not exactly “family friendly.” And even if you do take leave or swing a part-time schedule, the bottom line is still the bottom line: If you’re a partner, you can’t just take three months off and forget about your clients; if you’re an associate and you check out for three months, someone else is going to be doing all of what used to be your work (or at least all of your good work) when you get back, and you’ll have to scramble to make your billables. Obviously this all affects women disproportionately, but little of it is sex discrimination.
Official firm leave and part-time policies don’t mean much in this context—they set a tone, but in the end your schedule depends on your relationship to clients and partners. Suppose you go on paternity leave, and two weeks later a partner you enjoy working for asks if you can help out a little bit from home on an exciting new matter. “I just want to be sure you’re in the loop so when you get back from leave you can take the lead on this.” You could, of course, forbid this type of request and insist that parents take their leave. But is that really better for women? That partner is doing you a favor—she could have just gotten someone else who’s not on leave to take the case and they’d have the plum assignment. Ditto a long-hours assignment for someone supposedly working part time.
My wife for instance, who works for a large firm in San Francisco, was in the office a week after she gave birth to our daughter (and without an epidural, no less!). No one forced her to come in, and in fact, she was roundly chastised for it. A week later, a courier delivered five banker boxes of documents and a laptop to our home so she could keep up while out on “leave” (for the last two years she's also been "part time," which is roughly 40 hours a week, plus the inevitable weeks or months "from hell" when something explodes and she has to take care of it). Again, this was her decision—she’d have a job in three months even if she did no work on her leave. But there’s no way she can just come back to the same job she left while doing nothing—her clients and relationships require some ongoing maintenance, many of the relationships are personal and can’t be transferred back and forth, it takes time to get up to speed on a client’s portfolio, etc. If the firm had more people working on a given matter, one person could take up the slack for someone on leave without taking over entirely. But except for huge deals and make-or-break litigation, firms tend to staff leanly. Given the hourly rates big-firm attorneys charge, clients understandably demand it. And given the salaries attorneys earn, firms can’t afford to write off too much idle time.
So the bigger problem is, as Phil and Orin suggested, the general crazy upward spiral of salaries and hours. No one is really to blame for this—or everyone is. Maybe it’s a collective action problem—firms think they need to offer larger and larger salaries to get the best students out of law school; status-conscious law students think high salary is an indicator of prestige and pick firms accordingly, even though they’d prefer less pay and lower hours. If so, there should be solutions, such as the initiatives among law students to rate firms based on lifestyle and social responsibility in order to change what counts as high status. On the other hand, it could be that people like to complain about their hours, but in fact they prefer long hours and high salaries to the alternative (it might be a bit like airlines: Everyone gripes about the lousy amenities, delays, and tiny seats, but they choose almost exclusively based on price).
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Jack tries to reconcile his commitments to originalism and to living constitutionalism by arguing that originalism supplies general principles that later constitutional interpreters (judges and others) must obey even while they update constitutional rules to reflect changing times. Whereas Scalia-style originalism determines the entire "skyscraper," Jack's originalism supplies only the "framework" of the constitutional edifice; others fill in the architectural details.
Jack's right to think that Scalia's skyscraper originalism is impractical; and, as he notes, Scalia himself recognizes that the court can't, as a practical matter, overturn certain highly established precedents in order to recover the original meaning. But Jack's own style of originalism raises questions as well. The 14th Amendment does not so much establish a principle of equality before the law but, as Jack notes, reflects a compromise between those who held a stronger version of that principle and those whose weaker version permitted what we today would call exceptions to that principle—such as denial of suffrage on the basis of race. In his work on originalism, Jack draws on the principle of equality in its strong form, but on what basis can he ignore the beliefs of those who made sure that the principle would be so watered down, that discriminatory suffrage laws would not be constitutional violations? It is a crooked, ugly framework, but on Jack's view, we are committed to it (and I don't understand how he gets around this problem).
An even more limited version of originalism would treat it as, at best, the blueprint (a word Jack also uses) for the building. In the years immediately after the blueprint is ratified, a constitutional edifice is constructed along the lines it lays out. But as more years pass, new wings are added, the façade is replaced, new stories are piled atop the roof, walls are relocated—and eventually one has an elaborate structure whose origin in the blueprint can be found only by a talented archeologist, in an odd wall here, or some old ductwork there. The blueprint is of antiquarian interest only. The originalist, like a fanatic preservationist, laments the loss of the blueprint authors' original vision and seeks to destroy the structure so that the original modest little country manse can be rebuilt. It makes no difference that the building has evolved to meet interests and circumstances that the original authors never imagined.
I think this version of originalism is truer to Jack's commitment to living constitutionalism. There is no particular reason to look back to the original understanding except in narrow conditions—perhaps to understand an ambiguous precedent, for example, or perhaps to maintain some useful piece of institutional design that is largely arbitrarily but settles things. But why be bound by someone else's principles? The original Constitution's lasting impact results from its role as starting point, and it should become less and less relevant as time passes, precedents pile up, norms and interests evolve, and institutions change.
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Thanks to Bob Litt for correcting the error in my earlier post. I don't agree with him, however, that you can't deter corporations by threatening to punish them. True, they are artificial entities, but they are controlled by managers, who can spend more or fewer resources to screen out employees who are likely to commit crimes, and to monitor employees so that any criminal activity can be detected before it causes too much harm. Whatever the weaknesses of shareholder control, it remains true that managers suffer when their firms do badly. What does seem to be case is that criminal liability has excessively bad consequences for many corporations, which can't and won't expend infinite resources to prevent their employees from committing crimes, so that the costs are just passed on to consumers. Ordinary civil liability for torts committed by employees, which, unlike criminal prosecution of corporations, is extremely common, is premised on the reasonable assumption that corporations will take steps to avoid legal liability.
So the question raised by the Times article is just whether the increasing use of DPAs, in lieu of plea agreements (not, as I was trying to explain, in lieu of trials, as the Times said), represents good policy. Everything depends on the terms of the deals, and whether the monitors effectively ensure that they are carried out. If the strictness of the deal is reasonable in light of the seriousness of the criminal activity, then they will clearly be an improvement over criminal prosecution or plea agreements, for the reasons given by Bob Litt. Also as he notes, they could be too strict, the result of corporations agreeing to anything in order to avoid the destructive effects of a conviction. Unfortunately, the Times article sheds no light on these questions.
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Bob Litt, a former federal prosecutor and Justice Department official who now practices with Arnold & Porter LLP in Washington, sent me this note in response to Eric's post today on corporate prosecutions:
While trying to clear up confusion engendered by the New York Times article, Eric actually creates more confusion. By suggesting that a deferred prosecution is a "plea agreement plus," he misses the essential point of a deferred prosecution agreement, which is that it precisely is NOT a plea agreement. In a plea agreement, a corporation enters a guilty plea and is convicted of a crime. In a deferred prosecution agreement, criminal charges are filed but the corporation does NOT enter a plea. Instead, it agrees to undertake certain reforms and to be on probation for a period of time, and if it successfully completes that period, the charges are dismissed and the corporation is never convicted.
The real policy change is not a shift from "trial" of corporations to DPAs. It has always been very rare for a corporation, particularly a public corporation or a corporation in a regulated industry, to go to trial. (How many can you think of?) When criminal charges are actually filed against a corporation the result is almost always a guilty plea. The right question to ask is not the one Eric asks - whether cases resolved by a DPA would previously have ended in "plea bargains or in trials." The right question is whether the Department of Justice is using DPAs in cases that it would otherwise have prosecuted, or whether it is using its substantial leverage to coerce a corporation to accept a DPA in cases that it would previously have declined to prosecute at all.
Many people believe that Department of Justice policy has softened -- that instead of insisting upon agreements that require guilty pleas and convictions it will accept agreements that do not. This shift is extremely beneficial to corporations because of the collateral consequences that can result from a criminal conviction -- ranging from debarment from federal contracts, to exclusion from participation in health care programs, to civil liability in private lawsuits. A DPA carries none of these consequences. So there is a reason why corporations prefer DPAs to plea agreements.
But that's not to say that the change is bad as a matter of policy. There are substantial arguments in favor of a policy that forgoes prosecution of corporation, at least so long as the government pursues vigorous prosecution of responsible individuals. A corporation, of course, is an artificial entity. You can't "deter" or "punish" a corporation effectively. Particularly in the case of a public corporation, it is almost invariably the case that the effects of corporate prosecution fall most heavily on innocent individuals who had no ability to control the criminal behavior, namely shareholders and employees. Witness the case of Arthur Andersen (actually a partnership but the same principles apply), where the company went out of business, and thousands lost their jobs, when the government insisted on prosecuting the company as well as the responsible individuals. If we had more vibrant corporate governance in this country there might be greater justification for prosecution of corporations. But since shareholders have almost no power over the actions of a corporation or its management, it seems peculiarly unfair to punish them for the malfeasance of management.
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Orin, you're quite right to call me out on the "part time" fiction at big law firms. Quite simply, it ain't true. This is clearly a function of the profit motives you cite, and the all-consuming quest to maximize billable hours among lawyers. However, I also think it's a function of how law firm billable requirements have exploded over the last several years as part of an upward-and-upward spiral of associate compensation, partner compensation, billable hours requirements and hourly fees. These requirements have been inching upwards for years, to the point where I have many friends at large firms who work the hours of 1.5 lawyers, or even 2 lawyers in some cases. For these associates, going to a "part time" schedule means downsizing to only 40 hours a week -- a significant reduction from the crushing workloads they carry now, but certainly nothing like what most people think of when they say "part time."
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A front-page article in the New York Times today discusses what it calls a "shift" in Justice Department policy: "corporate deals" are replacing "trials," as the headline puts it. The tenor of the article is that corporations are getting away with murder, thanks to the lax prosecutorial policies of the Justice Department. The article, however, rests on a simple confusion about what is going on.
The article confuses two overlapping but conceptually distinct phenomena: a plea agreement, where the defendant avoids a trial and the risk of a conviction by paying a fine (sometimes, pleading guilty to a lesser charge, sometimes not); and a deferred prosecution agreement, where a similar deal is made (including payment of a fine) but, in addition, the corporate defendant agrees to undertake internal reform that will be monitored by an outsider appointed by the government. If the monitor declares that the firm has failed to make the necessary reforms, then the agreement is off, prosecution and trial will proceed. A DPA is just a tough version of the plain-vanilla plea agreement.
The article (read the headline) implies that the Justice Department prefers to coddle corporate defendants with DPAs, rather than subject them to trial, conviction, stigmatization, and destruction. So trials are being abandoned in favor of DPAs. But, in fact, the article provides no evidence that this is what is happening, nor does it quote anyone who says this is what is happening. (The article quotes a law professor, Vikramaditya Khanna, who quite reasonably says that corporations prefer DPAs to trials (after all, if they didn't, they wouldn't agree to DPAs). But Khanna's work does not establish that DPAs are replacing trials; he's interested in how DPAs should be structured. Others quoted in the article worry about whether DPAs may be too lax but none says that they have replaced trials.)
In fact, what appears to be happening is that the Justice Department has decided that DPAs are often more appropriate than ordinary plea agreements. That's the policy "shift"; not a decision to stop trying corporations. And it's a policy shift that should make corporations cry rather than cheer. As far as I can tell from looking at DOJ and Sentencing Commission statistics, the likelihood that a corporate defendant will go to trial rather than enter a plea has remained about the same (10-15 percent of cases) since the early 1990s. It's possible that trials of corporate defendants have become less common, but, if so, it's not because DPAs have become more common. DPAs seem to be replacing ordinary plea agreements, not trials. And, as far as I can tell from the scholarship, the main concern now is not corporate coddling, but prosecutorial overreaching. See this article by Brandon Garrett, for example.
In other words, when the article says that the Justice Department, "once known for taking down giant corporations, including the accounting firm Arthur Andersen, has put off prosecuting more than 50 companies suspected of wrongdoing over the last three years," we need to know the counterfactual. In an earlier time, would these prosecutions have ended in plea bargains or in trials? And would any convictions secured after a trial be worth the time and expense that could have been used to pursue other cases?
The headline should be: "In Justice Shift, Corporate Monitoring Supplements Plea Deals." It may be that this shift is a bad idea, or that Justice Department policy toward corporations is in other ways objectionable (maybe the deals are not strict enough), but the article sheds no light on these issues.
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As Phil notes below, "it's become standard
practice" at many large law firms "to offer reduced-work schedules and pay for parents (both
mothers and fathers) who want to spend more time at home with their
young children. And while such arrangements can slow associates in the
quest to make partner, they don't derail them entirely (the way they
used to)."
I'm neither a parent nor at a law firm, but I'm skeptical. I have a lot of friends who are or have been in this position, and they tell me that the "part time" gig is "part time" mostly in name. Yes, you're not on the hook every hour of every day. But you're working a full-time job by most measures; working "part time" at a large law firm might mean only 40-45 hours a week. Or so I hear, anyway. As for making partner, I'd be interested in the numbers, both in terms of part-timers making non-equity partner and becoming equity partners.
To be clear, I don't mean this as criticism of law firms, especially the "biglaw" firms that often have these sorts of policies. Large law firms are businesses designed to maximize profits. When you charge by the hour, you maximize profits by maximizing the number of billed hours and minimizing overhead by limiting the number of workers who must receive offices and staff support. The firm with lawyers that bill the most hours will tend to be the firm that makes the most money, and if you want to make big firm money, that's the world you've chosen. But based on what my friends at big firms tell me, I'm skeptical that these part-time gigs are actually as part-time as the firms suggest.
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An unintentionally amusing editorial in the New York Times today reveals just how little home rule major American cities have. The Big Apple is one of the great cities in the world. So isn’t it a bit odd that it can’t do much of anything about a problem as basic as alleviating traffic congestion on its own streets? And yet that’s the case. As is now well known, New York City wants to implement a congestion pricing plan. It would apply to residents and nonresidents equally. And the federal government wants to fund it. But under New York law, even though the city has home rule, the city can’t impose such a fee without first obtaining express state legislative approval—approval that the state legislature this week once again declined to provide. Today’s optimistic editorial suggests that the city can pursue a number of alternatives instead. But guess what? Most of them also require the city to get specific legislative approval. That’s true even if the city wants to address the problem by issuing, as many cities do, residential parking permits to reduce the number of residents trolling the roads for a space. In other words, arguably the greatest city in the world has to go hat-in-hand to Albany just to be able to set aside parking spaces for its own residents? This is nuts. Meanwhile, New York’s prime global competitor, London, hums merrily along with its now well-established, popular, and—by most accounts—effective congestion pricing plan. And why was London able to do this? Because when England reorganized that city’s legal status about 10 years ago, it put the choice to adopt such a policy squarely in the city’s hands. So is there anything New York can do on its own? Well, the editorial notes, the city can increase metered parking rates—a bold option indeed (assuming they can even do that!) but also not an option that would even have the same effects.