Oregon State Bar Bulletin — JANUARY 2012

Going the Way of the Buggy Whip
In response to Janine Robben’s “Cream and Sugar with That Law Degree?” (November 2011) and the letter from Brian Ragen, “Enough of the Cotton-Candy Spin” (December 2011):

The alleged sugarcoating by state bar associations and law schools of the true depths of the depressed job market for new lawyers is merely a symptom of a far larger problem. The massive economic downturn that the U.S. economy and economies around the world remain mired in is not the larger problem. Rather, most of the traditional lawyers’ tasks (or great portions of such tasks) have been or will be crushed out of material existence by what began rolling down the hill as a tiny snowball with the introduction (and continuing development) of the Internet in daily life.

In the jargon of a trial lawyer: “A whole lot of law practice is going the way of the buggy whip factories.” This really all began with the instant communication and document delivery systems from Federal Express, to the facsimile machine, to today’s email with attachments. But it is not just the enormous compression of time that affects the delivery of legal services (and shrinks the pie). The Internet has enabled nonlawyers to perform a vast amount of the work that only lawyers used to perform (not that long ago), including legal research, drafting, due diligence, deal-making and planning. And, there are numerous nonlawyers practicing alternative dispute resolution. Even in the courtroom – the one arena in which a lawyer’s license still grants a monopoly – several of the lawyer’s tasks and support functions are performed by nonlawyers. Here’s that trial lawyer again, five or 10 years from now: “Yep, except for courtroom work, lawyers pretty much went the way of the U.S. Postal Service.”

It is indeed sad that today’s law students may not be hearing the whole truth about the marketplace. But vested interests have long caused institutions caught in dramatic and wholesale change to turn a blind eye (as appears to be the case with the market dynamics that have confronted the Association of American Law Schools for several years now). Why, for example, in today’s light speed society is the law school experience still generally three years long, with only a modicum of practical training in trial work?

Eventually, those misled law students will see havoc rain down on the powerful law school faculties and administrators (whose members generally average less than a year in private law practice). Observing that type of vengeance (of the market place) is likely not something most law students signed up for when they decided to become lawyers. In the meantime, today’s law students (and several classes before them) are the once pristine waters of Prince William Sound, right before the Exxon Valdez failed to turn fast enough to avoid wrack and ruin.

Brent G. Summers, Portland

Why Single Out Lawyers?
I write in response to the Chief Justice De Muniz “Quotable” (December 2011).

I do not dispute that there is an unmet need for legal services in the civil justice system in Oregon. What I dispute is that lawyers, as opposed to taxpayers in general, have a moral or even professional obligation to provide those services. I do not recall accountants or doctors providing free services. Isn’t the emergency room doctor in the hospital who provides free services still paid? Why should lawyers be singled out to provide free (or reduced cost) legal services? When we fall into the trap of assuming an obligation to provide such services, don’t we abandon the argument that taxpayers in general have an obligation to provide all citizens with access to justice?

Peter Appleton, Salem

Unjustified Criticism
Your Parting Thoughts article on “PERS and Judicial Independence” (December 2011) was very disappointing. Author Daniel Re, who is an experienced and respected lawyer, has unfortunately created (whether he intended to do so or not) the impression that there was something either dishonest or unconstitutional (or both) about the Oregon Supreme Court’s invocation of the “rule of necessity” in considering three cases involving PERS. I participated in all those cases when I was a sitting member of the court, twice joining the majority and once penning a dissent. Mr. Re’s criticism is unjustified, and should not go unanswered. I therefore offer the following brief response.

Mr. Re’s focus is on the fact that all the participating judges were members of PERS. It follows, he points out, that each had some interest in the outcome, yet all participated under the “rule of necessity,” a rule that requires interested judges to sit on cases in which no one else is available to hear the cases. Mr. Re notes in his article that “… none of the cases explained why non-PERS pro tempore judges could not have been appointed to hear them.” The answer lies, inter alia, in statutes. The state supreme court, when it sits en banc, can only decide cases with the participation of a majority of that court. ORS 2.100. In such cases, no more than two of the participating judges can be pro tempore judges; the balance must be regularly elected judges of that court. ORS 2.111(5). And, in any circumstance in which the court is sitting in a department configuration (at least three but not more than five judges), a majority of those judges once again must be “regularly elected and qualified judges of the Supreme Court.” ORS 2.111(3). Thus, and even if one could find persons eligible by law to sit as pro tempore judges on the supreme court (and one cannot, because all those eligible for such a position would also be judges in PERS, subject to Mr. Re’s same objection — see ORS 1.600(1)), one could not create an entire supreme court panel of them.

So much for the sub-constitutional analysis. However, that is not quite the end of the matter. Mr. Re concludes his article by asserting that “[i]f Oregon law does not provide a way for temporary non-PERS judges to hear PERS cases, the constitutionality of [the law placing judges in PERS] … is in question.” With respect: No, it is not. The rule of necessity is so well recognized that it is generally understood to stand on sound constitutional footing — so much so, in fact, that the United States Supreme Court has itself invoked it in circumstances in which the justices had an interest (their salaries). See United States v. Will 449 US 200, 212-13 (1980) (so holding). It follows that, in deciding the three cases that Mr. Re decries, the Oregon Supreme Court was obeying both statutory and constitutional principle, not flaunting it. The article in the Bulletin did a disservice in implying otherwise.

W. Michael Gillette, Portland Former Associate Justice, Oregon Supreme Court

A Forum for Propaganda?
Shortly after I read Daniel Re’s guest column in the December Bulletin (“PERS and Judicial Independence”), in which he accused all of Oregon’s judges of pro-PERS bias, I saw that he had filed a brief in the Court of Appeals based on the same allegations. It was certainly considerate of the Bulletin to provide Mr. Re with a forum for his propaganda. Does the bar endorse his position in the litigation?

Charles D. Bates, Portland

Editor’s note: The OSB takes no position on the topic. However, we appreciate the opportunity to point out again that opinions expressed by authors in letters and bylined articles are their own.

Bad Scholarship
In his article “Behind the Discrimination Lawsuit” (December 2011), Professor Jones fails to mention that Barran Liebman, where he is of counsel, is a firm that represents exclusively employers. And despite having two research associates helping him, he makes many statements without citing any evidentiary authority.

Professor Jones leads us to believe that we cannot raise Oregon’s minimum wage because it will have negative effects on employment, apparently from employers moving to states with lower minimum wages. The latest, most rigorous study proves the contrary. See Reich, et al., Minimum Wage Effects Across State Borders: Estimates Using Contiguous Counties, Review of Economics and Statistics, Nov. 30, 2010. A five-minute Google search finds this study. Evidently Professor Jones wasn’t looking too hard.

Professor Jones leads us to believe that nationwide employers resist hiring the 50th employee to avoid FMLA, so Oregon employers are resisting hiring employees 25-49 to avoid the OFLA. He cites no evidence. I would be very interested in seeing it. I also represent employers, though not exclusively. I have rarely encountered a client who even knew of the 50 employee threshold (or the 25 employee threshold for OFLA) much less based a hiring decision on it. Employers base hiring decisions on how much demand they are facing. They will hire rather than lose sales. That, not medical leave, determines hiring decisions, in my admittedly non-scientific experience.

In my opinion, Professor Jones’ article should be read as a political brief, not scholarship.

David Wade, Eugene

Editor’s note: The author is a member of the OSB Board of Governors. The opinions expressed here are his own.

We Love Letters
The Bulletin welcomes letters. In general, letters should pertain to recent articles, columns or other letters and should be limited to 250 words. Other things to keep in mind:

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