University of Arkansas at Little Rock
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Theorizing Billable Hours
Get PDFThis article looks at the ethical and diversity implications of high billable hour requirements. While corporate counsel have increasingly demanded a diverse legal workforce and emphasized the need to lower the costs of outside counsel, law firms have not responded to these concerns in a manner that is producing results. Instead, women continue to drop out of law firm practice at higher rates than their male counterparts and the costs of legal services remain high. High billable hour requirements exacerbate both these problems and have implications as well for ethical lawyering. Using data from a variety of disciplines, the article shows that not only do high billable hour requirements make large law firms difficult places for women to succeed, but they also foster work environments that are inefficient and therefore cost clients more. This has implications on a lawyer\u27s ethical duty not to discriminate based on sex and not to charge an unreasonable fee, and also increases the potential of lawyers making mistakes. Studies of lawyers suggest that high billable hour requirements exacerbate the difficulties women have in practice, especially for those women who have family responsibilities. This leads to high dropout rates from law firm practice that hurt both law firms and their clients. Lowering billable hours will increase the possibility that women will succeed in these workplaces while making lawyers more efficient. Using studies of sleep deprivation and sleep restriction, this article explores what clients are getting for their money from sleep-deprived high billable hour lawyers. It is clear that both sleep deprivation and chronic sleep restriction impair the average person\u27s ability to function on many levels--including neurocognitive performance that has important implications for lawyering. In addition, studies of workplace productivity have shown that limiting working hours can actually increase productivity. Thus, limiting hours logically should produce more efficient and ethical lawyering while making law firms more feasible work environments for women
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Third Party Funding of Personal Injury Tort Claims: Keep the Baby and Change the Bathwater
Get PDFIn the early 1990s, a period of high-risk lending at high interest rates, a new entrant emerged in civil litigation: the Litigation Finance Company (“LFC”). LFCs advance money to plaintiffs involved in contingency fee litigation. The money is provided on a non-recourse basis, meaning the plaintiff repays the LFC only if she obtains money from the lawsuit through a settlement, judgment, or verdict. If the plaintiff does not recover anything, she will not owe the LFC anything. When she does repay the LFC, however, she could end up paying as much as 280% of the amount advanced by the LFC. As one can see, LFCs make a lot of money. It is estimated that as of 2011, the total amount of outstanding advances exceeded 100 million being advanced annually. LFCs, like banks and credit card issuers, loan money to consumers with the expectation of being repaid the amount borrowed plus interest. Unlike banks and credit card issuers, however, LFCs are largely unregulated. The federal government does not regulate LFCs at all, and only Maine, Ohio, and Nebraska have enacted legislation regulating LFCs that operate in their respective states. What LFCs do is controversial, and the academic commentary about them is voluminous. Some commentators argue that LFCs should be abolished. Others say LFCs are the byproduct of willing sellers and willing buyers engaging in market transactions. Yet another group of commentators say LFCs serve a salutary purpose, but should be regulated like other entities that loan money to consumers. It is probably unrealistic to think that LFCs will be abolished, thus the question becomes whether they should be regulated, and if so, by whom. This article posits that LFCs should be regulated by the Bureau of Consumer Financial Protection, the Federal Trade Commission, or both. Federal regulation is necessary in order to provide a uniform set of rules that provide protection to consumers while also allowing LFCs the freedom to provide the funding that consumers have shown they are willing to seek and accept
The Indeterminate International Law of Jurisdiction, the Presumption Against Extraterritorial Effect of Statutes, and Certainty in U.S. Criminal Law
Get PDFIt is, in certain cases, impossible for persons to tell in advance which states will have effective legislative jurisdiction over their acts. In these cases, it is impossible to tell in advance whose law the person must obey. This quandry arises where some national law purports to regulate outsiders and their acts in a manner arguably inconsistent with the international law of legislative jurisdiction. If the regulating state\u27s courts do not allow challenges to jurisdiction based on international law, and the state of the outsider\u27s nationality fails to protect her diplomatically, the outsider has no protection against excessive claims of jurisdiction.
Some common law states, like the United States, have no thorough jurisdictional provisions in their criminal codes. In the United States, the presumption against extraterritorial effect, revitalized in the non-criminal case of Morrison v. Australia National Bank (U.S.S.Ct. 2010), can assist in minimizing the problem of surprise jurisdiction over persons who had no reason to know that they would be subject to United States criminal laws which do not specify the territory, persons, and situations outside the U.S. to which they apply.
The presumption against extraterritorial effect might sensibly be given an elemental reading. The presumption against extraterritoriality would be triggered if neither subjective territoriality (an act committed in the U.S. constitutes an element of an offense) or objective territoriality (a result which is an element of the crime occurs on U.S. territory) is present. It is hard to believe that any state would give up the general right to control either wrongful acts or illegal effects on its own territory, despite statements made by certain countries in the Morrison litigation and its aftermath.
In developing this argument, this paper suggests that, on average, in recent decades, Congress has been more attuned to the obligations of the United States as an entity under the international law of jurisdiction than have been the Courts
