Stanford Law Review
William H. Simon is a highly regarded law professor and legal theorist whose principal subjects include the legal profession. Much of his scholarship challenges conventional professional norms and practices. His most recent article targets lawyers, especially law professors, who advise clients and serve as expert witnesses. His basic premise is that some clients do not seek lawyers' accurate, honest views but want their lawyers to ratify their proposed or past conduct regardless of its lawfulness, and that law professors and other lawyers sometimes satisfy this market by giving "bad legal advice." To discourage lawyers from doing so, and to minimize the impact of lawyers' bad advice on third parties, Simon argues that lawyers should follow more rigorous standards of analysis, transparency, and accountability both when they give advice or expert testimony and when clients later use their legal work to influence others. He argues that legal academics practicing law should meet the most rigorous standards of all-including standards of transparency associated with the academy, not the legal profession -and, further, that legal academics should regulate each other by "shaming" colleagues who practice badly. In the abstract and at a level of generality, Simon's theory is appealing because it promises to hold lawyers to a higher standard of care for the public good. The question, however, is how Simon's proposal at a level of particularity would play out in actual law practice. This Reply argues that Simon overstates the problem, understates the significance of existing disincentives to giving erroneous advice, and offers a solution that is difficult to implement and would do more harm than good. This Reply explores Simon's theory and his implementation of it. Part I points out problems with Simon's theory about how lawyers, including academic lawyers, should perform legal work. Part II uses Simon's work as an expert witness in McNeil as a case study to test his theory. It shows that his theory did not withstand testing, not only because Simon's attempts to adhere to the theory harmed his clients, but also because, as committed as he was to the theory, Simon evidently found the theory imprudent to fully implement in practice. Whatever one may otherwise think of Simon's theory, his experiment in the practice of law thus proved it to be a failure. Finally, Part III explores Simon's idea that academics should regulate their colleagues' legal work by publicly "shaming" those who perform badly. Simon uses his Article, in part, as a vehicle to shame Professor Hazard, who issued a written opinion with which Simon disagrees. Toward that end, Simon attempts to show that Hazard's opinion was "patently wrong on nearly every issue it addresse[d]..." Employing Simon's article as a case study, Part III argues that academic exercises in professional "shaming" make for both bad scholarship and bad regulation. Simon's critique of Hazard's legal work, for example, rests on a biased and incomplete account of both the facts and the law, and his disagreement with Hazard, largely based on a different set of factual understandings, is academically trivial. Given its limitations, one might wonder whether other scholars will engage in similar regulatory exercises and whether law journals will publish the results.
Bruce A. Green,
Market for Bad Legal Scholarship: William H. Simon's Experiment in Professional Regulation, The , 60 Stan. L. Rev. 1605 (2007-2008)
Available at: http://ir.lawnet.fordham.edu/faculty_scholarship/358