Big Law Research Articles

The big law enforcement information exchange challenge

Aim: The paper attempts to take stock and present the most significant dilemmas and challenges of cross border criminal data and intelligence exchange between law enforcement authorities of EU Member States that can be experienced by police personnel in the field at the moment. Methodology: In addition to the relevant legislation, recommendations and best practices, the paper – based on personal experience as a police professional, supplemented by insights of the members of the EU law enforcement community – describes and illustrates the various challenges of today’s international police cooperation landscape. Findings: The EU law enforcement information exchange scene is in the midst of its transformation due to globalisation and the progressive information and communication technology advancement. The evolution of the institutionalised cross border criminal data and intelligence exchange has to keep up with the world of crime and reflect the challenges which arise from the sensitive nature of the policy area itself, where any substantial development can only be reached by innovation and capacity building of the law enforcement sector. Value: This snapshot is to give a structured overview and to draw more attention to the complexity and the controversies of the international law enforcement information exchange landscape, which policy-makers and police professionals have to face nowadays in order to successfully prevent, detect or investigate cross border criminal offences.

Judges, Out-Of-Court Rewards, and In-Court Behavior: Evidence From an Italian Legal Reform

We empirically assess how out-of-court monetary rewards influence related in-court judicial behavior. In Italy, before a legal reform, Council of State judges were chosen by big law firms to serve as arbitrators in out-of-court arbitrations involving big law firm clients. Drawing on case-level data on Council decisions and using a difference-in-differences approach, we establish three central findings. First, before the legal reform, and consistent with the argument that judges strove to compensate big law firms for afforded out-of-court earning opportunities, big law firms were more likely to win Council cases when those cases were presided over by judges with prior arbitration experience. Second, as a result of a 2010 announcement of an anticorruption law reform that banned judicial participation in arbitrations, big law firms’ winning prospects in Council cases presided by judges with prior arbitration experience decreased by 33.4 percentage points. Third, following the law’s enactment, the success rate of big law firms in these cases converged to the success rate of big law firms in analogous court cases presided by judges without prior arbitration experience. Our analysis provides evidence of the importance of extrinsic motives for judicial behavior.

Sovereign Collateral

Due to a dearth of data, nineteenth century lending to sovereign borrowers was a blind date. We argue this is the reason for collateral pledges found in contemporary lending covenants, which enabled not execution, but the production of reliable fiscal data. Lawyers injected collateral clauses in sovereign debt covenants to permit credible disclosure of hard-to-access tax data. The study foregrounds the importance of big law firms as financial intermediaries and information producers. It also contributes a new view on the role played by contracts in sovereign debt. “No [underwriting] firm can take precautions against the repudiation of a [sovereign] hypothecation.”—Thomas Baring, 1865

»There Is in the Great Big Law Too Much Bad Little Law«: The Slavery Abolition Act and Labour Laws in the Post-Emancipation British West Indies

»There Is in the Great Big Law Too Much Bad Little Law«: The Slavery Abolition Act and Labour Laws in the Post-Emancipation British West Indies

Employee mobility networks and status transfer in U.S big law

Firms in organizational fields frequently hire and lose employees to competing firms. What is the impact of employee mobility on the status of organizations within a field? Unfortunately, empirical evidence is lacking about how hiring professionals from high or low-status actors, especially status that is obtained through third-party evaluation, impact the focal firm’s status. This research examines employee mobility across the largest law firms in the United States from 2010 to 2016 and employs fixed effects modeling to estimate associations among the status of firms from which partners were hired, network centrality, and the organizational status of hiring firms. Results showed that firms’ status increased when they hired, on average, from high-status firms, and that this association was stronger amongst more centrally located firms. Namely, we found that although the impact of sending firms’ status has a significant impact on the focal firms’ status, such an effect depends on network centrality of the sending firm. These results support the notion of status portability as well as the importance of the firm’s network position for status enhancement.

The signaling value of university rankings: Evidence from top 14 law schools

This paper measures the impact of signaling on labor-market outcomes by estimating the labor-market effects of attending a U.S. News & World Report Top 14 (T14) law school. Utilizing data from the American Bar Association on class profiles, we use the value added with drift methodology to estimate the causal impact of attending a particular law school and then use a regression discontinuity methodology to estimate the difference in value added between T14 and non-T14 law schools that is attributable to T14 status. We find that T14 law schools confer no signaling effect on the Bar exam, which is graded blindly, but a substantial signaling effect on employment at “Big Law” firms with more than 250 attorneys, which pay some of the highest salaries in the law profession. The lowest-ranked T14 university increases the likelihood of Big Law employment by 30 percentage points (96%) more than the highest-ranked non-T14 university. This likely reflects asymmetric information in the labor market for lawyers, and thus graduating from a T14 law school serves as a signal of a lawyer’s ability.

The Evolving Development of Minority Partners at Big Law Firms: A Critical Incident Study

This case study explores African American attorneys’ accounts about critical incidents that influenced their decisions to leave or stay at Big Law Firms (BLF) in Central Florida thus resulting in an underrepresentation of the group in partnership positions. A purposive sample of 10 African American attorneys was used to collect over twenty incidents. The participants’ insight encompassed demographics and responses to interview questions. The findings developed from analyzing responses to semi-structured open-ended interview questions, examining records, and reviewing the literature. The collected data were coded and matched with responses to interview questions as well as the research questions. Manual analysis was performed on the data which revealed important emergent themes relating to: (a) mentoring, (b) diversity, and (c) leadership development. Applying the findings from the study might be valuable to leaders from BLF in developing policies to overcome employment obstacles that hinder advancement of African American attorneys to partnership levels.

The Legal System and Legal Issues of Marine Environmental Governance in the Age of Big Data

Wang, J., 2020. The legal system and legal issues of marine environmental governance in the age of big data. In: Guido Aldana, P.A. and Kantamaneni, K. (eds.), Advances in Water Resources, Coastal Management, and Marine Science Technology. Journal of Coastal Research, Special Issue No. 104, pp. 313–316. Coconut Creek (Florida), ISSN 0749-0208.China's marine environmental laws and regulations have mainly shown the characteristics of high principle and low rules for a long period of time, thus causing them not to play their full role in dealing with environmental problems. The application of relevant information under big data is of great significance for the active completion of the country's environmental governance objectives, and also helps to establish and improve the system of national and local interactive and cooperative environmental laws and regulations, realize the basic concepts and basic principles of environmental law rule design, at the same time, in the construction and improvement of the basic system of environmental law plays an important role. In the era of big data, the model of Chinese environmental law research sample method is in a co-existence state. In addition, the main reason for the successful application of big data in the study of environmental law in China is that many scholars in China have a clear understanding of the research on the relevance of big data and environmental law in China, and have clear principles and basic requirements for the application of big data programs in the study of environmental law in China.

Inputs and Outputs on Appeal: An Empirical Study of Briefs, Big Law, and Case Complexity

The relationship between judicial inputs and outputs remains opaque. Conventional wisdom is plentiful but useful evidence is not. This study examines civil appeals in three federal appellate courts, concentrating on the briefing, the attorneys, and the complexity of the case. We find no evidence that short briefs are more persuasive, while the evidence in favor of long briefs on the appellant's side is provocative. We also find suggestive evidence that the experience of the lead lawyer on the appellee's side matters. However, “Big Law” firms and large teams of lawyers do not seem to perform better on appeal, all else equal. Finally, different kinds of case complexity point in different directions. The presence of a cross‐appeal is associated with judge votes to reverse—but not necessarily in favor of the cross‐appellant. At the same time, complex trial‐level proceedings may be associated with judge votes to affirm.

Inputs and Outputs on Appeal: An Empirical Study of Briefs, Big Law, and Case Complexity

The relationship between judicial inputs and outputs remains opaque. Conventional wisdom is plentiful but useful evidence is not. This study examines civil appeals in three federal appellate courts, concentrating on the briefing, the attorneys, and the complexity of the case. We find no evidence that short briefs are more persuasive, while the evidence in favor of long briefs on the appellant's side is provocative. We also find suggestive evidence that the experience of the lead lawyer on the appellee's side matters. However, “Big Law” firms and large teams of lawyers do not seem to perform better on appeal, all else equal. Finally, different kinds of case complexity point in different directions. The presence of a cross‐appeal is associated with judge votes to reverse—but not necessarily in favor of the cross‐appellant. At the same time, complex trial‐level proceedings may be associated with judge votes to affirm.

Beyond Big Law: Toward a More Inclusive Study of Gender in the Legal Profession

This Article reviews research and theory in the field of gender in the legal profession using a framework developed by feminist theorist Barbara Risman. Risman asserts that gender is a social structure, “an entity in and of itself,” which operates on the individual, interactional, and institutional levels. Using Risman’s tripartite framework, I explore two prominent questions in the gender and legal professions literature: (1) Why do men and women advance differently in their careers? and (2) Are women more or less satisfied with their legal careers than men? In doing so, I demonstrate that the vast majority of theories of gender inequality in the legal profession, and the research methods undertaken to test them, focus on individual and institutional analysis to the exclusion of interactional analysis.I further highlight a lack of research focusing on the ways in which gender is embedded in interactions between female lawyers and those who shape their career choices: partners, friends, mentors, and colleagues. I argue that existing research reifies Big Law partnership by using such positions as the measuring stick against which all other legal positions are valued. I further argue that current studies unintentionally perpetuate gender stereotypes by conceiving of gender inequality as a women-only issue. Work-life balance is conflated with having children such that the notion of having a life outside of work is itself now gendered. I call for a renewed study of the interaction between gender and other intersectional identities like race and class, given the unique set of challenges faced by female attorneys who are also racial minorities and/or live on less than a Big Law salary. I further offer policy recommendations, including government- or firm-sponsored childcare and gender-related legal education for law students and lawyers.

Innovation: A New Key Discipline for Lawyers and Legal Education

Over past two years, I have interviewed hundreds of in-house and law firm lawyers from around globe to explore changing legal marketplace, expectations of clients, and innovation in law. One of my main conclusions is that we are experiencing an Innovation Tournament in Law and almost everyone is playing in it. As I explain in more detail in my book, Legal Upheaval: A Guide to Creativity, Collaboration, and Innovation in Law, driven by a combination of technology, socio-economics, and globality, we are witnessing innovation on almost every legal dimension, including how legal services are priced, packaged, sourced, and delivered. Importantly, this innovation is not only coming from legal tech startups and new law companies. Law firms, Big Four, and corporate legal departments are creating innovations of their own including new services, products, tools, and, importantly, new processes. Even those that aren't creating innovations are playing in Innovation Tournament by utilizing innovations (or exapting them) to become more efficient and deliver better service. Although we are not yet seeing disruption in law marketplace in Clayton Christensen sense, all lawyers should care about Innovation Tournament regardless and here's why: Lawyers of all types, from big law to small and mid-size firms, from government to in-house, and even solo lawyers, are being challenged to change way they work. Clients are asking their lawyers to (and often with others outside their organization or departments). However, lawyers don't know what their clients are asking for when they ask for innovation or how to do it—or both. The good news is, however, that my interviews and my experience working with over 210 teams of lawyers and their clients on innovation journeys, indicate that what clients are really asking for with the call to innovate is a new type and level of collaboration and client service. The evidence suggests that our clients' call for us to is actually a call for service transformation in disguise. Whether they want an innovation in and of itself or not, our clients want lawyers to hone mindset, skillset, and behavior of innovators. The problem with this is that many lawyers are ill-equipped to meet these new demands. Some combination of our temperament, training, and professional identity seems to work against us when we try to espouse DNA of innovators.This is why new discipline for practicing and aspiring lawyers needs to be innovation. This chapter was first published by Stampfli Verlag in book: New Suits: Appetite for Disruption in Legal World, co-curated by me and Dr. Guenther Dobrauz. It begins by demonstrating that clients' call for innovation is really a call for transformation in service from their lawyers. It then explores why answering this call can be problematic for lawyers. It seeks to show that lawyers' professional identity, training, and temperament (along with extrinsic and intrinsic motivation) make it difficult for lawyers to adopt collaborative, creative mindset and skillset of innovators. This chapter recommends that innovation be incorporated as a new key discipline at both law school and executive education (continuing education) level because in process of learning how to innovate, lawyers hone mindset, skillset, and behaviors that clients desire. In support of this contention, it reveals that, as an added benefit, by honing innovator's DNA, lawyers also grow into inclusive leaders our society needs us to be. The chapter concludes with some suggestions for lawyers to help them better collaborate towards innovation along with a pie-in-the-sky call to legal universe to make innovation new key discipline for practicing and aspiring lawyers.

A Review of Stacy G.C. Jernigan, He Watches All My Paths (2019)

“Law and Literature” looks beyond statutes, formal rules, and reported cases to assess how fiction and other works of literature reveal popular perceptions of doctrines, practices, and legal institutions at certain times; how fiction represents and illustrates law at work; and how it can show or reflect on legal thought, legal methods, or legal ways of understanding and explaining life. The just-published, first novel by Stacy Jernigan entitled HE WATCHES ALL MY PATHS is a good example for such study. The author is well known as one of the Bankruptcy Judges for the Northern District of Texas, an office she has held since 2006 after a distinguished career in a “Big Law” firm. Appropriately, the protagonist and narrator of her novel is . . . a bankruptcy judge! The delivery of an anonymous threat on the protagonist’s life triggers everything that happens over the course of a year. Valuable passages muse about the task of judging in bankruptcy cases and about collateral damage in the adversary system of justice. Non-lawyers will enjoy the fast pace, the suspenseful unfolding of the plot, and the cinematographic descriptions of the Marshals’ feats of protecting the judge from imminent death on two occasions. Furthermore, the reader unfamiliar with bankruptcy will learn a great deal about how this system of the law works. Best of all, bankruptcy lawyers will savor the book with its rich details of the life and work of a bankruptcy judge as she decides cases and as she lives her life, while dealing with the fears and frustrations resulting from the threats of one who seeks to harm her and to strike a blow against the system of bankruptcy law that we know and hold dear.

When Does Big Law Work?

Law firms have grown from hundreds of lawyers to thousands of lawyers, and the conventional wisdom is that this trend fuels dissatisfaction among lawyers. This article scrutinizes that conventional wisdom based on interviews with lawyers who joined large firms through law-firm mergers. These lawyers offer a valuable perspective on firm size because they made abrupt changes from small to large firms. Though some interviewees echoed the conventional wisdom, others suggested that larger firm size has limited or even positive effects on professional satisfaction. In one counter-narrative, large law firms are relatively diffuse organizations that have limited influence over individual lawyers. In another counter-narrative, large law firms helpfully insulate lawyers from the business risks of smaller firms. I offer a framework to explain these varied experiences. The framework highlights the importance of: seniority, practice-area compatibility, local office attributes, and the manner and rate of firm growth. These new perspectives can inform future research and improve advice to law students and lawyers.

OUT OF THE CLOSET AND UP THE LADDER? DIVERSITY IN ONTARIO’S BIG LAW FIRMS

While Canadian law generally provides protection against sexual orientation discrimination, and social acceptance is growing, there are some indications that LGBTQ lawyers face barriers relating to their sexual identity. Although more LGBTQ lawyers are now ‘out at work’, quantitative data is incomplete, and little is known about the actual experience of LGBTQ lawyers, who enter big firms in Ontario with the hope to advance through the ranks. This article begins to address this gap by providing qualitative analysis of the personal experience of LGBTQ lawyers entering the profession and the extent to which in-firm diversity initiatives shape their experience. Three main themes emerged from the interviews. First, racialized gay lawyers more consciously described their experiences at big law firms as negative and related it to their minority status. Second, the interviews offer insight into the ways in which gays and lesbians are forced to negotiate and perform their identity in a heteronormative workplace. Finally, the insights gleaned from the interviews suggest that the diversity programs devised by law firms may have helped diversify the lower ranks of law firms, but they seem to have failed to address the barriers that equity-seeking groups continue to face in retention and advancement through the ranks. The heteronormative organizational culture, as well as the promotion and compensation structures in firms continue to drive the composition of the leadership ranks and it arguably perpetuates homogeneity.

Big Data and the Economics of Free: Towards a New Competition Law

Big Data and free goods such as Google search engine change the way of living of billions of users worldwide. Nowadays, the current competition law based on price-centric tools and static analysis without taking into account other fields of law like privacy is not adapted for the Big Data age which involved free goods, dynamic economy in multi-sided markets and privacy. There is an urgent need of a new competition law. That is the subject of this paper, to introduce a new competition law in the Big Data and the economics of free-or free goods- age in a practical way with a law and economics point of view for practitioners and competition authorities by using the latest papers and cases including the Google Shopping Case at the time of the thesis. I will start by defining new competition tools for free goods, identifying the relevant market, the market power and network effects and some economic tools related to privacy. Then, I will suggest a new analysis for Big Data and competition law enforcement by investigating abuse of dominance with new kinds of abusive conducts, collusive practices in the digital economy and the problem of algorithms and mergers with the necessary implication of privacy policy. Finally, I will address the link between competition law and consumer protection in the Big Data age of free goods by identifying the consumer welfare, the price discrimination and the remedies to protect consumers and market competition in the digital economy.

Go Back to Your Roots! A Call to the Legal Services Corporation to Provide Increased Legal Assistance to Low-Income, Community Nonprofits

I believe the Legal Services Corporation is remiss in not encouraging its grantees to focus their attention on assisting low-income, community nonprofits with their legal needs. The Legal Services Corporation (LSC) is one of the largest grantors to legal aid organizations in the country. In 2014, LSC grantees closed a total of 757,983 cases, of which 80,953 of those cases were completed with the involvement of pro bono attorneys. On average, LSC funding amounts to approximately 36.5% of each legal aid organization’s overall funding source. However, LSC has seemed to turn a blind eye to the notion that legal aid to small, low-income nonprofits should be part of the robust assistance provided by its grantees. For example, in its 2014 report, LSC noted that out of 758,689 cases closed; only 290 of those cases consisted of legal assistance to nonprofits. That amounts to 0.00038% of all cases! LSC allows its grantees to provide legal assistance to nonprofits, but it appears that those types of cases are merely an afterthought. There are three distinct reasons this assistance is necessary and logical. First, the low-income, community nonprofits assist the same clients LSC funded legal aid organizations assist. Therefore, to help the nonprofit would be to help the legal aid client. Second, finding meaningful pro bono projects that large firm volunteers are comfortable in handling is difficult. Most of the legal needs of nonprofits involve business transactional work. Helping a nonprofit with its legal needs is oftentimes within the legal knowledge base of large firms who have business transactional departments. Many of the large law firm attorneys may not have experience or a comfort level in helping with family or eviction cases (which often make up the majority of LSC funded organizations’ cases) and therefore find it difficult to volunteer. However, having the option to assist with local, small nonprofits that cannot afford legal representation, will further utilize the large firms’ legal skills in a meaningful way both for the legal aid organization and for the big law firm. Third, working with low-income, local nonprofits will take LSC and its grantees back to its community roots, working in cooperation with and supporting community organizations that create wealth and address other poverty-related problems identified by community members.

Technology and the Law - New Opportunities for Lawyers and Their Clients

The pace of change in the legal industry is accelerating. Greater price competition, the difficulty to hold and promote new equity partners, lower profits...are only some of the key changes that big law currently is facing. More than 7 years after the financial crisis these changes undermining the current state of the legal profession appear to be permanent. In fact traditional law firms are losing business to larger in-house lawyer teams, specialized contract law boutiques or contract management firms, accounting firms but also new legal tech companies, which were able to find innovative and more cost efficient ways to provide legal services to clients. Further, it is interesting to note that the legal services industry is growing while law firms are not - at least on average - anymore. At the same time the number of companies providing legal services, so called ABS, has grown dramatically. Finally, law firm salaries have been dropping since 2008 and do not seem to come back to pre-crisis levels.Companies like Airbnb and Uber and the disruption they brought to their respective industries are examples that show what could happen to the legal industry if new technologies take over and design thinking is applied to legal services. These companies completely changed the perspective that traditional actors in the taxi and hotel industry had with regard to pricing, service, quality, user friendliness...For too long, taxis and hotels went unchallenged in the way they structured their market - so they had no incentive to redesign their products or services. Law firms need to be careful not to fall into the same lethargy if they want not to be submerged by the wave of change that the industry is facing and will be facing at an accelerating pace. It is only a question of time that current market leaders in the legal industry will be challenged by smaller firms that will be able to leverage their potential via technology or alternative approaches to pricing, service delivery and product quality.This paper suggests that lawyers can avoid to be overrun by the wave of change if they grasp the potential of new technologies, design thinking and user centered attitudes. Lawyers could develop new products by transposing the underlying functionalities of the various technologies their clients (but also they themselves) use in their everyday or professional lives to the legal services they provide. Why not develop new tools of client lawyer or lawyer-lawyer interaction by using google docs, the idea of spam filters, google maps or machine translation. Legal tech start ups in the US and UK show the way: LexMachina, Ravel law, shake law, legal zoom, rocket lawyer...are only some of the many examples that illustrate how legal technology and design thinking can change the way lawyers operate. We suggest in this paper that the experience and insights that lawyers have of the relatively closed legal profession makes them uniquely positioned candidates to develop new business opportunities in the law. They just need to be motivated and incentivized to grasp the opportunities of change. Technology and the law is an opportunity that no lawyer should miss if he wants to be a driver of change and not a person that is driven by change beyond its control.

Law Firm Selection and the Value of Transactional Lawyering

Following the contraction in demand for law firms’ services during the Great Recession, “Big Law” was widely diagnosed as suffering from several maladies that would spell its ultimate demise, including excessive fees, excessive size, increased competition from in-house counsel, the commoditization of legal work, and the decline in demand for “relationship firms.” While each of these market pressures is only too real for certain segments of the law-firm population, their threat to the most elite U.S. law firms has been largely misunderstood. Even as many firms reduce their fees and contract in size, we should expect certain firms to continue to charge more and grow bigger. The current prescriptions for fixing Big Law fail to recognize that the top-tier firms within the group serve a unique market function. Focusing on a particular type of legal work – major corporate transactions – this Article proposes a novel theory of the value created by elite law firms: their private information about “market” deal terms, acquired through repeated exposure to the same types of transactions, provides clients with a significant bargaining advantage in deal negotiations. By aggregating expertise in the ever-changing and ever-increasing set of deal terms for certain transactions, law firms help their clients price such terms more accurately and thereby maximize their surplus from the deal. This pricing function – traditionally thought to be limited to investment banks – is one that cannot be replicated or subsumed by in-house counsel, other service providers, or commoditized contracts.

Adaptive Innovation: Innovator's Dilemma in Big Law

Big Law has been described as being in the throes of a painful transformation brought about by factors such as the increased use of technology, globalization, and a transition from a supply-driven market to a demand-driven one. A common framework for such upheaval is Clayton Christensen’s The Innovator’s Dilemma, which generally portends an inevitable collapse of market incumbents when they cater to the performance requirements of their high-value customers’ demand. Big Law is not immune from the principles of The Innovator’s Dilemma. However, neither the disruptive nor sustaining innovation described in Christensen’s work seem to adequately characterize the changes occurring. In this paper we describe a hybrid model, “adaptive innovation,” that takes into account the opposing forces in play. As with most other sectors, lawyers have argued that Big Law is different. This paper reviews some of the most cited factors predicting and denying the demise of Big Law. We argue that market-imposed values such as quality, efficiency, and ROI will likely dominate over reputation and comprehensiveness, forcing a fundamental change in many common features of Big Law. However, law firms will likely remain an inevitable mechanism for the delivery of many of the services currently occurring there, albeit under a different model.