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The Paradoxical Perils of Passion About One's Note Topic

I think I've begun to understand why I'm having such a hard time getting up the energy to actually write this thing, even though the deadline looms. Oddly, it's because I actually care about my Note topic, and this may have been a mistake.

While I don't want to go into too much about what the Note concerns (it almost certainly violates some right I signed over to the Law Review on a paper I'll quite cheerfully admit I never read), it's a very small subset of what I'd like to write about: reasons that Unauthorized Practice of Law statutes have become obsolete. To give my conclusion without the argument, in an ideal world I would hope that lawyers could be regulated by a combination of various opt-in standards bodies and liability systems, rather than the one-sized fits all ethics codes administered by guild-like cartels (as we have today). Groups like Nolo or We the People might choose to opt for one of these standards, or they might not, particularly if they wanted to provide legal services to those who cannot afford our current high-cost paradigm. And lawyers who felt that legal advice would be more effective bundled with other services--say, accounting--could do so merely by opting out of standards bodies that restricted multidisciplinary practice.

There's a number of reasons for my view, and I'll probably write about them more in the next couple of days. For now, suffice it to say that I think this would provide greater access to the legal system for a greater number of people at a lower cost, while simultaneously making lawyers lives happier and more meaningful. [1]

However, there's no way that topic is small enough for a note. I thought about it at the beginning of the process, and there was no way to fit it in. So what I'm writing about now is actually a small section of a much larger article. I can see that article's structure in my head: how the sections balance, how the pieces fit together. But what I have to write is a small fraction hodge-podged together from the greater whole of my passion.

(One option I'm considering for next year: scale down the amount I work on other law school projects, and instead concentrate on writing and publishing this article. It would mean sacrificing some other things, but as I said, I'm quite passionate about this subject.)

So this constrained feeling limits my urge to write. But more than this, I feel like I've already dredged all the personal value I can get from the project. I believe that I've drawn the right conclusions from my research and found the proper support. I even believe that once written, it will be an interesting article and the conclusions would be worth following and implementing as policy.

But there's the rub: it ain't gonna happen.

If my article were being written by Judge Posner and published in the most prestigious journal in the land, it simply wouldn't make a difference. The most damning indictment of the damages caused by the legal cartel; the most clear contention of social gain through lower legal cost; the most moral argument ever made in the pages of a law review would be unavailing. Any change in this area is unlikely to come through the courts or the legal academy. (There is some possibility that corporate counsel may start the ball rolling against unauthorized practice of law, but even that is doubtful.) The people who brought us The Unauthorized Practice of Law Committee v. Parsons Technology Inc., 179 F.3d 956 (1999) are not about the set aside the monopoly that makes them wealthy, that makes law professors more highly-paid than other educators, and that drives most of the machinery I'm going through now.

Which makes a law review note about this seem a little pointless. The people I'd like to reach are businesses with political clout looking to cut their legal expenses. I'd like my readers to include groups like Nolo, or other legal consumer advocates. But these are not the people most likely to read or benefit from my work if it's closeted in a law review available only to those paying large subscription fees or WEXIS access charges.

So having learned everything I need to in order to write this thing, now I'm sort of uninspired to do it. It's another tick-box on another task list of "things that have to be done in order to get out of law school." Contrast this with my clinic work--something I'd like to continue volunteering on--where I know that what I was building not only would be used, but was going to make sure that attorneys going into a courtroom could more easily and effectively help people marginalized by a legal system that--mostly due to cost--ineffectively meets their needs. That I'd bleed for. This just has to be done.

Update: I should probably make clear that the above isn't an argument against writing a note as a pedagogical requirement. Nor am I saying that law reviews shouldn't require notes (although I do wonder). However, I almost certainly should have taken more care in choosing my note topic, concentrating not only on what I wanted to write and research, but on the audience that I would be expected to address. It would have made this stage all the easier.

[1]: I know, that's a big claim. As I said, I hope to get to the whys and wherefores of this in the next couple of days, but it just didn't fit with this blog entry.

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Huh. If I didn't already know that you thought more of Posner than I do, this would confirm it. Did you talk to Simon about this? His discussion of ethics-y things can be ... revealing of the purported and the actual purposes for legal restrictions like this. That is, the fiction that we're ensuring that legal services will be competent (we're not) by keeping out non-lawyers, none of whom would be good enough (likewise not true), which is to cover for: It's our profession, damnit, and we make a _killing_. Which you just said. It's kind of regrettable that those who came to law school without some larger intellectual project (commitment to free speech, labor law, etc.) are at a severe disadvantage in picking a topic, and the disadvantage comes so _soon_. That, too, you already know. But don't despair yet, or at least: Don't despair simply because your journal's audience is all going to be lawyers, for it won't. You've noticed in your cite-checking that a lot of extra-legal sources are cited in legal publications; that door can open both ways. (I have no idea at what frequency the Wharton Business Review cites the Yale Law Journal, but I assume it's nonzero.) I'd also advise you not to give up on the "personal value" of the next couple of days. Legal writing, you've noticed by now, looks and walks and quacks like regular writing, but it's of a somewhat different specie. And as big a change as was writing your legal writing memo, writing the Note is another thing entirely. The legal profession isn't about knowing, but doing, and a big part of learnign the doing is still ahead of you. Long story short: You've probably learned much doing the research, but you're still no Jedi. Good luck, again.
Further: Pay especial attention when you're writing this, if indeed you're serious about turning it into an Article. My Note was a failure, and I learned a lot even from failing. If yours is successful, so much the better. PS: Are you writing any law-and-literature things about lawyers' self-conception as professionals? If not, I'd recommend Ferguson's classes---if I didn't already recommend them without qualification---as a good "Part III." for the Article when it does get written. It's a ... nicer way to explain the Bar's position than just to dismiss it as naked monopolism. It is, of course, but it still sounds harsh.
Eh, given progress at the moment, I think the Note would have been a success if I'd concentrated on that rather than the Clinic project last term. I sort of glad I didn't, but as it is, this Note very well may end up "failing." (In the sense that it won't be ready for publication, rather than in the sense of getting kicked off Law Review. Whether that would be good or bad is a matter of wry amusement among Fraternity members at the moment, but that's to be expected. Gallows humour, etc.) On the other hand, it's not looking so bad. I think what I turn in to LR on Monday will be, to put it nicely, drek. On the other hand, I'll probably turn another copy in to my notes advisor on the following Friday, by which point it will be considerably less dreadful. And the final's not due for another month, which give me a lot of time to put flesh on bones. That's pretty much how I write: make a skeleton first, and start fleshing it up later. At least when working on legal documents. It's actually remarkably fast, but the product doesn't look good until it's finished, since no one part is finished at once.
Fascinating topic, and refreshing to hear that you're so passionate about it. This stuff is right up the alley of the nonprofit I've been working for, so yesterday I had reason to lean a good deal about a man named Norman F. Dacey. Long story short, he was not a lawyer, but in 1965 he wrote a book called How To Avoid Probate! and was promptly sued by the New York County Lawyers' Association for ULP. Lower NY courts enjoined publication and distribution of the book, but finally he won an appeal that recognized his free speech right to write, publish, and distribute the book. The decision became an important precedent in the protection of self-help legal publishers (like Nolo) against charges of ULP. You may have learned all of this in your research, but if not, I thought it was a great story. Related is the story of Nolo v. Texas, which you may also have already learned about. Finally, my adventures yesterday also included an interesting article about how online legal document preparation services are butting heads with ULP statutes. The article is entitled "SCRIVENERS IN CYBERSPACE: ONLINE DOCUMENT PREPARATION AND THE UNAUTHORIZED PRACTICE OF LAW" by Catherine Lanctot, 30 Hofstra L. Rev. 811 (that might take you to the Lexis version if you're logged in to Lexis already). Anyway, I agree wholeheartedly that ULP statutes either need to go completely or be very seriously revised and narrowed. I hope you'll share your article with us somehow, whether it gets published in a journal or not.
Thanks for that. I'm familiar with Nolo, and the Dacey case is a little too old to put in my Note. (I know I'm being vague, but the Note isn't really about UPL. That's what I wish it were about, but I'm actually writing about a sort of smaller point of legal regulation.) (And I actually found the Lanctot article. Nice to see she's getting lots of hits on Lexis. :)) I'd be interested in knowing what the non-profit you work for is, actually, if that's publishable (or if you could email it). I'm always interested in learning more about those working on this.

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