The Market for Bad Legal Scholarship: William H. Simon's Experiment in Professional Regulation
68 Pages Posted: 17 Jun 2008 Last revised: 24 Jul 2008
This a Reply to an article by Columbia law professor William H. Simon which maintains that lawyers, especially law professors, accommodate their clients' demand for dishonest views by providing bad legal advice and expert opinions. To correct this problem, Simon argues, lawyers and especially legal academics who advise clients and provide expert testimony should refuse to respect conventional norms such as client confidentiality. Further, Simon proposes, legal academics should regulate each other by 'shaming' their colleagues. Simon illustrates his proposal by criticizing the work of several academics, particularly three who were opposing experts in a case in which Simon was to serve as the plaintiffs' expert witness on legal ethics issues.
This Reply argues that Simon's proposal fails both in theory and in practice. The Reply questions the magnitude of the problem, rejects Simon's proposed professional norms as ill-conceived and unworkable, and suggests that law professors will be reluctant to regulate each other by shaming their colleagues. The Reply illustrates the problems with the proposal by examining Simon's own work as an ethics expert in the case he describes in detail in his article. It demonstrates that due to the logic and practical wisdom of conventional norms, Simon was largely unable to put his theory into practice. Further, when Simon did implement his theory, he harmed the plaintiffs without achieving any countervailing public benefit. Simon's experience shows that the norms he prescribes will improve neither the practice of law nor legal scholarship.
Keywords: legal advice, legal ethics, expert witness, quasi-third-party, legal advisor, academic law practice, legal scholarship, attorney-client privilege, William H. Simon
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