Professor's article traces technological changes to the law office

Tuesday, August 27, 2013

LAWRENCE – If not for Herman Melville, most of us probably would have no idea what a scrivener is. And if not for the advance of technology, Bartleby and his colleagues might still have similar jobs today.

Michael Hoeflich, John H. and John M. Kane Distinguished Professor of Law at the University of Kansas School of Law, has published an article exploring the history of the scrivener in the American legal office and how advancing technology not only eliminated the profession but changed the way law is practiced. Hoeflich authored “From Scriveners to Typewriters: Document Production in the Nineteenth Century Law Office,” for The Green Bag, “An Entertaining Journal of Law.”

As Melville spelled out in his famous short story “Bartleby the Scrivener” the titular profession was paramount to business in the legal office of the day. Not only did they copy, proofread and verify accuracy of legal documents, they held a respected, well-paid position and were sometimes considered as important to the office as the lawyer. The article will eventually be a chapter in an upcoming book.

“I’m very interested in the everyday practice of law, what the management involves and the history of the business,” Hoeflich said. “I thought it would be interesting to see how the practice of law has evolved in the United States and what we can learn from it.”

Just as they do today, law offices of the past produced a large amount of documents. Without the scrivener the multiple copies would not have been made, and files would not have been kept. However, copying and writing documents by hand was a tedious and time-consuming method. Hoeflich’s research shows that by the early 19th century primitive copying devices such as “copy presses” began to appear in law offices. As the century progressed early versions of typewriters took precedence. The devices were nothing short of revolutionary in the legal office, not only making document production faster, but ushering in social change and shifting power dynamics within the office.

“Scriveners were very quickly replaced by typists,” Hoeflich said. “And typists were almost all women. Now why would that be the case? It’s because typists were paid much less. It was also the introduction of women in the American law office.”

Where a good scrivener could produce about 30 words per minute, a good typist could produce about 100. The result was increased speed, efficiency and a healthier bottom line. Hoeflich argues it also placed much more importance on the lawyer. The typewriter, along with carbon paper, which allowed production of several documents simultaneously, drastically changed the law office by the beginning of the 20th century and also ushered in the appearance of what became an office staple: the rolltop desk. Hoeflich’s article includes multiple historical ads promoting the desks which offered new ways to store files and featured typewriter bays.

“The items that are now antiques truly were revolutionary and did change how law was practiced, just as computers and new technologies are doing now,” Hoeflich said.

The article goes on to explore how the technology advances and phasing out of scriveners increased profits and changed workflow, and how the resulting social changes in law offices related to and reflected those happening in broader society. The article will be a chapter in an upcoming book that explores numerous angles of legal history, including how 19th century lawyers dressed, decorated their offices, found clients and used family connections to form business. Hoeflich said he enjoys studying legal and social history much in the way that genealogists enjoy learning about their familial past. What happened in years past can not only offer lessons about how and why we got where we are, he says, but provide perspective on how current practices and trends can shape the future.

“Professional history to some degree is like individual memory,” Hoeflich said. “While we might not be doomed to repeat it, we can certainly learn lessons from it.”

Professor examining potential laws to regulate de-extinction

Wednesday, August 21, 2013

LAWRENCE — Science has a way of catching up with fantasy. While movies like “Jurassic Park” brought dinosaurs back to life, few imagined that the day might come when extinct creatures could be revived. But the possibility of such revival is not only real, it’s getting closer all the time. A University of Kansas law professor is part of a group of scholars working to propose legal framework to address the myriad questions “de-extinction” will bring to the table.

Andrew Torrance, professor of law and Docking Faculty Scholar at KU’s School of Law, recently took part in a de-extinction conference at Stanford University and is crafting suggestions for potential law to deal with the controversial science as it becomes reality.

“I have a weakness for exactly this kind of project,” Torrance said. “It’s very cool from a scientific perspective, plus I think I was like every kid growing up who thought, ‘Wouldn’t it be cool if I could see a dinosaur some day?’”

While dinosaurs won’t be revived — the fossils are too old and contain no usable DNA — other more recently extinct creatures such as woolly mammoths, saber-toothed tigers and passenger pigeons could potentially be revived. The biotechnology is mostly in place. What’s not in place is law to address questions such as who would own such revived creatures, how their habitat would be governed, international relations among countries housing such creatures and who would be responsible for potential damages among others. Torrance, who holds a doctorate in biology and law degree from Harvard University, was part of the Harvard conference to address the legality of such matters. Other scholars addressed the ethical and philosophical questions.

“The basic science is already there. You have to somehow get a full genome, which is not a trivial problem, but a lot of those breakthroughs have been made,” Torrance said. “In some ways, though, the technology is not as important as the ethical and legal questions. If you resurrected a mammoth, would you set it loose in Times Square? And who would be liable for the damage it caused?”

Torrance advocates for developing a legal framework to address de-extinction before it’s common practice and says there are precedents that can be used to start the process. At the conference he cited the Endangered Species Act, a popular bipartisan law/legislation that allows for protection of endangered species. The law and its implications must be considered in respect to de-extinction he said, as the incentive to protect endangered creatures might wane if people believe they can simply bring it back in a generation or two.

“It changes the idea of what endangerment means. And it changes the meaning of extinction,” Torrance said. “If a creature can be brought back, was it ever really extinct?”

Torrance also addressed the question of how revived species would affect current ecosystems. He cites numerous laws that are in place to deal with invasive species. The United States and international laws have addressed such questions in many cases, and similar efforts would need to be made to address potential damage or changes revived species could have on modern ecosystems.

Genetic modification is another question domestic and international lawmakers will need to consider, Torrance said. In the United States genetic modification is commonly accepted especially among crops such as corn and wheat, but it is not as freely accepted in other nations. International treaties such as the Cartagena Protocol allow nations to suspend normal trading rules to prevent genetically modified products from entering their country if they object to their presence. Such treaties would need to be considered for revived species, especially considering that many animals tend to migrate or spread across borders, Torrance said.

The first several generations of revived species would almost certainly be genetically modified by definition, he said, especially if scientists need to borrow DNA, even in small amounts, from species related to those being revived.

Torrance and colleagues will continue to craft scholarly articles and policy recommendations for consideration by lawmakers. The time to act is now, Torrance said, because the science will be in place eventually, whether the law is ready.

“I think law is at its worst when it’s reacting,” Torrance said.

By working together proactively, scientists, lawmakers and the public can craft regulations that would prevent many potential problems as well as avoid heavy-handed regulations that would stifle innovation.

“De-extinction is something we do need to regulate, but in proportion to the potential risk it could create,” Torrance said. “The law will react one way or another. I think it would be best if it reacts in a way that’s both beneficial to the science and public interest and in a way that keeps costs minimal.”

Professor argues judicial oversight needed for fines leveled by SEC

Wednesday, July 24, 2013

LAWRENCE — Since the financial crisis of 2008, attempts to penalize and curb activity that caused the crash have drawn criticism for being too arbitrary and leaving the sentencing to an ineffective agency. Also under scrutiny are regulations that may disproportionately affect small banks and agencies more than larger, repeat offenders. A University of Kansas law professor has authored an article arguing that federal courts should approve or deny penalties on financial wrongdoers, thereby leveling the playing field and creating a more fair economy.

Quinton Lucas, associate professor of law at KU, has authored “Rubber Stamp Review: Federal Court Deference to the SEC.” In the article he argues that by requiring the Securities and Exchange Commission, commonly known as the SEC, to levy transparent, meaningful fines in cases of financial wrongdoing, federal courts can provide a balance to a system in which investors and the public have lost confidence.

“There are cases that are filed all the time. The majority are settled out of court, but is there a way courts can help us avoid what happened before?” Lucas asked, referring to the 2008 financial crisis. “We currently are not seeing sufficient deterrence in white collar crime and related areas. Especially when compared to what could be called traditional, blue collar crime.”

The 2010 Dodd-Frank act was intended to prevent financial malfeasance on a large scale. An unintended consequence has been harshly punishing small banks while allowing massive firms to get away with relatively small fines for large-scale wrongdoing, Lucas argues. He cites two examples. In 2009 Bank of America absorbed Merrill Lynch, which was failing, on the condition it not pay executive bonuses that year. It later paid $3.6 billion in bonuses, and the SEC levied a fine of $33 million. In 2011 the SEC levied a fine of $95 million against Citigroup after it nefariously sold weak investments, which resulted in $700 million of investor loss.

In both cases a federal judge rejected the sentences, stating they were unclear in how the fine amount was reached and not proportionate to the losses suffered. The SEC has appealed, claiming they have sole authority to determine public interest and that courts should simply approve sentences it hands down. Lucas holds federal courts both can and should be able to reject such sentences.

“My argument is that courts don’t have to be a rubber stamp. If they follow the SEC model, that is all they will be,” Lucas said.

He compares the situation to a criminal case. If a defendant makes a plea bargain with prosecutors, it still has to be approved by a judge, preventing overly lenient deals. Federal judges could do the same by reviewing an alleged financial crime, reviewing the statutes that govern it and deciding whether a penalty levied by the SEC is acceptable. Judges should also be able to allow sentences to vary, based on the severity of the wrongdoing, Lucas said.

He proposes a system by which the SEC makes clear a set of criteria through which it set penalties, and why and how it determines fine amounts. Such a system could also return the deterrent factor, making it clear that large recidivist firms will not be able to simply view small fines as a “cost of business.” Such an approach would also help stop small firms from being disproportionately punished for minor misgivings and help businesses as well by making it clear what sort of actions are not tolerable. All of that could ultimately lead to increased consumer confidence and a stronger economy, Lucas said.

The question of whether federal courts can reject SEC penalties is currently before the U.S. Court of Appeals Second Circuit. If the court finds that the federal court overstepped its bounds in the previous cases, the question may come before the U.S. Supreme Court. It is likely that similar cases will continue to crop up in other circuits, Lucas said. Whatever the decision is, he maintains there is a role for courts in ensuring regulation and prevention of financial malfeasance similar to that which led to the global economic crisis.

“If you hold for the SEC, you’re saying that the court has to simply be a rubber stamp,” Lucas said. “If Congress doesn’t want the courts to have a role, they need to rewrite the statutes. There is a way to ensure that effective regulation is happening.”

SCOTUS rules that human DNA cannot be patented

In what might be something of the Court trying to find a middle ground, justices did say something they create out of gene isolation could be patented making it a win for Myriad genetics – one of the players in this case – because they created a synthetic form of the genes.

Host Carmen Russell-Sluchansky spoke with Andrew Torrance, a law professor at the University of Kansas, and Dr. Caleph Wilson, of the Translation Research Unit and the Department of Microbiology at the University of Pennsylvania, to discuss the story.

 

U.S. Supreme Court rulings on gay rights could affect Kansas

In a 5-4 decision, the court struck down a provision of the federal Defense of Marriage Act that denies federal benefits to legally married same-sex couples.

The decision, according to Rick Levy, the J.B. Smith Distinguished Professor of Constitutional Law at KU, "raises questions about the validity of the Kansas constitutional amendment."

Levy said any change to the Kansas situation would take years.

"Someone has to apply to get married and get denied so that they have legal standing, then it would go to district court," he said.

Supreme Court Says Human Genes Can't Be Patented

The U.S. Supreme Court has unanimously ruled that segments of naturally-occurring human genes cannot be patented. The ruling may change the focus of genomic research, but it won't stop it.

Professor Andrew Torrance specializes in biotechnology patent law at the University of Kansas. He says the ruling falls hardest on companies that have invested billions of dollars, hoping to profit from patents on human gene fragments like those that help reveal a person’s risk for breast cancer.

Law professor named to KU's new class of senior administrative fellows

Tuesday, June 11, 2013

LAWRENCE — Ten University of Kansas faculty members have been named senior administrative fellows for 2013-2014.  

Fellows are selected annually from nominations and applications submitted during the spring semester from across campus. Fellows learn more about senior administration in higher education by meeting with senior administrators, visiting administrative units across campus, discussing national trends in academia and developing their leadership skills. The program has been in place for more than 20 years and is directed by Mary Lee Hummert, vice provost for faculty development, with the assistance of Jenny Mehmedovic, assistant to the provost. 

The new class of fellows is: 

  • William Elliott, associate professor, School of Social Welfare 
  • Judith Emde, librarian and assistant dean, KU Libraries 
  • Michael Engel, professor, ecology & evolutionary biology, College of Liberal Arts & Sciences
  • Mechele Leon, associate professor and chair, theatre, College of Liberal Arts & Sciences 
  • Lumen Mulligan, professor, School of Law 
  • Scott Reinardy, associate professor, School of Journalism 
  • Susan Scholz, professor, School of Business 
  • Joan Sereno, professor, linguistics, College of Liberal Arts & Sciences 
  • Kelli Thomas, associate professor, curriculum & teaching, School of Education
  • Z.J. Wang, Spahr professor and chair, aerospace engineering, School of Engineering.

All tenured faculty members at KU are eligible to apply. Requests for nominations and application instructions for the 2014-2015 senior administrative fellows will occur in April 2014.  

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