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Blogs on Posner's Budget Rent-A-Car opinion

Lots of blog commentary on my post and on the Posner opinion.

Gail Heriot and Stuart Buck agree with my take in an earlier post on Judge Posner's opinion in Budget Rent-A-Car.

Michael Ausbrook, however, agrees with Judge Posner, on the grounds that briefing should only take an hour a page, rather than the 3.5 hours/page spent by the Budget attorneys. Certainly that was my rule of thumb, but I consider myself a faster researcher and writer than the average attorney. I'd be disappointed in the performance of a junior associate who had so many false starts that the assignment took as long as it did for Budget, but those false starts are part of the frictional cost of litigation. The law is a complex enough animal that one often needs to follow many blind alleys into eventual dead ends. With experience, one can detect a dead end sooner, rather than later, but dead ends still happen. "How can it take 14 hours of anyone's time to point out the obvious?" Ausbrook asks, but what is obvious in hindsight isn't always obvious in advance. Would the court have been better off if the brief had been padded by an extra ten pages to justify the time spent on it?

Fred Schrank, who is a real attorney I didn't make up, notwithstanding the fact his name rhymes with mine, argues sensibly that the attorneys seeking fees should've anticipated the risk that the request would've seemed excessive. Of course, then it doesn't pay for the attorneys to seek fees if it costs more to generate the fee request than what they can hope to recover, and the relatively toothless fee-shifting provisions of the law are even more toothless. Schrank follows up in response to my post.

Will Baude, guesting on Prawfsblawg, tries to rationalize Budget by creating a theory that makes it impermissible for law firms to bill for their younger attorneys inefficiently "learning by doing." But this is not the basis of the Posner opinion, which makes the positive (rather than normative) observation, "It is inconceivable that this is the going market price." Leave aside the question of whether Posner can or should take judicial notice of a factual proposition that probably wasn't briefed and almost certainly isn't true. For better or worse, clients do agree to hourly billing arrangements that account for the friction of learning-by-doing, and these billing rates (which have always seemed to me especially high for inexperienced associates) are at the market-clearing price. Changing the billing structure wouldn't change the market-clearing price; partners and associates would instead bill fewer hours (and write off more hours) at a higher rate per hour. Will's post gets a lot of commenters who don't appear to be buying his argument.

In the comments, Sam Heldman makes a good observation that the reasonableness of Posner's opinion depends on the unknown nature of the jurisdictional question, a fact omitted from the opinion. (The docket indicates that it was an appeal from an interlocutory order, which has the potential for some complexity, though not necessarily.) One piece of evidence: the appellant opposed the Rule 38 motion and moved for reconsideration of the court's order (before the appellee's request for fees were submitted), which suggests either that (1) the jurisdictional issue was not so patently trivial that the appellant didn't think it couldn't contest the characterization of frivolousness, or (2) the appellant was foolhardy enough to risk compounding its earlier error by multiplying proceedings.

Relatedly, The American Lawyer writes the same story that I've seen almost annually since I was in law school predicting the death of the billable hour in favor of alternative billing arrangements.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.