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Milberg's judicial seminars



Earlier this month the Examiner ran a three-part series on a topic that had been the subject of virtually no previous press attention: the Institute for Law and Economic Policy, a decade-old think tank intended to provide a voice for the securities class-action plaintiff's bar, which runs annual conferences at high-end resorts bringing together sympathetic academics with judges and participating lawyers. The article quotes me as saying, "If Milberg Weiss and Bill Lerach wanted to cultivate favorable opinion among law professors, opinion makers, and judges, they seem to have found the perfect vehicle in ILEP." Surprisingly or otherwise, the series has prompted virtually no follow-up coverage elsewhere in the press, at least none that can be found on a Google News check.

Much of what the Examiner found, while deserving to be brought into the light of day, is neither surprising nor particularly discreditable to anyone. It will not come as much of a shock that some highly placed law professors, such as James Cox of Duke and Harvey Goldschmid of Columbia, have close ties to the plaintiff's bar, tend to take public stands consistent with its point of view, and work hard to bring those views to the notice of opinion makers. Other law professors can be found, after all, who have similarly close relations with the defense bar. Nor does it come as entirely astounding news that the trial bar financially supports weekend conferences at high-end resorts to showcase the academics' work and provide them with networking opportunities; those who deplore the "commercialization of the university" may find in this an additional data point confirming their fears, but given the relations known to exist between, say, drug companies and academic medical researchers, this cannot count as either the first or the most extreme instance of such a model. In any event, if one is looking for routes by which academics might be improperly swayed to align their views with those of securities lawyers, one would do better to focus on the availability of direct consulting/expert witness relationships, which pose a vastly more powerful inducement than the promise of a couple of free days at a five-star hotel.

Furthermore, it is not immediately clear that the "warning signs" of Milberg Weiss's or Lerach's being less than ethical operators should have translated into warning signs about ILEP. Although the Examiner builds a reasonably strong case about Milberg's running the show -- shared addresses and phone lines, for instance -- several participants indicate that they were unaware of these ties and regarded ILEP as a voice for plaintiff firms generally. That this is not an unreasonable belief is suggested by the reshuffling at ILEP that went on as a consequence of Milberg's and Lerach's public disgrace, in which the firm's former role was swept under the rug and outside faces were accorded more prominence downplaying of Milberg's and Lerach's role more recently. (The group is now headed by Edward Labaton, a prominent non-Milberg plaintiff's lawyer whose surname is perhaps best known to New York Times readers through the work of his son Stephen Labaton, a Times reporter who regularly covers class action law.) [Note: a reader writes to suggest that my initial wording was too strong in describing ILEP's distancing itself from the Lerach legacy; and Labaton has been listed as the group's head from early on.]

Finally, it is not inherently outrageous that ILEP invited judges to attend its conferences, or even that it seems to have concentrated on inviting judges who sit on the particular courts (Southern District of New York, Delaware) that most often hear cases brought by Milberg and other securities plaintiff's firms. These are, after all, the judges who most need to keep up with academic developments in securities law; and you might argue they are on the whole a sophisticated group of jurists, not likely to be swayed by a tray of hors d'oeuvres or an Olympic-sized pool, and who might have attended a defense-oriented presentation the week before at some bar association venue.

But none of this explains why newspapers like the New York Times have not hopped on the ILEP story with outraged "news analyses" and editorials. For several years now, these papers have decried the very existence of privately funded judicial seminars as a "festering scandal" which "under the innocuous-sounding banner of 'judicial education' ... pose a threat to the appearance and reality of judicial integrity" and amount to "clever efforts by special interests to buy access and favor".

But there is a particular narrative that must be preserved in the version of the judicial-seminars story continually on offer at the Times and similar outlets. It is that the seminars are a specialty of dastardly conservative groups such as the Federalist Society and the George Mason School of Law's law and economics program, with its business and conservative donor base. It interferes with this narrative, complicates it you might say, to acknowledge that a group with which the Times's reporting and editorial sides have been closely aligned over the years, the plaintiff's securities bar, has been up to the same thing.

And possibly worse than the same thing. Defenders of the George Mason seminars argue -- very plausibly, from what I have been able to gather -- that they take care to invite a diversity of thinkers including prominent liberal academics, as well as requiring a heavy enough regimen of mandatory readings and seminar attendance to discourage judges from regarding the events in the light of any mere fun junket. It's impossible to know for sure without a closer look at conference materials, but the account in the Examiner leaves room for doubt that the ILEP sessions and presentations could be regarded as displaying any great show of balance.

The biggest difference, though, if I understand the two cases correctly, seems to be that in a law and economics program like George Mason's, the crowd of attendees will basically consist of presenting academics and judges; outside entities such as businesses and conservative donors would not normally be invited to send representatives in as attendees. (Again, I am relying on others' accounts in this surmise, and invite correction if I'm wrong). At ILEP events, however, it sounds as if the lawyers (who in securities class actions are effectively parties in interest with a stake in the eventual settlement and its size) make up much or most of the audience, where they would get to mingle with the judges at the bar afterward, bend their ears, etc. If this is so, then on any rational analysis, if worry is appropriate, the ILEP sessions would sound more worrisome.

But we're still waiting for the New York Times editorial.

Update: Longtime ILEP executive vice president Sandra Stein has written a response which I've posted here.

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Rafael Mangual
Project Manager,
Legal Policy
rmangual@manhattan-institute.org

Katherine Lazarski
Manhattan Institute
klazarski@manhattan-institute.org

 

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.