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f/k/a archives . . . real opinions & real haiku

May 16, 2005

getting personal

Filed under: pre-06-2006 — David Giacalone @ 7:26 pm

tall grass       

i envy tthe way it bends

in the wind





mid spring 

just enough foilage

to pee in private   








slow train

      i lose count of the cars

          when the woman blows a kiss








memorabalia show

the old catcher’s

crooked fingers




  • by dagosan                                               


the fallen blossoms —

soon, just another tree




month’s half over —

taking the last

migraine pill



[May 16, 2005]


tiny check  Earlier to day, I wrote a little satirical piece about the NY County Lawyer Assn’s

Diversity Disclosure Pact, which would allow clients to learn about the gender, race and

sexual preference of lawyers working on their cases and projects.  [see no yoda quota?].

Stop me if you’ve already heard this, but I wanted to relate my first experience with diversity


My very first job out of law school was at a 10-lawyer firm in Washington,

D.C., which was very selective and had hired only one associate from my year, 

1976.  Shortly after I started, the hiring partner was filling out Harvard Law’s

new mandatory minority disclosure form, and sent it around for comment. 

I was surprised to see that the firm claimed to have one Black lawyer, so

I went to ask the Partner who that was.  My suspicion was confirmed when

he answered, “You.”  I told Bob that all four of my Italian grandparents were

spinning in their graves (their bias, not mine).  Here’s a picture of me from that

period; and here’s a current one; baby shots are here.


“dagMugS”   Since I had never claimed minority status while seeking employment

with the firm, how did this mis-classification happen?  First, I think the requirement

to fill out the form made the firm very much wish to have a minority person

(in addition to a female-Oriental partner).  Also, like many nice Italian and

nice Jewish boys of the era, I did wear my thick, curly-brillo black hair in a

“‘fro” (which broke my mama’s heart).   In addition, my major extracurricular

activity at Law School was working on the Civil Rights/Civil Liberties research

group (although my work had been in the civil liberties area).  Finally, I had

once said something like this to the hiring partner, after starting to work there:

“At Georgetown and Harvard, I had very few Black classmates,

and most were from such privileged backgrounds that they

seemed no more Black than me.”  

I meant culturally, of course.  I added that hiring Upper Class, elite Blacks

did not seem like a good way to get different perspectives within the law firm

(except, of course, that only a Black man or woman knows what it is like to deal

with White America as a Black person).


Up until that point, I had never doubted the sincerity of the many compliments

received from the firm’s partners on my work.  Suddenly, I wondered if they

meant “for a minority” you do excellent work.  I wondered if I was the person

chosen after they interviewed only at Harvard and Yale, because they thought

I was Black.  It was dispiriting.   Luckily, the compliments continued, even after

they — and subsequent employers — discovered I couldn’t count toward any



tiny check  It’s not as drastic as the losing-prosector-pays proposal we discussed  handicapG

at Crime & Federalism last January.  But, the U.S. antitrust world is buzzing over the 

decision on May 5th by the Canadian Competition Tribunal in the Canadian Pipe case

A press release from the Toronto firm of Davies Ward Phillips & Vineberg LLP, which

represented Canadian Pipe gives the salient details (May 11, 2005):

On May 4, 2005, the Tribunal ordered the Commissioner [of Competition]

to pay the costs incurred by Canada Pipe Company Ltd. (“Canada Pipe”)

in successfully defending itself against the Commissioner’s claims that it

had breached the abuse of dominance and exclusive dealing provisions in

the Competition Act.  All of the Commissioner’s claims were dismissed by

the Tribunal in a unanimous decision issued on February 3, 2005.


In its decision awarding costs, the Tribunal ruled that “the novel economic

issues and the amount of work involved in the preparation and conduct of

the case, which was national in scope, warrant an upward adjustment of the

costs”.  In addition, the Tribunal ordered the Commissioner to pay Canada

Pipe 150% of its tariffed fees from the date of a settlement offer made by

Canada Pipe, which would have ended the litigation but which the Commissioner


tiny check Speaking of antitrust, the AntitrustProf weblog points to a new Antitrust

Law and Policy Primer (pdf., 27 pp) by Cardozo Law Professor Hanno F. Kaiser, and 

to a post on the Goals of Antitrust on Kaiser’s Law & Society weblog.   Kaiser says

he wrote the Primer to supply the “missing chapter” in most antitrust textbooks —

the one telling how antitrust fits into the broader economic process.  His Goals post


“the discussion about the goals of antitrust and economic policy would

 benefit if we abandoned the ‘consumer welfare’ or ‘consumer benefit’

language for more explicit statements about how we want to make the pie

(that is, what kind of efficiencies we promote), and how we propose to

slice it (that is, what distributive mechanism and criteria we prefer).”

fragile glass neg Distilling Supreme Court Personalities:  Steve Bainbridge can move

and type fast when the topic is wine plus Supreme Court jockeying.  His post about

today’s decision in the interstate wine shipment casesmay not be aged, but it is 

interesting and has a good bouquet.  (Todd Zywicki, who is much-involved with

21st Amendment and dormant Commerce Clause, has gathered quite a few  relevant

links.)  Let’s see if the states who’ve been blocking interstate direct-to-consumer wine

sales decide to open the spigot or ban intrastate sales, too.  

no yoda quota?

Filed under: pre-06-2006 — David Giacalone @ 1:27 pm

Around here, The Client is King (or Queen).  So, you can imagine how thrilled 

we were to learn that 60 major law firms and 65 bar associations have entered

into a pact, in response to a “client-driven” initiative, that allows clients to find

out just who is performing their legal services.   I didn’t know the details, but was


the bees with children
are work-a-holics…
making honey



My first guess was that the practical staffing suggestions made by the ABA Task

Force on Lawyer Business Ethics in 1996 were being re-affirmed by the New York bar. 
They are contained in Principles in Billing for Legal Services (and relevant excerpts 

can be found here).  The advice relates to client concerns over “learning curve” issues
(such as, using newbies who need training and more expertise) or expectations that a 
particular lawyer would be critically involved and continuity of representation maintained. 

The Statetment intones the obvious: 

“The touchstones for determining such issues as staffing should

be cost-effectiveness and quality of legal service to the client.”

[ed. note: yawn]

My expectations were low, but I was sure surprised by what I found.  The signatories

to the pact, led by the New York County Lawyers Association, have gone much farther

in their efforts to give inquisitive clients staffing information — they have agreed that 

“law firms should not object to requests by their corporate clients [to] report the number

of hours devoted to the clients’ matters by minority lawyers.”  ( coverage, “Law
Firms Agree to Give Clients Diversity Data on Legal Teams,” May 13, 2005, and 
The Lawyer/UK article) (via Lisa Stone at Inside Opinions,)   Now, you’re talking!

the market workers
spring snow falling


yodaG  Thomas Adcock’s article for NYLJ mentions that the pact will cover “the composition

of assigned legal teams by race, gender, ethnicity and sexual preference.”  But, if this pact is

client-driven, I’m sure the NYLJ  list must be representative, rather than exclusive.  For example,

if I were the client of an NYC BigLaw firm, with an important project due this month, I would

definitely want to know how many of those 20- and 30- something male associates were members

of the Jedi Knights Church.   Far too many of these “warriors” have been far too preoccupied

with a supposed messianic arrival this week.  In the 2002 UK census, 7 out of every 1000 people

listed Jedi as their religion.  Although they are a tiny religious minority, we know the Jedi must

be among us, too. 


If any of them worked on my legal team, I’d expect replacements for the forseeable future, plus

a discount for all work done in May.  In fact, I really wouldn’t want any of those cultists on my

legal team — especially if they are squabbling amongst themselves over devotion to the First Three

Books of their Bible vs. The Last Three Books. 



surprising the worker
in the field…
out-of-season blooms


But, this whole Diversity Pact thing just might be a publicity stunt — I’m mean, why would law firms

have to “agree” to respond more effectively to their clients’ needs?  A red flag for me is the Diversity

Page at the law firm of one of the pact’s signers, Kelley Drye & Warren.   How serious could Kelley

Drye be about responding to clients’ desires, when they proclaim to have recently enacted a program:

“to ensure that individuals continue to be recruited, hired, assigned and promoted

without regard to race, religion, color, national origin, citizenship, sex, veteran’s status,

age, or non-job-related disability of any kind.” [emphasis added]

The background of Kelley Drye partner Robert L. Haig, who was a leader in making the Pact a

reality, also throws doubt on the seriousness of this Diversity Pact.  No, I don’t mean his being a

60ish white guy with a Harvard Law degree.  It’s his client list this worries me:  It’s filled with hard-

nosed major companies like Union Carbide, Liberty Mutual, and Pan Am World Airways.  Nobody’s

going to convince me that his clients want staffing decisions based on gender, race or sexual

preferences, rather than lawyering skills and efficient assignment of resources. Oh, sure, Union

Carbide wants KDW to lower its hiring standards (and anger reassigned lawyers) so that it will have

just the right associate in the bullpen to meet every client’s diversity whim.  Not likely.   


the dragonfly, too
works late…
night fishing

So, this client advocate is going to have to see it to believe it.  Meanwhile, I sure hope all the negative

commentary about the Pact doesn’t give the signatories cold feet. (see Kerr at Volokh, MacEwan at

  • See getting personal for an account of your Editor’s first encounter

    with diversity disclosure issues (scroll down to potluck blurbs).



– thanks to Kobayashi ISSA for the haiku, which were

translated by David G. Lanoue, who better not be a Jedi.

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