“If you look at finance or medicine or sports, almost every other thing in the world is using data to make better decisions,” says Ed Walters. The ABA Journal’s Jason Tashea speaks with Walters, editor of “Data-Driven Law: Data Analytics and the New Legal Services.” The book is a collection of articles by data scientists, lawyers and technologists on a breadth of topics, including data mining, the accuracy of technology-assisted review in e-discovery and quantifying the quality of legal services.

How to stop worrying and learn to love data-driven law

Listen to the ABA Journal Podcast for analysis and discussion of the latest legal issues and trends the first Monday of each month. Also hear discussions with authors for The Modern Law Library books podcast series.

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Finances are a fraught area for many attorneys. Despite a high earning potential, new lawyers often start out with a financial disadvantage due to the opportunity cost of the years devoted to school and bar prep, coupled with high student loans. People who chose to get JDs instead of MBAs often find themselves having to operate as entrepreneurs to launch a small firm or solo practice. In The Lawyer Millionaire: The Complete Guide for Attorneys on Maximizing Wealth, Minimizing Taxes, and Retiring With Confidence, Darren P. Wurz addresses both personal finances and firm finances. “A financial plan starts with goals,” writes Wurz, who has a master’s degree in financial planning and is a certified financial planner. “Be aware that money itself is not the ultimate goal of this plan. Rather, it is what that money can do for you that is the goal.” In this episode of The Modern Law Library, Wurz gives advice for attorneys at the beginning, middle and end of their working careers and tells the ABA Journal’s Lee Rawles about the seven biggest money mistakes attorneys can make.  Wurz, who also hosts The Lawyer Millionaire Podcast, says retirement often looks different for attorneys than other professionals. Many lawyers would like to continue to practice at least part-time even past the age most other people retire. He says the goal of many of his clients is to have the financial security to have a “work-optional lifestyle” that will allow them to take on only the cases that really interest them.  One of the messages Wurz wants to convey to older attorneys is that their most important asset might be something they didn’t realize could be sold: their practice itself. The time and effort put into building a book of clients can also pay off at the end of your career, not just during your active years of practice. While it might take more time and planning to arrange than selling a piece of real estate, selling your practice to a younger attorney can provide continuity for your clients and a financial boon to your retirement. While Wurz offers tips for how newly minted attorneys can start off on the right financial foot, he and Rawles also discuss options for mid-career professionals who are only now getting a handle on their finances. He also shares what his general advice would be for the thousands who have recently had their student debt unexpectedly erased through programs like Public Service Loan Forgiveness.

'The Lawyer Millionaire’ author shares the 7 biggest money mistakes lawyers can make

Originalism is the ascendant legal theory espoused by conservative legal thinkers, including the majority of U.S. Supreme Court justices. But far from being an objective framework for constitutional interpretation, says author and attorney Madiba Dennie, its true purpose is to achieve conservative political aims regardless of the historical record.  In The Originalism Trap: How Extremists Stole the Constitution and How We the People Can Take It Back, Dennie traces the roots of originalism as a legal theory back to Brown v. Board of Education of Topeka, though the Supreme Court rejected the arguments in the 1954 case. Its adherents argue the meaning of the Constitution must solely be determined by “the original public meaning of the Constitution at the time it was drafted,” and that there is a discernible correct answer to what that meaning would have been. The theory gained popularity in the 1980s, with the late Robert Bork and Justice Antonin Scalia as two influential proponents. Scalia famously said the Constitution is “not a living document. It’s dead, dead, dead.” Today, originalism has formed the basis for decisions such as Justice Samuel Alito’s Dobbs v. Jackson Women’s Health Organization opinion overturning Roe v. Wade. “Despite originalism’s reputation as a serious intellectual theory, it’s more like dream logic: It seems reasonable at first, but when you wake up, you can recognize it as nonsense,” Dennie writes. “Originalism deliberately overemphasizes a particular version of history that treats the civil-rights gains won over time as categorically suspect. The consequences of its embrace have been intentionally catastrophic for practically anyone who isn’t a wealthy white man, aka the class of people with exclusive possession of political power at the time the Constitution’s drafters originally put pen to paper (or quill to parchment).” In this episode of The Modern Law Library, Dennie and the ABA Journal’s Lee Rawles discuss how conservative originalists prioritize the time period of the Founding Fathers over the Reconstruction Era that produced the Thirteenth, Fourteenth and Fifteenth Amendments. “We can’t fulfill the Reconstruction Amendments’ radical vision of full equality and freedom if we can’t be attentive to the ways in which we have been made unequal and unfree,” Dennie writes in The Originalism Trap. While Dennie believes there are portions of the historical record that support broad civil liberty protections, she says she does not think originalism is a useful tool for progressives to use as a legal framework.  In place of originalism, Dennie has a bold proposal: inclusive constitutionalism. “Inclusive constitutionalism means what it says: the Constitution includes everyone, so our legal interpretation must serve to make the promise of inclusive democracy real. When the judiciary is called upon to resolve a legal ambiguity or when there are broad principles at issue, the application of which must be made specific, it is proper for courts to consider how cases may relate to systemic injustices and how different legal analyses would impact marginalized people’s ability to participate in the country’s political, economic and social life.”  Rawles and Dennie also discuss how lawyers and judges can push back against originalism; the legal rights and protections achieved by groups like Jehovah’s Witnesses and the LGBTQ+ community; why she dropped Jurassic Park references into the book; and how she keeps an optimistic outlook on the expansion of civil liberties. “Justice for all may not be a deeply rooted tradition,” Dennie writes, “but fighting for it is.”

‘The Originalism Trap’ author wants to see originalism dead, dead, dead

Networking is something that comes naturally to some people. But if the idea of talking to strangers makes you break out into a cold sweat, there’s help and hope, says Deb Feder, author of the book After Hello: How to Build a Book of Business, One Conversation at a Time. “You have picked a profession that is never finished meeting people,” Feder writes of lawyers. A practicing lawyer for many years, Feder now works as a business development coach. In this episode of The Modern Law Library, Feder explains to the ABA Journal’s Lee Rawles that her goal is to help attorneys have “curious, confident conversations.” They discuss conversation stoppers v. conversation starters; how not to panic when targeting the “cool client”; and how young attorneys can get past “the kids table.” Lining up a roster of ideal clients doesn’t start at cocktail party mingling, Feder warns. A key to building relationships with the clients you actually want to work with lies in identifying what legal work you’re looking to do, and that requires some inner work. It also involves owning your value, Feder says, and she shares a story about how a partner in her firm impressed that lesson on her when she was a young attorney. In After Hello, she says she meets people who feel too overwhelmed by keeping up with their legal work and personal lives to contemplate business development. “How do you balance the chaos of the day and allow technology to be the support and solution, rather than part of the challenge; how do you let it serve, not destroy you?” Feder asks. She lays out strategies to organize and cope, including how to stop letting your email inbox overwhelm you. Feder and Rawles also discuss After Hello’s “30 Conversations in 30 Days Challenge” and the most common mistakes Feder sees lawyers making on LinkedIn."

How to strike up conversations that build your book of business

From COVID-19 response to the overturning of Roe v. Wade, the results of 50 states having individual approaches to public health, medical outcomes and healthcare access raise troubling questions. A husband-and-wife team of University of Utah professors dig into the ethics of the American healthcare system in States of Health: The Ethics and Consequences of Policy Variation in a Federal System. Leslie P. Francis is a professor of law and philosophy with a background in bioethics, and John G. Francis is a professor of political science with a focus on European comparative politics, federalism and comparative regulatory policy. The spouses had partnered on three previous books together. When looking for their next project, they decided to examine the consequences of states opting out of Medicaid expansion and what power federalism could have in protecting American citizens’ health. But soon more news events and landmark cases expanded their focus. The result is States of Health. The book examines the tensions between state and federal powers in a number of areas, including reproductive rights; gender-affirming care; medical marijuana; public health and pandemics; right-to-try laws; patient confidentiality; and care quality and life expectancies. In this episode of The Modern Law Library, the ABA Journal’s Lee Rawles speaks with the Francises about their collaborative writing process, and what conclusions they have drawn about the benefits of federalism and states’ rights. The Francises argue that since it is the federal government that determines citizenship and census decisions, state differences go too far when they make “basic decisions about who counts at all, and what it means to count.” They add, “Movement is a critical aspect of who counts: the ability to come and go, or to leave one state more permanently for another.” The Francises argue that freedom of movement for the purpose of medical treatment is crucial for patients, but also point out when states control licensure for medical providers, that too can restrict freedom of movement. The value of 50 individual laboratories of democracy can be appealing to a scientific mind. But at what point can it be argued in the healthcare space that a federal government needs to step in, if the outcomes in some of those laboratories are decreased lifespans and higher mortality?

When states’ rights and healthcare access clash

When the Trump administration's policy of separating families at the country's borders was announced, opposition from the public and the legal community was swift. The outcry and judicial decisions led to a reversal of the administration's stated policy. But detention and family separation have a long history in this country, history professor Ana Raquel Minian says. Minian, who immigrated from Mexico to the United States right before the attacks of Sept. 11, 2001, has made an academic career studying immigration, incarceration and detention. As a young adult, Minian followed the news of Guantanamo Bay Naval Base being used to detain people who might be connected to those attacks. But in researching their new book, In the Shadow of Liberty: The Invisible History of Immigrant Detention in the United States, Minian discovered the base was first used as a detention center under President George H.W. Bush to hold Haitian refugees. Minian uses the personal experiences of four immigrants to walk readers through the history of immigrant detention in the United States: Fu Chi Hao, a Chinese Christian attempting to escape the Boxer Rebellion in 1901; Holocaust survivor Ellen Knauff, a war bride of an American GI who arrived at Ellis Island in 1948; Gerardo Mansur, a Cuban who joined the Mariel boat lift in 1979; and Fernando Arredondo, a Guatamalan asylum seeker who was separated from his daughter by border officials in 2018.  In this episode of The Modern Law Library, Minian shares details of these stories with the ABA Journal’s Lee Rawles. They also discuss the shifting motivations behind changes in the immigration system, parole versus detention, and how attorneys can help immigrants currently in detention.

How to stop worrying and learn to love data-driven law

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