ABA Journal: Modern Law Library Legal Talk Network

The goal of the bar exam is to be a gatekeeper for the legal profession and protect the public. But the current system, dominated by the Uniform Bar Examination, gets a failing grade from Joan Howarth, an academic, an attorney and the author of Shaping the Bar: The Future of Attorney Licensing.

Do you need some distractions during vacation travel or while lying directly under your A/C unit and sweating? It’s time for The Modern Law Library’s summer recommendations episode, in which host Lee Rawles shares her pop culture picks with you, plus a re-airing of one of our older episodes with current relevance.
As states navigate a post-Dobbs world, a series of federal and state regulations known as Comstock Laws are being discussed as avenues to further restrict access to abortion drugs and birth control. In 2018, with Roe v. Wade still the law of the land, Rawles and Amy Werbel discussed the fiery namesake of those laws and Werbel’s book Lust on Trial: Censorship and the Rise of American Obscenity in the Age of Anthony Comstock. It sheds light on how a 19th-century U.S. Postal Service agent funded by the Young Men’s Christian Association created obscenity restrictions so sweeping that medical textbooks were seized and destroyed for displaying anatomical diagrams.
Rawles also shares some favorites from what she’s been reading and listening to since our 2023 year-end pop culture picks episode. If you have your own favorite reads so far in 2024, send your recommendations to books@abajournal.com with a brief description, and we may choose to highlight them on our social media.

Mentioned in the episode:
BOOKS


The Three Dahlias, A Very Lively Murder and Seven Lively Suspects by Katy Watson


The Appeal and The Mysterious Case of the Alperton Angels by Janice Hallett


Buried in the Sky: The Extraordinary Story of the Sherpa Climbers on K2’s Deadliest Day, by Peter Zuckerman and Amanda Padoan


Scurvy: How a Surgeon, a Mariner, and a Gentlemen Solved the Greatest Medical Mystery of the Age of Sail, by Stephen J. Bown

PODCASTS

Cocaine & Rhinestones

Beyond the Breakers

Reformed Rakes

Talk Justice

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.

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.”

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."

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?