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JonathanWaisnorSecondPaper 12 - 11 Jul 2010 - Main.JonathanWaisnor
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> | Class Action Lawsuits to Enjoin Foreclosure: The Fremont Case (rewrite)
Excessive Foreclosures and the Massachusetts Model
The Problem
The recent financial crisis has exposed a serious problem: foreclosures without adequate legal advising. When borrowers are unable to keep up with payments, banks foreclose on the houses right away. Often, these are firms which have engaged in a pattern of predatory lending that helped create the problem. Foreclosures soared 79% in 2007, last year 2.8 million homes received foreclosure notices.
The Fremont Injunction
In Massachusetts, the Attorney General won an injunction in 2008 to block foreclosures by Fremont Mortgage Group, a mortgage lending firm based in California that held approximately 3,000 loans in Massachusetts. This action, Commonwealth v. Fremont, was brought under the Massachusetts Predatory Loan Practices Act and the state's general consumer protection statute. The injunction requires Fremont, or any company that purchased a loan from Fremont, to submit these loans for review to the Attorney General's office before foreclosure .
Results
Judicial bypass was only be granted on a case by case basis, and the cost to Fremont to have an individual case reviewed was so great that one practical effect of the lawsuit was a de facto moratorium on foreclosures.
The benefit from a preliminary injunction to a homeowner is twofold: first, even if the suit is ultimately defeated and the foreclosures recommenced, the owner will have bought time to find a job, secure new living accommodations, or blunt the effect of such a massive life change on his family. Second, it puts pressure on the lender to settle and renegotiate the terms of the lease, as long as the money gained from renegotiating is greater than the sale of the house minus the cost of fighting the suit. Although Fremont is now defunct, other lenders would face a public relations nightmare if they persisted with foreclosures.
Replicability
Investors and mortgage lenders in the Commonwealth and all over the country are bracing for more lawsuits, afraid that other state governments may try to follow the Massachusetts precedent. In the case of New York, which saw over 57,000 foreclosure filings in 2007 the Attorney General has not yet sued, despite the provision of New York Banking Law 6-l that allows the Attorney General to enforce the provisions of the section.
To bring one of these suits, a plaintiff would need an applicable consumer protection statute and a lawyer willing to take the case. Although the Massachusetts Predatory Loan Practices Act allows courts to reform or rescind mortgage contracts that violate the terms of the act, other states have similar statutes that provide for causes of action and equitable relief against predatory lenders. New York Banking Law 6-l(9), for example, provides for injunctive relief the court deems appropriate. The Massachusetts Act also invalidates loan provisions that force borrowers to litigate in inconvenient districts, and applies regardless when lenders attempts to chop up or transfer the mortgages to avoid lawsuits. Banking Law 6-l section 2(g) invalidates clauses that force borrowers to submit to oppressive mandatory arbitration, and section 3 applies the Act to lenders who try to avoid the act by splitting up the home loans.
The Limits of Attorneys General
In Fremont, the Attorney General's Consumer Protection Office acted on behalf of the Commonwealth of Massachusetts and the homeowners who had been subject to predatory lending practices. However, Attorneys General will likely not be able to provide all the services required in this field. Logistical concerns alone sometimes preclude them from doing so.
However, there are also potential political barriers. Mortgage companies and other lenders generally have a great deal of influence on state government and spend freely during election campaigns. There may also be a political backlash by state residents who do not wish to see their state intervening to bail out people they perceive to have made bad decisions. Mass action by state Attorney's General, such as an action against Ameriquest that netted over a $300 million settlement, looks good in the news. Spread the money out over the affected borrowers, though, and there is very little to go around. Enjoining foreclosures, however, either directly or indirectly through an expensive review process, would shake the foundations of the credit industry, something the states may not be willing to do.
The Role of Private Practitioners
Private practitioners can offer their services to individual clients, but class action lawsuits have also sprung up. The private Ameriquest litigation private Ameriquest litigation, not to be confused with the larger action undertaken by state Attorney Generals, resulted in a large payout to the attorneys- but little on a per plaintiff basis and no injunctive relief. However, if private attorneys don't think they have a chance at winning, or think that the expected payout on the lawsuits doesn't justify the time or expense, they will not want to take on the lenders or might settle too quickly, recovering damages but not the injunction that will keep the homeowners and their families in their homes.
As for the Fremont borrowers, there was a settlement in 2009. The terms of the settlement preserved the permanent injunction at the terms set in 2008 and awarded the state 10 million (or about $4500 per borrower). While the actual benefit to the homeowners may well turn out to be much higher than that, a fee of $1500, which a lawyer taking the usual 1/3 contingency fee would get litigating an individual case, might be too small for a solo practitioner going up against a well funded lender (Fremont was represented by Skadden Arps). This might be an area where public interest organizations, working with unemployed or deferred graduates, or law clinics need to step in and expand their operations. | | | Class Action Lawsuits to Enjoin Foreclosure: An Argument for Clinical Involvement (original)
I. Excessive Foreclosures and the Massachusetts Model | | | Starting "in media res" with a description of the Massachusetts injunction has a certain zip to it, but I think starting out with a description of the broader problem may help orient a reader who is not familiar with litigation in this area.
In a sense, you have a good big picture down already: you have identified a significant problem, an approach to solving it, and a way to generalize that solution. I think your efforts would be strengthened however, by adding some more precision to your statements about these elements and adding some more evidence to support your analysis. | |
<
< | Class Action Lawsuits to Enjoin Foreclosure: The Fremont Case
Excessive Foreclosures and the Massachusetts Model
The Problem
The recent financial crisis has exposed a serious problem: foreclosures without adequate legal advising. When borrowers are unable to keep up with payments, banks foreclose on the houses right away. Often, these are firms which have engaged in a pattern of predatory lending that helped create the problem. Foreclosures soared 79% in 2007, last year 3 million homes received foreclosure notices. The economic and social upheaval caused by the housing crisis will have enormous effects on American society for years to come.
The Fremont Injunction
In Massachusetts, the Attorney General won an injunction in 2008 to block foreclosures by Fremont Mortgage Group, a mortgage lending firm based in California that held approximately 3,000 loans in Massachusetts. This action, Commonwealth v. Fremont, was brought under the Massachusetts Predatory Loan Practices Act and the state’s general consumer protection statute. The injunction requires Fremont, or any company that purchased a loan from Fremont, to submit these loans for review to the Attorney General's office before foreclosure.
Results
Judicial bypass will only be granted on a case by case basis, and the cost to Fremont to have an individual case reviewed is so great that one practical effect of the law is a de facto moratorium on foreclosures. For the foreseeable future, 2200 families remain in their homes and have a powerful bargaining chip through which to renegotiate the terms of the mortgage.
The benefit from a preliminary injunction to a homeowner is twofold: first, even if the suit is ultimately defeated and the foreclosure recommenced, the owner will have bought time to find a job, secure new living accommodations, or simply blunt the effect of such a massive life change on his family. Second, it puts pressure on the lender to settle and renegotiate the terms of the lease, as long as the money gained from renegotiating is greater than the sale of the house minus the cost of fighting the suit. Fremont also faces a public relations nightmare if they persist in foreclosing, and a powerful incentive to settle on terms favorable to the homeowners.
Replicability
Investors and mortgage lenders in the Commonwealth and all over the country are bracing for more lawsuits, afraid that other state governments may try to follow the Massachusetts precedent. In the case of New York, which saw over 57,000 foreclosure filings in 2007 the Attorney General has not yet sued, despite the provision of New York Banking Law 6-l that allows the Attorney General to enforce the provisions of the section.
To bring one of these suits, a plaintiff would need an applicable consumer protection statute and a lawyer willing to take the case. Although the Massachusetts Predatory Loan Practices Act allows courts to reform or rescind mortgage contracts that violate the terms of the act, other states have similar statutes that provide for causes of action and equitable relief against predatory lenders. New York Banking Law 6-l(9), for example, provides for injunctive relief the court deems appropriate. The Massachusetts Act also invalidates loan provisions that force borrowers to litigate in inconvenient districts, and applies regardless when lenders attempts to chop up or transfer the mortgages to avoid lawsuits. Banking Law 6-l section 2(g) invalidates clauses that force borrowers to submit to oppressive mandatory arbitration, and section 3 applies the Act to lenders who try to avoid the act by splitting up the home loans.
The Limits of Attorneys General
In Fremont, the Attorney General's Consumer Protection Office acted on behalf of the Commonwealth of Massachusetts and the homeowners who had been subject to predatory lending practices. However, Attorneys General will likely not be able to provide all the services required in this field. Logistical concerns alone sometimes preclude them from doing so.
However, there are also potential political barriers. Mortgage companies and other lenders generally have a great deal of influence on state government and spend freely during Attorney General election campaigns. There may also be a political backlash by state residents who do not wish to see their state intervening to "bailout" people they perceive to be undeserving. Mass action by state Attorney's General, such as an action against Ameriquest that netted over a $300 million settlement, looks good in the news. Spread the money out over the affected borrowers, though, and there is very little to go around. Enjoining foreclosures, however, either directly or indirectly through an expensive review process, would shake the foundations of the credit industry, something the states may not be willing to do.
The Role of Private Practitioners
Private practitioners can offer their services to individual clients, but class action lawsuits have also sprung up. The private Ameriquest litigation, not to be confused with the larger action undertaken by state Attorney Generals for deceptive lending practices, resulted in a large payout to the attorneys- but little on a per plaintiff basis and no injunctive relief. The NAACP filed a class action lawsuit on behalf of African American borrowers, claiming discrimination. They will probably be less motivated by the financial aspects of the suit, but a discrimination claim won't affect non-black borrowers.
However, if private attorneys don’t think they have a chance at winning, or think that the expected payout on the lawsuits doesn’t justify the time or expense, they will not want to take on the lenders or might settle too quickly, recovering damages but not the injunction that will keep the homeowners and their families in their homes.
As for the Fremont borrowers, there was a settlement in 2009. The terms of the settlement held the permanent injunction at the terms set in 2008 and awarded the state 10 million (or about $4500 per borrower). While the cumulative benefit to the homeowners may well turn out to be many times that number, a fee of $1500 might be too small for a solo practitioner going up against a well funded lender (Fremont was represented by Skadden Arps). Foreclosures rates are expected to continue to remain high through 2010 and there is still time for states or private lawyers to get involved on behalf of borrowers.
-- JonathanWaisnor - 19 Jun 2010
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JonathanWaisnorSecondPaper 11 - 19 Jun 2010 - Main.JonathanWaisnor
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< | Class Action Lawsuits to Enjoin Foreclosure: An Argument for Clinical Involvement | >
> | Class Action Lawsuits to Enjoin Foreclosure: An Argument for Clinical Involvement (original) | | | I. Excessive Foreclosures and the Massachusetts Model | | | Starting "in media res" with a description of the Massachusetts injunction has a certain zip to it, but I think starting out with a description of the broader problem may help orient a reader who is not familiar with litigation in this area.
In a sense, you have a good big picture down already: you have identified a significant problem, an approach to solving it, and a way to generalize that solution. I think your efforts would be strengthened however, by adding some more precision to your statements about these elements and adding some more evidence to support your analysis. | |
>
> | Class Action Lawsuits to Enjoin Foreclosure: The Fremont Case
Excessive Foreclosures and the Massachusetts Model
The Problem
The recent financial crisis has exposed a serious problem: foreclosures without adequate legal advising. When borrowers are unable to keep up with payments, banks foreclose on the houses right away. Often, these are firms which have engaged in a pattern of predatory lending that helped create the problem. Foreclosures soared 79% in 2007, last year 3 million homes received foreclosure notices. The economic and social upheaval caused by the housing crisis will have enormous effects on American society for years to come.
The Fremont Injunction
In Massachusetts, the Attorney General won an injunction in 2008 to block foreclosures by Fremont Mortgage Group, a mortgage lending firm based in California that held approximately 3,000 loans in Massachusetts. This action, Commonwealth v. Fremont, was brought under the Massachusetts Predatory Loan Practices Act and the state’s general consumer protection statute. The injunction requires Fremont, or any company that purchased a loan from Fremont, to submit these loans for review to the Attorney General's office before foreclosure.
Results
Judicial bypass will only be granted on a case by case basis, and the cost to Fremont to have an individual case reviewed is so great that one practical effect of the law is a de facto moratorium on foreclosures. For the foreseeable future, 2200 families remain in their homes and have a powerful bargaining chip through which to renegotiate the terms of the mortgage.
The benefit from a preliminary injunction to a homeowner is twofold: first, even if the suit is ultimately defeated and the foreclosure recommenced, the owner will have bought time to find a job, secure new living accommodations, or simply blunt the effect of such a massive life change on his family. Second, it puts pressure on the lender to settle and renegotiate the terms of the lease, as long as the money gained from renegotiating is greater than the sale of the house minus the cost of fighting the suit. Fremont also faces a public relations nightmare if they persist in foreclosing, and a powerful incentive to settle on terms favorable to the homeowners.
Replicability
Investors and mortgage lenders in the Commonwealth and all over the country are bracing for more lawsuits, afraid that other state governments may try to follow the Massachusetts precedent. In the case of New York, which saw over 57,000 foreclosure filings in 2007 the Attorney General has not yet sued, despite the provision of New York Banking Law 6-l that allows the Attorney General to enforce the provisions of the section.
To bring one of these suits, a plaintiff would need an applicable consumer protection statute and a lawyer willing to take the case. Although the Massachusetts Predatory Loan Practices Act allows courts to reform or rescind mortgage contracts that violate the terms of the act, other states have similar statutes that provide for causes of action and equitable relief against predatory lenders. New York Banking Law 6-l(9), for example, provides for injunctive relief the court deems appropriate. The Massachusetts Act also invalidates loan provisions that force borrowers to litigate in inconvenient districts, and applies regardless when lenders attempts to chop up or transfer the mortgages to avoid lawsuits. Banking Law 6-l section 2(g) invalidates clauses that force borrowers to submit to oppressive mandatory arbitration, and section 3 applies the Act to lenders who try to avoid the act by splitting up the home loans.
The Limits of Attorneys General
In Fremont, the Attorney General's Consumer Protection Office acted on behalf of the Commonwealth of Massachusetts and the homeowners who had been subject to predatory lending practices. However, Attorneys General will likely not be able to provide all the services required in this field. Logistical concerns alone sometimes preclude them from doing so.
However, there are also potential political barriers. Mortgage companies and other lenders generally have a great deal of influence on state government and spend freely during Attorney General election campaigns. There may also be a political backlash by state residents who do not wish to see their state intervening to "bailout" people they perceive to be undeserving. Mass action by state Attorney's General, such as an action against Ameriquest that netted over a $300 million settlement, looks good in the news. Spread the money out over the affected borrowers, though, and there is very little to go around. Enjoining foreclosures, however, either directly or indirectly through an expensive review process, would shake the foundations of the credit industry, something the states may not be willing to do.
The Role of Private Practitioners
Private practitioners can offer their services to individual clients, but class action lawsuits have also sprung up. The private Ameriquest litigation, not to be confused with the larger action undertaken by state Attorney Generals for deceptive lending practices, resulted in a large payout to the attorneys- but little on a per plaintiff basis and no injunctive relief. The NAACP filed a class action lawsuit on behalf of African American borrowers, claiming discrimination. They will probably be less motivated by the financial aspects of the suit, but a discrimination claim won't affect non-black borrowers.
However, if private attorneys don’t think they have a chance at winning, or think that the expected payout on the lawsuits doesn’t justify the time or expense, they will not want to take on the lenders or might settle too quickly, recovering damages but not the injunction that will keep the homeowners and their families in their homes.
As for the Fremont borrowers, there was a settlement in 2009. The terms of the settlement held the permanent injunction at the terms set in 2008 and awarded the state 10 million (or about $4500 per borrower). While the cumulative benefit to the homeowners may well turn out to be many times that number, a fee of $1500 might be too small for a solo practitioner going up against a well funded lender (Fremont was represented by Skadden Arps). Foreclosures rates are expected to continue to remain high through 2010 and there is still time for states or private lawyers to get involved on behalf of borrowers.
-- JonathanWaisnor - 19 Jun 2010
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JonathanWaisnorSecondPaper 10 - 13 May 2010 - Main.DevinMcDougall
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< | Jonathan: I did some edits and moving around today; still in progress. I'll continue to add stuff and write feedback over the next few days. Thanks! | | | | |
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< | Class Action Lawsuits to Enjoin Foreclosure: An Argument for Clinical Involvement
-- By JonathanWaisnor - 13 Apr 2010 | | | | |
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< | A Problem: Foreclosures Without Adequate Legal Advising | >
> | Class Action Lawsuits to Enjoin Foreclosure: An Argument for Clinical Involvement | | | | |
<
< | The recent financial crisis has exposed a serious problem: foreclosures without adequate legal advising. Firms which engaged in a pattern of predatory lending, when borrowers are unable to keep up with payments, foreclose the houses right away. | >
> | I. Excessive Foreclosures and the Massachusetts Model | | | | |
<
< | An Approach: The Massachusetts Model | >
> | The Problem | | | | |
<
< | The Fremont Case | >
> | The recent financial crisis has exposed a serious problem: foreclosures without adequate legal advising. When borrowers are unable to keep up with payments, firm foreclose the houses right away. Often, these are firms which have engaged in a pattern of predatory lending that helped create the problem. | | | | |
<
< | In Massachusetts, an interesting model of dealing with the problem has emerged. The Attorney General has obtained an injunction under a consumer protection statute | >
> | | | | | |
<
< | On March 2, 2008, the Attorney General of Massachusetts obtained a preliminary injunction against Fremont Mortgage Group, a mortgage lending firm based in California that held approximately 3,000 loans in the Commonwealth of Massachusetts. | >
> | A few good statistics would be helpful here to quickly paint a picture. How many foreclosures nationally, how often are the firms foreclosing the same ones that did predatory lending, etc. | | | | |
<
< | This action, Commonwealth v. Fremont, was brought under the Massachusetts Predatory Loan Practices Act and the state’s general consumer protection statute (Mass Gen Laws 93A). | >
> |
| | | | |
<
< | The injunction requires Fremont, or any company that purchased a loan from Fremont, to submit these loans for review to the Attorney General's office before foreclosure. | | | | |
<
< | The Harvard Law School Predatory Lending Clinic | >
> | The Fremont Injunction | | | | |
<
< | A coalition of faculty-run, student staffed law clinics or externships, pro bono consumer protection attorneys, and unemployed recent graduates could band together to bring these lawsuits on behalf of affected homeowners. Clinics at law schools in every state could work together and with law firms to represent clients in class action suits against lenders to keep many thousands of people at a time from foreclosure. Indeed, Harvard Law already offers a Predatory Lending clinic that works with private practitioners to represent homeowners. | >
> | In Massachusetts, the Attorney General won an injunction in 2008 to block such foreclosures by Fremont Mortgage Group, a mortgage lending firm based in California that held approximately 3,000 loans in the Commonwealth of Massachusetts. This action, Commonwealth v. Fremont, was brought under the Massachusetts Predatory Loan Practices Act and the state’s general consumer protection statute. The injunction requires Fremont, or any company that purchased a loan from Fremont, to submit these loans for review to the Attorney General's office before foreclosure. | | | | |
<
< | http://www.law.harvard.edu/academics/clinical/lsc/clinics/predatory.htm | | | Results
Judicial bypass will only be granted on a case by case basis, and the cost to Fremont to have an individual case reviewed is so great that one practical effect of the law is a de facto moratorium on foreclosures that keeps 2200 people in their homes for the foreseeable future or allows them to renegotiate the terms of their mortgages on very favorable terms. | |
>
> | The benefit from a preliminary injunction to a homeowner is twofold: first, even if the suit is ultimately defeated and the foreclosure recommenced, the owner will have bought time to find a new job, secure new living accommodations, or simply blunt the effect of such a massive life change on his family. Second, it puts pressure on the lender to settle and renegotiate the terms of the lease, as long as the money gained from renegotiating is greater than the sale of the house minus the cost of fighting the suit.
Some data about the benefits would be helpful here. Without that data, in current form (especially the second paragraph), it has the feel of a discussion of the theoretical benefits the injunction could bring rather than empirical observation of results obtained.
As of Spring 2010 (or as recent as possible), are those 2200 people still in their homes? What is the year and source of the 2200 figure?
II. Replicability
Investors and mortgage lenders in the Commonwealth and all over the country are bracing for more lawsuits, afraid that other state governments may try to follow the Massachusetts precedent. To bring one of these suits, a plaintiff would need an applicable consumer protection statute and a lawyer willing to take the case. Although the Massachusetts Predatory Loan Practices Act is particularly plaintiff-friendly, other states have similar statutes that provide for causes of action and equitable relief against predatory lenders.
Why is the MA law particularly plaintiff friendly? What other states have similar statutes and in what ways are they different?
How do we know mortgage lenders are afraid? Is there really a significant probability that other AGs will do this? Have they? Fremont was in 2008. What has happened since, both in MA and elsewhere?
The Limits of Attorneys General
In Fremont, the Attorney General's Consumer Protection Office acted on behalf of the Commonwealth of Massachusetts and the homeowners who had been subject to predatory lending practices. However, Attorneys General will likely not be able to provide the all of legal services required in this field. Logistical concerns alone preclude them from doing so.
However, there are also potential political barriers. Mortgage companies and other lenders generally have a great deal of influence on state government and spend freely during Attorney General election campaigns. There may also be a political backlash by state residents who do not wish to see their state intervening to "bailout" people they perceive to be undeserving.
| | | | |
<
< | Lawsuits against mortgage lenders and banks are on the rise, but still the number of plaintiffs is not even close to the number of people who could possibly have a cause of action against a mortgage lender like Fremont. | >
> | Providing some evidence would be helpful here. | | | | |
<
< | Often the plaintiffs ask for money damages, but also for renegotiation of the terms, injunctions stopping foreclosure, or striking of particularly unconscionable provisions. | >
> |
| | | | |
<
< | The cases can take years to resolve, but if a preliminary injunction is granted, the plaintiffs can begin to see immediate benefit in being able to stay in their homes, at least temporarily. Often the lender will simply settle or renegotiate to avoid the costs of protracted litigation. Use of these lawsuits can radically shift the balance of power between an individual borrower and his credit holder. As we saw in Fremont, breaking up the mortgage and selling it off to others is no defense to an injunction. | >
> | The Role of Private Practitioners | | | | |
<
< | The benefit from a preliminary injunction to a homeowner is twofold: first, even if the suit is ultimately defeated and the foreclosure recommenced, the owner will have bought time to find a new job, secure new living accommodations, or simply blunt the effect of such a massive life change on his family. Second: it puts pressure on the lender to settle and renegotiate the terms of the lease, as long as the money gained from renegotiating is greater than the sale of the house minus the cost of fighting the suit. | >
> | Lawsuits such as Fremont have sometimes been brought by private practitioners, usually representing a single client. Class action lawsuits have also appeared in different jurisdictions- with these suits, it is possible to completely stop a company from foreclosing on any household that purchased a toxic loan. | | | | |
<
< | Generalizability | >
> | However, if attorneys don’t think they have a chance at winning, or think that the expected payout on the lawsuits doesn’t justify the time or expense, they will not want to take on the lenders or might settle too quickly. | | | | |
<
< | Investors and mortgage lenders in the Commonwealth and all over the country are bracing for more lawsuits, afraid that other state governments may try to follow the Massachusetts precedent. | >
> | | | | | |
<
< | To bring one of these suits, a plaintiff would need an applicable consumer protection statute and a lawyer willing to take the case. | >
> | I think an assessment of the role of private practitioners is an important part of the argument you want to make, but I think you need more backing it up and you need to get more precise. | | | | |
<
< | Although the Massachusetts Predatory Loan Practices Act is particularly plaintiff-friendly, other states have similar statutes that provide for causes of action and equitable relief against predatory lenders. | >
> | This section could use some evidence. Especially: "usually representing a single client," "have also appeared in different jurisdictions" "it is possible" "if attorneys don't think" "they will not want to take on the lenders or might settle too quickly." | | | | |
<
< | Lawsuits such as Fremont have sometimes been brought by private practitioners, usually representing a single client. Class action lawsuits have also appeared in different jurisdictions- with these suits, it is possible to completely stop a company from foreclosing on any household that purchased a toxic loan. However, if attorneys don’t think they have a chance at winning, or think that the expected payout on the lawsuits doesn’t justify the time or expense, they will not want to take on the lenders or might settle too quickly. The major benefit of having the Attorney General’s office bring the case is that money is somewhat less of an issue, keeping homeowners in their homes provides a good public relations boost for that particular Attorney General. | >
> |
| | | | |
<
< | Prospects for New York | >
> | III. The Role of Law Students: A Clinic at Columbia? | | | | |
<
< | In New York, Banking Law 6-l has provided a cause of action for predatory lending (DLJ Mortgage v. Smith). Under an adequate consumer protection statute, the plaintiff would need a lawyer willing to take the case and see it through to the end. | >
> | Perhaps a clinic, or a temporary project closely resembling a clinic, could be introduced here at Columbia. A coalition of faculty-run, student staffed law clinics or externships, pro bono consumer protection attorneys, and unemployed recent graduates could band together to bring these lawsuits on behalf of affected homeowners. Clinics at law schools in every state could work together and with law firms to represent clients in class action suits against lenders to keep many thousands of people at a time from foreclosure. Indeed, Harvard Law already offers a Predatory Lending clinic that works with private practitioners to represent homeowners. | | | | |
<
< | In Fremont, the Attorney General's Consumer Protection Office acted on behalf of the Commonwealth of Massachusetts and the homeowners who had been subject to predatory lending practices. It is unwise to rely on similar action by attorney’s general in other states. For one, banks and other lenders may spend enormous amounts of money to ensure the election of AG's who avoid these types of lawsuits. Taxpayers may not want their money being used to bail out people, even neighbors, who they consider to have acted unwisely. | | | | |
>
> | | | | | |
>
> | You might want to do some digging and assess what, if anything, the HLS clinic has achieved in terms of preventing foreclosures, and how the clinic is funded. | | | | |
>
> | You may want to engage with the issue that existing faculty here at CLS don't have any incentive to do this, and CLS doesn't have much money to hire any additional staff. Unemployed recent graduates still need to be paid by someone - although deferred associates may have a stipend, and many in that category are still looking for work. The problem would be the cost of supervision. How do we finance that? Also, law firms may decided to defer less people in coming cycles (paying people to do nothing for them is not desirable for them). | | | | |
>
> | From a perusal of their website, it appears that Harvard's program is part of a legal services center sponsored by Wilmer Hale. Perhaps law firm sponsorship could provide funding here as well? | | | | |
>
> | Pro bono work of alumni or other lawyers could be a source of work. But it wouldn't necessarily be sustainable or reliable, and may not be much available given the recession. | | | | |
<
< | A Columbia Law School Clinic or Project? | >
> | But the core idea of a clinic implies current CLS students doing work on this cases, and that can't be done without supervision, which must be funded. | | | | |
<
< | Perhaps a clinic, or a temporary project closely resembling a clinic, could be introduced here at Columbia. | >
> |
| | | | |
<
< | A coalition of faculty-run, student staffed law clinics or externships, pro bono consumer protection attorneys, and unemployed recent graduates could band together to bring these lawsuits on behalf of affected homeowners. Clinics at law schools in every state could work together and with law firms to represent clients in class action suits against lenders to keep many thousands of people at a time from foreclosure. Indeed, Harvard Law already offers a Predatory Lending clinic that works with private practitioners to represent homeowners. | >
> | Supply of Talent | | | | |
<
< | Spots in Columbia's clinical program are in high demand, reflecting a desire of students for more hands-on legal education. The law school should expand its clinical program, including unemployed or deferred recent graduates into the mix, and the current state of the legal job market may force them to do this. Clients are becoming aware of a new balance of power in the legal services market, and they no longer want to pay for inexperienced associates, a problem for firms who are used to training their associates during the first few years on the job. If firms value graduates with better legal writing, research, and judgment than they are getting now, and students demand more clinical experience, the law school will have no choice but to offer these programs. When that happens, law students across the country could play a significant role in repeating the success of the Fremont lawsuit. | >
> | Spots in Columbia's clinical program are in high demand, reflecting a desire of students for more hands-on legal education. The law school should expand its clinical program, including unemployed or deferred recent graduates into the mix, and the current state of the legal job market may force them to do this. Clients are becoming aware of a new balance of power in the legal services market, and they no longer want to pay for inexperienced associates, a problem for firms who are used to training their associates during the first few years on the job.
Skills Training
If firms value graduates with better legal writing, research, and judgment than they are getting now, and students demand more clinical experience, the law school will have no choice but to offer these programs. When that happens, law students across the country could play a significant role in repeating the success of the Fremont lawsuit.
"law students across the country could play a significant role in repeating the success of the Fremont lawsuit"
I think this statement could use some more evidence. In the section on the role of law students, you argue that students want to do clinical work, and that CLS should provide them more clinical opportunities. In sections above, you argue that people being foreclosed need good lawyers. I think there are further analytical steps between those two propositions that need to be filled in.
The logistical barriers to setting up a new clinical program are significant. Providing reliable legal advice to people who will depend on it is a formidable undertaking, and the law school doesn't seem to have much in the ways of resources to provide supervision, space, or funding for such a project.
Also, there hasn't been much evidence introduced for the proposition that the Fremont case is replicable in other states (or evidence about the precise results of the Fremont case itself in MA). Adding some of that in would help.
"If firms value graduates with better legal writing, research, and judgment than they are getting now, and students demand more clinical experience, the law school will have no choice but to offer these programs."
I'm not sure this sentence does much analytically. I think it basically says: if firms demand more clinical training and students demand more clinical training, then the law school will eventually offer more clinical training. I'm not sure there is anyone who would dispute this.
It might be interesting to engage with why firms haven't been demanding more clinical training in the past. Also, are they demanding it more now? I am not sure. Why haven't students demanded it more in the past? Are they now?
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General Comments | |
>
> | Links | | | One thing that I think would be generally helpful would be to make more use of linking; the original didn't have any links. The purpose is not necessarily to cite sources for the sake of citing sources, but to connect the reader to other resources that might interest her. The web, and wikis in particular, are media that are designed to facilitate these kinds of links. | |
<
< | Another area where there is room for improvement is giving more of a big picture sense of the problem and potential solutions. A reader learns that there is some sort of foreclosure problem in MA, and that MA has a law that could help, and then there's a discussion of how Columbia could add a new clinic, since there's a high demand here for clinical training. I think the dots could use some more connection. | >
> | I've added some links to some of the legal materials you mention. But, it might be helpful to add in links to some of the sources that you used for other points. | | | | |
<
< | Starting "in media res" with a description of the Massachusetts injunction has a certain zip to it, but I think starting out with a description of the broader problem may help orient a reader who is not familiar with litigation in this area. | >
> | Precision and Use of Evidence
My edits have primarily focused on clarity and structure. I have tried to help articulate what I took to be your core points. I don't have a particularly strong knowledge of this topic, so I'm not in a great position to evaluate the particular merits of your analysis and proposal. | | | | |
>
> | However, I think the piece would be strengthened by more use of evidence and more precise statements rather than generalization. For me to research these issues and fill in the piece with cites would I think exceed the scope of the editorial role. However, I've marked areas where you may wish you to add supporting evidence of some sort (and ideally links). | | | | |
>
> | The Big Picture | | | | |
<
< |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.
To restrict access to your paper simply delete the "#" on the next line: | >
> | Another area where there is room for improvement is giving more of a big picture sense of the problem and potential solutions. A reader learns that there is some sort of foreclosure problem in MA, and that MA has a law that could help, and then there's a discussion of how Columbia could add a new clinic, since there's a high demand here for clinical training. I think the dots could use some more connection. | | | | |
<
< | # * Set ALLOWTOPICVIEW = TWikiAdminGroup, JonathanWaisnor | >
> | Starting "in media res" with a description of the Massachusetts injunction has a certain zip to it, but I think starting out with a description of the broader problem may help orient a reader who is not familiar with litigation in this area. | | | | |
<
< | Note: TWiki has strict formatting rules. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of that line. If you wish to give access to any other users simply add them to the comma separated list | | | \ No newline at end of file | |
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> | In a sense, you have a good big picture down already: you have identified a significant problem, an approach to solving it, and a way to generalize that solution. I think your efforts would be strengthened however, by adding some more precision to your statements about these elements and adding some more evidence to support your analysis. |
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Jonathan: I did some edits and moving around today; still in progress. I'll continue to add stuff and write feedback over the next few days. Thanks! | | | On March 2, 2008, the Attorney General of Massachusetts obtained a preliminary injunction against Fremont Mortgage Group, a mortgage lending firm based in California that held approximately 3,000 loans in the Commonwealth of Massachusetts. | |
<
< | This action (Commonwealth v. Fremont) was brought under the Massachusetts Predatory Loan Practices Act and the state’s general consumer protection statute (Mass Gen Laws 93A). | >
> | This action, Commonwealth v. Fremont, was brought under the Massachusetts Predatory Loan Practices Act and the state’s general consumer protection statute (Mass Gen Laws 93A). | | | The injunction requires Fremont, or any company that purchased a loan from Fremont, to submit these loans for review to the Attorney General's office before foreclosure. |
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JonathanWaisnorSecondPaper 8 - 10 May 2010 - Main.DevinMcDougall
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< | Jonathan: I've made some minor initial edits - but I will give some detailed feedback, and a rewrite May 10. | >
> | Jonathan: I did some edits and moving around today; still in progress. I'll continue to add stuff and write feedback over the next few days. Thanks! | | |
Class Action Lawsuits to Enjoin Foreclosure: An Argument for Clinical Involvement | | | A Problem: Foreclosures Without Adequate Legal Advising | |
<
< | Massachuestts:
. | >
> | The recent financial crisis has exposed a serious problem: foreclosures without adequate legal advising. Firms which engaged in a pattern of predatory lending, when borrowers are unable to keep up with payments, foreclose the houses right away.
An Approach: The Massachusetts Model
The Fremont Case
In Massachusetts, an interesting model of dealing with the problem has emerged. The Attorney General has obtained an injunction under a consumer protection statute | | | On March 2, 2008, the Attorney General of Massachusetts obtained a preliminary injunction against Fremont Mortgage Group, a mortgage lending firm based in California that held approximately 3,000 loans in the Commonwealth of Massachusetts. | | | The injunction requires Fremont, or any company that purchased a loan from Fremont, to submit these loans for review to the Attorney General's office before foreclosure. | |
<
< | Judicial bypass will only be granted on a case by case basis, and the cost to Fremont to have an individual case reviewed is so great that one practical effect of the law is a de facto moratorium on foreclosures that keeps 2200 people in their homes for the foreseeable future or allows them to renegotiate the terms of their mortgages on very favorable terms. | >
> | The Harvard Law School Predatory Lending Clinic | | | | |
<
< | Investors and mortgage lenders in the Commonwealth and all over the country are bracing for more lawsuits, afraid that other state governments may try to follow the Massachusetts precedent. | >
> | A coalition of faculty-run, student staffed law clinics or externships, pro bono consumer protection attorneys, and unemployed recent graduates could band together to bring these lawsuits on behalf of affected homeowners. Clinics at law schools in every state could work together and with law firms to represent clients in class action suits against lenders to keep many thousands of people at a time from foreclosure. Indeed, Harvard Law already offers a Predatory Lending clinic that works with private practitioners to represent homeowners.
http://www.law.harvard.edu/academics/clinical/lsc/clinics/predatory.htm
Results
Judicial bypass will only be granted on a case by case basis, and the cost to Fremont to have an individual case reviewed is so great that one practical effect of the law is a de facto moratorium on foreclosures that keeps 2200 people in their homes for the foreseeable future or allows them to renegotiate the terms of their mortgages on very favorable terms. | | | | |
<
< | What These Suits Can Do For Homeowners | | | Lawsuits against mortgage lenders and banks are on the rise, but still the number of plaintiffs is not even close to the number of people who could possibly have a cause of action against a mortgage lender like Fremont. | | | The benefit from a preliminary injunction to a homeowner is twofold: first, even if the suit is ultimately defeated and the foreclosure recommenced, the owner will have bought time to find a new job, secure new living accommodations, or simply blunt the effect of such a massive life change on his family. Second: it puts pressure on the lender to settle and renegotiate the terms of the lease, as long as the money gained from renegotiating is greater than the sale of the house minus the cost of fighting the suit.
| |
>
> | Generalizability
Investors and mortgage lenders in the Commonwealth and all over the country are bracing for more lawsuits, afraid that other state governments may try to follow the Massachusetts precedent. | | | To bring one of these suits, a plaintiff would need an applicable consumer protection statute and a lawyer willing to take the case.
Although the Massachusetts Predatory Loan Practices Act is particularly plaintiff-friendly, other states have similar statutes that provide for causes of action and equitable relief against predatory lenders. | |
<
< | In New York, Banking Law 6-l has provided a cause of action for predatory lending (DLJ Mortgage v. Smith). Under an adequate consumer protection statute, the plaintiff would need a lawyer willing to take the case and see it through to the end. | >
> | Lawsuits such as Fremont have sometimes been brought by private practitioners, usually representing a single client. Class action lawsuits have also appeared in different jurisdictions- with these suits, it is possible to completely stop a company from foreclosing on any household that purchased a toxic loan. However, if attorneys don’t think they have a chance at winning, or think that the expected payout on the lawsuits doesn’t justify the time or expense, they will not want to take on the lenders or might settle too quickly. The major benefit of having the Attorney General’s office bring the case is that money is somewhat less of an issue, keeping homeowners in their homes provides a good public relations boost for that particular Attorney General. | | | | |
<
< | Getting Law Students Involved | >
> | Prospects for New York
In New York, Banking Law 6-l has provided a cause of action for predatory lending (DLJ Mortgage v. Smith). Under an adequate consumer protection statute, the plaintiff would need a lawyer willing to take the case and see it through to the end. | | | In Fremont, the Attorney General's Consumer Protection Office acted on behalf of the Commonwealth of Massachusetts and the homeowners who had been subject to predatory lending practices. It is unwise to rely on similar action by attorney’s general in other states. For one, banks and other lenders may spend enormous amounts of money to ensure the election of AG's who avoid these types of lawsuits. Taxpayers may not want their money being used to bail out people, even neighbors, who they consider to have acted unwisely. | |
<
< | Lawsuits such as Fremont have sometimes been brought by private practitioners, usually representing a single client. Class action lawsuits have also appeared in different jurisdictions- with these suits, it is possible to completely stop a company from foreclosing on any household that purchased a toxic loan. However, if attorneys don’t think they have a chance at winning, or think that the expected payout on the lawsuits doesn’t justify the time or expense, they will not want to take on the lenders or might settle too quickly. The major benefit of having the Attorney General’s office bring the case is that money is somewhat less of an issue, keeping homeowners in their homes provides a good public relations boost for that particular Attorney General. | | | | |
<
< | A coalition of faculty-run, student staffed law clinics or externships, pro bono consumer protection attorneys, and unemployed recent graduates could band together to bring these lawsuits on behalf of affected homeowners. Clinics at law schools in every state could work together and with law firms to represent clients in class action suits against lenders to keep many thousands of people at a time from foreclosure. Indeed, Harvard Law already offers a Predatory Lending clinic that works with private practitioners to represent homeowners. Perhaps a clinic, or a temporary project closely resembling a clinic, could be introduced here at Columbia. | >
> |
A Columbia Law School Clinic or Project?
Perhaps a clinic, or a temporary project closely resembling a clinic, could be introduced here at Columbia.
A coalition of faculty-run, student staffed law clinics or externships, pro bono consumer protection attorneys, and unemployed recent graduates could band together to bring these lawsuits on behalf of affected homeowners. Clinics at law schools in every state could work together and with law firms to represent clients in class action suits against lenders to keep many thousands of people at a time from foreclosure. Indeed, Harvard Law already offers a Predatory Lending clinic that works with private practitioners to represent homeowners. | | | Spots in Columbia's clinical program are in high demand, reflecting a desire of students for more hands-on legal education. The law school should expand its clinical program, including unemployed or deferred recent graduates into the mix, and the current state of the legal job market may force them to do this. Clients are becoming aware of a new balance of power in the legal services market, and they no longer want to pay for inexperienced associates, a problem for firms who are used to training their associates during the first few years on the job. If firms value graduates with better legal writing, research, and judgment than they are getting now, and students demand more clinical experience, the law school will have no choice but to offer these programs. When that happens, law students across the country could play a significant role in repeating the success of the Fremont lawsuit. | |
<
< | -- JonathanWaisnor - 17 Apr 2010 | >
> |
General Comments
One thing that I think would be generally helpful would be to make more use of linking; the original didn't have any links. The purpose is not necessarily to cite sources for the sake of citing sources, but to connect the reader to other resources that might interest her. The web, and wikis in particular, are media that are designed to facilitate these kinds of links.
Another area where there is room for improvement is giving more of a big picture sense of the problem and potential solutions. A reader learns that there is some sort of foreclosure problem in MA, and that MA has a law that could help, and then there's a discussion of how Columbia could add a new clinic, since there's a high demand here for clinical training. I think the dots could use some more connection.
Starting "in media res" with a description of the Massachusetts injunction has a certain zip to it, but I think starting out with a description of the broader problem may help orient a reader who is not familiar with litigation in this area. | | |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. |
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JonathanWaisnorSecondPaper 6 - 22 Apr 2010 - Main.DevinMcDougall
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> |
Class Action Lawsuits to Enjoin Foreclosure: An Argument for Clinical Involvement | | | | |
>
> | -- By JonathanWaisnor - 13 Apr 2010 | | | | |
>
> | A Problem: Foreclosures Without Adequate Legal Advising | | | | |
>
> | Massachuestts:
. | | | | |
<
< |
Class Action Lawsuits to Enjoin Foreclosure: An Argument for Clinical Involvement | >
> | On March 2, 2008, the Attorney General of Massachusetts obtained a preliminary injunction against Fremont Mortgage Group, a mortgage lending firm based in California that held approximately 3,000 loans in the Commonwealth of Massachusetts. | | | | |
<
< | -- By JonathanWaisnor - 13 Apr 2010 | >
> | This action (Commonwealth v. Fremont) was brought under the Massachusetts Predatory Loan Practices Act and the state’s general consumer protection statute (Mass Gen Laws 93A). | | | | |
>
> | The injunction requires Fremont, or any company that purchased a loan from Fremont, to submit these loans for review to the Attorney General's office before foreclosure. | | | | |
<
< | The Fremont Case | >
> | Judicial bypass will only be granted on a case by case basis, and the cost to Fremont to have an individual case reviewed is so great that one practical effect of the law is a de facto moratorium on foreclosures that keeps 2200 people in their homes for the foreseeable future or allows them to renegotiate the terms of their mortgages on very favorable terms. | | | | |
<
< | On March 2, 2008, the Attorney General of Massachusetts obtained a preliminary injunction against Fremont Mortgage Group, a mortgage lending firm based in California that held approximately 3,000 loans in the Commonwealth of Massachusetts. This action (Commonwealth v. Fremont) was brought under the Massachusetts Predatory Loan Practices Act and the state’s general consumer protection statute (Mass Gen Laws 93A). The injunction requires Fremont, or any company that purchased a loan from Fremont, to submit these loans for review to the Attorney General's office before foreclosure. Judicial bypass will only be granted on a case by case basis, and the cost to Fremont to have an individual case reviewed is so great that one practical effect of the law is a de facto moratorium on foreclosures that keeps 2200 people in their homes for the foreseeable future or allows them to renegotiate the terms of their mortgages on very favorable terms. Investors and mortgage lenders in the Commonwealth and all over the country are bracing for more lawsuits, afraid that other state governments may try to follow the Massachusetts precedent. | >
> | Investors and mortgage lenders in the Commonwealth and all over the country are bracing for more lawsuits, afraid that other state governments may try to follow the Massachusetts precedent. | | | What These Suits Can Do For Homeowners | |
<
< | Lawsuits against mortgage lenders and banks are on the rise, but still the number of plaintiffs is not even close to the number of people who could possibly have a cause of action against a mortgage lender like Fremont. Often the plaintiffs ask for money damages, but also for renegotiation of the terms, injunctions stopping foreclosure, or striking of particularly unconscionable provisions. The cases can take years to resolve, but if a preliminary injunction is granted, the plaintiffs can begin to see immediate benefit in being able to stay in their homes, at least temporarily. Often the lender will simply settle or renegotiate to avoid the costs of protracted litigation. Use of these lawsuits can radically shift the balance of power between an individual borrower and his credit holder. As we saw in Fremont, breaking up the mortgage and selling it off to others is no defense to an injunction. | >
> | Lawsuits against mortgage lenders and banks are on the rise, but still the number of plaintiffs is not even close to the number of people who could possibly have a cause of action against a mortgage lender like Fremont.
Often the plaintiffs ask for money damages, but also for renegotiation of the terms, injunctions stopping foreclosure, or striking of particularly unconscionable provisions.
The cases can take years to resolve, but if a preliminary injunction is granted, the plaintiffs can begin to see immediate benefit in being able to stay in their homes, at least temporarily. Often the lender will simply settle or renegotiate to avoid the costs of protracted litigation. Use of these lawsuits can radically shift the balance of power between an individual borrower and his credit holder. As we saw in Fremont, breaking up the mortgage and selling it off to others is no defense to an injunction. | | | The benefit from a preliminary injunction to a homeowner is twofold: first, even if the suit is ultimately defeated and the foreclosure recommenced, the owner will have bought time to find a new job, secure new living accommodations, or simply blunt the effect of such a massive life change on his family. Second: it puts pressure on the lender to settle and renegotiate the terms of the lease, as long as the money gained from renegotiating is greater than the sale of the house minus the cost of fighting the suit.
| |
<
< | To bring one of these suits, a plaintiff would need an applicable consumer protection statute and a lawyer willing to take the case. Although the Massachusetts Predatory Loan Practices Act is particularly plaintiff-friendly, other states have similar statutes that provide for causes of action and equitable relief against predatory lenders. In New York, Banking Law 6-l has provided a cause of action for predatory lending (DLJ Mortgage v. Smith). Under an adequate consumer protection statute, the plaintiff would need a lawyer willing to take the case and see it through to the end. | >
> | To bring one of these suits, a plaintiff would need an applicable consumer protection statute and a lawyer willing to take the case.
Although the Massachusetts Predatory Loan Practices Act is particularly plaintiff-friendly, other states have similar statutes that provide for causes of action and equitable relief against predatory lenders.
In New York, Banking Law 6-l has provided a cause of action for predatory lending (DLJ Mortgage v. Smith). Under an adequate consumer protection statute, the plaintiff would need a lawyer willing to take the case and see it through to the end. | | | Getting Law Students Involved |
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JonathanWaisnorSecondPaper 5 - 17 Apr 2010 - Main.JonathanWaisnor
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< | Class Action Lawsuits to Enjoin Foreclosure: An Argument for Clinical Involvement | | | | |
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< | Paper Title | >
> | Class Action Lawsuits to Enjoin Foreclosure: An Argument for Clinical Involvement | | | -- By JonathanWaisnor - 13 Apr 2010 | |
<
< | Section I
On March 2, 2008, the Attorney General of Massachusetts obtained a preliminary injunction against Fremont Mortgage Group, a mortgage lending firm based in California that held approximately 3,000 loans in the Commonwealth of Massachusetts. This action was brought under the Massachusetts Predatory Loan Practices Act and the general consumer protection statute (Mass Gen Laws 93A). The injunction requires Fremont, or any company that purchased a loan from Fremont, to submit these loans for review to the Attorney General's office before foreclosure. Judicial bypass will only be granted on a case by case basis, and the cost to Fremont is so great that the practical effect of the law is a moratorium on foreclosures by this company, keeping 2200 people in their homes for the foreseeable future or allowing them to renegotiate the terms of their mortgages on very favorable terms. Investors and mortgage lenders in the Commonwealth are bracing for more lawsuits, some are threatening repercussions in the form of reduced business in the Commonwealth, in a move hearkening back to the "I'll take my ball and go home," rhetoric of the playground. | >
> | The Fremont Case | | | | |
<
< | Lawsuits against mortgage lenders and banks are on the rise, as is to be expected during the recession. Often the plaintiffs ask for money damages, but also for renegotiation of the terms, injunctions stopping foreclosure, or striking of particularly unconscionable provisions. The cases can take years to resolve, but if a preliminary injunction is granted, the people involved can begin to see immediate benefit. Often the lender will simply settle or renegotiate to avoid the costs of protracted litigation. Widespread use of the these lawsuits can radically shift the balance of power between an individual borrower and his credit holder. | >
> | On March 2, 2008, the Attorney General of Massachusetts obtained a preliminary injunction against Fremont Mortgage Group, a mortgage lending firm based in California that held approximately 3,000 loans in the Commonwealth of Massachusetts. This action (Commonwealth v. Fremont) was brought under the Massachusetts Predatory Loan Practices Act and the state’s general consumer protection statute (Mass Gen Laws 93A). The injunction requires Fremont, or any company that purchased a loan from Fremont, to submit these loans for review to the Attorney General's office before foreclosure. Judicial bypass will only be granted on a case by case basis, and the cost to Fremont to have an individual case reviewed is so great that one practical effect of the law is a de facto moratorium on foreclosures that keeps 2200 people in their homes for the foreseeable future or allows them to renegotiate the terms of their mortgages on very favorable terms. Investors and mortgage lenders in the Commonwealth and all over the country are bracing for more lawsuits, afraid that other state governments may try to follow the Massachusetts precedent. | | | | |
>
> | What These Suits Can Do For Homeowners | | | | |
<
< | To bring one of these suits, a plaintiff would need an applicable consumer protection statute and a lawyer willing to take the case. Although the Massachusetts Predatory Loan Practices Act is particularly expansive, other states have similar statutes that provide for causes of action Once a sufficient consumer protection statute is found, the In Massachusetts, the Attorney General's Consumer Protection Office brought the suit. It is unwise to rely on similar action by attorney's general in other states. For one, banks and other lenders may spend enormous amounts of money to ensure the election of AG's who avoid these types of lawsuits. Taxpayers may not want their money being used to bail out people, even neighbors, who they consider to have acted unwisely. | >
> | Lawsuits against mortgage lenders and banks are on the rise, but still the number of plaintiffs is not even close to the number of people who could possibly have a cause of action against a mortgage lender like Fremont. Often the plaintiffs ask for money damages, but also for renegotiation of the terms, injunctions stopping foreclosure, or striking of particularly unconscionable provisions. The cases can take years to resolve, but if a preliminary injunction is granted, the plaintiffs can begin to see immediate benefit in being able to stay in their homes, at least temporarily. Often the lender will simply settle or renegotiate to avoid the costs of protracted litigation. Use of these lawsuits can radically shift the balance of power between an individual borrower and his credit holder. As we saw in Fremont, breaking up the mortgage and selling it off to others is no defense to an injunction. | | | | |
<
< | A coalition of faculty-run, student staffed law clinics, pro bono consumer protection attorney's, and unemployed recent graduates could band together to bring these lawsuits on behalf of consumers. | >
> | The benefit from a preliminary injunction to a homeowner is twofold: first, even if the suit is ultimately defeated and the foreclosure recommenced, the owner will have bought time to find a new job, secure new living accommodations, or simply blunt the effect of such a massive life change on his family. Second: it puts pressure on the lender to settle and renegotiate the terms of the lease, as long as the money gained from renegotiating is greater than the sale of the house minus the cost of fighting the suit. | | | | |
>
> | To bring one of these suits, a plaintiff would need an applicable consumer protection statute and a lawyer willing to take the case. Although the Massachusetts Predatory Loan Practices Act is particularly plaintiff-friendly, other states have similar statutes that provide for causes of action and equitable relief against predatory lenders. In New York, Banking Law 6-l has provided a cause of action for predatory lending (DLJ Mortgage v. Smith). Under an adequate consumer protection statute, the plaintiff would need a lawyer willing to take the case and see it through to the end. | | | | |
>
> | Getting Law Students Involved | | | | |
<
< | Subsection A | >
> | In Fremont, the Attorney General's Consumer Protection Office acted on behalf of the Commonwealth of Massachusetts and the homeowners who had been subject to predatory lending practices. It is unwise to rely on similar action by attorney’s general in other states. For one, banks and other lenders may spend enormous amounts of money to ensure the election of AG's who avoid these types of lawsuits. Taxpayers may not want their money being used to bail out people, even neighbors, who they consider to have acted unwisely. | | | | |
>
> | Lawsuits such as Fremont have sometimes been brought by private practitioners, usually representing a single client. Class action lawsuits have also appeared in different jurisdictions- with these suits, it is possible to completely stop a company from foreclosing on any household that purchased a toxic loan. However, if attorneys don’t think they have a chance at winning, or think that the expected payout on the lawsuits doesn’t justify the time or expense, they will not want to take on the lenders or might settle too quickly. The major benefit of having the Attorney General’s office bring the case is that money is somewhat less of an issue, keeping homeowners in their homes provides a good public relations boost for that particular Attorney General. | | | | |
<
< | Subsub 1 | >
> | A coalition of faculty-run, student staffed law clinics or externships, pro bono consumer protection attorneys, and unemployed recent graduates could band together to bring these lawsuits on behalf of affected homeowners. Clinics at law schools in every state could work together and with law firms to represent clients in class action suits against lenders to keep many thousands of people at a time from foreclosure. Indeed, Harvard Law already offers a Predatory Lending clinic that works with private practitioners to represent homeowners. Perhaps a clinic, or a temporary project closely resembling a clinic, could be introduced here at Columbia. | | | | |
<
< | Subsection B
Subsub 1
Subsub 2
Section II
Subsection A
Subsection B
Students are exposed to the law during our first year of law school as a series of legal battles fought in appellate courts. They are given casebooks, which are collections of cases arranged in an order the author feels best highlights the evolution of law in a particular subject. Although some cases warrant greater exposition by the casebook author, mostly they are unedited opinions, with the facts filtered through the pen of the opinion writer. At the end, one side wins, the judgment is affirmed or reversed, the law expands or contracts, and the outlines grow. This system gives students little context or understanding of the concerns involved. Notably absent from the casebook are the answers to questions like: what happened before someone walked into a law office, what was going on politically or socially during this time period, or how events in a court of law changed the lives of everyone involved.
This method of teaching has many effects on a first-year student, but this paper concentrates on the emphasis on legal reasoning- the process the judge followed to reach his conclusions, as described in the text of the opinion. Law students dissect the opinions, sometimes line by line, and generally assume that the holding follows logically from the line of reasoning. On the exam, we are evaluated not only on our knowledge of the rules, but on our legal analysis. So-called policy considerations are considered optional, something to include at the end of the essay as long as you have spotted and fully analyzed all the issues.
This way of thinking about the law is necessary because this is how these particular legal battles are fought and need to be fought in order to maintain the myth that the law exists independently of human concerns. Like Moglen's young Constitutional Law professor said, we must learn the wrong way before the right way, and that is so we do not make the mistake of not taking this myth seriously enough and being bad lawyers. Law students must learn legal reasoning independent of other consideration as the basis for law because that is all law students are prepared to do once they become lawyers.
However, this method of teaching creates a certain picture of the law that influences the development of students as lawyers- that is, they do not learn to fight wars. They do not learn, for example, how the losing side in a case could have avoided the negative decision by not ending up in court or found a way to fight another battle- this time on more favorable legal grounds. This might be acceptable, if law students were expected to go out into the profession and learn to fight battles as steps to learning how to fight wars. However, law students are not able to do this, because they are very quickly offered positions with mercenary companies in which they will fight a never-ending series of battles for masters they do not choose. These companies are called law firms.
Wars are fought by lawyers (and people) on crusades. They involve much more than effective legal reasoning. Some lawyers must meticulously plan their wars, because they know that the opposing side is better entrenched or has more money or friends in higher places. Lawyers can be both generals and soldiers in these wars, or can be one or the other. A war, however, might involve other actions that legal reasoning. It might involve diplomacy, logistics, supply, funding. It might involve setbacks or sacrifice on the road to overall victory. It might be fine to lose a battle in order to avoid losing an even bigger one down the road.
Law firms have no interest in associates who can fight wars. Fighting wars is for lawyers with causes- and the law firm's cause is the self-perpetuation. Law firms enter the picture when war is on the horizon or already afoot, when one side needs a top litigator to argue in appellate court or Skadden Arps to flood some poor small-town practitioner with discovery motions. Law firms are paid a lot of money to do this, and they train their young warriors accordingly.
But what happens when those clients- usually the great corporations of American capitalism- decide that they would rather have lawyers who fight for their cause, or at least that hiring mercenaries who only know how to fight battles isn't enough. The great cities of medieval Italy learned the hard way that mercenaries often exorted money, ran from fights they couldn't win, and sometimes stormed the very cities that hired them. When it became viable to train and equip professional armies, the mercenaries lost work or were relegated to work too menial for the professional armies of citizen-soldiers.
This is the crisis that law schools will face, and the one that might precipitate the greatest change in how America teaches its lawyers. Activism by the students or change initiated by the faculty may be both impractical or ineffective in the face of external pressure. What will drive change in law school is the death of the mercenary system in favor of lawyers who are professional soldiers for their cause. To succeed in this era, law students will then need to learn not only how to fight the battles, but how to fight the wars.
Most law students came to law school to fight wars, although, except for perhaps a few, they had very little experience in how to do this. They thought that law school would equip them with the tools and strategies to fight wars, which would include winning battles, and might even involve being a mercenary for a few years. They quickly learn that unless they have a crusade picked out in their first-year of law school, they will be branded as mercenaries and won't be thought of in the same way as the members of the "Public Interest Holy Order". So they go to the mercenaries, who offer them easily obtained employment at an excellent rate. | >
> | Spots in Columbia's clinical program are in high demand, reflecting a desire of students for more hands-on legal education. The law school should expand its clinical program, including unemployed or deferred recent graduates into the mix, and the current state of the legal job market may force them to do this. Clients are becoming aware of a new balance of power in the legal services market, and they no longer want to pay for inexperienced associates, a problem for firms who are used to training their associates during the first few years on the job. If firms value graduates with better legal writing, research, and judgment than they are getting now, and students demand more clinical experience, the law school will have no choice but to offer these programs. When that happens, law students across the country could play a significant role in repeating the success of the Fremont lawsuit. | | | | |
>
> | -- JonathanWaisnor - 17 Apr 2010 | | |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. |
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JonathanWaisnorSecondPaper 4 - 15 Apr 2010 - Main.JonathanWaisnor
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| META TOPICPARENT | name="SecondPaper" |
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<
< | It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | | | |
<
< | Paper Title | | | | |
<
< | -- By JonathanWaisnor - 13 Apr 2010 | | | | |
<
< | Section I | | | Class Action Lawsuits to Enjoin Foreclosure: An Argument for Clinical Involvement | |
>
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Paper Title
-- By JonathanWaisnor - 13 Apr 2010 | | | | |
<
< | On March 2, 2008, the Attorney General of Massachusetts obtained a preliminary injunction against Fremont Mortgage Group, a mortgage lending firm based in California that held approximately 3,000 loans in the Commonwealth of Massachusetts. This action was brought under the Massachusetts Predatory Loan Practices Act and the general consumer protection statute (Mass Gen Laws 93A). The injunction requires Fremont, or any company that purchased a loan from Fremont, to submit these loans for review to the Attorney General's office before foreclosure. Judicial bypass will only be granted on a case by case basis, and the cost to Fremont is so great that the practical effect of the law is a moratorium on foreclosures by this company, keeping 2200 people in their homes for the foreseeable future or allowing them to renegotiate the terms of their mortgages on very favorable terms. Since then, not a single mortgage involved in the lawsuit has been foreclosed upon. Investors and mortgage lenders in the Commonwealth are bracing for more lawsuits, some are threatening repercussions in the form of reduced business in the Commonwealth, in a move hearkening back to the "I'll take my ball and go home," rhetoric of the playground. | | | | |
<
< | Using class action lawsuits in lieu of individual suits in order to affect this same result could potentially Whether this effect could be replicated in other states would require, aside from a willing plaintiff and defendant, (1) an applicable consumer protection or predatory lending statute to bring the suit under that provides for injunctive relief like the MA statute, (2) attorneys to bring the class action and see it through to the end, and (3) judges willing to grant class certification and injunctions. | >
> | Section I
On March 2, 2008, the Attorney General of Massachusetts obtained a preliminary injunction against Fremont Mortgage Group, a mortgage lending firm based in California that held approximately 3,000 loans in the Commonwealth of Massachusetts. This action was brought under the Massachusetts Predatory Loan Practices Act and the general consumer protection statute (Mass Gen Laws 93A). The injunction requires Fremont, or any company that purchased a loan from Fremont, to submit these loans for review to the Attorney General's office before foreclosure. Judicial bypass will only be granted on a case by case basis, and the cost to Fremont is so great that the practical effect of the law is a moratorium on foreclosures by this company, keeping 2200 people in their homes for the foreseeable future or allowing them to renegotiate the terms of their mortgages on very favorable terms. Investors and mortgage lenders in the Commonwealth are bracing for more lawsuits, some are threatening repercussions in the form of reduced business in the Commonwealth, in a move hearkening back to the "I'll take my ball and go home," rhetoric of the playground. | | | | |
<
< | With respect to requirement number one, Massachusetts Consumer Protection Laws are considered broader reaching and more protective of consumer rights than those of other states. | >
> | Lawsuits against mortgage lenders and banks are on the rise, as is to be expected during the recession. Often the plaintiffs ask for money damages, but also for renegotiation of the terms, injunctions stopping foreclosure, or striking of particularly unconscionable provisions. The cases can take years to resolve, but if a preliminary injunction is granted, the people involved can begin to see immediate benefit. Often the lender will simply settle or renegotiate to avoid the costs of protracted litigation. Widespread use of the these lawsuits can radically shift the balance of power between an individual borrower and his credit holder. | | | | |
<
< | In Massachusetts, the Attorney General's Consumer Protection Office brought the suit. It is unwise to rely on similar action by attorney's general in other states. For one, banks and other lenders may spend enormous amounts of money to ensure the election of AG's who avoid these types of lawsuits. Taxpayers may not want their moeny being used to bail out people, even neighbors, who they consider to have acted unwisely. | | | | |
<
< | A coalition of law school clinics, public interest firms, unemployed lawyers and law students | >
> | To bring one of these suits, a plaintiff would need an applicable consumer protection statute and a lawyer willing to take the case. Although the Massachusetts Predatory Loan Practices Act is particularly expansive, other states have similar statutes that provide for causes of action Once a sufficient consumer protection statute is found, the In Massachusetts, the Attorney General's Consumer Protection Office brought the suit. It is unwise to rely on similar action by attorney's general in other states. For one, banks and other lenders may spend enormous amounts of money to ensure the election of AG's who avoid these types of lawsuits. Taxpayers may not want their money being used to bail out people, even neighbors, who they consider to have acted unwisely. | | | | |
>
> | A coalition of faculty-run, student staffed law clinics, pro bono consumer protection attorney's, and unemployed recent graduates could band together to bring these lawsuits on behalf of consumers. | | | | |
<
< | Could this strategy be used in other states to prevent foreclosures?
Would need: a consumer protection statute on point, is there a federal statute? Individual state consumer protection laws? Company that engaged in predatory lending practices under the statute. | | | | |
<
< | Would need a party to bring the lawsuit
Attorney General- Pros, resources, not necessarily concerned with getting payment out of the settlement/judgment, interest of the public.
Cons- Vulnerable to political change, need for political donations may prevent anti-business lawsuits.
Plaintiff's lawyers- class action.
Pros: Not beholden to wealthy corporations for donations
Cons: Logistics, getting payment, may not think it is worth anything to support a bunch of foreclosed homeowners. | | | | |
<
< | Third Way- Legal clinics. Professors, pro bono practicioners, deferred associates working together. Could we coordinate clinics from schools in New York, or even the whole country? | | | Subsection A | | | Subsection A
Subsection B | |
<
< | We are exposed to the law during our first year of law school as a series of legal battles fought in appellate courts. We are given these battles in casebooks, which are collections of cases arranged in an order the author feels best highlights the evolution of law he wants first-year students to learn. Although some cases warrant greater exposition by the casebook author, we are mostly given unedited opinions, with the facts filtered through the pen of the judge. At the end, one side wins, the judgment is affirmed or reversed, the law expands or contracts, and the outlines grow. This system gives us no context or understanding of the concerns involved. We may get a brief procedural history, but we won't learn what happened before someone walked into a law office, who the counsel were for the parties, how events in a court of law changed the lives of everyone involved. | >
> | Students are exposed to the law during our first year of law school as a series of legal battles fought in appellate courts. They are given casebooks, which are collections of cases arranged in an order the author feels best highlights the evolution of law in a particular subject. Although some cases warrant greater exposition by the casebook author, mostly they are unedited opinions, with the facts filtered through the pen of the opinion writer. At the end, one side wins, the judgment is affirmed or reversed, the law expands or contracts, and the outlines grow. This system gives students little context or understanding of the concerns involved. Notably absent from the casebook are the answers to questions like: what happened before someone walked into a law office, what was going on politically or socially during this time period, or how events in a court of law changed the lives of everyone involved. | | | | |
<
< | This method of teaching has many effects on a first-year student, but this paper concentrates on the emphasis on legal reasoning- the process the judge followed to reach his conclusions, as described in the text of the opinion. We dissect the opinions, sometimes line by line, and, although we may not agree with the conclusion, generally believe that the or holding follows logically from the line of reasoning. On the exam, we are evaluated not only on our knowledge of the rules, but on our legal analysis. So-called policy considerations are considered optional, something to include at the end of the essay as long as you have spotted and fully analyzed all the issues. | >
> | This method of teaching has many effects on a first-year student, but this paper concentrates on the emphasis on legal reasoning- the process the judge followed to reach his conclusions, as described in the text of the opinion. Law students dissect the opinions, sometimes line by line, and generally assume that the holding follows logically from the line of reasoning. On the exam, we are evaluated not only on our knowledge of the rules, but on our legal analysis. So-called policy considerations are considered optional, something to include at the end of the essay as long as you have spotted and fully analyzed all the issues. | | | This way of thinking about the law is necessary because this is how these particular legal battles are fought and need to be fought in order to maintain the myth that the law exists independently of human concerns. Like Moglen's young Constitutional Law professor said, we must learn the wrong way before the right way, and that is so we do not make the mistake of not taking this myth seriously enough and being bad lawyers. Law students must learn legal reasoning independent of other consideration as the basis for law because that is all law students are prepared to do once they become lawyers. |
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JonathanWaisnorSecondPaper 3 - 15 Apr 2010 - Main.JonathanWaisnor
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| META TOPICPARENT | name="SecondPaper" |
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | |
Section I | |
<
< | Injunctions as a Tool For Warding Off Foreclosures | >
> | Class Action Lawsuits to Enjoin Foreclosure: An Argument for Clinical Involvement | | | | |
<
< | On March 2, 2008, the Attorney General of Massachusetts obtained a preliminary injunction against Fremont Mortgage Group, a mortgage lending firm, that forces Fremont or any company holding a part of a Fremont mortgage tied to property in Massachusetts to undergo a direct review by the AG's office to determine whether the loans are "presumptively unfair." | >
> | On March 2, 2008, the Attorney General of Massachusetts obtained a preliminary injunction against Fremont Mortgage Group, a mortgage lending firm based in California that held approximately 3,000 loans in the Commonwealth of Massachusetts. This action was brought under the Massachusetts Predatory Loan Practices Act and the general consumer protection statute (Mass Gen Laws 93A). The injunction requires Fremont, or any company that purchased a loan from Fremont, to submit these loans for review to the Attorney General's office before foreclosure. Judicial bypass will only be granted on a case by case basis, and the cost to Fremont is so great that the practical effect of the law is a moratorium on foreclosures by this company, keeping 2200 people in their homes for the foreseeable future or allowing them to renegotiate the terms of their mortgages on very favorable terms. Since then, not a single mortgage involved in the lawsuit has been foreclosed upon. Investors and mortgage lenders in the Commonwealth are bracing for more lawsuits, some are threatening repercussions in the form of reduced business in the Commonwealth, in a move hearkening back to the "I'll take my ball and go home," rhetoric of the playground.
Using class action lawsuits in lieu of individual suits in order to affect this same result could potentially Whether this effect could be replicated in other states would require, aside from a willing plaintiff and defendant, (1) an applicable consumer protection or predatory lending statute to bring the suit under that provides for injunctive relief like the MA statute, (2) attorneys to bring the class action and see it through to the end, and (3) judges willing to grant class certification and injunctions.
With respect to requirement number one, Massachusetts Consumer Protection Laws are considered broader reaching and more protective of consumer rights than those of other states.
In Massachusetts, the Attorney General's Consumer Protection Office brought the suit. It is unwise to rely on similar action by attorney's general in other states. For one, banks and other lenders may spend enormous amounts of money to ensure the election of AG's who avoid these types of lawsuits. Taxpayers may not want their moeny being used to bail out people, even neighbors, who they consider to have acted unwisely.
A coalition of law school clinics, public interest firms, unemployed lawyers and law students | | | | |
<
< | This category includes all of Fremont's mortgages and the option for judicial review is on a case by case basis, so the basic effect of the law is to keep 2200 homeowners in their homes for the foreseeable future. | | | Could this strategy be used in other states to prevent foreclosures? | |
<
< | Would need: a consumer protection statute on point, is there a federal statute? Individual state consumer protection laws? Company the engaged in predatory lending practices. | >
> | Would need: a consumer protection statute on point, is there a federal statute? Individual state consumer protection laws? Company that engaged in predatory lending practices under the statute. | | | Would need a party to bring the lawsuit
Attorney General- Pros, resources, not necessarily concerned with getting payment out of the settlement/judgment, interest of the public.
Cons- Vulnerable to political change, need for political donations may prevent anti-business lawsuits.
Plaintiff's lawyers- class action.
Pros: Not beholden to wealthy corporations for donations
Cons: Logistics, getting payment, may not think it is worth anything to support a bunch of foreclosed homeowners. | |
<
< | Third Way- Legal clinics. Professors, pro bono practicioners, deferred associates working together.
Is there a way to harness the talents of the deferred associates all over the country? What about the unemployed lawyers? | >
> | Third Way- Legal clinics. Professors, pro bono practicioners, deferred associates working together. Could we coordinate clinics from schools in New York, or even the whole country? | | | Subsection A |
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JonathanWaisnorSecondPaper 2 - 14 Apr 2010 - Main.JonathanWaisnor
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| META TOPICPARENT | name="SecondPaper" |
|---|
It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | |
Section I | |
>
> | Injunctions as a Tool For Warding Off Foreclosures | | | | |
>
> | On March 2, 2008, the Attorney General of Massachusetts obtained a preliminary injunction against Fremont Mortgage Group, a mortgage lending firm, that forces Fremont or any company holding a part of a Fremont mortgage tied to property in Massachusetts to undergo a direct review by the AG's office to determine whether the loans are "presumptively unfair."
This category includes all of Fremont's mortgages and the option for judicial review is on a case by case basis, so the basic effect of the law is to keep 2200 homeowners in their homes for the foreseeable future.
Could this strategy be used in other states to prevent foreclosures?
Would need: a consumer protection statute on point, is there a federal statute? Individual state consumer protection laws? Company the engaged in predatory lending practices.
Would need a party to bring the lawsuit
Attorney General- Pros, resources, not necessarily concerned with getting payment out of the settlement/judgment, interest of the public.
Cons- Vulnerable to political change, need for political donations may prevent anti-business lawsuits.
Plaintiff's lawyers- class action.
Pros: Not beholden to wealthy corporations for donations
Cons: Logistics, getting payment, may not think it is worth anything to support a bunch of foreclosed homeowners.
Third Way- Legal clinics. Professors, pro bono practicioners, deferred associates working together.
Is there a way to harness the talents of the deferred associates all over the country? What about the unemployed lawyers? | | | Subsection A |
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JonathanWaisnorSecondPaper 1 - 13 Apr 2010 - Main.JonathanWaisnor
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>
> |
| META TOPICPARENT | name="SecondPaper" |
|---|
It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted.
Paper Title
-- By JonathanWaisnor - 13 Apr 2010
Section I
Subsection A
Subsub 1
Subsection B
Subsub 1
Subsub 2
Section II
Subsection A
Subsection B
We are exposed to the law during our first year of law school as a series of legal battles fought in appellate courts. We are given these battles in casebooks, which are collections of cases arranged in an order the author feels best highlights the evolution of law he wants first-year students to learn. Although some cases warrant greater exposition by the casebook author, we are mostly given unedited opinions, with the facts filtered through the pen of the judge. At the end, one side wins, the judgment is affirmed or reversed, the law expands or contracts, and the outlines grow. This system gives us no context or understanding of the concerns involved. We may get a brief procedural history, but we won't learn what happened before someone walked into a law office, who the counsel were for the parties, how events in a court of law changed the lives of everyone involved.
This method of teaching has many effects on a first-year student, but this paper concentrates on the emphasis on legal reasoning- the process the judge followed to reach his conclusions, as described in the text of the opinion. We dissect the opinions, sometimes line by line, and, although we may not agree with the conclusion, generally believe that the or holding follows logically from the line of reasoning. On the exam, we are evaluated not only on our knowledge of the rules, but on our legal analysis. So-called policy considerations are considered optional, something to include at the end of the essay as long as you have spotted and fully analyzed all the issues.
This way of thinking about the law is necessary because this is how these particular legal battles are fought and need to be fought in order to maintain the myth that the law exists independently of human concerns. Like Moglen's young Constitutional Law professor said, we must learn the wrong way before the right way, and that is so we do not make the mistake of not taking this myth seriously enough and being bad lawyers. Law students must learn legal reasoning independent of other consideration as the basis for law because that is all law students are prepared to do once they become lawyers.
However, this method of teaching creates a certain picture of the law that influences the development of students as lawyers- that is, they do not learn to fight wars. They do not learn, for example, how the losing side in a case could have avoided the negative decision by not ending up in court or found a way to fight another battle- this time on more favorable legal grounds. This might be acceptable, if law students were expected to go out into the profession and learn to fight battles as steps to learning how to fight wars. However, law students are not able to do this, because they are very quickly offered positions with mercenary companies in which they will fight a never-ending series of battles for masters they do not choose. These companies are called law firms.
Wars are fought by lawyers (and people) on crusades. They involve much more than effective legal reasoning. Some lawyers must meticulously plan their wars, because they know that the opposing side is better entrenched or has more money or friends in higher places. Lawyers can be both generals and soldiers in these wars, or can be one or the other. A war, however, might involve other actions that legal reasoning. It might involve diplomacy, logistics, supply, funding. It might involve setbacks or sacrifice on the road to overall victory. It might be fine to lose a battle in order to avoid losing an even bigger one down the road.
Law firms have no interest in associates who can fight wars. Fighting wars is for lawyers with causes- and the law firm's cause is the self-perpetuation. Law firms enter the picture when war is on the horizon or already afoot, when one side needs a top litigator to argue in appellate court or Skadden Arps to flood some poor small-town practitioner with discovery motions. Law firms are paid a lot of money to do this, and they train their young warriors accordingly.
But what happens when those clients- usually the great corporations of American capitalism- decide that they would rather have lawyers who fight for their cause, or at least that hiring mercenaries who only know how to fight battles isn't enough. The great cities of medieval Italy learned the hard way that mercenaries often exorted money, ran from fights they couldn't win, and sometimes stormed the very cities that hired them. When it became viable to train and equip professional armies, the mercenaries lost work or were relegated to work too menial for the professional armies of citizen-soldiers.
This is the crisis that law schools will face, and the one that might precipitate the greatest change in how America teaches its lawyers. Activism by the students or change initiated by the faculty may be both impractical or ineffective in the face of external pressure. What will drive change in law school is the death of the mercenary system in favor of lawyers who are professional soldiers for their cause. To succeed in this era, law students will then need to learn not only how to fight the battles, but how to fight the wars.
Most law students came to law school to fight wars, although, except for perhaps a few, they had very little experience in how to do this. They thought that law school would equip them with the tools and strategies to fight wars, which would include winning battles, and might even involve being a mercenary for a few years. They quickly learn that unless they have a crusade picked out in their first-year of law school, they will be branded as mercenaries and won't be thought of in the same way as the members of the "Public Interest Holy Order". So they go to the mercenaries, who offer them easily obtained employment at an excellent rate.
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.
To restrict access to your paper simply delete the "#" on the next line:
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