Last week, it looked so good for him, after reports broke that the Obama Administration was close to letting him off the hook for authoring memos sanctioning the use of torture with little more than a wrist-slap. But since then, the attacks have continued. Several prominent law-professor/lawyer types are urging the Ninth Circuit to hold Yoo accountable.

The group, which includes Stanford’s Deborah Rhode and Irvine’s Erwin Chemerinsky, recently submitted arguments opposing dismissal of Jose Padilla’s lawsuit that accuses Yoo of setting the balls in motion that led to Padilla getting tortured. Click here for the story, from the SF Chronicle.

Jose Padilla was arrested in Chicago in 2002 and held for nearly four years in a Navy brig. He was convicted of taking part in an unrelated conspiracy to provide money and supplies to extremist groups and sentenced to 17 years. While in the brig, Padilla said, he was subjected a host of torture techniques, including sleep deprivation and being kept in so-called “stress positions.”

In June, San Francisco federal judge Jeffrey White refused to dismiss the suit. Yoo appealed, saying the suit would interfere with presidential war-making authority. The Obama administration has taken his side, arguing that courts should not meddle in questions of national security.

But in filings over the last 10 days, groups of prominent lawyers have filed to keep the suit alive. They argue that this is not a dispute over legal advice, as Yoo contends, but the case of a lawyer who allegedly stepped out of his role to take part in planning detention and interrogation policies, and then devised legal opinions to justify those policies.

“It is the essential role of the judicial branch to prevent the ‘war on terror’ from becoming the blank check for official torture that Yoo and the United States (Justice Department) seek,” nine constitutional law teachers told the court.

That much we know.

But what’s been less discussed, frankly, is how we got here. That is, what sorts of cultural pressures led us to a point in which five Supreme Court justices would make a ruling that reflected so much trust, so much respect, of corporate America?

David Savage, writing for the LA Times, addresses the issue in a story out Wednesday.

According to Savage, the ruling “reflects a profound shift among the conservative justices” on thinking about corporations. Whereas once upon a time, like the mid 1970s, Republican-appointed justices still held a somewhat skeptical view of corporations. But since then, things have changed. Writes Savage:

The change is a product of the Reagan era of the 1980s, when the administration sought to free business from government regulation. All five justices who made up the majority in last month’s case, Citizens United vs. Federal Election Commission, were either appointed by Reagan or worked as young lawyers in the Reagan administration.

“This is a different brand of conservatism,” said Trevor Potter, an election law expert who served as counsel to Arizona Republican Sen. John McCain’s presidential campaign. “The justices are shaped by society. Those that came after the Great Depression saw government regulation of corporations as natural and necessary. This younger generation sees it very differently. They have a real distrust of government.”

Whether this is a good thing, of course, depends on your own personal views of government and corporations. Fred Wertheimer, a longtime champion of campaign finance laws, throws at the current court out allegations of judicial activism. “They threw out 100 years of national policy, and they did it by inventing a brand-new right for corporations to participate in politics,” he said.

But Allison Hayward, a George Mason University law professor and critic of the campaign funding laws, told Savage that the court’s decision stood up for the very old right of free speech in politics.

“This was a moment for them to say, ‘Enough is enough,’ ” she said. “There’s been a constitutional cloud over the expenditure bans for a very long time.”

But for us journo types, such rankings are manna from heaven.

In any event, the intrigue over the rankings is building. The ABA on Monday announced that it was going to take a good hard look at the magazine’s methods. According to this story in the National Law Journal, the resolution was prompted by U.S. News’s plan, but that the inquiry will look at a range of lawyer and law-firm rankings.

“[The U.S. News] rankings have a profound impact on the law schools. The deans hate it,” said past New York bar President Vincent Buzard to the NLJ. “It seemed to us that the ABA should look into the methodology of these rankings and ensure that they are reliable and aren’t based on inadequate data.”

The sitting New York bar President Michael Getnicks told the NLJ that the magazine’s plan to numerically rank firms could prove problematic and misleading.

That said, representatives of U.S. News and Best Lawyers, which will help assemble the survey, both welcomed the opportunity to discuss their methodology with the ABA.

“I think the resolution is extremely reasonable. At Best Lawyers, we have long felt that transparency is extremely important,” said Best Lawyers President Steve Naifeh. “We don’t think we have anything to hide.

Bob Morse, director of data research for U.S. News, said the magazine has approached the ABA in the past about setting up a system for communicating about the law firm and attorney rankings, but that the organization never acted on the idea.

But to University of Chicago Law School professor and legal blogger Brian Leiter, the ABA’s investigation comes too late. The ABA, according to Leiter, should have taken a critical look at the U.S. News rankings long before the magazine turned its attention to law firms.

“Unfortunately, a mere investigation won’t do much,” Leiter said. “Everyone with any knowledge of education or statistics or survey methods who has examined the U.S. News rankings has come to the same conclusion: They are irresponsible, misleading and provide consumer misinformation. This has had little or no impact on the irresponsible practices of U.S. News.”

Anyway, we were talking about the separation between courts and legislatures when we ended Monday’s post. Howard was arguing that courts often overstep their bounds by striking down wholly sensible laws passed by elected officials. He specifically referred to a recent ruling by the Illinois Supreme Court that struck down certain caps on damages. We asked:

But you have to draw the line at unconstitutional laws, right?

Well, of course. But I just don’t see [Illinois's cap on non-economic damages] as violating a constitutional principle. One of a legislature’s functions is to draw the boundaries of who can sue for what and how much. A decision striking that down is just a form of judicial activism at its worst.

Legislatures are the superior lawmaking bodies in our country and they absolutely have the authority to draw boundaries. But because we have such an imbued sense that anyone should be able to sue for anything, we have a well-respected state supreme court telling a legislature it can’t regulate our justice system. It’s a terrible mutation of what the rule of law is supposed to be.

It’s a problem with judges vis-a-vis juries, also. Judges give too much decision-making authority to juries. One solution, one possible litmus test is to say to judges, ‘Look, if you’re letting a jury make a decision that’s going to affect the conduct of people outside this courtroom, you’ve overstepped your bounds.’ I’d tell that judge that he or she needs to make a decision as a matter of law and make sure the jury is ruling only on facts.

Then aren’t you going to get complaints that the role of the jury is being usurped?

Well, the Seventh Amendment preserves the right to a jury in civil trials. But it’s still very much the role of the court to instruct the jury on the law and to ask a jury only to decide the facts. But the truth is that too many judges have gotten into the habit of sitting on their hands.

Okay, so you’ve addressed the judges. What else needs to change, in your opinion?

My second change is to get so much bureaucracy and process out of the daily lives of individuals. Just to take the public education example again, we need to restore the authority of teachers. It’s just ridiculous that teachers in many schools can absolutely not touch a child in any situation. What you’re doing here is by over-regulating, you’re taking away the freedom of a child who may be in bodily harm.

But rules keeping teachers from touching children were put in place to keep students free from harm, right?

They were, but the effect has been to remove freedoms from students and teachers. Some 78 percent of teachers, according to a recent study, have been threatened by the rule of law. That creates an extraordinary loss of authority.

There’s just no reason why you need law in public schools to the degree that it’s in there.

Well, of course, you need constitutional protections to extend to the public schools, right?

You do. But the only constitutional issues that extend to the schools are are ones that involve expelling a child. Children have due process protections on that front, but you don’t need the law to encroach to the degree it does on daily disciplinary decisions.

Courts have also ruled that children have First Amendment protections, right?

Yes. On occasion they have. But what I’m suggesting is that law has gone dramatically further than it needs to.

How do you get rid of these regulatory thickets?

It’s practically impossible to prune the jungle. In so many areas, we need a clean set of principles and rules; a recodification. And once people get confident that a new regime is fair, then we pull the plug on the existing situation. That also, in my opinion, needs to happen with health care.

Health care. There’s a topic you haven’t mentioned yet.

It’s a mess. It’s a lot to ask to try to bring order to a liability system in health care. The distrust is just so pervasive. I’m just not sure that the [existing] judges can play that role. A group I chair has championed the idea of having administrative health courts that would oversee medical-malpractice suits and related litigation.

Pretty much everyone in health care is for it. But the trial lawyers are against it, and have put up a significant road block to the plan.

You write in your book a bit about the goal of balance — between balancing competing sets of rights. Talk to us about that.

It’s vital that we start gravitating away from the language of rights and replace it with a broader goal, a goal of balance. There are so many issues that become immediately polarizing, largely because people see them only in terms of individual or personal rights. Judges and lawmakers need to realize that for almost all of these issues, there are competing sets of rights that need to be considered.

Do you have an example?

Sure. Take, for instance, a child with special needs. You certainly don’t want to go back to the era when states didn’t provide special privileges for students. On the other hand, you don’t want to allocate 10 percent of a budget to one child, when doing that would deprive from everyone else. We need to acknowledge and balance the rights of one against the rights of many. We don’t do that too well now.

It’s funny. President Obama bore down on this issue of responsibility during the campaign. He argued that people should be nicer, not be so demanding. But that’s completely unrealistic. People are always going to be self-interested.

In order to fix things, you have to restore authority. Judges have to understand the relationship between authority and freedom and themselves have the freedom to balance different sets of rights. Unless you restore and build up a balancing mechanism, then everyone loses his freedom.

Do any countries do a particularly good job at this?

Denmark does a good job with its special ed policies. The state has a general obligation to take care of all the nation’s kids. And there are officials whose job it is is to see how much the special needs kids are going to get. There’s a board that a parent might appeal to, but that’s where it stops. There are officials with responsibility and authority and the system works well.

At bottom, democracy is mostly about balance. In civil law countries, judges sit down with litigants early on, and that process is designed not to narrow the claims too much, but certainly to streamline things. Our litigation process encourages radical polarization. You sue for the moon. You make up defenses for the moon. Lawyers make a lot of money. Generally, at the end, something sensible happens, but not before a lot of money’s been spent.

Great. Thanks so much, Philip, for taking the time. I enjoyed it.

Thank you.

After a zillion years of doing it the same way, law firms are branching out, mixing up the formula. Some are deciding they’d rather go heavy on the merit-based component. Others are deciding that well, we’ll stick with lockstep for now.

Still others are going hybrid. Which brings us to Bingham McCutchen.

The firm back in October revealed it would be going to a model that paid base salaries mostly on a lockstep basis, but made end-of-year bonuses merit-based. Click here for that post, from Above the Law’s Elie Mystal.

On Tuesday, the firm filled in the details on its plan.

For starters, the firm is “unfreezing” base salaries for the more productive associates, bringing associates who bill more than 1900 hours back up to pre-freeze levels. For now, the firm will keep salaries at the same level for all those who bill between 1500 and 1900 hours.

Second, the firm is rolling out two different pay scales based on these billable targets. Associates who bill at least 1900 hours in a year will qualify for the upper pay scale, one largely commensurate with what the leading firms pay. Associates who bill between 1500 and 1900 hours will be paid less.

The firm’s still hammering out the details on its bonuses, but they’ll be largely pegged to merit. The top bonuses, we hear, will be in line with the Cravath levels announced late last year. In some instances, bonuses might even be higher.

Reads the memo, authored by partner Anthony Carbone:

As you know from various discussions and presentations over the course of the last several months, we have moved our compensation program to a merit lockstep approach. This approach provides the flexibility to recognize the strong performance of our attorneys and their contributions to the firm, while ensuring a level of predictability and stability. Additionally, we will be awarding merit bonuses to eligible attorneys for their accomplishments in 2009. Individual bonus amounts will be conveyed during evaluation meetings, which will commence this week. In determining bonus amounts for each attorney, a variety of factors are being considered, including achievement of the hours target, quality of an attorney’s work, as well as pro bono and firm citizenship contributions.

As for the numbers, they go like this:

For associates and counsel who have annualized 1900 billable hours or more (inclusive of 50 pro bono hours):

Class I - $160,000
Class II - $170,000
Class III - $185,000
Class IV - $210,000
Class V - $230,000
Class VI - $250,000
Counsel I (7th year associate) - $265,000
Counsel II (8th year associate) - $280,000
Counsel III (9th year associate) - $290,000

For associates and counsel who have annualized 1500 billable hours or more (inclusive of 50 pro bono hours):

Class I - $160,000
Class II - $165,000
Class III - $170,000
Class IV - $185,000
Class V - $210,000
Class VI - $230,000
Counsel I - $250,000
Counsel II - $265,000
Counsel III - $280,000

Law Blog Query to Readers of the Day: We’re hearing that increasingly 7th-9th year associates are being referred to as “counsel.” Especially on the west coast. This is not to be confused with the “of counsel” labels traditionally bestowed upon those who graduate from the associate level, but don’t quite make it to partner.

Is this really happening? Are 7th year associates morphing into “counsel?” And if so, why? To make them feel better about the fact that had they been at a law firm 30 years ago, they’d have already made partner?

But for anyone perhaps searching for another pop-culture based metaphor to describe the situation, we bring you this one: The Cornell admissions situation is like Lost: The harder we scrutinize it, the more confused we get.

Our readers put forth a host of possible explanations for why applications to Cornell Law are up over 50 percent from last year. Many of them make sense: its admissions standards have historically been slightly less rigorous than others in the so-called T14; more on the high end of the application spectrum are thinking of it as a safety school, while those on the lower end are rolling the dice, realizing that, given the economy, why not take a shot at an Ivy League school.

But still amazes us is the 50 percent figure, especially given the numbers at other schools in the Top 25. Click over to the Business Insider’s Law Review, which today presents the application numbers for a handful of other schools generally considered to be in the Top 25.

Vanderbilt’s numbers appear to be flat. Georgetown and Berkeley’s are each up 4 percent. UCLA’s are up 6 percent. Of the schools that gave Business Insider their figures, only a handful of schools are witnessing double-digit increases: Michigan, Duke, Illinois and Indiana, and three of those are public schools.

What’s going on? We have no idea. We feel like Hurley (pictured): Increasingly bewildered by the world in which we live.

But, according to a lawsuit recently filed by a Wisconsin woman, had the singing pirate actually done as he says he wished he had, he might have wound up an an even deeper financial hole.

The story: Erica Possin, a Wisconsin college student is suing the credit-reporting agency Experian, alleging that the ads are misleading and fraudulent. Click here for the story, from Huffington Post; here for the complaint.

According to the complaint, Possin wanted to check her credit before buying a new car, and wen to FreeCreditReport.com. But she got her “free” credit report only after inadvertently signing up for a $14.95 monthly credit monitoring service.

In Possin’s mind, this was bogus. Her putative class action lawsuit seeks to “stop the fraud and seek compensation for the tens of thousands of consumers deceived by Experian’s FreeCreditReport.com to the tune of millions of fraudulently obtained profits.”

The complaint notes that the Federal Trade Commission has repeatedly won settlements from Experian for its advertising, but that Experian has declined to change their ads.

But in a statement to HuffPo, Experian made it clear they’re not going to roll over. The statement reads:

FreeCreditReport.com is a trusted partner for millions of Americans who want more than a free credit report. We make it very clear to consumers visiting the site that the free credit report and score is part of enrollment in the Triple Advantage Credit Monitoring and that if they don’t cancel their membership within the seven-day trial period, they will be billed monthly. While it wouldn’t be appropriate to speculate what the FTC’s final rules will be, we can tell you we remain committed to clearly and conspicuously disclosing to consumers that the free report we offer is not the free annual credit file disclosure provided by federal law.

That said, the practice isn’t faring all that badly. Much as the stock markets loathe uncertainty, lobbyists love it. And that’s why folks are speculating that the recent election of Scott Brown to the Senate in Massachusetts could boost the revenues of law firms. Click here for the story, from the Philadelphia Inquirer.

According to the story, while lobbying doesn’t generate nearly the revenue of high-end legal work, it is a steady source of income. And firms don’t have to pay that much to to offer so-called government-relations services.

The Inquirer piece takes a look at Philly’s own Cozen O’Connor, which reported recently that revenues for 2009 were up 22 percent. Profits-per-partner jumped by nearly the same amount to $650,000. Part of the rationale: Cozen’s hustled to build up its lobbying practice in Washington.

And with the health-care debate thrown back into uncertainty, it could be another banner year for the lobbying industry.

“Public-strategies work thrives on public debate,” said Mark Alderman, the former head of Wolf Block who recently joined Cozen. “No debate, nothing to do. The more robust the debate, the more there is to do.”

But that’s not entirely what’s happening in the current battle between Air Products and Airgas. The companies themselves, locked in a tense takeover standoff, are still grabbing top billing. But lawyers at Cravath, Swaine & Moore are increasingly seeing their names in print in ways that aren’t entirely flattering.

For now, a quick recap’s in order, with a little help from the American Lawyer, which has a nice writeup on the situation. On Friday, Air Products, an industrial-gas company, made an unsolicited bid for its smaller rival, Airgas. Click here for the WSJ story on the bid itself.

The day before the tender offer, however, Air Products filed a complaint in Delaware’s Chancery Court against Airgas, claiming that Airgas blocked its board of directors from considering previous Air Products takeover offers. Leading the litigation for Air Products: Cravath litigation partners Francis Barron, David Marriott, and Gary Bornstein are representing Air Products in the Delaware litigation along with local counsel Kenneth Nachbar from Morris, Nichols, Arsht & Tunnell.

Well, apparently, this didn’t sit too well with Airgas, which quickly went on the offensive. The company turned around and sued Cravath in Pennsylvania state court. Here’s a copy of that complaint. The allegation: that Cravath has a conflict of interest; it previously advised Airgas on several financings. According to Airgas’s complaint against Cravath, the company has had a client relationship with the firm for 10 years and has paid Cravath about $2 million, including a $320,000 payment last October.

A Cravath spokeswoman told the American Lawyer that the suit filed by Airgas and Cozen is “without merit” and declined further comment.

Prosecutors on Monday charged Murray with involuntary manslaughter in connection with the King of Pop’s death in June. Click here for the WSJ story; here for the NYT story; here for the LAT story.

In charging Murray with a single criminal count, which carries a maximum four-year prison sentence, prosecutors alleged that the physician killed the 50-year-old pop star “without malice.” Even so, proving the charge won’t be easy; it will require prosecutors to show that the physician’s actions amounted to more than a series of mistakes. Murray, who pleaded not guilty, has consistently denied wrongdoing. He was released after posting $75,000 in bail.

Authorities last year determined that Jackson died from a lethal combination of the anesthetic propofol and other medications. Murray acknowledged giving propofol to Jackson on the morning he died.

Laurie Levenson, professor at Loyola Law School here, told the WSJ that prosecutors could have a difficult time proving “gross negligence” against Murray, though she said that task could be made easier if they can show he violated some law or regulation in how he obtained or administered the propofol. Levenson said the defense would likely argue that even if Murray made mistakes, the result was a “tragic accident,” which doesn’t rise to the level of criminal conduct. The trial “will probably be a battle of experts over the use of propofol,” said Levenson, who isn’t connected to the case.

Lawyers from Stradley, Chernoff & Alford in Houston will represent Murray, according to this National Law Journal story.