Author: TSA Press

*
Former
OpenAI
employee
says
the
company
“broke
copyright
law.”
Except
he’s
not
a
lawyer
and
what
he’s
describing
doesn’t
really
sound
like
a
copyright
violation.
But
the
NY
Times
is
suing
OpenAI
so…
here’s
a
splashy
profile
about
how
OpenAI
broke
copyright
law.
[NY
Times]

*
Disciplinary
authorities
recommend
suspending
Montana
Attorney
General’s
law
license.
Which
would
be
significant
if
Montana’s
AG
dutifully
acted
as
the
state’s
top
lawyer
as
opposed
to
wasting
taxpayer
dollars
filing
frivolous
lawsuits
about
how

voter
registration
is
unconstitutional.
[Montana
Free
Press]

*
Law
firm
leadership
FOMO.
[American
Lawyer]

*
Michael
Avenatti
may
be
out
of
prison
sooner
than
expected.
[Reuters]

*
Elite
firms
cooling
on
California
hiring.
[Bloomberg
Law
News]

*
Commission
accuses
judge
of
abusing
contempt
power
to
bully
courtroom.
Seems
like
a
lot
of
that
going
around
these
days.
[ABA
Journal]

*
Goldman
and
Apple
to
pay
for
CFPB
violations.
[Law360]

Ed.
Note:
Welcome
to
our
daily
feature

Trivia
Question
of
the
Day!

According
to
Bloomberg
Law’s
ranking
of
Biglaw
firms
for
mergers
and
acquisitions
work
through
three
quarters
this
year,
Wachtell,
Lipton,
Rosen
&
Katz
is
currently
ranked
in
what
spot,
falling
down
the
ranking
after
holding
on
to
the
#2
spot
for
the
last
three
years?

Hint:
The
firm
is
an
outlier,
leaning
into
its
narrow
focus
as
the
rest
of
the
industry
has
broadened
their
practice.
Law
firm
adviser
Peter
Zeughauser
said,
“What
may
be
threatening
to
them
is
not
having
relationships
with
new
money.
That’s
what
they
need
to
crack
—
maybe
that’s
through
laterals
or
through
a
more
proactive
relationship
in
the
financial
community.”

See
the
answer
on
the
next
page.

It
is
an
understatement
to
say
that
Pauline
Newman
is
highly
recognized
as
being
good
at
her
job.
So
good
in
fact,
one
patent-pursuing
litigant
argues,
that
her
absence
from
the
court
means
that
he
didn’t
get
a
fair
shake
at
arguing
his
case.
An
application
of
the

Alice
test
determined
that
his
idea
was
too
abstract
to
be
patentable,
but
he’s
pushing
back
on
the
use
of
that
test.
Know
who
else
has
voiced
concern
over

Alice?
That’s
right,
Newman!
And
he’s
asking
the
Supreme
Court
to
make
sure
she’s
on
the
panel
so
that
she
can
weigh
in.

Bloomberg
Law
has
coverage:

The
owner
of
an
invalidated
background-check
software
patent
urged
the
US
Supreme
Court
to
consider
the
Federal
Circuit’s
suspension
of
97-year-old
Judge
Pauline
Newman,
whose
absence
on
the
court
the
company
says
deprived
it
of
a
potentially
sympathetic
ear.
…
Miller
Mendel
was
robbed
of
“even
having
a
chance
that
the
most
experienced
appellate
patent
judge,
and
one
of
the
harshest
critics
of
Section
101
jurisprudence,
could
participate,
hear,
and
rule
on
the
case,”
the
company
wrote
in
a
petition
to
the
high
court
docketed
Oct.
18.

Suing
over
loss
of
chance
isn’t

unheard
of
—
it
is
an
action
in
tort
—
but
suing
because
you
didn’t
have
the
judge
you
wanted
on
your
panel
feels
suspect.
That
said,
it
puts
the
U.S.
Court
of
Appeals
for
the
Federal
Circuit
in
a
strange
position.
Far
from
the
initial
worry
that
Justice
Moore
&
Co.’s
now

objectively
disproven
accusations
that
Judge
Newman
was
mentally
unfit
to
serve
on
the
court
would
harm
her
legacy,
we
now
have
the
worth
of
the
court
being
questioned
if
she’s
not
a
part
of
it.
Even
if
the
panel
included
Newman
and
decided
against
Mendel,
Newman’s
potential
dissent
could
still
be
valuable
in
the
long
run

considering
how
often
the
Supreme
Court
ultimately
agrees
with
her
take
on
matters.

If
you’d
like
to
follow
up
on
the
case,
it
is
Miller
Mendel
Inc.
v.
City
of
Anna,
U.S.,
24-439,
cert.
petition
docketed
10/18/24.

Patent
Owner
Flags
Judge
Newman’s
Suspension
to
Supreme
Court
[Bloomberg
Law]

Chris
Williams
became
a
social
media
manager
and
assistant
editor
for
Above
the
Law
in
June
2021.
Prior
to
joining
the
staff,
he
moonlighted
as
a
minor
Memelord™
in
the
Facebook
group Law
School
Memes
for
Edgy
T14s.
 He
endured
Missouri
long
enough
to
graduate
from
Washington
University
in
St.
Louis
School
of
Law.
He
is
a
former
boatbuilder
who
cannot
swim, a
published
author
on
critical
race
theory,
philosophy,
and
humor,
and
has
a
love
for
cycling
that
occasionally
annoys
his
peers.
You
can
reach
him
by
email
at [email protected] and
by
tweet
at @WritesForRent.

Ed.
note:
Welcome
to
our
daily
feature,

Quote
of
the
Day.

It’s
not
like
there
are
really
any
new
law
firms
being
created.
It’s
only
really
going
to
go
one
way.
The
firms
that
exist
are
going
to
consolidate
with
each
other.
No
one
wants
someone
downstream,
who
is
less
profitable
than
them,
so
that
greatly
limits
the
number
of
true
merger
options
you
have
there.
And
if
the
good
ones
are
pairing
up,
you
don’t
want
to
be
the
ones
[left].

—
Jeff
Lowe,
senior
managing
partner
and
market
president
for
Washington,
D.C.,
at
recruiting
and
consulting
firm
CenterPeak,
in
comments
given
to
the

American
Lawyer,
concerning
law
firms
leaders’
heightened
response
to
the
industry’s
recent
merger
mania,
where
there’s
“definitely
a
sense
that,
if
we
don’t
do
anything,
we’re
going
to
get
left
out.”

Staci
Zaretsky is
a
senior
editor
at
Above
the
Law,
where
she’s
worked
since
2011.
She’d
love
to
hear
from
you,
so
please
feel
free
to

email
her
with
any
tips,
questions,
comments,
or
critiques.
You
can
follow
her
on

X/Twitter
and

Threads
or
connect
with
her
on

LinkedIn.

Whoever
wins
the
presidential
election
on
November
5
will
face
an
important
task:
overseeing
America’s
250th
birthday
party.

That’s
right,
the
good
old
United
States
is
turning
250
in
2026.
Nearly
two-and-a-half
centuries
ago,
Thomas
Jefferson
penned

the
Declaration
of
Independence.
On
July
4,
1776,
this
founding
document
was
adopted
unanimously
by
the
Second
Continental
Congress,
thereby
creating
the
U.S.A.
as
we
know
it
(and
as
we’ve
mythologized
it).

Assuming
the
country
lasts
until
July
4,
2026,
we
are
going
to
have
one
of
two
people
in
charge:
a
hateful
80-year-old
teetotaler
who
is
already

in
obvious
mental
decline,
or
a
61-year-old
woman
who
has
made
joy
a
focal
part
of
her
presidential
campaign
and

chugged
a
Miller
High
Life
on
stage
with
Stephen
Colbert.
I
know
who
I
think
would
make
a
better
party
planner,
but
hey,
maybe
some
of
you
have
had
way
more
fun
mingling
with
racist
octogenarians
than
I
have.

Now,
America
has
had
an

official
Semiquincentennial
Commission
(I
promise
I
will
use
that
dumb-ass
word
only
one
more
time)
since
2016.
For
a
couple
reasons,
I
don’t
think
the
members
of
that
group
are
really
going
to
have
a
whole
lot
of
sway
over
whatever
the
presiding
president
ultimately
wants
to
do
to
celebrate.

Had
you
ever
heard
of
the
U.S.
Semiquincentennial
Commission
before
this
very
moment?
Didn’t
think
so.
If
a
large
group
of
national-level
politicians,
eggheads,
and
other
theoretically
influential
people
has
been
doing
whatever
it
is
they’ve
been
doing
for
eight
years
without
even
pretty
informed
members
of
the
public
hearing
about
it,
they’re
either
working
at
Area
51
or
aren’t
wielding
great
power
to
exciting
effect.

Let’s
also
look
at
a
couple
of
the
member
names.
Oh,
Anthony
Kennedy,
an
88-year-old
former
Supreme
Court
justice

who
retired
so
that
Trump
could
replace
him
with
Brett
Kavanaugh
and
get

Roe
v.
Wade
overturned;
I
don’t
know
about
you,
but
someone
who
is
nearly
90
whose
ultimate
legacy
is
making
sure
thousands
of
women
are
going
to
forcibly
carry
unwanted
pregnancies
to
term
or
die
in
the
attempt
does
not
exactly
scream
“partier
of
the
century”
to
me.

It’s
a
bipartisan
commission
though,
so
I
won’t
pick
only
on
conservatives.
Ah,
here
we
are,
I
think
I
see
one
of
these
deep-state
liberals
I’ve
heard
so
much
about
…
wait,
what
the
f*ck,
Merrick
Garland?
The
guy
who
got
cucked
out
of
a
Supreme
Court
seat
and
then
slow-walked
the

several
still-pending
criminal
cases
through
which
he
could
have
actually
seen
something
done
about
it?
Look,
I
feel
bad
for
Garland,
but
“pitiful”
is
not
how
one
would
typically
describe
the
organizer
of
an
epic
party
for
the
ages.

Has
anyone
heard
from

Tucker
Max
lately?
Maybe
we
can
wheel
him
out
of
cryogenic
storage
or
whatever
and
see
if
he
has
one
last
party
in
him.

My
bold
prediction
is
that
the
official
250th
birthday
party
planning
committee
is
not
going
to
knock
the
socks
off
of
the
average
American.
Either
way,
we’ll
get
some
museum
events
and
mandatory
diversity
efforts
—
pleasing
to
history
buffs
like
me,
I
suppose,
though
likely
to
flop
with
the
masses.
Beyond
that,
I
bet
a
lot
of
directional
velocity
will
come
from
the
top
based
on
whoever
wins
this
presidential
election.

We
already
got
a
glimpse
into

Trump’s
plan
for
a
massive
national
celebration:
a
big
missile
parade
in
the
style
of
weak
third-world
dictatorships
trying
to
look
strong
that
he
wasn’t
previously
even
able
to
pull
off
because
he
eventually
lost
interest
(also
the
Pentagon
found
a
gaudy
display
of
military
hardware
to
be
both
costly
and
counterproductive
to
military
aims).
Harris
hasn’t
been
in
the
top
seat
at
the
White
House
like
Trump
has,
so
her
idea
of
a
truly
patriotic
commemorative
event
remains
more
of
a
mystery,
but
there
is
little
doubt
that
it
would
incorporate
the
military
in
a
more
respectful
and
traditionally
American
fashion.

America’s
250th
birthday
party
is
not
the
most
important
issue
in
this
election.
Still,
symbolism
matters,
stories
matter,
and
this
celebration
will
be
kind
of
a
big
deal.
It
could
be
a
huge
economic
success
that
brings
joy
and
a
sense
of
national
pride
to
millions
as
we
celebrate
how
far
we’ve
all
come
together.
Or
it
could
be
a
divisive
train
wreck
that
needlessly
flushes
millions
of
tax
dollars
down
the
tubes
in
order
to
stroke
one
man’s
ego.
Make
the
right
choice
in
November.

Jonathan
Wolf
is
a
civil
litigator
and
author
of Your
Debt-Free
JD


(affiliate
link).
He
has
taught
legal
writing,
written
for
a
wide
variety
of
publications,
and
made
it
both
his
business
and
his
pleasure
to
be
financially
and
scientifically
literate.
Any
views
he
expresses
are
probably
pure
gold,
but
are
nonetheless
solely
his
own
and
should
not
be
attributed
to
any
organization
with
which
he
is
affiliated.
He
wouldn’t
want
to
share
the
credit
anyway.
He
can
be
reached
at [email protected].

If
you’ve
been
paying
attention,

you
know
the
Supreme
Court
is
gunning
for


Obergefell,

the
landmark
case
that
held
there
is
a

federal
constitutional
right
to
same-sex
marriage.
And
it’s
not
a
matter
of
tea
leaf
reading
that
leads
to
that
conclusion.
It’s
Samuel
Alito’s
unhinged
dissent
in
the
case
—
that

he
still
can’t
let
go
of.
And
Alito’s
majority
opinion
overturning
established
precedent
guaranteeing
the
right
to
reproductive
freedom
in

Dobbs
that

creates
parallels
between
the
right
established
in Obergefell
v.
Hodges
as
similar
to
reproductive
freedom
as
they’re
not
“deeply
rooted
in
history.”
Plus
there’s
the

concurrence
written
by
Clarence
Thomas
that
explicitly
says
the
Court
should
“reconsider”
its
jurisprudence
on
marriage
equality
(as
well
as
the
Court’s
holdings
on
consensual
sexual
contact
and
contraception).

And
what
we’ve
learned
from
the
current
Court
is,
they’re
totally
chill
with

shredding
precedent
and
issuing
decisions

wildly
out
of
line
with
what
the

majority
of
Americans
believe
as
long
as
it
fits

*their*
vision
of
what
the
country
should
be.
So,
yeah.
Even
though

69%
of
Americans
support
gay
marriage,
we
should
absolutely
be
worried
about
the
rights
enshrined
in

Obergefell.

Now
some
states
are
trying
to
get
ahead
of
the
Supreme
Court’s
remaking
of
the
country.
This
election
day
in
California,
Colorado,
and
Hawaii,
voters
will
have
the
opportunity
to
undo
some
problematic
language
in
the
states’
constitutions
from
the
aughts.
All
three
states,
at
one
point,
codified
a
narrow
version
of
marriage
that
excluded
same-sex
couples.
And
activists
would
really
like
them
off
the
books,
just
in
case
the
Court
makes
good
on
its
thinly
veiled
threat
to
overturn

Obergefell.
As

reported
by
HuffPost:

California’s
Proposition
3
would
repeal
and
overwrite
the
state’s
ban
on
same-sex
marriage
that’s
still
in
California’s
constitution.
In
2008,
the
voters
in
the
state
approved
Proposition
8,
which
defined
marriage
as
between
a
man
and
a
woman
and
banned
the
state
from
recognizing
same-sex
marriage.
It
was
made
void
after
the
Supreme
Court’s
2013
decision
in
Hollingsworth
v.
Perry
and
allowed
the
state
to
resume
same-sex
marriages.

Colorado’s
Amendment
J
similarly
seeks
to
remove
this
narrow
definition
of
marriage
from
the
state
constitution.
And
in
Hawaii,
voters
will
answer
Question
1,
which
asks
if
voters
want
to
remove
language
from
the
state
constitution
that
gives
Hawaii
lawmakers
the
authority
to
reserve
marriage
only
for
“opposite-sex
couples.”

“As
someone
who
fought
to
establish
and
protect
marriage
equality
in
Hawaii
for
more
than
a
quarter
of
a
century,
I
refuse
to
stand
by
and
watch
this
Court
take
a
hatchet
to
rights
won
that
had
previously
been
denied,”
wrote
Rep.
Jill
Tokuda
(D-Hawaii),
in
support
of
Hawaii’s
amendment.
“If
this
Court
follows
through
on
its
threat
to
revisit
Obergefell,
we
could
easily
see
nationwide
rights
to
same-sex
marriage
restricted
again.”

Cleaning
up
state
laws
that
were
rendered
moot
by

Obergefell
stops
the
threat
of

zombie
laws
coming
back
to
haunt
folks
in
California,
Colorado,
and
Hawaii.
But
there’s
still
a
lot
at
risk,
particularly
for
those
in
red
states,
if
the
Court
turns
back
the
clock
on
gay
rights.

Kathryn
Rubino
is
a
Senior
Editor
at
Above
the
Law,
host
of

The
Jabot
podcast,
and
co-host
of

Thinking
Like
A
Lawyer.
AtL
tipsters
are
the
best,
so
please
connect
with
her.
Feel
free
to
email

her
with
any
tips,
questions,
or
comments
and
follow
her
on
Twitter

@Kathryn1 or
Mastodon

@[email protected].

The
Republican
party
of
the
1990s
must
be
turning
over
in
its
grave
because
the
modern
GOP
is
arguing

teen
pregnancy
is
a
good
thing. Equity
partnership
in
Biglaw
is
a
financial
windfall,
unless
you’re
in
the
10-30%
of
partners getting
a
compensation
cut.
And
do
you
like
messy,
I
mean
MESSY,
legal
drama?
The

latest
from
the
Texas
bankruptcy
court
romantic
scandal
is
eye-popping.

In
most
workplaces,
if
you
are
sexually
harassed,
your
first
course
of
action
is
to
seek
assistance
from
Human
Resources.
If
that
fails,
you
can
assert
your
right
to
a
safe
workplace,
free
from
discrimination
and
harassment,
under

Title
VII
of
the
Civil
Rights
Act
of
1964.

But
the
antidiscrimination
laws
that
apply
to
the
rest
of
us,
do
not
apply
to
more
than
30,000
employees
of
the
federal
judiciary,
including
law
clerks
and

public
defenders.
The
judiciary
would
prefer
you
not
dwell
on
that,
since
it
might
give
some
applicants
pause
before
applying
for
federal
clerkships.

This
week,
the
federal
judiciary’s
Office
of
Judicial
Integrity
(OJI)
will
host
their

now-annual
law
clerk
program
about
workplace
protections
for
federal
judiciary
employees.
OJI
is
an
office
within
the
Administrative
Office
of
the
U.S.
Courts
(AO)
created
in
the
wake
of
former
judge
Alex
Kozinski’s

resignation.
This
could
be
a
short
program,
because
mistreated
clerks
have
a

very
short
list
of
options
available.

The
TL;DR?
The
judiciary’s
“alternative”
to
federal
antidiscrimination
protections,

Employee
Dispute
Resolution
(EDR),
lacks
standardization,
meaningful
remedies,
uniform
enforcement,
transparency,
and
metrics
for
success.
It
is
underutilized
because

it
is
ineffective,
considering
the
judiciary
has
done

nothing
to
ensure
that
clerks
who
file
complaints
are
protected
against
retaliation
by
their
powerful
superiors.

In
light
of
what
will
likely
be
a
fact-light
and
misrepresentation-heavy
presentation,
it’s
important
to
remind
newly
minted
clerks
about
their
very
limited
options
if
they
are
mistreated
by
their
life-tenured,
unaccountable
bosses.

Much
has
changed
since
last
year’s
program.
Many
more
clerks
are
now
aware
of
the
limited
redress
available
to
them,
thanks
to
my
nonprofit,

The
Legal
Accountability
Project’s
(LAP),
law
school
programming,
thought
leadership,
robust
social
media
presence,
and
national
resources.
At
nearly
all
of
the

more
than
50
LAP
events
I’ve
done
over
the
past
two
years,
I’ve
discussed
why
EDR
and
the

Judicial
Conduct
&
Disability
(“JC&D”)
Act
fall
short
of
basic
workplace
standards.

What
else
is
different?

In
July,
former
Alaska
federal
judge
Joshua
Kindred

resigned
in
scandal,
after
a
20-month
Judicial
Council
investigation
revealed
appalling
abuse
and
sexual
harassment
in
his
chambers.
Yet
this
was
not
a
total
victory:
during
the
lengthy
investigation,
the
judiciary

did
nothing
to
protect
Kindred’s
clerks
from
continued
mistreatment,
or
from

retaliation
for
participating
in
the
investigation,
such
as
reassigning
them
to
a
different
judge.

Then,
back-to-back
reports
were
published
by
the

Federal
Judicial
Center
and
National
Academy
of
Public
Administration,
and
by
the

U.S.
Government
Accountability
Office,
underscoring

significant
flaws
in
the
EDR
Plan.
These
include
a
lack
of
standardization,
transparency,
data
collection
and
reporting,
metrics
for
success,
and
training
for
judiciary
points
of
contact,
including
EDR
Coordinators
and
Directors
of
Workplace
Relations
(DWRs)
tasked
with
enforcing
the
EDR
Plan.

Then,
in
September,

Congress
reintroduced
the
Judiciary
Accountability
Act
(JAA),
legislation
that
will

finally
extend
Title
VII
and
whistleblower
retaliation
protections
to
more
than
30,000
federal
judiciary
employees.
The
JAA
will
also
standardize
EDR
plans;
revise
the
judicial
complaint
process;
create
multiple
confidential
reporting
channels
for
clerks;
and
require
the
judiciary
to
collect
and
report
annual
data
on
demographics
of
clerk
hiring,
a
workplace
culture
assessment,
outcomes
of
judicial
misconduct
complaints,
and
metrics
on
employees’
use
of
the
EDR
Plan
—
since
quantifying
the
scope
of
these
problems
is
the
first
step
toward
crafting
effective
solutions.

And,
of
course,
thousands
of
students
and
now-clerks
have
benefited
from
LAP’s

Centralized
Clerkships
Database
—
“Glassdoor
for
Judges”—a
repository
of
more
than
1,400
candid
reviews
about
nearly
1,000
federal
and
state
judges
that
pulls
back
the
curtain
for
applicants
on
judges’
management
style,
chambers
culture,
and
workplace
conduct.

Students,
and
clerks
who
are
applying
for
another
clerkship,
do
not
need
to
sit
through
a
lecture
on
hollow
workplace
“protections.”
They
can
log
into

LAP’s
database
right
now
and
find
out
which
judges
create
positive
work
environments,
and
which
ones
do
not.

Sadly,
the
federal
judiciary
—
particularly
the
AO
and
the
Judicial
Conference,
but
some
individual
judges,
too
—
are
unmoved
by
these
developments
and
by
the
increasingly
vocal
calls
for
accountability
and
transparency
in
their
ranks.
They
have
made

no
changes
in
the
wake
of
Kindred’s
resignation,
nor
following
these
EDR
reports
—
in
fact,
they
stonewalled
investigators
trying
to
collect
information
for
the
reports.

If
this
OJI
program
is
anything
like
last
year’s,
they
will
cover
what
they’ve
referred
to
as
“The
4
P’s:
People,
Policies,
Process,
and
Procedures.”
So,
let’s
break
them
down.

People

The
federal
judiciary
is
not
sending
their
best
people
to
prevent
judges
from
sexually
harassing
law
clerks.

The

Office
of
Judicial
Integrity
appears
to
be

one
person.
An
office
ostensibly
tasked
with
overseeing
the

entire
federal
judiciary’s
law
clerk
issues
in
94
district
courts
and
13
federal
circuit
courts,
for
more
than
1,000
federal
judges,
each
of
whom
supervise
between
two
and
four
law
clerks
annually
(several
thousand
clerks
total),
should
be
more
robustly
staffed.

Most
federal
circuits
have
a

Director
of
Workplace
Relations
(the
8th
and
10th
circuits
share
one,
though
there
are
enough
issues
that
every
circuit
needs
its
own
DWR).
And
every
court
has
at
least
one
EDR
coordinator.

Some
mistreated
clerks
turn
to
circuit
DWR
for
“informal
advice,”
the
most-utilized
aspect
of
the
EDR
Plan.
Unfortunately,
DWRs
and
EDR
coordinators

do
not
possess
the
necessary
formal
training
on
human
resources,
employee
workplace
issues,
or
antidiscrimination
law,
nor
are
they
required
to
be
licensed
attorneys,
even
though
they
advise
clerks
on

legal
issues.

I’ve
heard
from
clerks
that
judiciary
points
of
contact

dissuaded
them
from
filing
complaints
against
judges,
advising
that
their
allegations
did
not
rise
to
the
level
of
abusive
conduct
or
that
there
were
not
enough
co-clerk
complainants
for
them
to
be
successful,
even
though

they
are
not
qualified
to
make
these
determinations.

Policies

A
mistreated
clerk
can
file
an
EDR
complaint,
JC&D
Act
complaint,
or
both.
EDR
is
a
wholly
internal
dispute
resolution
mechanism
that
allegedly
offers
a
modicum
of
redress
for
clerks,
whereas
the
JC&D
Act
is
the
disciplinary
process
for
judges
who
engage
in
misconduct.

EDR
would
be
a
toothless,
sorry
excuse
for
an
option
if
it
were
one
of
several
options
available.
For
judiciary
employees,

this
is
their
only
option.
EDR
has
been
described
by
attorneys
who
represented
clerks
in
the
process
as
a
“kangaroo
court”
that
“lacks
even
the
appearance
of
impartiality
or
due
process.”

That’s
why
former
federal
public
defender
Caryn
Devins
Strickland
is

suing
the
federal
judiciary
right
now
for
mishandling
her
sexual
harassment
complaint,
alleging
the
EDR
Plan
violates
her
due
process
rights
and
is
both
facially
unfair
and
unfair
as
applied
to
her.

Why
is
EDR
such
a
sham
process?

First,
the
only
available
remedy,
in
reality,
is
reassignment
to
a
different
judge.
Unlike
a
Title
VII
complaint,
no
monetary
remedies
are
available
through
EDR,
even
for
clerks
who
were
terminated
and
struggle
to
find
new
employment.

Second,
fellow
judges
in
the
courthouse
where
the
mistreated
clerk
and
respondent
judge
work
preside
over
EDR.
Yet
judges
are
unable
or
unwilling
to
impartially
judge
their
colleagues’
misconduct.

Third,
it’s
a
byzantine
process.
Far
too
little
is
put
in
writing,
which
is
almost
certainly
by
design,
considering
how
much
the
judiciary
enjoys
expounding
in
writing.
Too
much
is
left
to
the
discretion
of
individual
presiding
judicial
officers
(the
judge’s
colleagues).
And
every
circuit’s
plan
is
a
bit
different.

As
if
this
weren’t
bad
enough,
only
26%
of
U.S.
courts’
websites
provide
all
necessary
information
about
workplace
conduct,
and
11%
contain

no
workplace
conduct
information
at
all,
meaning
employees
are
not
properly
informed
of
their
rights.

Importantly,
clerks
engaging
in
EDR
should
hire
attorneys
to
assist.
Clerks
are
not
employment
law
experts.
Yet
clerks
and
public
defenders
struggle
to
find
legal
representation
because
most
attorneys
in
their
jurisdictions
are
“conflicted
out,”
because
they
do
not
want
to
go
up
against
judges
in
the
jurisdiction
where
they
practice.

Clerks
are
young,
recent
law
graduates
in
their
first
legal
job.
Yet
the
judiciary
puts
the
onus
on

them
to
figure
out
their
rights
and
how
to
enforce
them,
forcing
a
mistreated
clerk
to
play
the
role
of
civil
rights
investigator
and
employment
counselor.
If
Title
VII
applied
to
the
judiciary,
the
onus
would
be
on
the

employer
to
ensure
employees’
rights
are
protected.

If
the
judiciary
actually
wanted
EDR
to
work
for
clerks
—
and
wanted
clerks
to
utilize
the
plan
—
they
would
provide
them
with
legal
counsel.
They
would
also
incorporate
monetary
remedies
into
EDR,
so
employment
attorneys
could
represent
clerks
on
a
contingency
fee
basis,
and
at
least
get
paid
if
successful.

A
clerk
can
also
file
a
JC&D
Act
complaint.
However,
a
negligible
number
of
complaints
(typically
fewer
than
10
annually)
are
filed,
because
clerks
are
not
legally
protected
against
retaliation.

If
the
judiciary
wanted
these
processes
to
work
—
for
clerks
to
file
complaints,
and
to
root
out
misconduct
—
they
would
support
the
JAA,
which
would
extend
whistleblower
protections
against
retaliation
and
revise
the
EDR
Plan.
The
AO
and
Judicial
Conference
oppose
the
JAA,
apparently
signaling
a
belief
that
judges
are
above
the
laws
they
interpret.

Processes
And
Procedures

A
process
that
relies
on
subordinates
—
fresh-out-of-law-school
clerks,
in
their
first
legal
jobs,
totally
dependent
on
judges
for
references
and
career
advancement
—
to
report
on
their
life-tenured,
powerful
superiors,
does
not
and
will
not
work,
unless
clerks
are
legally
protected
against
retaliation
under
Title
VII.

Yet
the
judiciary
refuses
to
even

collect
and
report
data,
publicly
and
to
Congress,
on
employees’
use
of
the
EDR
Plan.
So,
we
can
rely
only
on
anecdotal
data
provided
to
LAP
about
the
EDR
Plan.

The
landscape
is
bleak.
Judiciary
points
of
contact
are
described
as
“useless”
and
“unsympathetic”
to
clerk
concerns.
Clerks
tell
me
they
have
not
and
would
not
report
misconduct
to
the
federal
judiciary
because
they
believe
their
concerns
will
not
be
taken
seriously
nor
meaningfully
resolved
in
a
way
that
protects
them
from
retaliation
and
holds
their
abusive
bosses
accountable.
When
the
stakes
are
high,
and
the
likelihood
of
success
is
low,
clerks
wonder,
why
stick
their
necks
out?

Protections

Perhaps
the
AO
intended
to
lump
a
fifth
“P”
—
protections
—
into
one
of
these
categories.
What
workplace
protections
exist
for
clerks?
None.
The
federal
judiciary
is
exempt
from
Title
VII
of
the
Civil
Rights
Act,
as
well
as
the
Americans
with
Disabilities
Act
(ADA),
Rehabilitation
Act,
and
Age
Discrimination
Act.
If
you
are
harassed,
discriminated
against,
wrongfully
terminated,
or
retaliated
against
by
a
federal
judge,
you
cannot
sue
and
seek
damages
for
harms
done
to
your
career,
reputation,
and
future
earning
potential.

In
practice,
judges
can
refuse
to
hire
disabled
clerks,
refuse
to
accommodate
their
disabilities,
or
fire
them
rather
than
accommodate
them.

Judges
can
fire
clerks
without
cause.
They
can
give
retaliatory
negative
references
if
clerks
speak
up
about
mistreatment.
They
can
derail
clerks’
careers.
All
with
impunity.

Strangely,
sometimes
the
judiciary
suggests
that
Title
VII
protections
might
apply
to
them.
Here
is
a
direct
quote
from
one
of
last
year’s
OJI
program
slides:

“Judiciary
policy
protects
employees
(including
law
clerks)
from
conduct
that
would
violate
the
following
federal
laws:

Title
VII
of
the
Civil
Rights
Act
of
1964

Age
Discrimination
in
Employment
Act

Americans
With
Disabilities
Act

Family
and
Medical
Leave
Act…”

What
does
this
mean?
This
obfuscation
is
by
design.

But
this
is
not
the
first
time
the
judiciary
asserted
Title
VII
already
applies
to
them:
in
2022

congressional
testimony,
the
judiciary
co-chairs
of
the
Workplace
Conduct
Working
Group
made
a
similar
assertion
to
signal
opposition
to
the
JAA.

If
the
lack
of
P’s
—
policy,
protection,
process,
and
procedure
—
sounds
dire,
it
should.
I
have
spent
the
past
several
years
attempting
to
engage
with
the
federal
judiciary,
using
both
carrots
and
sticks.
I
have
also
invested
hundreds
of
hours
counseling
clerks
on
their
limited
options
for
redress;
and
have
reviewed
thousands
of
clerkship
experience
surveys
from
clerks
nationwide.
Misconduct
in
the
federal
judiciary
—
and
their
disinterest,
or
lack
of
urgency,
in
addressing
it
—
is
a
five-alarm
fire.

We
have
seen
nothing
but
window-dressing
changes
to
court
policies
over
the
past
decade.
We
owe
it
to
the
next
generation
of
attorneys
to
be
honest
about
challenges
clerks
face.
To
say
anything
less
would
be
a
disservice
to
the
thousands
of
eager
recent
graduates
embarking
on
careers
within
the
federal
judiciary,
as
well
as
to
the
thousands
of
law
students
applying
for
these
prestigious
positions
without
informed
consent
about
the
work
environment.

Policies
that
are
not
enforceable
—
or,
not
enforced
—
are
meaningless.
The
judiciary
leans
heavily
on
good
faith,
touting
codes
of
conduct
for
judges
and
clerks
that
are
little
more
than
suggested
conduct.

Yet
judges
are
almost
never
held
accountable.
Clerks
rarely
file
complaints.
Complaints
are
rarely
investigated.
Judges
are
rarely
disciplined.
Even
then,
remedial
measures
are
“voluntary”
and
the
judiciary

makes
every
effort
to
shield
judges
from
accountability.

In
light
of
this,
here
are
some
questions
I
would
ask
OJI
at
this
presentation:

1. How
   are
   clerks
   who
   file
   complaints
   protected
   against
   retaliation?
   Can
   you
   provide
   specific
   examples
   about
   how
   a
   clerk
   is
   protected
   when
   applying
   for
   post-clerkship
   jobs
   where
   the
   judge
   might
   be
   contacted
   as
   a
   reference?
2. How
   many
   clerks
   in
   my
   circuit
   used
   the
   EDR
   Plan
   last
   year?
   How
   many
   were
   successfully
   reassigned?
   What
   are
   the
   most
   common
   outcomes
   in
   EDR?

The
judiciary
seems
to
believe
retaliation
does
not
happen
(have
they
met
me?),
so
they
probably
won’t
answer
Question
1.
And
since
they
allegedly
does
not
keep
track
of
EDR
data
and,
to
the
extent
they
do,
claim
they
cannot
disclose
anonymized
trends
while
protecting
clerk
confidentiality,
they’ll
probably
evade
Question
2.

There
has
never
been
a
more
important
time
for
the
federal
judiciary
to
take
these
issues
seriously.
Yet
by
stonewalling
investigators
and
Congress,
continuing
to
tout
a
dispute
resolution
process
that
is
clearly
ineffective
and
has
engendered
a

high-profile
lawsuit,
and
opposing
reform
efforts,
they
signal
total
disregard
for
the
welfare
of
clerks.

It’s
the
height
of
injustice
that
law
clerks,
the
public
servants
who
support
the
daily
functioning
of
our
courts,
lack
basic
workplace
protections.

That
should
be
key
the
takeaway
from
any
federal
judiciary
workplace
conduct
presentation.

Aliza
Shatzman
is
the
President
and
Founder
of The
Legal
Accountability
Project,
a
nonprofit
aimed
at
ensuring
that
law
clerks
have
positive
clerkship
experiences,
while
extending
support
and
resources
to
those
who
do
not.
She
regularly
writes
and
speaks
about
judicial
accountability
and
clerkships.
Reach
out
to
her
via
email
at [email protected] and
follow
her
on
Twitter
@AlizaShatzman.