Author: TSA Press

We have some incredibly unfortunate news from New York, where a woman who overcame historic obstacles to succeed in the world of elite legal academia passed away due to complications of coronavirus.

Lila A. Fenwick, 87, was the first black woman to graduate from Harvard Law School. She graduated from Harvard Law in 1956 with a handful of other women, just one year before Ruth Bader Ginsburg started as a first-year student at the school. While there, Fenwick was subjected to “a particularly virulent form of racism and sexism.” Her New York Times obituary details her career:

“I knew I was going to be a lawyer when I was a little girl,” she told the Harvard Law Bulletin in 2000. “It never occurred to me that there were going to be any obstacles.” …

After law school, [Fenwick] attended the London School of Economics.

In the 1960s, Ms. Fenwick worked in what was then the Division of Human Rights at the United Nations, said Bertrand Ramcharan, a former acting United Nations High Commissioner for Human Rights. She was a specialist on studies about gender, racial and religious discrimination; the protection of minorities and indigenous populations; and the right to emigrate from oppressive countries, he said.

“She was so elegant, a lady in the lovely, old fashioned, full sense of that word,” Professor Patricia J. Williams, a 1975 graduate of Harvard Law said. When Williams was working as one of the first black female professors at Columbia Law in the early 1990s, Fenwick audited one of her courses. “We talked about the loneliness, what it took to be in a world where you were always different, always the other and never assumed to be part of the power elite.”

We here at Above the Law would like to extend our sincere condolences to Lila Fenwick’s family, friends, and colleagues during this difficult time.

Lila Fenwick, Who Broke a Barrier at Harvard Law, Dies at 87 [New York Times]

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 Twitter or connect with her on LinkedIn.

This story is very much about the juxtaposition of grown-ups and children. The good news and bad news for students at the UCLA School of Law is that both are members of the faculty.

To recap, when Professor Stephen Bainbridge went to Twitter to tell the world that he suspects his Chinese students gave him COVID, a contention he based upon… nothing, the folks from APILSA wrote a detailed response garnering, at this writing, over 450 signatures. With a controversy like this brewing on her watch, Dean Jennifer Mnookin sent a statement to students and faculty attempting to strike a tone of tolerance and understanding. Professor Bainbridge has publicly said of his remarks that, “Put bluntly, they were stupid and insensitive,” and Dean Mnookin acknowledged this as an important step in the institution’s ongoing mission:

And that is work that we can and must undertake collectively. To be sure, it is also important to recognize that there is already much we can be proud of about our community and in our learning environment. I see daily the way that compassion and empathy couple with rigorous intellectual engagement. I see students working ardently to learn and to lead while holding on to their deep sense of justice. I see faculty caring about our students as both learners and as individuals. I see students from all over the globe who enrich our collective learning and help to broaden our worldview. And I see a community that is meaningfully diverse along virtually every dimension, and a school where students from backgrounds traditionally underrepresented in the legal profession are succeeding, flourishing and leading, engaged in powerful advocacy both within our school and in the world beyond.

This is what a grown-up does. The response may not resolve everyone’s concerns — apologies are important, but are only the beginning of the hard work of rebuilding trust — but it recognizes that the institution understands the value of getting to that point.

Dean Mnookin’s statement also addressed in passing, as the APILSA letter raised, that the school is only a few weeks removed from a controversy over Professor Eugene Volokh’s commitment to dropping racial epithets in class, despite being asked by students not to. The dean’s mention merely provided context and explicitly acknowledged both Volokh’s right to continue to do this and that students and, indeed, other faculty are right to recognize this as offensive and to push back against it. All in all, it was a very measured, mature statement.

So, with the inevitability of Thanos, Volokh took to his forum with Reason magazine — America’s foremost publication to jerk off to if you’re a 15-year-old white suburban kid with deep thoughts about affirmative action — to pen “UCLA Law Dean Apologizes for My Having Accurately Quoted the Word ‘******’ in Discussing a Case,” except he doesn’t deploy asterisks. Befitting an infantile rant, the subtitle of the work is “I, however, do not apologize.”

Because there is no world beyond him and his grievances.

Volokh rattles off how he’s an equal opportunity quoter of the cornucopia of slurs available in the cases he teaches and then offers his five arguments for never apologizing — let alone stopping — even when it would cost him nothing and would benefit those he lords over in a power relationship greatly. We’ll address each in turn, but the short-version is “because he can.”

First, the law school is part of a university: And by this he means it has “The right (I think the duty, but at least the right) to accurately present and discuss the facts of the world around us.” This is specious. It’s a failure of this duty if he taught these cases claiming that the defendants said “nothing in particular,” thus scrubbing any potential racial animus from the case and leaving it a confusing shell. That would be an abdication of presenting the facts of the world around us. But on the contrary, presenting the case as, “the defendants shouted a racial epithet” or “the defendants used the n-word while walking down a path” provides the class an entirely accurate picture of the facts.

It’s so ridiculously condescending to pretend students would be at a TOTAL LOSS to understand what’s going on in a case if “I, Professor Whitesington, don’t take my shot to gratuitously use the n-word in class even though we all read the case and we all know what happened and saying it again adds nothing to the educational exercise!”

They’re in law school. They can follow the plot just fine.

Another reason is that, once a rule is set forth… people will naturally assume that this reflects a broader principle: One of my favorite law school moments involved a professor pushing us to explore capital punishment by asking, “If heinousness is a justification as you say, would you support expanding the death penalty to particularly violent, serial rapists?” The student responded by offering the sort of slippery slope concerns Volokh does here and the professor, visibly frustrated, responded with, “Well, in this hypothetical, the slippery slope stops at violent serial rapists so now you can go ahead and actually answer my question.”

This is about using of the n-word in class (and, actually, it’s not even that — it was about “using the n-word after being asked not to” which is what made it a deliberate kick in the face than just using it — but Volokh doesn’t seem to see that important distinction in this piece so we’ll meet his arguments on his terms). And while the other terms Volokh worries about getting canceled next probably don’t need to be superfluously bandied about either, let’s assume arguendo that they do. Maybe, someday, cultural norms will shift to make it commonly accepted to insert specific euphemisms for these other slurs. And when that day comes, we’ll do that because when that day comes it means everyone in the educational exchange will fully understand what transpired without repeating the slur again.

Beyond this, a good deal of history and of crime is much more painful than mere racial hostility: Ah, the venerable “sticks and stones” defense. Only in the arrested adolescence of libertarianism can someone make this argument with a straight-face. To address Volokh’s specific example, genocide is the ceiling of unacceptable stuff, not the floor.

In this section, Volokh provides an anecdote about a moot court competition covering the First Amendment and threats where students wanted to remove a case about cross-burning from the field of discussion, despite it being the key precedent involved. And, yes, this would have been a ridiculous outcome because the students couldn’t have properly held the argument without addressing it. But the bigger question is… why did this have to be the topic of the moot court at all? Not to brag, but the body of American constitutional law has given us a whole lot of material to use for challenging students to develop their practical skills.

Moreover, law schools are training people to become lawyers. Lawyers have to deal with facts as they are, regardless of how unpleasant those facts may be: They do and… they do. We also deal with murder in law school and we manage to talk about it without acting it out on a volunteer from class — even if there’s definitely one kid that we’d like to see cold-called on that one. You, Volokh, not getting to satisfy your prurient interest in using taboo words doesn’t mean the students haven’t read the material and understand the subject. In fact, law schools are also about training lawyers to communicate and paint pictures with their personal word choice. The point is, discussing legal concepts doesn’t require literal reenactment, and if students can’t hold a discussion about a case without flinging epithets around then the school has failed.

He then points out that Eleanor Holmes Norton cowrote a brief that uses the word in full, so if you had “but black people get to use that word” on your argument Bingo sheet, congratulations.

Indeed, the implicit message of the claim that black law students, in particular, need to be protected from hearing cases that contain the word… because they find it so painful or offensive or even traumatic, is that young black lawyers will likewise be sharply disturbed by hearing the word in the everyday reality of their practices: Thankfully, Eugene Volokh is here to help young black lawyers learn that the n-word exists. Doubtless they’ve never ever heard that term in their lives up until they walked into his lecture. It is truly important work that he’s doing teaching them that the first 20 or so years of their lives were a cake walk but now they are going to have to deal with racism.

No. The argument is not that “young black lawyers will likewise be sharply disturbed by hearing the word in the everyday reality of their practices,” a straw argument of almost comical dimensions. It’s that they don’t think a law school class needs to be the place for a bunch of people to gleefully use racial epithets. We don’t necessarily use live ammo in every military training exercise either. These attorneys are more than comfortable handling an epithet in the real world, they just don’t understand why the professor has got to bring it in here when they’re more than capable of discussing the legal issues in this academic space without resorting to it.

The whole “jeremiad for the n-word” drips with the passive racism that comes with being so self-absorbed that the experience of others doesn’t matter. To be fair, Volokh certainly doesn’t see any of this running through his words. But the grand conceit of the libertarian worldview, that there is nothing rational but what is intentional — that the only effect of a person’s action is what they intended and any other impact is just someone else’s flawed understanding — is not a neutral endeavor. Sure, Volokh did not set out to write something racist, but the reality of white supremacy is that it’s almost always enforced by people downright oblivious to it.

Building an intellectual cocoon to justify doing whatever one wants whenever one wants, by necessity, relies on ignoring the realities of racial injustice. It’s a glitch in that Matrix that they just can’t see. But it’s there.

And it’s something that grown-ups are able to see.

Earlier: Law School Professor Muses That His Chinese Students Spread Coronavirus
Prominent Law School Professor Drops The N-Word After Specifically Being Asked Not To Do So

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

After qualifying in judo for the 2004 Olympics in Greece, her family’s ancestral home, a shoulder injury ended Christina Yannetsos’s martial arts career. She decided to head to medical school to make a difference for others. After residency, Dr. Yannetsos moved back to Colorado, where she had trained for the Olympics, to work as an Emergency Room doctor. She met the love of her life, Gabe, married him, and was excited to start a family.

Unfortunately, Yannetsos was surprised to find that she was among the one in four female physicians (25%!) that experience infertility. That’s higher than the normal, already high, rate for the general population, which is 1 in 8. Yannetsos was further surprised that treatment for her diagnosed medical condition was not covered by her health insurance and instead would cost her and her spouse tens of thousands of dollars, if not more, out of pocket. Yannetsos opted to change jobs, seeking an employer that had a health insurance plan that would provide fertility coverage. Think about that. Even a medical doctor wanted to ensure that her health insurance was adequate before beginning fertility treatments.

Not one to stand by as others struggled, Yannetsos was determined to make a change for all Coloradans. She started reaching out to advocates in other states and organizations like RESOLVE: The National Infertility Association, and uniting passionate voices within Colorado on social media. She joined forces with the newly formed nonprofit Colorado Fertility Advocates, with others like Colorado local Crystal Wilson, who had successfully advocated on the national level for fertility benefits for wounded veterans, as well as fertility professionals: reproductive endocrinologist Dr. Althea O’Shaughnessy, psychologist Dr. Alison Wilson, egg donation and surrogacy agency owner Angela Bevill, surrogacy agency owner Jennifer White, attorney Judith Hoechst, and yours truly.

In moving the issue forward, Colorado Fertility Advocates partnered with RESOLVE, the Alliance for Fertility Preservation, and their fellow Building Families Coalition members — the American Society for Reproductive Medicine, EMD Serono, and Ferring Pharmaceuticals — and with strong local support from organizations, including the Colorado Women’s Bar Association and the LGBTQ+ advocacy group One Colorado. And they found champion sponsors in Colorado State Representatives Kerry Tipper and Leslie Herod.

Fast forward a little over a year later, to April 1, 2020 — and not as an April Fool’s joke — Colorado Governor Jared Polis signed into law HB20-1158, The Colorado Building Families Act, a bill to improve fertility care access in Colorado. Despite COVID-19 taking over all things everywhere, Polis squeezed in the signing and added Colorado to the list, along with 17 other states, that have fertility insurance laws.

What Does The New Law Do?

The newly minted law scheduled to take effect in January 2022 requires insurance policies under Colorado law — by contrast to those under federal law, such as ERISA plans — to cover fertility diagnosis, medically necessary preservation, and treatment. These policies are required to treat fertility medical services the same as other covered medical services and cannot charge differently for copays or deductibles.

LGBTQ+ Inclusive

Moreover, the bill broadly defines “infertility” to include: (i) the failure to impregnate or conceive; (ii) a person’s inability to reproduce either as an individual or with the person’s partner; or (iii) a licensed physician’s finding based on a patient’s medical, social, and reproductive, history, age, physical findings, or diagnostic testing. The bill’s language rejects exclusive and outdated definitions based strictly on age and heterosexual relationships, and includes coverage for those in the LGBTQ+ community.

Religious Exemption; Three Rounds Of IVF

After passing the Colorado House of Representatives, the Senate process involved some negotiation and compromise, resulting in the addition of a religious exemption available to employers, as well as a reduction in the number of completed egg retrievals covered from four down to three, with unlimited embryo transfers — the final number in the new law.

A New Insurance Mandate?

What about the ACA/Obamacare? Well, not to get in the weeds too much, but talks with the Governor before the bill passed resulted in the addition of a provision stating that should the benefits provided by the law be deemed a new mandate under the Affordable Care Act (ACA), and require defrayal of costs at the expense of the State of Colorado, then the law would not go into effect for the small group and individual insurance markets, but would still apply to the large group market. The good news, however, is that proponents of the bill do not expect the law to be deemed a “new” mandate — since there’s already a weaker mandate that this law expands — meaning that this issue probably won’t arise.

Just The Start

Over a million Coloradans have policies falling under Colorado law, who will soon have fertility benefits. However, Yannetsos sees this as just the beginning. “My senator told me he was voting against this bill because it helps only a percentage of people. In response, I explained that we have to start somewhere, and I am confident others will see the positive impact it has on families and the overall improvement of access to quality healthcare. I am hopeful that Colorado will lead by example and self-funded employers [those under federal law] will see the benefit to their employees and our community and take initiative to make changes as well. Colorado hopes to lead by example in that every American has access to the same benefit.”

During State Legislative hearings on the bill, a few legislators expressed concerns that inclusion of fertility coverage would increase healthcare costs. RESOLVE’s Chief Engagement Officer testified in support of the bill, as she has done in other states, explaining that … AKSHUALLY … studies support the opposite conclusion. A lack of fertility coverage has shown to *increase* costs as a result of patients making different, costlier medical decisions, such as waiting longer for treatment and opting for multiple embryo transfers. Multiple embryo transfers mean higher rates of multiple births (twins and triplets), with increased medical risks to the children and mother as well as greater costs to the medical system overall.

The new law is a big win for Colorado and those needing help growing their families. Crystal Wilson explained, “I could not be more proud of Colorado for being the 18th state with fertility coverage, 12th with IVF coverage, and 10th with fertility preservation coverage!” Congratulations, Colorado!

Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

The coronavirus pandemic and the mandatory social distancing rules made it impossible to safely administer the July bar examination in a large, crowded convention center. As a result, most states have postponed the examination to September or may cancel it altogether, which will create a hardship for recent law school graduates. But the Utah Supreme Court is considering allowing them to skip the bar examination. They will be allowed to practice law based on diploma privilege so long as they meet certain requirements and spend 360 hours working under the supervision of a licensed Utah attorney.

The “diploma privilege” approach — adopted only by Wisconsin — is not being considered by the majority of states. Other states are allowing graduates to practice temporarily with supervision until the next scheduled bar examination. This approach has been endorsed by the American Bar Association’s Board of Governors.

While some flexibility should be given only to the graduating class of 2020 in light of the pandemic, I do not support the Utah Supreme Court’s approach. I think the court should follow the recommendation of the ABA and the other states and allow graduates to practice under supervision until the the next available bar examination.

Although this is only a temporary proposal, it will be another round of ammunition for those who want the bar exam abolished for good. And behind the smoke and mirrors and the usual talking points about the usefulness of the bar exam and increasing access to justice for the poor, the motivation is primarily based on self-interest. Let’s look at the main parties.

Law school graduates don’t want to take the bar exam. A few have legitimate reasons. But the rest just don’t want to study for it after three years of school. I’ll admit it: If I had this option when I graduated, I would not have taken the bar exam.

People in the law school industry want the bar exam abolished. The “kill the bar exam” movement started only a few years ago when many law schools saw their graduates’ first-time bar passage rates plummet. This was because fewer people went to law school upon learning that some law schools have advertised misleading post-graduate employment numbers. Due to this decline, a substantial number of schools resorted to admitting students they would normally reject.

Lastly, most practicing lawyers want to keep the bar exam. Most see it as a test for minimum competency and protection of the public. Some see it as tradition and a rite of passage. And there are those who think that if they had to take the exam, then so should everyone else as a matter of fairness.

So let’s analyze the Court’s proposal. First, let’s look at the 360-hour, supervised-practice requirement. If you break those hours down to eight-hour days, that means only 45 days of supervised practice. Or 36 days for the more realistic 10-hour day schedule for a first-year associate. So a two-month supervised apprenticeship would be sufficient to warrant diploma privilege? I think many reasonable legal professionals would disagree.

Also, many law firms -– large and small -– are cutting back on staff. Some are furloughed while others are no longer needed at all. This will make it harder for graduates to find an attorney willing to provide supervision, assuming they have work that can be supervised. And since the 360-hour requirement must be fulfilled by December 31, 2020, it may create problems for those who are seeking those hours at the last minute.

Lastly, consider the quality of the supervision. While I believe every attorney in Utah will take their supervisory role seriously, some graduates will get better training than others depending on the firm’s practice areas, the experience of the supervising attorneys and the resources available to the firm. Some attorneys will be more concerned about obtaining new business in this economy so they might have their protégés spend more time marketing themselves. And others may have their associates perform drudge work with questionable learning value.

Considering the numerous variables, I think a mere 360 hours of supervised practice relying on the honor system would neither adequately test minimum competency nor protect the public.

Supporters will cite to Wisconsin’s existing diploma privilege and how it has not created any problems. Ultimately, disputing this is an exercise in futility. We’ll have an easier time debating whether Brett Favre or Karl Malone was the better athlete. If it works for Wisconsin, then more power to them. However, the other 49 states and other United States territories have not followed suit. And neither have most countries. And most are not inclined to do so, even today.

Then there is the issue of access to justice. Will the diploma privilege increase greater access to legal services for the indigent? This is questionable and speculative at best. I’m sure that every law school graduate will pledge to help the indigent for a set period of time in exchange for diploma privilege. Afterward, some will devote their careers to this endeavor. But I suspect that most will do the bare minimum, then switch to practice areas that fit their interests or are more financially lucrative. If this is the case, then the increase of access will be short-lived.

Also, the economic downturn has negatively affected lawyers as well. As a result, they are helping those who are in need by offering reduced-cost or even free services either as a gesture of goodwill, to change practices, or for marketing purposes. For example, many attorneys nationwide have offered to help medical professionals draft estate plans. Others are helping struggling business apply for government loans and grants, particularly the Paycheck Protection Program forgivable loan. Others are providing consultation to people who are facing evictions or foreclosures.

Maintaining the bar exam will help the indigent obtain legal services. There is a reason why the bar exam tests a wide variety of subjects. It prepares the exam takers to be general practitioners for basic legal services. Today, specialization is easier and usually more lucrative. But in times of economic crisis, clients will either disappear or pay less. So attorneys will need to be able to transition if they want to survive. Granted, working under an experienced attorney is a far better way to do this. But in case that option is not available, at least the attorney will know some basic concepts that they can build on as they develop a new practice area. And the attorney is likely to charge a lower fee while developing that client base and reputation.

The Utah Supreme Court’s proposal of diploma privilege plus supervision approach, while well-intentioned, is not the right way to help this year’s graduates. The 360 hours of supervised experience is not enough to develop core competencies that would justify skipping the bar exam. Also, it is not clear whether this would increase access to justice when existing practitioners are also attempting to reach out to people with limited means in light of the economic downturn. And the concepts studied on the bar exam, while not perfect, makes it easier for attorneys to transition to different practice areas which will become necessary as the economy shifts to adapt to the new normal.

Steven Chung is a tax attorney in Los Angeles, California. He helps people with basic tax planning and resolve tax disputes. He is also sympathetic to people with large student loans. He can be reached via email at sachimalbe@excite.com. Or you can connect with him on Twitter (@stevenchung) and connect with him on LinkedIn.

As this website has already covered at length, many law firms are instituting austerity measures in order to deal with challenges posed by COVID-19. Indeed, a number of law firms have instituted pay cuts, furloughed employees, and even laid off attorneys and staff in order to deal with economic issues caused by the ongoing pandemic. Although many firms have taken appropriate steps when implementing these measures, some firms are messing up austerity rollouts, and this is causing unneeded suffering by employees.

Bad News On Mondays

I have been a fan of the movie Office Space for a long time. (I love the movie so much that I even confused John Bolton with Michael Bolton in a Morning Docket I wrote several months ago!) One of the kernels of wisdom I learned from the movie is that you should only announce layoffs or other bad news on Fridays. It is generally thought that if employees have the weekend to think over their predicament, when they would not be working anyways, they will be better able to absorb bad news. In addition, even in the current situation, the weekend is a good time to reflect, relax, and process information.

However, I have heard of some firms announcing bad news on Mondays or at random times during the week. This seems to be against one of the golden rules of layoffs and other negative employment news. Of course, some information needs to be conveyed as soon as possible, but firms should follow the wisdom from Office Space and announce bad news on Fridays whenever possible, and perhaps Thursdays under the right circumstances.

Bad News Through Email

Since most people are working from home due to shelter-in-place guidelines, it is difficult to communicate with employees in the current environment. As a result, many firms need to send bad news through email when they might have been able to convey such information in person under normal circumstances. However, firms should avoid laying off workers or providing other individualized bad news through email whenever possible.

It is extremely impersonal to be provided information about layoffs or individualized negative employment news through email. Such information will have a profound impact on an employee’s life, and law firms owe it to their workers to have such difficult conversations over the phone or through videoconferencing whenever possible. If Anna Kendrick and George Clooney can fire people through remote means in Up in the Air (which came out over 10 years ago, I’m referencing a lot of movies!), law firms should be able to more personally convey individualized bad news to employees.

No Transparency

Even though flatfooted emails about bad news should be avoided, it is still preferable to no transparency at all, which is unfortunately occurring at some shops. As discussed in prior Above the Law articles, some law firms are implementing COVID-19 austerity measures with little or no communication to employees. Since many people are not in their offices, the only way that employees at these firms sometimes discover that people have been furloughed or laid off is when profiles are taken off of firm websites.

Some firms seem to think that this is a gentler version of rolling out COVID-19 austerity measures. This is not true. A lack of transparency can hurt morale and give employees an unshakable sense of dread about their situation. Of course, some firms do not want to go public with the painful measures they need to take in the current environment. Nevertheless, transparently announcing austerity measures will have far better outcomes than being stealthy about layoffs and furloughs.

Inconsistent Messaging

Another way that some law firms have been bungling COVID-19 austerity rollouts is with inconsistent messaging. Some firms have told employees that only certain practice areas would be impacted by austerity measures, or perhaps that only administrative employees would be let go or furloughed because of the COVID-19. Still other firms have conveyed that belt-tightening would only impact certain offices, or that people would only be let go if they had been underperforming for an extended period.

However, after conveying these reassuring messages, some firms have been forced to institute austerity measures like salary cuts, layoffs, and furloughs that affect attorneys and staff who were supposed to be safe from such measures. This can have an extremely negative impact on morale and can make it difficult for employees to trust anything management has to say about their situation. As covered by this website in several prior articles, some firms have circulated reassuring emails to employees relating that no negative measures will be taken due to the ongoing crises. Of course, if firms are absolutely sure that they can weather the storm of COVID-19 without austerity measures, they should send such messages, since this can boost morale. However, unless firm managers are confident that their finances allow them to weather the storm, they should avoid such statements, and otherwise try not to convey inconsistent messaging to employees about a firm’s response to COVID-19.

As we all know, these are trying times, and law firm managers have extremely difficult choices to make. We should all have respect for firm administrators who need to make painful decisions about cutting staff and lowering salaries so firms can weather the storm of COVID-19. However, there are a few steps that law firm mangers can take to ensure that COVID-19 austerity rollouts are easier on employees.

Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

* A Texas judge has been disciplined for posting Facebook congratulations to attorneys who won jury verdicts in her courtroom. Should have saved that conduct for LinkedIn… [Texas Lawyer]

* An attorney representing Anheuser-Busch in a lawsuit involving a Bud Light Super Bowl Ad has requested a new oral argument date because he tested positive for COVID-19. [Bloomberg Law]

* Michael Sussman, the attorney for the alleged Monsey stabber (and a former adversary of mine), is requesting an autopsy of the victim even though autopsies run counter to Jewish burial traditions. [Forward]

* Jeff Sessions has stated that he has no regrets about leaving the Senate to serve as the Attorney General of the United States. [Hill]

* The owner of a strip club in Flint, Michigan has filed a lawsuit claiming that the Payroll Protection Program improperly excludes businesses in the sex industry. This story is kind of reminiscent of another “Flynt”… [Michigan Live]

Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

The Covid-19 pandemic has reached Zimbabwe with seventeen reported cases to date, three of whom have tragically died.  After initial delays, the Government has finally enacted laws which give it powers to combat the disease.

In this Bill Watch we shall describe the statutes which give the Government powers to act in an emergency such as this and shall then analyse the measures the Government has already taken to meet the emergency.

Before we do so we must emphasise that the Government has no inherent, extra-legal power to take action in an emergency such as the one posed by Covid-19.  The Government cannot act outside the law:  everything it does, even in an emergency, must be authorised by a law enacted in accordance with the Constitution.  In other words, the Government is bound by the rule of law.

The Statutes Giving the State Power to Take Action

1. The Emergency Powers Act

This is the first and most far-reaching statute available to the Government.  We shall not go into the powers it confers on the Government because it becomes operative only if the President issues a proclamation declaring a state of public emergency under section 113 of the Constitution, and the President has not done so ‒ perhaps because he considered other laws were adequate, perhaps because he thought Parliament might not be able to re-assemble within two weeks to approve his declaration by a two-thirds majority as required by section 113(2) of the Constitution.

2. The Civil Protection Act

Under section 27 of this Act, the President can declare a state of disaster if he considers that extraordinary measures are needed to assist and protect people against a disaster ‒ a term that is defined in the Act to include an epidemic such as Covid-19 [section     2].  He must publish the declaration in a statutory instrument “as soon as possible” after making it, and the Minister of Local Government must inform Parliament about it “on the date that it [Parliament] next sits after the declaration is made” [section 28 of the Act  –  note that unlike a declaration of a state of emergency, a declaration of a state of disaster under the Civil Protection Act does not have to be approved by Parliament].  A declaration of a state of disaster lasts for three months, and during that time civil protection officers can order people to keep stocks of essential supplies of fuel, food and medicines, to supply information and to perform essential services [section 22 of the Act].  Also, funds from the National Civil Protection Fund can be utilised to deal with the disaster.

The powers exercisable under the Act are not very great, which may be why, after the President declared a state of disaster on the 17th March, more robust measures were taken  under the Public Health Act.

3. The Public Health Act[link]

This Act, which came into force in 2018, gives the Government extensive powers to deal with “formidable epidemic diseases” ‒ and as we shall explain, Covid-19 has been declared to be such a disease in SI 77 of 2020 [link].

Under section 68 of the Act, the Minister of Health and Child Care can make regulations to deal with formidable epidemic diseases ‒ and his powers are almost frighteningly wide:  his regulations can order quarantines and the isolation and detention of patients;  they can provide for the closing of schools and churches, the restriction of gatherings and the closing of places of entertainment including bars and liquor outlets, order medical examinations, establish isolation hospitals, and order the evacuation and even the destruction of buildings.  Regulations imposing quarantines and isolation can be backed up, if necessary by the use of force and, in cases of “absolute necessity”, by the use of firearms.

Many Initial Measures Legally Ineffective

From a legal point of view ‒ and we emphasise that this bulletin is concerned solely with the law ‒ the Government did not start well.

Initial measures to combat Covid-19 were announced by the President in addresses to the nation on the 17th and 23rd March but were not followed up quickly enough with legal instruments to give them validity.  These measures were:

• A declaration of a state of disaster.  The President announced this on the 17th March but it was not followed by a report to Parliament, as required by the Civil Protection Act, and the statutory instrument containing the declaration was not published “as soon as possible”, as required by the Act but six days later (in SI 76 of 2020 [link], published on the 23rd March).
• The banning of gatherings of more than 100 people, reduced to 50 people in the President’s address of the 23rd March.  The ban did not become legal until the 28th March, with the publication of SI 83 of 2020 [link] (which banned gatherings of more than two people in public places).
• The closing of borders.  The President announced this on the 23rd March but, like the banning of gatherings, it did not become legal until the publication of SI 83 of 2020 [link] on the 28th March.

Other measures announced by the President, such as the closure of government schools, the restriction of hospital visits and the cancellation of Independence Day celebrations, could be achieved by administrative action without the need for special legislation.

Measures Currently in Force

On the 23rd March the Minister of Health and Child Care published the Public Health (COVID-19 Prevention, Containment and Treatment) Regulations (SI 77 of 2020) [link].  The regulations:

• declare Covid-19 to be a formidable epidemic disease
• prohibit gatherings of more than 100 people, whatever their purpose
• permit compulsory testing, detention, quarantine and treatment, and
• give the Minister of Health power to publish orders in the Gazette providing for most of the matters for which regulations can be made under section 28 of the Public Health Act [see above].  Rather oddly, though perhaps wisely, the regulations require him to consult the President before publishing any orders.

Five days later, on the 28th March, the Minister published the Public Health (COVID-19 Prevention, Containment and Treatment) (National Lockdown) Order (SI 83 of 2020) [link].  This order:

• provides for a 21-day national lock-down beginning on Monday 30th March and ending at midnight on Sunday the 19th April
• prohibits gatherings of more than two people in public places
• closes all airports except in Harare, Bulawayo and Victoria Falls
• permits the Minister of Home Affairs to close ports of entry such as Beitbridge and Plumtree to most traffic
• prohibits the hoarding of medical supplies and food, and
• requires local authorities, if so ordered, to make land and premises available for isolation and quarantine.

In Part 2 of this Bulletin we shall discuss the legality of these measures and the way in which they are being enforced, before (in Part 3) examining some of the individual measures in more detail.

Veritas makes every effort to ensure reliable information, but cannot take legal responsibility for information supplied.

Post published in: Featured

The UN’s World Food Programme (WFP) has warned that the coronavirus disease (COVID-19) pandemic could worsen the food shortage currently being experienced in Zimbabwe.

In a recent statement, the WFP’s Zimbabwe country director, Eddie Rowe, called on the international community to help mobilise food supplies to prevent a catastrophe in that country.

He appealed for US$130 million (about R2,2 billion) in aid to sustain an emergency operation to run until August to prevent millions of the most vulnerable in Zimbabwe from “plummeting even further into hunger”.

“With most Zimbabweans already struggling to put food on the table, the COVID-19 pandemic risks even wider and deeper desperation,” Rowe said.

“We must all do our utmost to prevent this tragedy turning into a catastrophe.”

In a recent report, the Zimbabwean government said that since the first case of COVID-19 in that country was reported on 21 March, a total of 395 suspected cases had been tested, of whom 11 tested positive, while three people had died.

The country was currently in the third week of a 21-day lockdown aimed at curbing the spread of the disease.

The pandemic came on the back of a food shortage that had so far affected 7,7 million people, with the number of people classified as “acutely food insecure” rising to 4,3 million, up from 3,8 million at the end of last year, the WFP said.

Zimbabwe harvested 776 600t of maize in 2019, less than half of the 1, 8 million tons needed for one year’s national consumption.

To overcome the food deficit, the government was importing maize from Tanzania, Uganda, South Africa and Brazil, while the WFP programme was providing further assistance to those in need.

The forecast for this year’s harvest prospects was yet to be released, but aid agencies warned that it could be poorer than that of the previous year.