Author: TSA Press

How many active judgeships are there on the U.S. courts of appeals?

Hint: At any given time, the actual number of judges may vary because of vacancies and because senior judges don’t count towards the number of judgeships.

See the answer on the next page.

I am happy to get a chance to take a pause from depressing COVID-19-related surrogacy updates to bring you some good news for once. And the news is extra sweet because it’s the fruition of an advocacy effort that has lasted years and overcome significant hurdles.

Last week, at the eleventh hour of the Empire State’s 2020 legislative session, the Governor’s Budget passed and included an overhaul to the state’s surrogacy law. After over 30 years of criminalizing surrogacy arrangements, the new law embraces gestational surrogacy (where the surrogate is genetically unrelated to the child she is carrying) as a legitimate path to parenthood and deserving of legal protection. Cue the cheering and fireworks!

Thanks To A Lot Of Hard Work And Governor Cuomo

I spoke with attorney Denise Seidelman, an assisted reproductive technology attorney and a Director of the New York Attorneys for Adoption and Family Formation (NYAAFF). The NYAAFF, along with others, has been working tirelessly for years to reverse the draconian surrogacy law in the state, which has forced parents to incur added expenses and inconvenience to travel to other jurisdictions. Thankfully, no one was actually imprisoned due to the law, but the threat of jail time for entering into an arrangement common throughout the United States was still a little absurd.

In 2019, the surrogacy-supportive Child Parent Security Act (CPSA), which is the title of the bill that is now becoming law in 2020, came so close to passing! And even this year things started to look a little hairy with the introduction of a competing surrogacy bill by New York State Senator Liz Kruger.

But it happened! It passed! And now, or at least starting in February 2021, New Yorkers won’t have to look to other jurisdictions when it comes to family-building options.

In addition to crediting the tireless hours of work from the NYAAFF team (including, among others, Nina Rumbold, Laurie Goldheim, Rebecca Mendel, Casey DiPaola, Joe Williams, Brian Esser, Anthony Brown, and Amy Demma), Seidelman felt that significant credit was owed to Gov. Andrew Cuomo. Cuomo is on something of a hot streak right now. Despite the coronavirus taking over all aspects of New Yorkers’ lives, and the Cuomo’s office working around the clock on pandemic problem-solving, Seidelman said their cause was not forgotten. With late-night and early morning calls, the Governor’s team made sure the CPSA was not lost in the chaos.

The Surrogate Bill Of Rights

Included in the new law is a “Surrogate Bill of Rights.” Overall, having a bill of rights like this is an excellent idea, but with a few practical complications. The provisions include:

• Health and Welfare Decisions. The surrogates have the right to make all health and welfare decisions regarding themselves and the pregnancy, including but not limited to whether to consent to a cesarean section or multiple embryo transfer, to utilize the services of a healthcare practitioner of their choosing, and whether to terminate or continue the pregnancy. The terms generally make sense, but leave some ambiguity. Do they mean that a surrogate can choose pricey out-of-network healthcare providers at the intended parents’ expense, or make negative health decisions in breach of a bona fide contract when it comes to alcohol or drug consumption without any consequences?
• Independent Legal Counsel. The surrogate has the right to independent counsel of her choice, licensed to practice in New York and paid for by the intended parents. Yes! Definitely a good thing. So for you New York attorneys looking to expand your practice into assisted reproductive technology law, now’s your chance, starting in Spring 2021.
• Counseling And Medical Insurance Coverage. The statute provides that “a person acting as a surrogate has the right to obtain a comprehensive health insurance policy that covers behavioral health care and will cover the cost of psychological counseling to address issues resulting from their participation in a surrogacy and such policy shall be paid for by the intended parents.” This is in addition to intended parents being required to pay for a surrogate’s health insurance for a minimum of 12 months after the conclusion of the pregnancy. Yes, 12 months is an especially long time, in this context, barring medical complications.

I spoke with Sarah Paige, an assisted reproductive technology insurance specialist with ART Risk Financial & Insurance Solutions (and guest expert on the podcast I Want To Put A Baby In You). Paige explained that the 12 month requirement is much longer than the typical insurance coverage terms which are generally around three months. The 12 month requirement would significantly raise costs for intended parents — who now need to pay insurance premiums for around nine additional months and who would likely now be subject to at least two different “out of pocket maximums” as the set ceiling on costs reset each year.

• Life Insurance. In addition to the extensive medical and behavior health insurance, intended parents must pay for the surrogate to have a life insurance policy of at least $750,000 (or the maximum amount she qualifies for, if less) in benefits. Life insurance is always a good idea. After all, pregnancy does carry a risk of death. Paige, who likes the increased coverage requirement, nevertheless, explained that the market life insurance policy for a surrogacy arrangement is currently $250,000. To qualify for a term life insurance policy of $750,000 a surrogate would generally need to make an income of over $125,000 a year. Paige explained that there are accidental death policies that do not take income into account, albeit at a significant cost, again increasing the cost for intended parents undergoing surrogacy in New York.
• Termination Of The Agreement. Under the new law, the surrogate can terminate the surrogacy arrangement without liability at any time before a pregnancy, as can the intended parents. That makes sense, since before the pregnancy has begun, the parties ought not be coerced into proceeding with a surrogacy. In other words, both sides need to be in an Empire State of Mind.

Interestingly, while Kruger’s competing surrogacy bill had provided for a legally protected path even for genetic surrogacy (also known as “traditional surrogacy,” where the surrogate is genetically related to the child), the new law leaves genetic surrogacy as still criminalized. That form of surrogacy is much less common these days, so maybe it’s no surprise that legislators were less focused on it.

In sum, the new law does pose some inconveniences for couples trying to grow their family in New York. But inconveniences are a lot better than strict prohibitions. So, despite not being quite perfect, the new law is a major leap forward and a huge win for Seidelman, NYAAFF, Cuomo, and the rest of the state. Congratulations!

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.

Total spending on the United States military, for the period of October 1, 2020, through September 30, 2021, is estimated at $934 billion. We spend more on our military than do the next seven highest-spending nations combined. China, our closest competitor for military spending, spends about only 36 cents on its military for every dollar we spend on ours.

Some of that money is well-spent. $105 billion goes to the Department of Veterans Affairs for the medical and other benefits we’ve promised our veterans. $69 billion is earmarked in the Department of Defense budget to fund overseas contingency operations to fight the Islamic State group. On the other hand, some of this money is spent very poorly, like that flowing to bases that the Pentagon itself repeatedly insists are superfluous, are needlessly costing billions every year, and should be closed.

Meanwhile, the budget of the Centers for Disease Control and Prevention was just $7.625 billion in fiscal year 2018, was $7.283 billion in fiscal year 2019, and dropped to $6.594 billion under the President’s Budget Request for fiscal year 2020. Only a tiny sliver of our national security budget is spent on cybersecurity, to fend off things like the cyberattacks Russia actually constantly throws at us. Trump’s proposed federal budget for fiscal year 2021 did not include one dollar for combating climate change, which has been called “the greatest threat to human health in history,” and is already costing thousands of lives and billions of dollars in property damage every year.

Why are we spending so much less (or nothing at all) to address actual threats we are facing than we spend to maintain a military apparatus aimed at early 20th century style nation-state sponsored military threats? Perhaps it’s blind, unthinking patriotism (which is not patriotism at all, if you ask me). You don’t get to throw a Fourth of July parade and wave little flags and feel superior to citizens of other countries by preventing a pandemic that no one knows was prevented, or by quashing a cyberattack that no one ever hears about. You just get to nobly, quietly save lives, and you will never get credit for it.

There are military experts who recommend that we keep building military capabilities where it makes sense, like in the continued expansion of special operations capabilities, and pay for it by cutting nonsensical military costs, like the F-35s, which are part of the costliest weapons system developed in history but can be outperformed by an unmanned drone. The same idea should be applied more broadly to the entire concept of national defense.

There is not a tug-of-war between military spending and preventive spending on things like pandemic, cyberattack, and climate. These are all types of national defense spending, and should be thought of that way. When we spend our pooled resources to protect our citizens, that’s national defense spending, and we should spend more on the actual threats we face. Hell, let’s just make the CDC the seventh branch of the military after the Space Force if that’s what it takes to make health spending a priority.

In the 1930s, the French constructed an elaborate defensive barrier known as the Maginot Line. It utilized the latest technological components, but was still based on the concept that during World War I, certain fortresses held out against the slow, sustained pounding of German artillery. But World War I was over. The Maginot Line didn’t hold out well against the threat France actually faced as the 1930s drew to a close: Blitzkrieg. The French were quickly outflanked and overwhelmed.

In 21st century America, we’re building a Maginot Line with our current national defense spending to protect against historical threats instead of turning to the threats we are now facing and will face in the future. It’s not a question of national defense spending as opposed to some other type of spending –- it’s all national defense spending. The question is one of wasting money on things that don’t actually protect us versus applying money in a more targeted fashion to things that do. I’d suggest the latter.

Jonathan Wolf is a litigation associate at a midsize, full-service Minnesota firm. He also teaches as an adjunct writing professor at Mitchell Hamline School of Law, has written for a wide variety of publications, and makes 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 jon_wolf@hotmail.com.

Biglaw firms continue to tighten their belts. The economic upheaval that was brought about by the global pandemic continues to burn a path through the economy, and even giant law firms are feeling the pinch. The latest firm to announce COVID-19 austerity measures is Shook Hardy & Bacon, ranked 103rd in the Am Law 200.

The firm has instituted a number of cost-cutting measures in order to put the firm on the firmest footing. There’s salary cuts across the board, though the percentage of the cuts varies by position. Equity partners are seeing the biggest cut — 90 percent of the upcoming draw (scheduled for this week) will be cut, and thereafter their monthly draws will be cut by 75 percent. Income partners will have their April salary cut by ~50 percent and future payment will be reassessed. Associates will take a 25 percent hit, and professional staff will see a 20 percent decrease in compensation. Additionally, we understand there have been some temporary furloughs of professional staff who have work that is dependent on a physical location.

When reached for comment, the firm had this to say:

Despite the many challenges presented by the COVID-19 pandemic, Shook was one of the first law firms to successfully transition to a fully virtual firm model. In doing so, we have continued to provide our consistent excellent service to clients during this health crisis. The creativity, teamwork and dedication demonstrated in all areas of the firm have been extraordinary.
We entered the current period in a strong financial position, but like most businesses, we are taking prudent anticipatory measures consistent with our business continuity planning and financial modeling to appropriately mitigate the significant risk and uncertainty created by the pandemic. These measures include delaying or deferring various operating expenses, deferring some partner distributions, reducing partner draws, introducing pay reductions, and temporarily furloughing some employees.
If feasible, our intent is that these temporary measures will be lifted once the business and economic climate improves. Our overarching objective is to emerge from the current environment in a continued position of financial and strategic strength—ready to serve our clients’ needs as we have for over 130 years.

If your firm or organization is slashing salaries, closing its doors, or reducing the ranks of its lawyers or staff, whether through open layoffs, stealth layoffs, or voluntary buyouts, please don’t hesitate to let us know. Our vast network of tipsters is part of what makes Above the Law thrive. You can email us or text us (646-820-8477).

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Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. 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).

No bar exam? No problem! Every day Donald Trump is president, we wake up in a brand new issue spotter. Today’s scenario comes courtesy of a Trump supporter in Texas who got so excited by the president’s constant hyping of the supposed miracle drug hydroxychloroquine that he thought he’d conduct his own experiment to prove its efficacy.

There is currently no proof that the anti-malarial medication, which is commonly used to treat lupus, improves outcomes for coronavirus patients. Indeed, a hospital in France just halted a test of the drug, finding that the treatment protocol that pairs it with the antibiotic azithromycin cumulatively poses an unacceptable risk of heart damage. But Dr. Robin Armstrong, a GOP activist who sits on the advisory board of Black Voices for Trump, is convinced that the president’s prodigious gut instinct is correct, that hydroxychloroquine will save us from this deadly virus.

And because Dr. Armstrong is the medical director at The Resort, a nursing home in Texas City, he has access to a whole pool of subjects to “prove” it. So when 83 people at the facility, including residents and employees, tested positive for COVID-19, he selected 27 of them to start a regimen of hydroxychloroquine sulfate tablets recently donated to the state of Texas by New Jersey-based Amneal Pharmaceuticals. The Galveston County Daily News reports that, “Armstrong said Trump’s championing of the drug is giving doctors more access to try it on coronavirus patients.”

Dr. Armstrong didn’t tell the patients’ families that they were receiving the drug, although he assured the paper that he was in the process of giving them a heads up on Monday. But Texas Governor Greg Abbott appears to have beaten him to the punch, announcing at a press conference that day in Austin that the drug was being given to the nursing home residents experimentally, to “determine whether or not it will be a successful treatment for those patients.”

“We look forward to updating you as the week progresses about how this drug is aiding — or not — these patients,” he said.

According to The Houston Chronicle, the Texas Pharmacy Board limited prescriptions and instructed its members to fill off-label prescriptions only when accompanied by a “written diagnosis from the prescriber consistent with the evidence for its use.” And Dr. Patrice Harris, president of the American Medical Association, “said she personally would not prescribe the drug for a coronavirus patient, saying the risks of severe side-effects are “great and too significant to downplay” without large studies showing the drug is safe and effective.”

Okay, torts students, START YOUR ENGINES. Please limit your answers to one blue book, in the interests of time.

Elizabeth Dye lives in Baltimore where she writes about law and politics.

30 COVID-19 patients in Texas City nursing home treated with unproven malaria drug [Houston Chronicle]
Texas City COVID-19 patients receive hydroxychloroquine [Galveston Daily News]
Texas City nursing home residents with coronavirus being treated with unproven hydroxychloroquine drug [Texas Tribune]

The firm’s match is unlimited. We wanted that feeling of participation across our firm. Notwithstanding that this is a strong place to be now, people’s lives are complicated, they have husbands and wives and kids. Our strong performance allows us to help people individually and collectively.

— Paul Hastings chairman Seth Zachary, commenting on the firm’s decision to create a pandemic fund meant to benefit staff, associates, and any non-partner lawyers who have been harmed directly by COVID-19 or have suffered from its consequences. Paul Hastings will match all contributions to the fund made firmwide.

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.

I know it sounds bad, but as a society, we should all give ourselves a pat on the back that it took a few weeks into online classes for someone to whip out a gun. I figured this was a “first Thursday” kind of development along with forgetting to mute while your mom says embarrassing stuff, lecture bombing, and accidentally sharing an inappropriate screen. Taking conservative law students regularly rewarded for trolling provocation and then putting them in isolation to stew about their next trick was bound to convince one of them to bring a piece to a lecture.

And now it’s happened! The incoming president of Harvard’s FedSoc chapter decided to spice up the Criminal Procedure: Adjudications Zoom lecture with a firearm, presumably to “own the libs” because that’s the only motivation for anything anymore. And of course he’s not been able to play with his metallic dick during class before since Harvard bans guns on campus. Because of the whole “mass shooting concern” thing.

Just to pre-empt the response here, no, it’s not fine to bring guns to class just because you’re not physically in the room. For clarification, other things you should not brandish during a Zoom class: a dildo, a bloody knife, a dead hooker. Also, please refrain from wearing your swastika pins during class and all the other things we apparently HAVE TO SAY OUT LOUD NOW. Yes, no one is going to get shot when a student whips out a gun in their house to answer the question absolutely no one asked, but that’s not the only reason we don’t consider weaponry an essential study aid.

That it’s disruptive to the learning experience when ersatz Elmer Fudd here pulls out his heater is the very least of the reasons why this is inappropriate. It’s also pretty menacing and can induce anxiety in people who’ve had traumatic, violent experiences in the past. And while it should be enough to appeal to basic decency, it should also give any professional pause. We don’t carry rifles into government buildings — well, actually these dumbasses do — but we shouldn’t. Young people — sometimes — mature but consider the message this level of judgment sends to a character and fitness review or future employer.

But look, the new White House Press Secretary got her start saying comically stupid stuff on this very website. Jonathan Turley’s out here pretending he’s never seen an Indian restaurant to stay in Fox’s good graces. Debasing yourself with the alacrity of a trained seal is how you get ahead for these folks. Before the week is out, Sean Hannity will be praising the “courage” it took to basically drop trou in the middle of class — except with a gun, so it’s a political statement.

In any event, this space in “Quarantine Law School Bingo” is now filled. I’m just a “professor convinces SCOTUS justice to bomb the lecture as a treat” or “whole class coordinates their greenscreen background to the Dean’s face” away from a win.

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.