Author: TSA Press

Ed. note: This is the latest installment in a series of posts on motherhood in the legal profession, in partnership with our friends at MothersEsquire. Welcome Emily N. Litzinger to our pages. Click here if you’d like to donate to MothersEsquire.

Working mothers have always had a full, let’s be honest, overflowing plate of responsibilities balancing work and family. Even before the pandemic, the U.S. did very little to support working parents with a lack of resources and infrastructure to level the playing field. But moms, being the superheroes they are, made it work by cobbling together childcare and working late hours to keep up. But then the pandemic unexpectedly rips through everyone’s lives and the world of working mothers begins to crumble. What starts as a few weeks turns into months and months turns into nearly a year of remote schooling, scarcity in childcare, illness, shutdowns, business closures, and loss for so many Americans. All these factors coupled with the lopsided division of labor in heterosexual couples has resulted in an exodus of women leaving the U.S. workforce.

The Problem

In September, an eye-popping 865,000 women dropped out of the U.S. workforce — more than four times the number of men. Working mothers in heterosexual relationships are three times as likely to be responsible for the majority of the housework and childcare during the pandemic, one source reports. Studies find that full-time working mothers in two-parent households are on average doing around 22 hours of childcare a week during the pandemic, in addition to maintaining their jobs. This loss has set women’s progress in the labor force back to levels not seen since 1988. Shockingly, the Bureau of Labor Statistics reported that in December alone women lost 156,000 jobs while men gained 16,000. Every job lost in December was one held by a woman.

Women of color are even more adversely affected and of the 865,000 more than 324,000 were Latinas and 58,000 were Black women. Women of color are disproportionately represented in low-wage and high-contact service sectors such as restaurants, travel, and hospitality, which have seen the most closures and economic damage. The share of workers earning low wages is higher among Black and Latina women, reflecting the structural racism that has limited options in education, housing, and employment for people of color.

The Long-Term Impact To The Gender Gap

This trend coined the “shecession” has the threat of a long-term economic impact, the risk of losing women in leadership positions, future women leaders, and unwinding years of painstaking progress toward gender equality. The impacts could sideline an entire generation of women. Economists worry that if women decide to stay on the sidelines post-pandemic the dynamism of the U.S. economy is at risk with an estimated $64.5 billion per year lost in wages and economic activity. The U.S. economy simply cannot rebound without women in the workforce. The consequence from the pandemic could deadlock women’s earnings potential and career progression, and for women who leave the workforce during this time, re-entry could prove even harder than usual. Indeed, the loss for women continues long after the economy has bounced back with an atrophy of their skills, experience, and job prospects.

Pre-pandemic, the average U.S. female employee earned only 81 cents for every dollar the average male employee made. The pandemic’s disproportionate economic toll on women could create an even larger gender wage gap during and following the economic downturn. Historically, recessions moderately decrease the gender wage disparity since they tend to have a greater impact on men. While normal recessions close the gap by 2 percentage points, the pandemic’s recession is projected to widen the gap by 5 percentage points. Economists project that the average female worker will earn about 76 cents for every dollar the average male worker makes, and it will take more than 10 years for the wage gap to close to what it was before the pandemic.

Curbing The Negative Impact

We are a year into this pandemic, the consequences are palpable, and the future is uncertain. Now is the time for the legal businesses to plan for and act to curb the long-term damage to gender equality and the economy.

• Normalize Flexibility. Make a shift toward more progressive work policies. Even beyond the pandemic, normalize remote work and flexible work arrangements. Who says you must work a 9-5? Consider parent-friendly scheduling policies such as a compressed workweek, shorter workday, job sharing or part-time for positions where those options do not exist.  Flexible scheduling supports juggling childcare and work and ultimately improves employee job satisfaction. Further, with a virtual workplace, the talent pool is limitless and enables legal businesses to recruit a higher caliber workforce.
• Continue Empathy. Leaders should communicate empathy and flexibility to workers. Train managers on how to support teams who are balancing childcare, isolation, and virtual schooling on top of their demanding workload. Ask employees what they need, how they feel, and if they are comfortable with the current work situation. Normalize talking about these feelings. One way is to start all meetings with a check-in with the group or share successes. Another example is to celebrate working mothers’ efforts. Compassion can go a long way.
• Communicate Openly and Frequently. Listen to the needs of working mothers and communicate openly and often. Working mothers are facing anxiety about the pandemic, childcare, and job security. Share regular updates on the state of the firm and any key decisions that impact employees’ lives such as pay and benefits.
• Empower Women Leaders. It is important for female leaders and other employees to connect with one another; help empower women in your law firm by organizing a forum for women leaders to come together to share ideas and connect. Implement programs and policies empowering women to achieve leadership roles such as equity partnership. Establish programs where female partners or leaders mentor women beginning their career or returning to work after the pandemic.
• Invest in Diversity and Inclusion Efforts. Studies have found that gender and racial diversity improve the quality of decision making, increase innovation, and improve reputation. In uncertain times and in an environment where many companies are pivoting their business model, a focus on recruiting and retaining a diverse workforce will lead to a richer talent pool and improved business efforts. Now is the time to sharpen your DEI agenda. Do not take your foot off the pedal!
• Commit to Pay Equity. Federal pay equity legislation is high on President Joe Biden’s priority list, and it should be high on legal businesses’ list as well. Companies should develop formal process to remediate pay inequities. To achieve pay equity, it is vital to track outcomes for promotions and raises by gender to ensure that women and men are being treated fairly and consistently. Perform an annual pay equity analysis to rectify any wage gaps.
• Act Now. Seize the moment. To rebuild our economies, we must start now to implement efforts to support women in the workforce and recruit those who have left during the pandemic. McKinsey forecasts that taking action now to advance gender equality means an additional  $13 trillion to the global GDP in 2030 when compared with the gender-regressive scenario.

In a year marked by uncertainty and panic, legal businesses have an opportunity to make significant investments in building a more flexible and empathic workplace. The efforts, or lack of effort, will have consequences on gender equality and the entire economy for years to come.

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Emily N. Litzinger is a partner in the national labor and employment law firm Fisher Phillips and practices out of the Louisville office. Emily is a trusted adviser and experienced litigator who counsels and defends employers through the intricacies of labor and employment law and works with her clients to develop preventative strategies to ensure compliance and avoid costly litigation. Emily has a special interest in serving clients in the restaurant and hospitality industry and serves as on the Board of Directors for the Kentucky Restaurant Association. As a mother of three energetic young daughters, Emily is passionate about the advancement of women in both the legal profession and the workplace.

Oh, the foibles of virtual court hearings… they’re just another joy the COVID-19 era has brought us. The latest example of a virtual court hearing gone awry comes from the U.K., where 140 observers tuned into a hearing conducted over Microsoft Teams about whether Swindon Town football club (soccer) is part owned by sports agent Michael Standing.

Judge Iain Pester urged observers to avoid disruptions, “During this hearing if you are not making submissions please turn your microphone to mute. Experience tells us it works much, much better.” But, of course, that wasn’t to be.

One observer shared their screen, only problem? It showed the results of a Google image search for “well-endowed men.” Yikestown. The judge is said to have responded:

“I’ve got quite a strange screen at the moment. I’m wondering who’s interfering with the conduct of the court?” He continued: “I’m afraid if this goes on I’m going to say only the representatives of the parties can attend, because we can’t have a hearing like this.”

But that admonishment was ignored. As Legal Cheek describes:

The judge’s warning was ignored however, as moments later a member of the public allegedly shouted “suck my d***”. Users also continued to share pornography and other images as the hearing went on. Meanwhile, attendees were seemingly able to take control of the video call settings, with the judge and barristers muted by other users.

Further problems arose after users began making firework noises, blowing raspberries and mimicking one of the barrister’s Scottish accent. Odd behaviour was also seen in the text chat bar, after one commentator called for “#PowerOut”, while another was offering cups of tea.

Standing’s attorney, Colin West, said the hearing was “a circus.” Though he argued that open attendance should be reconsidered, the judge said he just ignored the outbreaks of impropriety and took a “soldier on” stance. Trial in the matter was scheduled for late 2021 or early 2022.

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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).

There’s been a lot of chatter in the news recently about Robinhood, GameStop, and Reddit. But, if you’re anything like me, you’re likely barely making a dent in your endless daily to-do lists, and probably haven’t had the time to fully understand what’s got everyone talking. So just what is happening with Robinhood and GameStop, and why is it capturing headlines? How have they impacted the stock market? Moreover, what are the legal implications of these latest developments and how do they affect attorneys?

We’re breaking it all down right here, and providing a roundup of helpful resources guided to help you understand the answers to your most pressing questions.

What’s happening with GameStop?

In sum, GameStop’s stock price has increased exponentially this month from $4 to a high of $470. How? Several high-profile Reddit users worked together to make it happen, recommending the stock because they believed it to be undervalued. However, several hedge funds were less confident in GameStop and decided to short the stock in order to make money for their investors. Many of the amateur traders on Reddit ended up with huge financial gains while major Wall Street tycoons suffered losses, pitting them against each other. The stocks commonly discussed amongst non-professional traders in the online community are now commonly referred to as “meme stock.”

So where does Robinhood fit in?

Robinhood is an extremely popular app that lets consumers trade stocks, free of charge. This past Wednesday, Robinhood suddenly suspended trading of all “meme stocks,” including GameStop. The decision caused a huge uproar and led many to think that a conspiracy was afoot. Robinhood insists that the decision was not made at the behest of any hedge fund managers, but rather because compliance with its numerous SEC requirements became too much of a headache. Since then, many Robinhood users have filed a class-action lawsuit against the app, claiming it manipulated the market and caused users to lose money. Several top lawmakers, including Elizabeth Warren, have called on Congress to investigate and are asking the SEC to provide clearer guidelines and enforcement mechanisms for market manipulation. On Thursday evening, Robinhood pivoted slightly to allow restricted buys of meme stock.

So what comes next?

It’s unclear! Right now, we have more questions than answers. Among of the legal issues being raised are:

One thing we know for certain is that developing technologies, coupled with strengthening online communities, have allowed ameteur traders to come together in a way like never before to shake up the stock market. It seems this is only the beginning.

For an even more detailed breakdown of the Robinhood/GameStop debacle, check out this very helpful explanation.

Related Content:

1. Arbitrating Securities Claims: A Basic Guide for Lawyers
2. Securities Law and SCOTUS 2020: What the Most Recent Decisions Mean For Your Practice
3. Securities Fraud Litigation: Trends in Class Certification

Tuesday was Groundhog Day; every February 2, Punxsutawney Phil sticks his head up out his hiding place to proclaim whether winter is almost over or there will be another six weeks of it. Given that Pennsylvania, along with other locations, is digging out from a massive snowstorm, I wondered if Phil would even bother to poke his head out, but he did and there’s another six weeks of winter still to go.

The pandemic has lasted for almost a year and there is no quick end to the monotony. Many, if not all, of us are suffering from Groundhog Day syndrome, that every day is pretty much the same and looks to be that way for the foreseeable future; it doesn’t help that the whole vaccination procedure has been totally FUBAR.

As a diversion, here are several stories of colleagues behaving badly. They should take your mind off your troubles and make you glad that you don’t have any of these problems. Careers have gone up (down?) in flames when they didn’t think.

If you ever harbor aspirations to the bench, here’s the cautionary story of Justice Jeffrey Johnson of the Second District Court of Appeal here in Los Angeles, a justice who lost his way. The California Commission on Judicial Performance, after extensive evidence and hearings, removed Justice Johnson from the bench for incidents of misconduct, sexual harassment, and other behavior not befitting a judicial officer. Johnson appealed that decision to the California Supreme Court, which let stand the Commission’s order of removal.

The Commission’s decision to remove the justice was clearly the right decision, as it was his conduct that led to the removal. Did he, like Icarus, fly too close to the sun?

Johnson is the first appellate justice to be removed from the bench. There have been other justices here in California who have resigned, retired, whatever name you choose, especially when their behavior was scrutinized closely after the rise of the long overdue MeToo movement, which has empowered women to speak up and speak out.

Some recent examples of lawyers behaving badly: the Tennessee Supreme Court suspended an attorney for advice he gave on Facebook. As alert readers know, I am not a fan of social media, one reason being ethical issues that arise.

The Tennessee Supreme Court doesn’t like social media use when it leads an attorney to violate the Rules of Professional Conduct. The first line of the Court’s opinion gets right to the heart of the dilemma of attorneys using social media. “This case is a cautionary tale on the ethical problems that can befall lawyers on social media.”

The attorney gave advice to a Facebook “friend” who was seeking advice, essentially, on how to get away with murder. (Where is Viola Davis when you need her?) The attorney suggested that the friend delete the Facebook thread. And how many might have seen the thread before its purported deletion?

The court acknowledged “there is nothing wrong with lawyers participating in social media. Indeed, much good can come of it. Lawyers can establish an online presence, engage in their communities, show their personalities and interests outside the law, develop relationships on social-media platforms, and market their legal services. Lawyers participating in social media can do much to de-mystify the legal system.”

However, the court reminded attorneys that they are still bound by the Rules of Professional Conduct. It found that the attorney’s advice promoted exactly the wrong image of the legal profession and the administration of justice as “something to be manipulated, rather than respected.” The court said that the attorney’s “comments, posted for all the world to see, depict lawyers as fixers who manufacture fake defenses to evade criminal conviction.”

Does giving advice on Facebook or other social media create an attorney/client relationship? What do you think?

A Florida lawyer’s online posts got him disbarred, as well they should have. He was already on suspension at the time.

Witchcraft, satanism, and threats were outrageous posts the attorney made. Sexism still ran rampant through them when the attorney called one judge a “dumb satanic slut,” and bar counsel as inept and worthless and a “satanic slut.” The attorney also said that the chief justice of the Florida Supreme Court should be executed for allegedly tolerating hate crimes and witchcraft. Double, double, toil and trouble, which is exactly what this lawyer got.

A Texas judge hammered both a lawyer and his client for $150,000 (not a typo) for sanctions arising from their conduct in a foreclosure lawsuit.

The lawyer filed a lawsuit that had no basis in fact. (Has that ever happened to you?) The attorney never did his due diligence in investigating the facts before filing the lawsuit, even though that’s his job. Newbies: don’t just take what your client tells you as the truth. It often isn’t and even if it’s largely truthful, clients just naturally shade the truth for the sake of how they appear. It’s a normal human trait to want to position yourself in the best possible light.

The Texas court found that the lawsuit was an abuse of the judicial process and that the abuses were willful and deliberate in an effort to perpetuate a fraud on the court. The court said that the case was a “mountain of evasiveness, lack of candor, concealment, numerous outright lies, and a total disregard for truth, which is the foundation of our judicial system.” A well-deserved benchslap here.

Take comfort that there are lawyers out there who behave badly and bear the consequences. Remember that even in these monotonous times, you still need to observe the rules.

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Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.

* A woman accused of assaulting a police officer for impounding her pig has been assigned counsel. Guess the government is paying that lawyer’s “bacon”… [Texarkana Gazette]

* The Justice Department has dropped a lawsuit against Yale University alleging that the school discriminated against Asian and white applicants. [CNN]

* The Supreme Court has ruled in favor of Germany in an action filed by the heirs of individuals who had their art stolen by the Nazis. [SCOTUSBlog]

* A Cleveland lawyer is suing a former client who punched him in court. [Cleavland.com]

* A Texas lawyer connected to a probe involving the Attorney General of Texas says he found a GPS tracker on his car. Sounds like something from an episode of Dallas… [Fox News]

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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.

Ed. Note: Welcome to our daily feature Trivia Question of the Day!

According to a new Law360 survey on Biglaw partner compensation, what percentage of respondents said they had their compensation slashed due to COVID-19?

Hint: Of those who said they got a pay cut, 87 percent said their overall compensation decreased by 10 or more percent as a result of COVID-19.

See the answer on the next page.

Legal professionals do not really have a uniform convention about titles and honorifics. Sometimes, attorneys use the title of esquire to refer to themselves and other lawyers, and I wrote an article a few years ago about some of the situations when lawyers should and should not employ this honorific. I received dozens of emails in response to that article, several of which conveyed various titles that lawyers often call other legal professionals in various parts of the country. In my experience, the term “counselor” is a great honorific to use when referring to other lawyers, and more attorneys should employ this title when referring to others within the legal profession.

The first time someone called me counselor was when I was in law school. Of course, the person using the term was just joking when he referred to me using this honorific since I was not yet a lawyer, but I kind of liked how this title sounded. Counselor seems like a friendly term that might be considered less pretentious than esquire, which might sound antiquated to some.

Moreover, counselor is preferable to esquire and other honorifics because it is far more descriptive about what attorneys actually do. In response to my prior article, several people emailed me with rationales behind why lawyers sometimes call each other and themselves esquire. Some said that it was because a squire apparently helped a knight in olden times, just like lawyers help clients in the present. This seems pretty attenuated and confusing.

However, an attorney is someone who provides counsel and guidance to clients. As a result, it is much more descriptive to refer to a lawyer as counselor than esquire and other similar titles. In addition, in some states, the official title of legal professionals describes them as being counselors. For instance, under New York law, lawyers are called “attorneys and counselors-at-law.” As such, in the Empire State and other locations that have similar titles, referring to a legal professional as counselor is just a descriptive way to refer to a lawyer.

Using this descriptive honorific can have a number of positive benefits in legal practice. For one, calling other lawyers counselor can increase congeniality among attorneys. As legal professionals are abundantly aware, lawyering is often an adversarial profession. Whether attorneys represent clients in litigation or transactional matters, lawyers often need to butt heads in order to promote their clients’ interests.

However, attorneys usually need to have rapport and compromise in order to achieve the best outcomes for their clients. The vast majority of lawsuits settle without ever being resolved by a jury, and transactional matters often require give and take that is much easier if attorneys get along. Calling adversaries and other lawyers with whom you interact counselor can go a long way toward de-escalating issues and building a rapport among attorneys. Most lawyers appreciate being called this honorific, and when this title is being used, it usually conveys that the person saying the honorific isn’t a jerk even though they may need to be adversarial against another lawyer. As a result, calling attorneys counselor and extending other courtesies can go a long way toward helping attorneys achieve the most success possible for their clients.

Calling other attorneys counselor also goes a long way toward increasing the profile of the legal profession. As mentioned in a prior article, I recently watched all the episodes of the Australian legal show Rake, and even though the practices and procedures in Australia are different from the United States, the show is still very interesting. The show depicts lawyers calling each other their “friend” or “sister” or “brother” in court, purportedly to demonstrate how the legal industry is a dignified profession and people will be given baseline courtesies because they too practice law. I know in certain parts of the country it is common to use similar phrases in court, but in New York and New Jersey, I rarely see this. Frankly, it seems kind of weird to call another lawyer “brother” or “sister” even though they too are members of the bar (and one of my brothers is actually my law partner!). However, calling attorneys counselor is an easy, gender-neutral way to add more dignity to practicing law.

More judges can also call attorneys counselor in the courtroom. It is always appreciated when judges use this title when referring to lawyers, since it shows that respect goes both ways in a courtroom. Judges almost always practiced law before ascending to the bench, and they should understand the struggles that lawyers face when dealing with clients and earning a living. Judges can recognize the tribulations of attorneys by calling them a title rather than Ms. or Mr. so and so. Many judges do call lawyers counselor, but other judges do not use this honorific. However, judges can improve the profile of the legal profession and perhaps even advance decorum in the courtroom by using this title to describe attorneys who appear before them.

Of course, there are many practical reasons for using the term counselor. Sometimes in court, it can be difficult to tell who an attorney is and who is an assistant, witness, or other participant of litigation. Using the word counselor makes it clear who the attorney is on a team. In any case, using the term counselor benefits attorneys, and more lawyers should use this honorific when referring to other attorneys.

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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.

EA Sports will not be coming out with a new college football video game in 2021, but the company has promised that such a game is in the works. It will be released “at some point,” per EA Sports Vice President Daryl Holt and, as of now, the plan is to launch the game without any players’ names, images, or likenesses.

Why is EA Sports ready to bring back the college football franchise after a hiatus of more than eight years? There are a couple of explanations.

First, EA Sports was able to enter into an agreement with CLC, which is the licensing division for Learfield IMG College. It provides EA Sports with the ability to utilize the intellectual property of more than 100 teams. That was certainly a prerequisite to today’s announcement.

Second, EA Sports is reading the writing on the wall and is likely taking the approach that there will be an eradication to the NCAA’s current prohibition on college athletes commercially exploiting their names, images, and likenesses by the time that a game is available for ordering. EA Sports can take the approach that it has the ability to create and sell a game with players who do not resemble the real-life athletes at universities across the country but, in reality, it is well aware that it needs to create virtual athletes who have the same or similar attributes as their real-life counterparts.

Therein lies a legal dilemma for EA Sports. Create a game that includes virtual players who look and feel nothing like the real players on a team, and consumer interest will be lost. Launch a game with players who are nameless, but are as heavy and tall as their real-life equivalents, are of the same race, and wear the same jersey number, and it will cause a frenzy among consumers itching for a return to EA’s college football franchise, but also opens the door to exposure for misappropriation of athletes’ publicity rights.

That is why group licensing remains an important piece to making this a successful reintroduction of the college football video game for EA Sports. It is also why nothing less than action by Congress or the NCAA will be sufficient for EA Sports to acquire these important licenses. EA Sports would need to contract with individual players, starting with Florida athletes as of July 1, 2021, unless publicity rights are granted for college athletes across the nation. That is neither feasibly nor manageable.

But EA Sports may have a problem with anything less than action by Congress. The NCAA has previously taken the public position that it is not in favor of permitting group licenses of athletes’ names, images, and likenesses. If the NCAA does not change its stance, then EA Sports could also be lobbying Congress for a law that places no limitation on group licensing, allowing EA Sports to push forward with a game that EA Sports, consumers, and the college athletes will benefit from. It would be about time.

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Darren Heitner is the founder of Heitner Legal. He is the author of How to Play the Game: What Every Sports Attorney Needs to Know, published by the American Bar Association, and is an adjunct professor at the University of Florida Levin College of Law. You can reach him by email at heitner@gmail.com and follow him on Twitter at @DarrenHeitner.

WASHINGTON: The Pentagon has long professed its commitment to ‘responsible’ behavior in space, but has never clearly articulated what that means in either peace or war. This year that may change.

What’s changed? Britain sponsored a a UN resolution charging member nations to make clear their views on both what milspace actions by others they see as threatening and what they consider to be acceptable during peacetime. The Trump Administration supported it. The resolution’s goal is to reduce risks of misunderstandings and miscalculations that can lead to, or escalate, conflict, UK Ambassador to the Conference on Disarmament in Geneva Aidan Liddle told the Secure World Foundation in December. 

“The United States supported a resolution adopted in the United Nations General Assembly on December 7, 2020, on reducing space threats through norms, rules and principles of responsible behaviors. The Department of Defense will be working closely with the Department of State as the United States works with other countries to realize the objectives of that resolution,” Air Force Lt. Col. Uriah Orland, a spokesperson for the Office of the Secretary of Defense (OSD), said in an email.

The initiative is significant — and distinct from the UN initiatives launched during the Obama era and finalized in 2019 to cobble together a voluntary set of best practices for space operators negotiated at the Committee on the Peaceful Uses of Outer Space in Vienna — because it specifically addresses military uses of space.

Responses from the US and other nations are required by May, a UN expert said, so they can be integrated into a report by Secretary General António Guterres by the end of August. That will be reviewed by the 193 UN members during the annual October meeting of the UN’s First Committee, which deals with international peace and security issues.

Further, the UK — likely backed by a number of other US allies including Canada — is expected to try to convince other nations to begin a more formal UN process to reach agreement around a set of ‘hard security’ norms. It remains unclear, however, how Russia and China, who long have rejected all efforts but their proposal for a legally binding treaty, will respond.

It shouldn’t be that hard to come up with a voluntary framework for milspace rules, one former US government official involved in space issues said with obvious frustration: “We just need to agree to not do stupid stuff in space.”

For example, the source said, ‘stupid stuff’ would include using destructive antisatellite (ASAT) weapons that would create mass quantities of space debris — something senior space-savvy military leaders, such as Gen. John Hyten, Vice Chairman of the Joint Chiefs of Staff, have long said the US does not want to do.

Further, the military has to make clear what it believes it needs to be able to do with military force to prevail in a future conflict in space. This means going further than boilerplate language about achieving ‘space superiority,’ or about abiding by the Geneva Conventions and the laws of armed conflict, experts say.

“What’s the role of the Space Force in all this, now that it’s stood up?” said one former DoD official with a long space-related pedigree. Space Force and Space Command, the source said, need to publicly articulate: ‘here’s how we fight and win, kill people and break things in space. That’s what they’ve got to do, and they’ve studiously avoided that so far.”

Decades of dithering

But defining military space norms for peacetime or wartime has defied legions of US policymakers and military leaders for some 40 years.

“It’s been decades of not doing that” for space, the former DoD official stressed, in contrast to the nuclear arena, where the US long ago worked out clear concepts for maintaining stability and deterrence vis-a-vis nuclear peer competitor the Soviet Union. “We don’t have the same kind of conceptual foundation for how we get to some kind of stability in this [space] environment.”

This can be traced to a whole host of reasons, according to former and current DoD officials, space policy analysts, and experts on international security, including:

• the military’s reluctance to give up any options for future action in space;
• Air Force culture and doctrine that prioritizes offensive actions in conflict;
• knee-jerk support among civilian policymakers for maintaining ‘deliberate ambiguity’ (i.e., avoiding ‘red lines’);
• the intense secrecy surrounding all things national security space; and,
• a deficit of brain-power put to answering the foundational questions involved in developing a concept of space deterrence.

“In space, we over-classify everything. And we don’t come up with that structured layered approach for how we deal with things,” Hyten told the National Security Space Association (NSSA) on Jan. 22. “Deterrence does not happen in the classified world. Deterrence does not happen in the black; deterrence happens in the white.

“We need to decide what we want to have to deter our adversaries. And then, God forbid, if conflict ever happened someday, what do we need in order to win in conflict with our adversaries,” the general said. “And those are two different things. We’ve lumped those things together as one, and think they’re the same thing. They’re not.”

DoD leaders simply have not studied how longstanding concepts of deterrence — developed by by the likes of futurist Herman Kahn and legendary game theory pioneer Thomas Schelling — can and should be applied in space, the former US government space official said.

For example, many DoD writings — such as the 2018 Joint Doctrine Note on Strategy (JDN 1-18) — focus heavily on the ability to punish an adversary using military force but fail to articulate the accompanying principle of ‘assurance’ for providing adversaries (and not just reassuring allies) proof that if they refrain from provocative behaviors they have something to gain.

“The understanding of what deterrence is has been misinterpreted, reinterpreted, run through a ringer, chopped up and turned into a hamburger. I mean, it’s just that nobody there [at DoD] seems to understand what it means exactly,” the former USG official said.

Up to now, this source explained, DoD has not formulated firm policies and courses of action for what signals need to be consistently and publicly sent to adversaries about what the US sees as verboten; how to create resiliency in space systems if deterrence fails; and what should be the set of gradually escalating capabilities to impose costs on countries who break the rules.

That lack of agreed DoD positions in turn leads to a tendency for officials to “just say no” to everything because they can’t agree, another former senior DoD official said.

Trump Administration Changes

To be fair, a number of sources note, under the Trump administration reversed years of silence — based on fears of revealing US intelligence gathering capabilities — about growing Russian and Chinese milspace capabilities. (The exception proving the rule being the loud protests regarding China’s 2007 antisatellite missile test, which of course was obvious to anyone with a high-end telescope).

Space Force chief Gen, Jay Raymond last April ripped the Russians for their most recent test of the ground-based Nudal ASAT missile; and in July cried foul over a test of the Cosmos 2543 satellite that ejected a secondary payload the US characterized as a “projectile.” He has been followed by a chorus of DoD leaders.

Such criticism is part of US “messaging” about what it considers “irresponsible” milspace behavior, Space Command (SPACECOM) head Gen. James Dickinson told the Mitchell Institute last week. “Through that particular avenue, you can kind of deduce or see what we consider [responsible vice irresponsible] norms of behavior,” he said.

He cautioned, however, to have a fulsome US approach, “it’s going to take some while …  And it’ll be more of a whole of government approach.”

Dickinson makes a fair point, experts say. As emphasized in the 2020 National Space Policy, it is the State Department which has the lead for developing a US stance on space norms. That is, of course, as it should be with all diplomatic initiatives — but insiders say the National Space Council wanted to foot-stomp that message due to concerns that State wasn’t being properly supported and other agencies were moving to fill the vacuum.

While DoD doesn’t have the ultimate say in international policy development, an internal DoD agreement on space rules would be helpful in interagency discussions, experts say. For one thing, just as the Navy had to first work out how US and Russian nuclear submarines should interact (or not) under the high seas before any accords were signed, Space Force leaders have to determine how military satellites should interact (or not) on orbit before international agreements can be reached.

Indeed, Dickinson noted that one of his J5 (plans and policy) staff is “a submariner” — and that “we often have discussions where we we apply the maritime model to what we’re trying to do in space.” But, he added: “How long did it take us to establish norms of behavior or standards within the maritime domain? The answer to that is, it takes time.”

Several sources also noted that during the Trump administration, the OSD space policy shop — led by Steve Kitay until August, when he was replaced by acting undersecretary Justin Johnson — did launch an attempt to gather DoD stakeholders to develop a baseline framework for delineating responsible from irresponsible behavior. Participants included SPACECOM, Space Force and even the NRO; but no public document has been released.

Further, it is not clear how or whether the Biden administration will continue the effort — given the fact that it will take time for the White House to put in place the DoD principles responsible. Biden has named David Zikusoka as special assistant at the DoD office of space policy to handle the transition, but not someone to fill the top-level job of DoD assistant secretary for space policy.

That said, there is every reason to expect that Biden’s DoD will be supportive of norm setting. Indeed, deputy defense secretary-nominee Kathleen Hicks told the Senate Armed Services Committee in her written answers to questions prior to her hearing today that norms are part of any strategy to help reduce threats to US space systems. “It is essential to continue developing best practices, standards, and norms of behavior in space in order to deter threatening behavior and uphold the rights of all nations to use space responsibly and peacefully,” she wrote.

On the other hand, insiders and experts said, the lack of any substantive US proposals on milspace rules over many years can be laid squarely at the feet of the defense establishment. This is because national security officials, whether civilian or military, have been loathe to close off any future options for military response to adversary actions in space.

This is despite the fact that the US has signed a number of agreements, even legally binding treaties, that limit military options in other domains — such as the Biological Weapons Convention, or the US-Soviet Incidents at Sea agreement. In fact, as many experts point out, a decision to keep all options open is not a get-out-of-jail-free card. It also imposes lost opportunity costs regarding options to solve issues before they become problems requiring military response.

Further, as Secure World Foundation’s Brian Weeden and Victoria Samson noted in an op ed back in May, the primary motivation for the new DoD openness about foreign threats to space systems doesn’t really seem to be aimed at norm setting. Instead, the impetus for the strong rhetoric about Russian and Chinese programs seems to be “because talking publicly about space threats helps reinforce the narrative that the United States needs both U.S. Space Command and the U.S. Space Force to combat counterspace threats.”

In other words, it’s good PR for the two new organizations to shore up support from the US public, and more importantly, Congress (which has the power of the purse.)