Author: TSA Press

On Friday, the federal government’s small-business rescue loan program began. Bank of America got $22 billion in applications. For its part, JPMorgan Chase had already approved some $25 billion in credit extensions last month.

Wells Fargo, which is famous for sharing its limited wealth with the needy, opened its small-business loan portal on Saturday—and all but closed it yesterday.

“While we are actively working to create balance sheet capacity to lend, we are limited in our ongoing ability to use our strong capital and liquidity position to extend additional credit,” Chief Executive Charlie Scharf said in a statement…. The San Francisco-based lender said it has likely reached its $10 billion limit based on the applications it has already received, and will prioritize giving loans to non-profits and businesses with fewer than 50 employees.

Included among the undisputed heroes of the COVID-19 lockdown are the dedicated employees of Amazon. Without their dedicated work keeping deliveries going, brick-and-mortar stores would be more crowded, as more of us would have to venture out for essentials. Having taken an Amazon factory tour this past summer (highly recommended if we ever get to be around other people in groups again), I can vouch for the complexity of Amazon’s delivery operations, based on my viewing of just a small part of that complex web firsthand. With all the technological wizardry I encountered in the warehouse, from the scanners to the conveyor belts to the robots, not one package would get delivered without the human employees conducting it all and making sure that the right packages are routed to the right destinations. It seemed to me that most Amazon factory workers had an exciting and stressful job back then. Now, with the added weight of the virus, the stressful aspect must be tuned to max volume. All we can do is be grateful for their efforts.

Amazon is much more than an e-commerce platform, of course. Whether it is Prime Video keeping us entertained (e.g. Fleabag) or Amazon Web Services performing yeoman’s work in giving us the internet we all (desperately, at this point) depend on as we know it, Amazon touches our daily lives in many ways. Even without Alexa listening in on all our Zoom conferences nowadays.

What is true about Amazon generally is also true about Amazon from an IP perspective. I have personally spent much time thinking and writing (for a 2017 example) about Amazon’s potential — and current — role as an IP adjudicator, as well as the increasing importance for IP owners of protecting their brands and IP on Amazon’s platform. While there is always more to say on those topics, it is important to take a step back and realize that there is at least one pending case that may answer one of the key threshold questions about Amazon: Is Amazon putting products into the stream of commerce, or is Amazon itself a stream of commerce?

One of our best hopes for a reasoned formulation of an answer to that question is the 3rd Circuit’s en banc consideration of Oberdorf v. Amazon, where the entire court is considering whether a woman blinded in one eye by a defective dog collar purchased from a third-party seller on Amazon can sue Amazon under products liability claims. The District Court said no, holding that Amazon was not a “seller” under Pennsylvania law, even though the identified third seller, the Furry Gang, has apparently been AWOL for years. The original 3rd Circuit panel reversed, leading to the entire court taking the case en banc, with oral argument taking place in late February. (It is worth a watch, even for those who don’t consider themselves appellate argument groupies, if only for the novelty of seeing an en banc oral argument in action.)

Without forgetting the severity of the plaintiff’s injury, as well as the very real risk to consumers nationwide from defective products purchased on Amazon, the case raises some very interesting questions — about both separation of powers and how best to define Amazon. The former question is straightforward. Should the 3rd Circuit rule on this case, or perhaps certify the question to the Pennsylvania Supreme Court? Or is everyone better off waiting for the state legislature to act? While it seemed that the 3rd Circuit judges may differ on the proper course of action, it was also evident from the oral argument that the court recognized the important role Amazon and other online marketplaces play in the modern consumer economy. Especially with respect to their role as a platform connecting third-party sellers around the world with local consumers. The policy questions are important, and the answers will likely be provided by all three branches of our state and federal governments. Tellingly, even Amazon’s counsel suggested that the true answers must come first from the legislature, where I surmise that Amazon has a (probably nationwide) lobbying effort ready to go to present the company’s position on proposed legislation.

As for how to define Amazon’s role in selling — and therefore its liability for any torts that selling results in — products to customers, the debate before the en banc 3rd Circuit was an intense one. Often more between the judges than between the bench and the lawyers arguing the appeal. On the one hand, everyone agreed that Amazon exerts at least some level of control over third-party sellers, including the right to control pricing as well as in the IP context to police infringement claims. At the same time, it was striking to hear that Amazon was unable in this case to identify the offending third-party seller, even though it went so far as to send an investigator to Nevada to locate it. That fact alone seemed to raise eyebrows with some of the judges, especially those who were taking an expansive view of the level of control Amazon exerts over sellers.

Ultimately, IP owners will have to closely watch this case and others like it, if only because of the importance Amazon and other online marketplaces have gained as shopping destinations for American consumers. By now, sophisticated purchasers on Amazon know the difference between buying products sold by Amazon.com, buying products sold by third-party sellers that are fulfilled by Amazon, and buying products shipped directly by the third-party sellers. Until now, Amazon has taken great care to protect itself from claims arising out of sales by third-parties on its platform. But how long can that continue where there are cases of real harm caused by products sold on the platform? Or when the availability of counterfeit products continues? Yes, we all benefit from the convenience and competition on Amazon — now more than ever. But we also need our courts and lawmakers to provide us clear answers on what Amazon’s legal status is and should be.

Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

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Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

That the NCAA is now a multibillion-dollar industry is “no accident. It was planned.” It was planned around a commonsense system of capitalism that has made anyone who is allowed to participate immensely rich. The glaring problem with the NCAA model, however, is on full display in HBO’s recent documentary, The Scheme. The players who create literally all of the wealth are not allowed to participate in what would otherwise be an equally beneficial market. The result is a guaranteed black-market economy similar to how drug-war prohibition laws produce thriving black markets.

The fault with the NCAA is a long-recognized one. In his immensely influential work On Liberty, John Stuart Mill argued “there should exist a general presumption against paternalistic attempts to interfere with an individual’s self-regarding conduct for their own good.” The NCAA goes against this general presumption in every conceivable way by prohibiting adult players from profiting off of their own highly developed or inherent skills, in an already existing multibillion-dollar private market. A market that naturally wants the players to be involved. Just as shoe companies sign apparel and advertising deals with coaches and schools, our existing professional sports organizations already demonstrate these market industries will seek individual players for mutually beneficial contractual deals. The college system is only different because the NCAA structures a system of prohibition against player-involved commerce.

In every sense of the definition, the prohibition against players from participating in these rich legal markets amounts to exploitation. I’ll let attorney and college basketball analyst Jay Bilas explain:

The NCAA states that it protects players from being exploited commercially. Does that ring true to anyone? The NCAA uses the players as billboards for apparel deals and uses their names and likenesses to sell the product, and to sell media-rights deals. The NCAA continues benefiting from this multibillion-dollar business, while the players get only a scholarship, and the only ones exploiting the athletes are the NCAA and the member institutions. When you use a person to make money while at the same time limiting that person from making money, you exploit. Players are certainly not mistreated, but they are exploited.

However, the prohibition and exploitation are also destructive. As the HBO documentary makes clear, the players are worth gigantic amounts of money to private industry. Not allowing players to engage in commerce with legitimate market players and mechanisms such as contract remedies to utilize their undeniable economic value ensures that bad actors will inevitably fill the void. The result is often damaging, with people in jail who were only guilty of trying to facilitate universally beneficial commerce for others.

The lesson of how paternalistic interference in the lives of others can be more damaging than the harms the interference is trying to prevent is too well documented to be excused now. It has become a matter of choice as to whether institutions want to continue with an obviously unintelligible, grossly exploitative and damaging system over an equally obvious universally beneficial one. When it comes to the NCAA, maintaining the exploitation is the most logical factor for entrenchment within their current system. But documentaries like The Scheme gives anyone who cares to look a direct insight into how damaging and destructive the NCAA system is.

Obviously, the NCAA is a private organization and can make its own rules. That fact doesn’t put the NCAA’s structure above scrutiny, however. The amount of mutually beneficial commerce the NCAA is prohibiting should anger everyone. Even more enraging should be our government using its tax dollars to bend the law to enforce the NCAA’s seriously flawed rules. Another obvious point to be made though, is that every NCAA athlete is a grown adult with a unique set of personal skills. Limiting their ability to profit off of those skills confers no offsetting social benefit to anyone, it only ensures a select few others calling themselves a nonprofit have a monopoly on the immensely profitable market.

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Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.

The COVID-19 austerity measures continue in Biglaw. And even firms that were initially proactive about cost-cutting are finding themselves making additional cuts. Like Blank Rome.

The Am Law 100 firm previously confirmed to Above the Law that they’d “furloughed a small number of support staff” in response to the economic upheaval surrounding the global pandemic. Now tipsters report to Above the Law that there are also pay cuts for all remaining employees.

The firm has instituted a “temporary 15% compensation reduction” and unlike the furloughs, which were limited to staff, the salary hit impacts everyone as the firm’s statement reflects “[the pay cuts are] to be shared equally by our partners, associates, counsel, professional staff and assistants.” Here’s the firm’s full comments on the reduction in pay:

We have implemented certain measures across our firm to take a cautious and financially disciplined approach to the Covid-19 pandemic. We are instituting a temporary 15% compensation reduction throughout the entire law firm to be shared equally by our partners, associates, counsel, professional staff and assistants, and have temporarily furloughed a small number of staff, along with other operational expense-reduction measures. As always, our priority remains supporting our clients, colleagues and communities in which we live and work throughout this difficult time. In that regard, we will continue to focus significant efforts on supporting pro bono clients impacted by the Coronavirus and we will be maintaining our charitable commitments in order to assist those most in need during these uncertain times.

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).

If you’d like to sign up for ATL’s Layoff Alerts, please scroll down and enter your email address in the box below this post. If you previously signed up for the layoff alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each layoff, salary cut, or furlough announcement that we publish.

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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).

The Argument For Everything Being Normal

By O.K. Boomer (LawProBblawg)

Note: This is satire.

I’m so SICK of you all coddling those whipper-snapper law students! It’s so annoying!!!! I even added extra exclamation points to show I’m annoyed.

Stop coddling law students! They need to toughen up!

As you probably have guessed, I am against eliminating the bar exam in these exceptional times. Sure, there is a pandemic, and perhaps the worst worldwide depression seen since the 1930s, but hear me out.

First of all, COVID-19 is like a war. Our medical personnel are on the front lines of that war. Sure, it is a war at home, and many of us will lose and have lost loved ones. But it’s different. In a way I can’t describe. But it just is!

In World War II, people graduating from law school still had to take the bar exam. They were dealing with a worldwide war! Lots of death and destruction! So, by analogy, it makes perfect sense that you should all have to take the bar. Oh wait, they didn’t? There was diploma privilege in California during the 1906 Earthquake and World War II, but let’s not let facts get in the way of my argument!

Of course, you would have to do this bar exam in a completely different way than was done in World War II. You’d have to do this with pencil and paper. Wait, we can’t do that. Because COVID-19.

You know, lawyers have to do HARD WORK during exceptional times. And things should not change just because there is some national concern. Okay, there might have been orders during 9/11 that ordered parties to settle because the world was coming to an end, but don’t let facts get in my way of my argument: we shouldn’t coddle.

You know, there is a lot of complaining lately about how we are coddling people using too much compassion. Law students are facing the prospect of no jobs, online classes, and pass/fail exams. The pass/fail exams are pure coddling. You students should be required to take a grade on a final written by a professor that is purely focused on Lysol and cuddling in a closet with their cats.

Get off my lawn!

Sure, some states already have bar admission by diploma privilege. Wisconsin comes to mind. But there is a reason for that! There are many great beers in Wisconsin. Who has time to take a bar exam with all those good beers? If you could drink toe-to-toe with someone from Madison, then you should have diploma privilege too. The rest of you are wimps!

You might argue that this blog post hasn’t been an argument. You might be arguing that it isn’t even coherent. But I’m sorry — just look at my CV. Also, I’m modeling this blog post after the writings of famous law professors. So I can’t be wrong!

If you think I’m wrong, and you’re a law professor, you can sign this petition.   But I’m not wrong. You’re all wimps. And get off my lawn!

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O.K. Boomer is the Venerable Professor of Law at the University of Prestigious Suck It Up You Wimp University School of Law.  We look forward to your donations once you pick yourself up by your bootstrap.This space for blogging was generously loaned by LawProfBlawg.

LawProfBlawg is an anonymous professor at a top 100 law school. You can see more of his musings here. He is way funnier on social media, he claims. Please follow him on Twitter (@lawprofblawg) or Facebook. Email him at lawprofblawg@gmail.com. 

The economic upheaval that’s been caused by the novel coronavirus continues to leave its mark on Biglaw. We reported earlier on the high likelihood that more and more Biglaw partners would be forced to cut their draws and distributions in the coming months. Specifically, law firm management consultant Patrick McKenna said he’d be surprised if at least 80 percent of the top 200 firms in the country hadn’t made such a move by the middle of April, noting that “a typical reduction is in the range of 30 percent.”

Today, we have news on yet another law firm where partners are feeling the pinch.

Winston & Strawn, a firm ranked within the Top 50 in both the Am Law 100 and Vault 100, recently made a move on its partner pay. Numerous sources tell us that the firm held a town hall meeting yesterday afternoon where it was announced that partners would be taking a 50 percent reduction in their distributions for the next three months. At last check, profit per partner at the firm was $2,162,000. At the moment, no changes have been made to associate or senior staff compensation, but one observer said “the message was very clear that compensation is a large cost and so they are continuing to evaluate the issue.”

We reached out to Winston & Strawn for a statement on the changes to its partners’ compensation in light of the coronavirus but the firm declined to comment.

Let’s hope that the partner’s proactive measures can save associates and staff members from coming up short when it comes to their own salaries.

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).

If you’d like to sign up for ATL’s Layoff Alerts, please scroll down and enter your email address in the box below this post. If you previously signed up for the layoff alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each layoff, salary cut, or furlough announcement that we publish.

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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.

In response to the devastating economic impact of the coronavirus pandemic, Congress came to the rescue of American businesses, small and large, by approving an estimated $2 trillion stimulus package, known as the Coronavirus Aid, Relief, and Economic Security Act. The CARES Act, in part, prescribes $349 billion in small business loans to help American companies stay afloat during this economic crisis.

In addition to enacting the CARES Act, President Donald Trump signed into law the Coronavirus Preparedness and Response Supplemental Appropriations Act, which contains a $20 million grant to the Small Business Administration Disaster Relief Fund to provide additional low-interest loans to companies affected by COVID-19.

Like most other American businesses, cannabis companies are struggling with major economic setbacks, yet they are denied tapping into these SBA loans on the basis of their federal legality and their ability to comply with “all applicable federal laws and regulations.”

The cannabis industry includes both hemp and marijuana businesses. Hemp became legal upon the enactment of the Agriculture Improvement Act of 2018 (better known as the 2018 Farm Bill), which expressly removed the agricultural crop from the definition of marijuana under the Controlled Substances Act (CSA). Although heavily regulated, hemp is no longer controlled in the classic sense. Marijuana, on the other hand, remains a Schedule I substance under the CSA, which means the cultivation, manufacture, distribution, and possession of the plant is illegal under federal law. Therefore, while qualified hemp businesses are entitled to the same stimulus relief as businesses in most other industries, marijuana businesses are not.

In a statement released shortly after the enactment of the CARES Act and of the Coronavirus Preparedness and Response Supplemental Appropriations Act, SBA spokesperson Carol Chastang explained:

Because federal law prohibits the sale and distribution of cannabis, the SBA does not provide financial assistance to businesses that are illegal under federal law. […] Businesses that aren’t eligible include marijuana growers and dispensers, businesses that sell cannabis products, etc., even if the business is legal under local or state law.

This is not a new SBA position. In a 2018 Police Notice, the SBA explained that neither “Direct Marijuana Businesses” nor “Indirect Marijuana Businesses” are eligible for SBA-funded assistance.

More recently, the SBA released the 2019 Information Notice, in which it further clarified that cannabis businesses are not entitled to receiving money appropriated for disaster relief because the CSA continues to prohibit the sale, manufacture, distribution, and possession of marijuana.

Although the 2019 Information Notice continues to expressly exclude direct and indirect marijuana businesses from the loan assistance programs, it provides that hemp companies that “develop or market CBD and CBD products derived from hemp would not be considered Direct Marijuana Businesses [… and] would be eligible to participate in SBA technical assistance programs, if the business and its products are legal under state law and comply with all applicable federal, state, and local laws and regulations.” (Emphasis added).

Therefore, many companies engaged in the manufacture, distribution, sale, and marketing of hemp-derived products, including cannabidiol (CBD)-infused products, would also be ineligible for these loans. As I wrote in this column, the FDA, which holds authority over hemp CBD foods, dietary supplements, cosmetics, and tobacco products, in accordance with the 2018 Farm Bill, deems the sale and marketing of most of these products unlawful under the Food, Drug and Cosmetics Act. Moreover, despite the adoption of many state-level hemp CBD regulations, the FDA has yet to adopt a formal legal pathway for those products, leaving the industry largely unregulated, faced with a patchwork of conflicting rules and regulations, and, thus, generally unable to comply with “all applicable federal, state, and local laws and regulations.”

As of January 2020, the cannabis industry was employing over 240,000 full-time workers across 34 states and the District of Columbia, making it one of the greatest job-creation machines in the country. Moreover, cannabis companies are required, under federal law, to comply with numerous COVID-19 measures, such as paid sick leave coverage. In light of this, the ineligibility of many cannabis companies for SBA loans seems particularly inequitable. Unless the federal government revisits its current policies and lifts the inconsistent and unfair restrictions on the cannabis industry, marijuana and hemp CBD companies, along with the American workforce they support, will be left in the weeds.

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Nathalie Bougenies practices in the Portland office of Harris Bricken and was named a “2019 Rising Star” by Super Lawyers Magazine, an honor bestowed on only 2.5% of eligible Oregon attorneys. Nathalie’s practice focuses on the regulatory framework of hemp-derived CBD (“hemp CBD”) products. She is an authority on FDA enforcement, Food, Drug & Cosmetic Act and other laws and regulations surrounding hemp and hemp CBD products. She also advises domestic and international clients on the sale, distribution, marketing, labeling, importation and exportation of these products. Nathalie frequently speaks on these issues and has made national media appearances, including on NPR’s Marketplace. Nathalie is also a regular contributor to her firm’s Canna Law Blog.

Did you think that maybe, with reports that we are apparently at the peak of COVID-10 cases, that we should be (slowly) returning to normal soon? Well, I believed in Santa Claus until 5th grade so, who am I to judge wishful thinking?

In any event, the COVID-19 austerity measures are still going strong in Biglaw. The latest firm we have intel on is Brown Rudnick, ranked 141 is the most recent Am Law 200 rankings. We’ve heard from multiple tipsters that there were “deep cuts” and that associate furloughs have been going on there, but as a tipster noted, “these have all been stealth and there is a lot of confusion about who is out. It is being touted as merciful.” Another tipster noted that the confusion extended beyond the furloughs:

“Now this morning they announced furloughs of employees (although it’s unclear who exactly has been furloughed, I know of several associates who have been furloughed). And they are cutting pay for all attorneys by at least 10%, although exact amounts are unknown.”

Other associates have placed the amount of the salary cuts at 25 percent through August. When we reached out to the firm, they clarified that the pay reduction for associates is 7.5 percent on an annualized basis (which, I’m no math whiz, sounds a lot like a 25 percent cut for only a few months of the year). Associates also report a delay on their 2019 bonuses which were supposed to be paid (in full) in March:

Unfortunately, our bonuses are paid in March because we are on a fiscal year ending in Feb., which coincided with the lockdowns. They delayed the bonus process and will be paying 1/3 this month with the remainder some time later this year (or early next). All the associates think the remaining 2/3 won’t happen or that they will just condense it into next year’s bonus and eliminate the 2020 “fiscal” year.

Let’s hope associates see the remainder of the 2019 bonuses as soon as possible.

Partners are also seeing a cut in their draws, though the firm will not comment on specific figures for equity draws.

When reached for comment, firm Chairman and CEO Bill Baldiga had this to say:

“The unprecedented COVID-19 pandemic has impacted law firms like many other businesses. Brown Rudnick has taken expense management steps during these uncertain times. The firm is dedicated to its lawyers and staff and has implemented a proactive plan to provide solid financial standing for the firm that does not involve layoffs. The firm continues to operate uninterrupted for our clients, and we hope the global work disruption will be a short term impact.  We have positioned the firm’s diverse practices for future success.”

Good luck to the firm as it tries to weather the COVID-19 storm.

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).

If you’d like to sign up for ATL’s Layoff Alerts, please scroll down and enter your email address in the box below this post. If you previously signed up for the layoff alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each layoff, salary cut, or furlough announcement that we publish.

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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).

Apparently GWU Law’s Jonathan Turley understands international cuisine about as well as he understands the Constitution. The longtime legal analyst — most famous for testifying in favor of impeaching Bill Clinton and against impeaching Donald Trump for complex and nuanced constitutional arguments steeped in his detailed understanding of what might get him media coverage at the time — has tried his hand at amateur restaurant critic!

And guess what? He sucks!

Tossing around ill-informed thoughts on food may not have the calamitous heft as when Richard Epstein play-acting at amateur epidemiology or Adrian Vermeule taking a whirl as ersatz Machiavelli, it is actually really awful when you take a few seconds to think about it.

While it’s fun to think that Jonathan Turley is culinarily cloistered by his own delightfully passive racism, that’s probably a lie. It’s highly unlikely that Turley’s never seen Indian food (and let’s be fair, Tikka Masala is already not real Indian food, but I digress). It’s even more unlikely that an attorney who fancies himself an intellectual would see something that confuses him and choose to publicly display his ignorance rather than invest 10 seconds into doing research.

No, this isn’t about food, this is about the cable news economy and performative white nationalism is the coin of the realm, my friends. Turley’s so thirsty for more screen time as the vaguely liberal-ish person who defends Donald Trump — a job he’s thoroughly lost to Alan Dershowitz, by the way — that he’s offering a song and dance about how he’s uncomfortable with all these ethnic names taking over “our” food in the hope Tucker Carlson will offer him his fix in the form of a superficial 5-minute spot that will be all but forgotten as soon as it airs.

That’s just what you’ve got to do if you want airtime these days. It’s not news, it’s an opiate. Hold the audience’s hand and tell them you’re an ostensibly smart person and you also don’t understand why Indian restaurants can’t call it “Creamy Tomato Chicken” like “normal” people talk. Say this stuff enough, and you might even get a paid deal with Fox!

And worst of all, Turley is probably going to get away with it because everyone piling on his Tweet will be dismissed as “liberal tears” and Turley will be welcomed back. He’s made the play that works for his bottom line and that’s apparently playing to the crowd that gets more lathered up by food names than public health expenditures. He’ll just be over here basking in his fame, 5 basic cable minutes at a time.

This is just a reminder that it’s perfectly fine to hate both the player and the game.

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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.

The short answer is that there is no definitive answer yet. Universities and law schools aren’t ready to make a decision because the pandemic is so fluid and there is so much uncertainty, nor do they have to yet. But the question is being discussed on a daily basis, and we have spent a good deal of time speaking with college presidents, provosts, and deans and trying our best to get the most recent and trust-worthy epidemiological modeling and medical community input.

This podcast condenses those two perspectives — that of higher education and that of the medical community — into a prediction for the fall. Our prediction, based on speculation, and which we are going to devote continuous attention to over the next several months, is that it is likely many colleges and universities will not have on-campus classes this fall. This is particularly true for those schools that are able to take a semester or even year-long financial hit. We allude to Bill Gates’s work that states this may be the once-in-100-years pathogen we have not been prepared for, and the infection rate of the virus plays into this prediction. Certainly there is a broad continuum where you could see some colleges entirely online, some with a hybrid online/on-campus model, and potentially some that are fully open.

What about law schools, the area our firm has the most expertise in? The dynamics are a little bit different here because law schools generally don’t have, or don’t have to have, student housing. Their student bodies are considerably smaller (there are roughly 112,000 total law school students in the country vs. 22 million college students), and thus with testing improvements and availability you could see law schools having a model where all faculty and students are tested, and those who test negative can be in the classroom, which would also be webcasted or recorded for those who can’t be in the classroom for a variety of reasons.

In fact, we think some law schools will open and some will remain closed. They may start up, even independent of central university openings, or they may ride out a semester of online-only courses. Some may do the model described above — and some may open fully with a hand on the button to shutter immediately if the spike comes back from the virus.

Pictured below the podcast is the model from Dr. David Sinclair Ph.D. we have been looking at, along with much of his other work, in formulating some of these speculations As the summer progresses this will become less speculative, and we will provide updates at any juncture we learn new information.

Listen to the full podcast here:

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Mike Spivey is the founder of The Spivey Consulting Group and has been featured as an expert on law schools and law school admissions in many national media outlets, including The New York Times, The Economist, the ABA Journal, The Chronicle of Higher Education, U.S. News & World Report, CNN/Fortune, and Law. Prior to founding Spivey Consulting, Mike was a senior level administrator at Vanderbilt, Washington University, and Colorado law schools. You can follow him on Twitter and Instagram or connect with him LinkedIn.