Author: TSA Press

There’s a global pandemic and people the world over have been confined to their homes. The economy is crashing, law students are taking classes online from their couches, and lawyers are litigating from their kitchen tables. What better way to lighten the mood than with the release of the latest edition of the U.S News law school rankings?

We certainly hope that law school deans are ready to read their report cards…

Law school deans are saying their last prayers to rankings god guru Bob Morse in the hope that they won’t be ousted from their positions thanks to a few lost spots on the list, while prospective law students are getting ready to send out seat deposits to the law school with the best rank. As for current law students, they’re just waiting to see if the school they’ll graduate from will be considered more or less prestigious than when they first decided to debt-finance their futures based on their alma mater’s rank.

Here’s the official list of the Top 14 law schools in the nation, as ranked by U.S. News & World Report in the year 2020. Changes in rank from this year over last year come to us courtesy of Mike Spivey of the Spivey Consulting Group.

1. Yale University (CT) (0)
2. Stanford University (CA) (0)
3. Harvard University (MA) (0)
4. Columbia University (NY) (+1)
4. University of Chicago (IL) (0)
6. New York University (0)
7. University of Pennsylvania (Carey) (0)
8. University of Virginia (0)
9. Northwestern University (Pritzker) (IL) (+1)
9. University of California–Berkeley (+1)
9. University of Michigan–Ann Arbor (0)
12. Duke University (NC) (-2)
13. Cornell University (NY) (0)
14. Georgetown University (DC) (0)

Columbia is moving on up in the world. Northwestern and Berkeley each moved up by one spot, and Duke suffered because of it. Sorry, Duke.

Now, let’s take a gander at the law schools outside of the T14. Like years past, we’re faced with yet another rankings orgy, with nothing but ties, ties, and more ties. There are four ties in this segment of the rankings alone (one two-way tie, one three-way tie, one four-way tie, and one six-way tie), with more to follow. Here are the schools ranked 15 – 31:

15. University of California–Los Angeles (0)
16. University of Texas–Austin (0)
17. Washington University in St. Louis (MO) (+1)
18. University of Southern California (Gould) (-1)
18. Vanderbilt University (TN) (0)
20. Boston University (MA) (+3)
21. University of Minnesota (-1)
22. University of Notre Dame (IN) (-1)
23. George Washington University (DC) (-1)
24. Arizona State University (O’Connor) (+3)
24. Emory University (GA) (+2)
24. University of Florida (Levin) (+7)
27. Fordham University (NY) (+12)
27. University of California–Irvine (-4)
27. University of Iowa (0)
27. University of North Carolina–Chapel Hill (+7)
31. Boston College (MA) (-4)
31. University of Alabama (-6)
31. University of Georgia (-4)
31. University of Illinois–Urbana-Champaign (+8)
31. Washington and Lee University (VA) (+3)
31. William & Mary Law School (VA) (+8)

The big winners here are Fordham, Illinois, William & Mary, Florida, and UNC, up 12, eight, eight, seven, and seven spots in the rankings, respectively. Congratulations to each school, as they must be doing something right to climb the rankings. The biggest loser in this segment of the rankings is Alabama, with a six-spot drop that booted the school out of the Top 25. Erm… roll Tide?

Now, for the rest of the law schools in the Top 50, where there are three three-way ties and one four-way tie. As you can see, there was A LOT of movement here:

37. Brigham Young University (Clark) (UT) (+2)
38. Indiana University–Bloomington (Maurer) (-4)
38. Ohio State University (Moritz) (-4)
38. University of California–Davis (-7)
38. University of Wisconsin–Madison (-4)
42. George Mason University (VA) (+3)
42. University of Washington (+2)
42. Wake Forest University (NC) (-11)
45. University of Utah (Quinney) (+2)
46. University of Colorado–Boulder (-1)
47. Pepperdine University Caruso (CA) (+4)
47. University of Arizona (Rogers) (-8)
47. University of Maryland (Carey) (+5)
50. Baylor University (TX) (-2)
50. Florida State University (-2)
50. University of Connecticut (+2)

The biggest winners here were Maryland, Pepperdine, and UConn, which moved up five, four, and two places in the 2021 law school rankings, propelling each into the Top 50. The biggest losers here were Wake Forest, Arizona, and UC Davis, with 11-spot, eight-spot, and seven-spot drops, respectively. Whatever those schools are doing, they better shape up, because some have already been shipped out of the Top 30 — with others almost out of the Top 50.

The rest of the rankings are available on the next page.

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.

As if overnight, coronavirus has caused competence in technology to rise to a new level of urgency for the legal profession.

In Australia, the Supreme Court of New South Wales said Thursday that it would take steps “to minimize the need for parties to come to the Court” through the use of online courts and telephone and video conferencing.

In Britain, emergency measures have been proposed to establish virtual courts to hear criminal and civil cases and allow more proceedings to be held via telephone and video.

Internationally, the 1,300-lawyer firm Faegre Drinker has closed all 22 of its offices around the world, saying its employees “are equipped with the required technology to work remotely and remain ready and available to assist clients.”

In the Pacific Northwest, the law firm David Wright Tremane has closed its offices in Seattle and Bellevue, Wash., and Portland, Ore., asking everyone in those offices to work remotely.

Suddenly, lawyers and other legal professionals are having to work from home. Suddenly, they are having to engage with clients and colleagues entirely remotely. Suddenly, they may have to navigate new forms of online courts.

Many firms are ready for this. But many are not.

No one can know how long this crisis will last. But if more firms are forced to close their offices, if more courts go online, if travel continues to be restricted, then there will be a new normal for law practice, and it will be one that relies more heavily than ever on technology and the cloud.

The firms that are best equipped for this challenge are those prepared in every way to work virtually. Their practice management systems are in the cloud. Their document management systems are in the cloud. They have systems in place for collaborating and conferencing online.

Most importantly, their employees and professional staff are trained in using these systems and have the equipment and hardware they need to work from anywhere. For them, closing an office is an inconvenience, but not an interruption.

I wish that were true for all firms. But we all know it is not.

Many firms are still limited to computer systems that operate only within an office. Many are not even that far along, still relying heavily on paper filing systems. They have virtually no infrastructure for their staffs to work offsite and virtually no clue of where to start.

Even if these firms were prepared, many of their lawyers are not. Many lawyers remain largely incompetent, or at least untrained, in technology. I meet these lawyers all the time — some who are proudly resistant to learning technology, others who simply have not taken the time.

There is no way to know the state of the profession’s preparedness for an extended crisis. According to the 2019 ABA Legal Technology Survey Report, 84% of law firms say they have some sort of remote-access software available for use by their employees. As you might expect, larger firms are more likely to have such systems, while just 66% of solos do.

But that same survey said that just over half of firms have any sort of document or records management system -– let alone a cloud-based system –- and just 37% of solos have such a system. Similarly, just over half have a case or practice management system, and just 35% of solos do.

Overall, according to the survey, just 58% of lawyers are using cloud-based systems in their law practices, and the cloud system they most commonly use is Google Docs.

These numbers suggest that a sizeable portion of the legal profession is poorly equipped to deal with an extended situation of working remotely and virtually.

Last year, I wrote about a Wolters Kluwer survey on “future-ready lawyers” that found, not surprisingly, that law firms that already leverage technology are better prepared to keep pace with an evolving legal market than those that are just beginning to use technology or that are not doing so at all.

Suddenly, that concept of a legal market that is “evolving” has morphed into one of a legal market where everything has changed overnight. The point of that survey holds true –- that firms that already leverage technology are better prepared if this becomes the new normal.

But what of the rest of the firms? What will become of them?

For firms that have lagged in their adoption of technology, for lawyers who have lagged in learning technology, the coming weeks and months could be an acid test. Sad to say, but if the situation persists, it could force the shutdown of some firms.

For everyone else, this should be a wake-up call. The need to be competent in technology is no longer an evolutionary concern. It is a matter of immediate survival.

Robert Ambrogi is a Massachusetts lawyer and journalist who has been covering legal technology and the web for more than 20 years, primarily through his blog LawSites.com. Former editor-in-chief of several legal newspapers, he is a fellow of the College of Law Practice Management and an inaugural Fastcase 50 honoree. He can be reached by email at ambrogi@gmail.com, and you can follow him on Twitter (@BobAmbrogi).

Today, the Supreme Court announced that it would be postponing oral arguments due to the widespread coronavirus outbreak. No timeline for when oral arguments would resume was given. Arguments in Trump’s tax case were supposed to be heard on March 31. When was the last time the Supreme Court delayed oral arguments?

Hint: It takes an epidemic for the high court to disrupt its schedule.

See the answer on the next page.

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.

Who would have thought the old maxim that “if it walks like a duck and quacks like a duck” would no longer hold true? The meteoric rise of computing power and the internet have given rise to capabilities we at one time thought impractical if not impossible (streaming video on demand, anyone?).  Unfortunately, such powerful capabilities can also be used for more nefarious purposes. Enter the rise of “deepfakes” (a combination of the phrase “deep learning” and the word “fake”).   As I have written about here before, such deepfakes are getting more realistic and harder to detect. This is not limited to photos and videos — audio deepfakes are on the rise as well. Although still somewhat detectable, the technology continues to improve and get better. What’s scarier is this technology is looking more disruptive in the context of intellectual property and privacy law than you may think.

If you think I am being alarmist, think again. According to Siwei Lyu, director of SUNY Albany’s machine learning lab, as quoted in Axios, “having a voice [that mimics] an individual and can speak any words we want it to speak” will be a reality in a couple of years. Realistic audio deepfakes are not something on the horizon — they are on the doorstep. In this political season it is easy to see how such deepfakes may be used. For example, it’s not hard to imagine deep fake audio of Bernie Sanders’ voice designed to erode his primary chances, or audio attributed to President Trump that has been pieced together from his numerous interviews and appearances (like this) designed to disrupt and damage his 2020 presidential re-election campaign.

Unlike deep fake video, however, deep fake audio is more complex — it requires addressing the modulation of a person’s voice and intonation, as well as synthesis of the phraseology to properly mimic the target individual. Without the visual imagery to help convince the listener, the audio deepfake must be incredibly close to the original voice. Without question, the technology is getting there, but the law addressing it has a lot of catching up to do.

From a copyright perspective, I have written about the application of the fair use doctrine to deepfake works and how it takes the fair use analysis to a whole new level. I also addressed the Digital Millennium Copyright Act (DMCA) and the application of state privacy torts to such deepfakes (such as the misappropriation of name or likeness for commercial gain) and how a patchwork of state privacy torts is ultimately inadequate. With the inevitable advent of realistic deepfake audio, I am beginning to think there needs to be a more meaningful way to address the problem:

1. Deepfakes Require A Reassessment Of Section 230 Of The Communications Decency Act (CDA). CDA Section 230 provides that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Although originally designed as a mechanism to protect telecommunications providers from liability for third-party content, the federal courts have interpreted Section 230 to provide a liability shield to internet service providers (as interactive computer services) for third-party defamatory content online. The problem is that the CDA Section 230 liability shield disincentivizes such internet service providers from taking action against deepfakes (as they may be monetizing off of that content). As tools are developed to address and identify deepfakes (both video and audio), such providers should be incentivized to implement such technology so that users know that the content contains deepfake elements. I am not advocating censorship here whatsoever — some content may in fact represent satire or commentary that is legitimate fair use under Section 107 of the Copyright Act. I am merely advocating that users know deepfake elements are present so they are aware of those elements should they choose to view or listen.
2. Deepfakes Require A Uniform Federal Legislative Response. I do not take this point lightly, but federal privacy legislation designed to preempt certain state privacy torts may be a necessary response to the growing impact of deepfake content.  The current state tort framework is simply inadequate to address the improper use of a person’s voice or likeness in deepfakes. Federal legislation designed to address fraudulent use of a person’s voice or likeness in a deepfake may be a start. I realize that this approach may open up a host of other problems (such as the line between legitimate criticism or commentary under copyright law and outright fraud), but I feel strongly that the discussion needs to occur. Existing legal frameworks are simply not enough.

When it comes to deepfake audio, realistic content is right around the corner. Although tools are being developed to address such content, the law needs to both incentivize the adoption of such tools as well as protect against improper deepfake use. Hopefully, this discussion will happen sooner rather than later. Until then, the next time you hear something from a public figure that sounds crazy, listen once and think twice.

Tom Kulik is an Intellectual Property & Information Technology Partner at the Dallas-based law firm of Scheef & Stone, LLP. In private practice for over 20 years, Tom is a sought-after technology lawyer who uses his industry experience as a former computer systems engineer to creatively counsel and help his clients navigate the complexities of law and technology in their business. News outlets reach out to Tom for his insight, and he has been quoted by national media organizations. Get in touch with Tom on Twitter (@LegalIntangibls) or Facebook (www.facebook.com/technologylawyer), or contact him directly at tom.kulik@solidcounsel.com.

A partner at Baker Donelson has a confirmed case of COVID-19, and is in critical condition. Mark Frilot, 45, is a partner in the construction litigation practice at the firm’s New Orleans and Mandeville offices and was diagnosed with the disease on Thursday after initially being misdiagnosed with the flu.

Frilot first noticed symptoms on March 6th. The following day he went to a critical care center and was told he had the flu and given Tamiflu, prednisone and cough syrup to treat the disease. However, his symptoms only got worse and included deliriously talking to himself. He went to the emergency room where flu tests came back negative and he was told he was a candidate to be tested for coronavirus. Frilot was then diagnosed with both the coronavirus and double pneumonia. He’s currently sedated and on a ventilator.

Heaven Frilot, the lawyer’s wife, told Nola.com that her husband is “never, ever sick” and the seriousness of his case of COVID-19 shows, “It could happen to anybody.” It’s a warning she feels compelled to make as folks who perceived themselves as low risk for the disease haven’t always heeded health officials’ urging of social distancing. Heaven Frilot said seeing social media images of a Saint Patrick’s Day party in New Orleans that had to be broken up by police motivated her coming forward:

[Heaven Frilot] pleaded with people who think they are too healthy to be at risk to be aware that they still could be in danger and to listen to city leaders’ requests — if not to protect themselves, then for the sake of those who are vulnerable.

“Be aware,” Frilot said. “Please listen. So what if you have to stay home? This is a temporary thing — or hopefully (it will be), if people listen.”

According to Law.com, Baker Donelson has not had any other cases of COVID-19. The New Orleans and Mandeville offices of the firm are closed, and all of the firm’s employees are encouraged to work from home. John Hicks, Baker Donelson’s general counsel, said the firm is working with the authorities:

“We have been cooperating with the board of health in New Orleans to notify everyone who may have been in contact with him and assist them in whatever notifications they thought were appropriate,” Hicks said in an interview.

Firm employees who worked recently with Frilot were given tests for the disease and other firms Frilot has been in contact with have been notified of possible exposure.

The firm also noted they have a plan in place to prevent any disruption of legal services to their clients:

In a statement, Baker Donelson said it has a “comprehensive continuity plan” that will allow the firm to serve its clients. “Baker Donelson joins the rest of society in keeping those affected by COVID-19 in our thoughts and prayers and in hopes of an early return to normalcy,” the firm said.

Best wished to Frilot on a speedy recovery.

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 new normal of coronavirus is slowly seeping in across the legal world. Biglaw is reacting to the pandemic, with work from home policies becoming increasingly popular. And law schools have almost uniformly responded with physical class closures, some 190 law schools — representing 95 percent of law schools — have moved to online classes.

The global health crisis has managed to produce anxiety in even the most even-keeled individuals, so in high pressure environments — like law school — it’s just bananas. And law school deans are aware the panic settling over their students is more intense than the usual spring finals anxiety. So, it really is a good thing that University of Michigan Law School Associate Dean Gil Seinfeld reached out to students with a detailed email addressing some of their most pressing concerns.

There are attendance policies, time zone complications, grading standards and a shortened finals study period to deal with. And really, kudos to Seinfeld for addressing those concerns before they reach a fevered pitch (too soon?). But in the long email Seinfeld also noted the surprising upside to the COVID-19 safety restrictions — more study time!

“You all know well how vibrant our community is.  And that vibrancy flows, in significant part, from the dazzling array of extracurricular activities in which our students are involved.  Many of you, no doubt, have been lamenting (among many other things these days) the loss of opportunities for connection, public service, and learning that the cessation of those activities entails.  You can make up for some of those lost opportunities for learning by squeezing everything you can out of your coursework.  And you can do that, in part, by devoting some (but only some) of the hours that would otherwise have gone to extracurricular pursuits to careful study of the material you’ll be covering in class.”

As an Above the Law tipster quipped, “UMICH Law School Dean praises Covid-19 epidemic as a new study tool.” Burn.

In fairness to Seinfeld, he’s quick to point out you should not spend all your free time studying. There’s a clear message of compassion and understanding throughout the email. But noting it is also a gunner’s dream to have a sudden boon of study hours is also pretty damn funny.

You can read Dean Seinfeld’s full email below.

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).

Yesterday, the President started the day off with a call for the nation to heal itself with a “NATIONAL DAY OF PRAYER.”

Well, that’s not entirely correct. He started off the day hyping Judicial Watch’s lawsuit to depose Hillary Clinton about Benghazi. But after that, he got down to praying in earnest.

The president prayed for just vengeance on Senator Chuck Schumer for disrespecting the holy Supreme Court. He prayed that the good Lord would open the hearts of America’s governors, so that they might emulate the federal government’s perfect, perfect pandemic response. He prayerfully rebuked the “Fake and Corrupt News” for reporting that he shamelessly mischaracterized Google’s coronavirus test plans. And he praised Jesus for giving him the wisdom to save Social Security and Medicare, unlike Joe Biden, who displeased the Lord with his “VERY boring debate.” Truly, it was a day of sacred inspiration.

During his public and private spiritual meditations, Donald Trump could not but consider the least among us. The poor, the downtrodden, the unjustly accused.

That’s right, he’s worried about Michael Flynn.

The former National Security Advisor pleaded guilty in writing to lying to the FBI about his contacts with Russian Ambassador Sergei Kislyak. He allocuted to it twice in open court. And yet, after having replaced his highly competent counsel from Covington & Burling with Sidney Powell, an, uh, outside the box thinker, he’s now decided that none of the stuff he admitted to under oath ever actually happened.

It’s an unorthodox strategy, to say the least.

Trump appears to be referring to allegations by Flynn’s lawyer that there is a missing draft of the FBI agents’ notes (AKA FBI form 302) on their infamous January 24, 2017 interview with Flynn at the White House. That’s the interview where he assured the agents that he had absolutely not discussed sanctions with the Russian ambassador before the inauguration, while joking that the agents probably knew exactly what he’d discussed because they were likely tapping the call, HEH HEH. Which… they were, and that’s how they knew he was lying.

This is a lie Flynn has admitted to under oath, both verbally and in writing. He discussed it multiple times in his proffer agreement and subsequent interviews with the FBI, all of which will undoubtedly be used against him if he actually succeeds in withdrawing his plea. Nevertheless, he would now like to insist he was just confused all those times, because the mean FBI tricked him. Also, his old lawyers were incompetent. And if the court could just overlook that part of his plea agreement where he agreed not to ask for any further Brady materials, that would be awesome, too!

Or, maybe, if he can just make enough noise, he can get a presidential pardon and none of it will even matter. And if that’s the plan, it appears to be going swimmingly, especially after he got Hannity fixture and “National Security/War Correspondent” Sarah Carter on the case.

During his prayer service yesterday, Trump retweeted this entire thread.

And HOSANNA, the nation was healed!

U.S. v. Flynn [Reply in Support, No. 1:17-cr-00232-1 (D.D.C. Nov 4, 2019)]

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