Author: TSA Press

Senate Finance Committee leaders have threatened to subpoena Cigna if it doesn’t turn over information on how it negotiates insulin costs. The request is part of a larger investigation on rising insulin prices, launched last year by Senators Chuck Grassley (R-Iowa) and Ron Wyden (D-Oregon).

Prices for the lifesaving drug have spiked dramatically in the past decade, despite the fact that it was discovered nearly a century ago. Insulin prices doubled between 2012 and 2016, from $2,864 per person to $5,705, according to a report by the nonprofit Health Care Cost Institute. The rising cost of the drug has taken some patients to extreme measures, including skipping doses or rationing their supply of it.

Grassley and Wyden said they first sent a letter requesting information from Express Scripts on April 2 last year. In a letter addressed to Express Scripts President Timothy Wentworth, they said they would give the company until March 10 to respond. At that point, the committee would issue a subpoena.

“Cigna has failed to even attempt to answer many of the questions that we posed…” they wrote, highlighting questions on Express Scripts’ formulary placement and rebate negotiation processes. “Families are struggling to keep up with rising costs, and they do not understand why they continue paying more money for a therapy that has remained largely unchanged for decades. Americans are demanding answers from PBMs and pharmaceutical companies, and we expect your company to begin providing them promptly.”

In an emailed statement, a Cigna spokesperson wrote, “We take the Committee’s inquiry very seriously and have been engaged with them on this request. We are committed to being cooperative.”

Express Scripts is one of the largest PBMs by market share. Cigna closed its $67 billion acquisition of the company in late 2018.

Last year, one day after Grassley and Wyden submitted their request for information to Express Scripts, the company announced it would cap insulin prices. The PBM said it had partnered with insulin manufacturers to cap insulin copays at $25 per month. The cap applies to the insulins that are listed on a plan’s formulary, which can vary, but all three major insulin manufacturers are participating.

Others have launched similar initiatives to keep insulin prices under control. Insurance startup Oscar Health recently announced it would decrease the cost of insulin from $350 per month to $3 per month by switching from Levemir to Novolin N.  Both drugs are manufactured by Novo Nordisk.

State legislators have also started their own efforts. Colorado first passed legislation capping insulin costs at $100 per month, followed shortly with similar legislation in Illinois.

Photo credit: eromaze, getty Images 

Ed. note: Litigation finance is transforming the fields of both law and finance. To help our readers gain a better understanding of what litigation finance entails, we’ve partnered with Lake Whillans to present a new series so you can better understand how litigation funding works, its pros and cons, and its past, present, and future.

The growth of litigation finance (also known as litigation funding or third-party funding) has been a hot topic in recent years, but even if you’ve heard of the general concept, you may be less familiar with the range of litigation finance options. Much like other forms of finance, there are different structures that can meet the needs of a particular claimholder, matter, and/or firm.  This article will review the basic features of a litigation finance investment and describe some of the different structures or “flavors” of litigation finance. Lake Whillans has and will transact in any of the “flavors” described below.

The Cone – Non-recourse capital

All forms of litigation finance share a common feature, which is the non-recourse provision of capital in connection with a legal claim (or set of claims).  That means that the funder receives a return on its investment only if the underlying case or set of claims is successful, but if the case fails, the funder is owed nothing.  In the successful scenario, the litigation financier recovers its invested capital, plus a portion of the litigation proceeds. The allocation of proceeds between the claimholder and the funder (and counsel where counsel has a contingent stake) will depend on terms negotiated at the outset and memorialized in the funding agreement, which is generally structured as a purchase of the claim proceeds.  Lake Whillans aims to structure deals such that the majority of the proceeds remains with the claimholder.

Plain Vanilla – Single-Case finance

In the simplest structure, the funder enters an agreement with the claimholder to pay the legal fees and expenses associated with litigating a single case (e.g., lawyer and experts). This enables the claimholder to remove from its balance sheet the risk of pursuing the claim: because the claimholder does not spend its own capital on legal expenses, there is no hit to the balance sheet on an unpredictable and ongoing basis. Although the claimholder must keep the funder apprised of developments as the case progresses, the claimholder maintains independent control over case strategy.  For example, the claimholder decides whether to accept any settlement offer. Lake Whillans funds single cases pending in U.S or Canadian courts, or in an arbitration proceeding worldwide. For a single case investment, we generally invest between $1-$15 million and a flexible rule of thumb is that the anticipated damages should exceed the invested amount by a factor of ten.

One variable in a single-case litigation finance deal is how much risk the claimholder’s counsel takes on.  At one end of the spectrum, the funder is paying 100% of the legal fees at the counsel’s standard hourly rate as amounts come due as well as the other expenses associated with the litigation or arbitration.   At the other extreme, counsel may agree to take the case on a full contingency for the legal fees, and the funder is only paying for other expenses associated with the litigation (e.g., experts and other out-of-pocket expenses).  Often a deal will fall somewhere in the middle: the lawyers will be guaranteed a certain payment from the funder (either a percentage of its earned fees or all its fees up to a cap), but will still have some “skin in the game,” generally either as a contingent percentage of proceeds or an additional percentage on the unpaid fees. The flexibility to negotiate such arrangements with counsel and a funder makes it possible for a claimholder to select from a wider range of counsel than if it were to choose only among lawyers willing to work on full contingency, and allows firms to offer alternative structures that balance the need for certain and ongoing income with sharing in potential upside.  Unlike some funders, Lake Whillans does not require that the firm take risk in order for us to fund a matter, but we are open to sharing risk with a firm. 

Rum Raisin – Defense-Side Funding

Most often, in a single-case financing, litigation funders are financing the claimholder who is seeking monetary damages, from which the funder can take its share if successfully obtained.   However, in some instances, we are able to finance a defendant.  Funding is available to a defendant when a “win” for that defendant allows it to continue to hold some right or asset, which is tied to an income stream that can be shared with the funder.  A common fact pattern we encounter is when a defendant is sued for breach of contract and the plaintiff seeks a declaratory judgment that the contract is terminated, and a “win” for the defendant means it continues to hold the right to continue to perform the contract and reap its benefits.  For example, that could be the continued exclusive right to sell or distribute a product in a certain geography pursuant to a distribution agreement, or continued rights to valuable IP under a license agreement. Lake Whillans’ return in those examples would come from the revenue earned from the product sales that were able to continue after successfully defending the claims.  (Or from a settlement that included a buy-out of the contractual rights). Other examples where defense-side funding might work include disputes over ownership of real estate or companies or other monetizable assets.

Neapolitan – Portfolio Finance

Although single-case funding dominated litigation finance in its early years, portfolio funding has become increasingly central to the industry as it has matured.  In a portfolio funding deal, the litigation financier invests in a set of claims either held by the same claimholder or litigated by the same law firm. By aggregating claims, a claimholder can generally obtain funding at a lower cost of capital: the funder is willing to accept a lower return because investing in a portfolio is less risky than investing in a single claim with a binary outcome.  

For companies, portfolios may include a few larger claims or a number of smaller claims that may not otherwise have been pursued.  The financing may be used not only to support the costs of the portfolio of affirmative claims, but may also include additional amounts given directly to the company that can be used to pay legal costs for matters in which the company is a defendant.

For a law firm, a portfolio funding deal can enable it to take cases on contingency or grow a book of contingency cases at reduced risk to the firm.  The funder will provide capital to the firm based on the expected contingent fees it may receive from the portfolio. The firm can use this capital to pay the recurring expenses of the firm, smooth cash flow, and/or grow the firm while the cases are ongoing.  This type of funding can be particularly useful for firms involved in a number of cases that have many years ahead before likely monetization or for a firm that is actively growing in order to service existing cases and attract new ones. For firms just beginning to build a contingency portfolio, either internally driven or because of client-pressures to do so, funding can ease the cash flow challenges and mitigate the risk of contingency arrangements.  The structure and pricing of these transactions can vary depending on the size of the portfolio, the risk associated with it, the quantum and timing of cash flows, whether the case portfolio is fixed or growing, as well as other factors.

Cookie Dough – Monetization of claims

Whether a litigation funding agreement covers a single case or a portfolio of cases, it may include monetization of underlying claims.  This means that the funder will pay a portion of the anticipated recovery directly to the claimholder based on the claim’s expected value and time to monetization.  The capital provided to the claimholder need not be used for the litigation costs, but by the claimholder for an array of purposes, including operating expenses, servicing debt, R&D, or a host of other purposes.  Monetization could be part or all of a single case or portfolio finance deal. For example, this structure may be attractive to a claimholder after it has secured a judgment or arbitration award, but is facing a lengthy appeal or collection battle and would benefit from obtaining capital today rather than waiting months or years.  Lake Whillans is also able to make outright purchases of claims that are susceptible to valuation, but still carry litigation and timing risk, for example, claims for class members in large antitrust matters (e.g., we are able to purchase or finance claims in the pending Visa Mastercard antitrust litigation).

For a claimholder with limited resources, upfront monetization can provide non-recourse capital to fund operating expenses of the business while it endures the potentially lengthy litigation of its claim.   For a large corporate, this structure can be useful to self-fund the legal department with respect to other legal expenses, and thus mitigating the legal department’s status as a pure cost center.  

* * *

Ultimately, every litigation finance deal is unique, and the structure and terms will depend on a broad range of variables.  These include the value at stake relative to the projected litigation cost, the strength of the claims, the finances of the claimholder and defendant, the stage of the litigation, and anticipated obstacles to enforcing a favorable judgment.  An experienced provider of litigation finance like Lake Whillans will tailor a funding agreement to meet the needs of the claimholder, counsel, and funder. The best way to determine what structure best fits the needs of your situation is to contact us.

The stock market is down, way down. The Dow Jones suffered its largest single-day drop in history. Thanks to escalated fears about the rapid spread of the coronavirus outbreak, it’s beginning to look like the days before the financial crisis began. People are panicking and have gone into crisis mode — even Biglaw firms.

As the coronavirus continues its onslaught across the globe with at least 82,000 people infected thus far, the world’s largest law firms have gone on the offensive, initiating measures to ensure that employees are protected from contracting the illness. More firms have issued travel restrictions, more firms are encouraging employees to work remotely, and some firms have even closed their doors entirely.

In addition to the firms we previously reported on, these are the latest to give instructions to employees on how they’ll be dealing with the threat of coronavirus:

• Shearman & Sterling – the firm has issued a travel ban for China and Hong Kong, and will limit lawyers’ nonessential travel to Italy, Japan, and South Korea, with orders for remote work having been given for all employees in Asia and Italy
• Dorsey & Whitney – the firm is encouraging lawyers and staff in Beijing, Shanghai, and Hong Kong to work remotely, and has distributed laptops to all lawyers and staff to enable them to do so
• Sullivan & Cromwell – the firm has told lawyers to check in with managing partners or office directors if they plan to travel to any of the countries that have had major coronavirus outbreaks and to be aware that they may have to self-quarantine upon their return
• Morgan Lewis – the firm has encouraged associates and partners in Asia office to work remotely, restricted all nonessential travel, and shipped supplies directly to its offices in Asia
• Baker McKenzie – the firm has limited nonessential travel for lawyers and has put remote working protocols in place
• Pillsbury – the firm hasn’t closed its Asia offices in Hong Kong, Shanghai, Taipei, Taiwan, and Tokyo, but has sent respirator masks from the U.S. and has ordered hand sanitizer stations for all of its offices in an attempt to help protect its employees
• Hogan Lovells – while the firm is restricting nonessential travel, it hasn’t closed its Asia offices or office in Milan, Italy, and will permit employees to work remotely if they “have concerns”
• Latham – the firm has canceled a March 5 client reception at the American Museum of Natural History in New York, New York, “[o]ut of an abundance of caution”
• Quinn Emanuel – the firm is paying for employees to take taxis rather than public transport if they must go to the office
• Squire Patton Boggs – the firm is paying for employees to take taxis rather than public transport if they must go to the office

Some firms have temporarily closed their doors due to the coronavirus taking hold:

• Dentons – the firm temporarily shut down its office in Wuhan, China, where the virus was first identified
• Faegre Drinker – the firm temporararily shut down its offices in Shanghai and Beijing, but has since reopened them
• Baker McKenzie – the firm was the first in London to temporarily close its doors following a coronavirus scare, telling employees to work from home after someone at the firm didn’t feel well upon returning from Italy

What is your firm doing to protect its employees from potential exposure to coronavirus? Please email us or text us (646-820-8477). Stay safe, everyone.

More Big Law Firms Respond as the Coronavirus Continues to Spread Globally [American Lawyer]
Baker McKenzie Closes in London Following Coronavirus Scare [Law.com International]

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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.

Border Patrol agents kill a lot of people, most of them citizens of another country. For years, agents have been able to open fire on people in moving vehicles and [checks Congressional report] people throwing rocks at them. New guidelines were handed down by the agency in 2014 following an outside investigation of the Border Patrol’s use of force. The investigation contained many recommendations that could have resulted in fewer killings, but the Border Patrol rejected the conclusions and the suggested fixes.

So, the killings continue. And not much is being done to stop them. The Ninth Circuit Court of Appeals stripped qualified immunity from a Border Patrol agent who fired at leaast 16 bullets across the border at a 16-year-old resident who was allegedly throwing rocks at him. Ten of them hit the teen, killing him. The court ruled this was basically murder, something clearly not covered by qualified immunity. The Fourth Amendment governs what US government employees do. It makes no difference that the victim was not a US citizen.

That finding is likely to be struck down if it makes its way to the Supreme Court. A similar case involving the killing of Mexican resident by a Border Patrol agent standing on US soil has just received the Supreme Court stamp of approval.

Fifteen-year-old Sergio Adrian Hernandez Guereca was shot and killed by Border Patrol agent Jesus Mesa, Jr. as he played with friends in a culvert along the US-Mexico border. According to Hernandez’s survivors, he and his friends were running back and forth across the culvert to touch the US border fence before running back to the Mexican side of the culvert. Agent Mesa claimed the teen was “involved in an illegal border crossing attempt” and “pelting” him with rocks.

The shooting resulted in an international incident. The Mexican government wanted the agent extradited to face murder charges in Mexico, the country where the murder occurred, even if the bullets originated on the US side of the border. The US government, on the other hand, decided Agent Mesa had done nothing wrong – that his deadly actions were clearly justified by the presence of rocks and/or border-crossing attempts.

Hernandez’s parents sued. The Fifth Circuit took two swings at the case (once at the Supreme Court’s request) and both times refused to extend the scope of Bivens to cover an incident where a government agent on the US side of the border shot and killed someone on the other side.

The Supreme Court likewise has refused to read Bivens as supporting a lawsuit against US government employees on behalf of a citizen of a foreign country. The Supreme Court believes doing so would upset the delicate balance currently preserved by Mexican outrage and US government indifference. From the ruling

[PDF]:

Both the United States and Mexico have legitimate and important interests that may be affected by the way in which this matter is handled. The United States has an interest in ensuring that agents assigned the difficult and important task of policing the border are held to standards and judged by procedures that satisfy United States law and do not undermine the agents’ effectiveness and morale. Mexico has an interest in exercising sovereignty over its territory and in protecting and obtaining justice for its nationals. It is not our task to arbitrate between them.

This sounds positively Solomonic until you read the next paragraph of the ruling, along with some context that isn’t discussed in the ruling.

In the absence of judicial intervention, the United States and Mexico would attempt to reconcile their interests through diplomacy––and that has occurred. The broad issue of violence along the border, the occurrence of cross-border shootings, and this particular matter have been addressed through diplomatic channels. In 2014, Mexico and the United States established a joint Border Violence Prevention Council, and the two countries have addressed cross-border shootings through the United States-Mexico bilateral Human Rights Dialogue. Following the Justice Department investigation in the present case, the United States reaffirmed its commitment to “work with the Mexican government within existing mechanisms and agreements to prevent future incidents.”

That 2014 date is key. That’s the same year the Border Patrol was given new use-of-force guidelines while simultaneously rejecting the findings of an outside investigation that said agents used their weapons far too often in situations that either didn’t require deadly force (rock throwing) or created new dangers (shooting at moving vehicles). The US government also cleared Agent Mesa of any wrongdoing, which suggests it has zero desire to hold its own people accountable for extrajudicial killings of foreign citizens — something that can be easily accomplished by firing bullets from the US side of the border into Mexico.

In conclusion, the Supreme Court recommends trying not to get shot on the wrong side of the border.

Congress has repeatedly declined to authorize the award of damages against federal officials for injury inflicted outside U. S. borders. For example, recovery under 42 U. S. C. §1983 is available only to “citizen[s] of the United States or other person[s] within the jurisdiction thereof.” The Federal Tort Claims Act bars “[a]ny claim arising in a foreign country.” 28 U. S. C. §2680(k). And the Torture Victim Protection Act of 1991, note following 28 U. S. C. §1350, cannot be used by an alien to sue a United States officer. When Congress has provided compensation for injuries suffered by aliens outside the United States, it has done so by empowering Executive Branch officials to make payments under circumstances found to be appropriate. See, e.g., Foreign Claims Act, 10 U. S. C. §2734. Congress’s decision not to allow suit in these contexts further indicates that the Judiciary should not create a cause of action that extends across U. S. borders either.

The 5-4 majority says too much is at stake in terms of border security and international relations to come to any other conclusion. Since it’s not going to legislate from the bench, US government employees can kill people in other countries without fear of being held personally responsible for their rights violations until Congress steps in — something it’s obviously in no hurry to do.

The concurrence, written by Justices Thomas and Gorsuch, is mainly annoyed the Court wasted time discussing a Congressionally-created escape hatch for federal officers and suggests tossing the Bivens doctrine altogether, further limiting lawsuits brought against federal officers/agents for Constitutional violations.

The dissent, however, points out this isn’t an extension of Bivens across the border. While Hernandez may have died in Mexico, the bullets were fired by an officer on United States soil.

Rogue U. S. officer conduct falls within a familiar, not a “new,” Bivens setting. Even if the setting could be characterized as “new,” plaintiffs lack recourse to alternative remedies, and no “special factors” counsel against a Bivens remedy. Neither U. S. foreign policy nor national security is in fact endangered by the litigation. Moreover, concerns attending the application of our law to conduct occurring abroad are not involved, for plaintiffs seek the application of U. S. law to conduct occurring inside our borders.

Even the government concurred a Bivens action could be brought against Agent Mesa if one key element had been satisfied.

The complaint states that Mesa engaged in that very conduct; it alleged, specifically, that Hernández was unarmed and posed no threat to Mesa or others. For these reasons, as Mesa acknowledged at oral argument, Hernández’s parents could have maintained a Bivens action had the bullet hit Hernández while he was running up or down the United States side of the embankment.

“Wrong place, wrong time” shouldn’t be the determining factor.

The only salient difference here: the fortuity that the bullet happened to strike Hernández on the Mexican side of the embankment. But Hernández’s location at the precise moment the bullet landed should not matter one whit.

[…]

Mesa’s allegedly unwarranted deployment of deadly force occurred on United States soil. It scarcely makes sense for a remedy trained on deterring rogue officer conduct to turn upon a happenstance subsequent to the conduct—a bullet landing in one half of a culvert, not the other.

If Bivens is neutered, there’s nothing left for plaintiffs. And the agency benefitting from this already does next to nothing to deter misconduct by its agents.

Regrettably, the death of Hernández is not an isolated incident. Cf. Rodriguez, 899 F. 3d, at 727 (complaint alleged that border agent fired 14 to 30 bullets across the border, killing a 16-year-old boy); Brief for Immigrant and Civil Rights Organizations as Amici Curiae 26–28 (describing various incidents of allegedly unconstitutional conduct by border and immigration officers); Brief for Border Network for Human Rights et al. as Amici Curiae 8–15 (listing individuals killed by border agents). One report reviewed over 800 complaints of alleged physical, verbal, or sexual abuse lodged against Border Patrol agents between 2009 and 2012; in 97% of the complaints resulting in formal decisions, no action was taken.

Zero accountability, blessed by two government branches. Here’s the third branch doing the same thing. The message it sends is this: if you’re going to kill a Mexican citizen, make sure they’re still in Mexico. And that message means the case coming up from the Ninth Circuit is going to give another Border Patrol agent a free pass on taking a foreigner’s life.

Supreme Court Says It’s OK For Border Patrol Agents To Kill Mexican Citizens As Long As They Die In Mexico

More Law-Related Stories From Techdirt:

Ed. note: Please welcome Sarah Feingold to our pages. She’ll be writing about her experiences working as in-house counsel for startup companies.

Company name: biggest print.

First name, last name, and job title: small print.

I didn’t spend money to attend this conference, but I was afraid I was about to pay dearly. I slip the nametag over my neck, the wrong way, so that my shirt reads my personal information. The check-in professional doesn’t notice as she’s now taking information from the lawyer behind me in line.

I have much experience working in a small subset of the legal profession. I’m an in-house attorney at a well-funded or well-known tech company. That means that along with the zip-up hoodies, engineer talk, office dogs, and hand-crafted cold brew on tap, comes my least favorite perk. I’ll be one of the most popular people in a room full of esquires. I’m a potential client. I assume I look exactly like walking, talking, name-badge-wearing money. Money that may be small today, but has the potential to grow up to be significant cash flow. I’m a guppy in a room of hungry sharks and I’m in no mood to be eaten.

I take my seat, usually in the very front row. Instead of chatting with attendees, I hope to absorb all the content in this narrow and deep area of law. I feverishly jot down notes to report back to my team and CEO.

According to Wikipedia, “a unicorn is a privately held startup company valued at over $1 billion.^[1] The term was coined in 2013 by venture capitalist Aileen Lee, choosing the mythical animal to represent the statistical rarity of such successful ventures.”^[2][3][4][5] A baby unicorn is defined (by me) as a company that investors or the press thinks, one day, hopefully soon, may mature into a unicorn.

In 2007, I was the 17th employee and first lawyer of a baby unicorn, Etsy. For nine-plus years I supported Etsy through its unicorn trajectory to public company status. And then I landed the role of Vroom’s general counsel and first lawyer. The only way I could have avoided malpractice and stayed sane throughout this process is through my carefully cultivated network of similarly situated magical in-house tech attorneys and hand-selected outside counsel.

All outside counsel must have a common mission for the long-term prosperity of my fragile, rare, golden-horned relative of a horse. Not all relationships have gone as planned. I’ve hired, fired, and worked with dozens of law firm lawyers.  I have stories to tell.

I write this column to share some pro tips for nourishing a rare client creature so that when a fledgling animal is spotted out in the wild, cold emailed, or introduced, you will know what to do. Pull up a seat in the front row. Take some notes. Because nametags often flip.

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Sarah was the General Counsel / first Lawyer at Etsy and Vroom.  She’s a co-founder of The Fourth Floor, a creator and producer of Legal Madness, an NYU Law School Engelberg Center fellow, a board member, an investor, and a speaker. You can also find Sarah hammering silver, eating candy, and chasing her child. sarahfeingold.com.

There have been all sorts of way to lose money on the coronavirus panic. Stocks, obviously, with the S&P 500 down 10% over the last six days, and some stocks—say, Tesla—doing even worse. Oil. Italian vacation plans. You name it. Obviously, at times like these—you know, when everything is perfectly contained and there’s nothing at all to worry about, just ask Mike Pence—people flock to bonds, with Treasuries hitting record low yields every day. Just hopefully not these bonds.

The idea behind pandemic bonds, issued by the World Bank in 2017, is simple: They pay investors a solid return, but if a pandemic breaks out, the principal is redirected to help low-income countries pay for their emergency response…. Pandemic bonds are most likely to be triggered just as equities tumble and concerns about companies’ ability to finance themselves come to the fore, as now. In short, the asset class is uncorrelated with wider markets—except at the exact moment when that matters most. Then it is suddenly very correlated.

Being an Olympic-quality athlete is an incredibly time-consuming, grueling, and difficult endeavor. But you know, the economy being what it is, not everyone with Olympic dreams has the luxury of being a full-time paid athlete. So that means when the marathon Olympic trials happen this weekend in Atlanta, the hopefuls will include Biglaw associates. It seems like time-consuming, grueling, and difficult is their thing.

Sarah David, an associate at Perkins Coie, tells Law.com that running is a release from the Biglaw grind:

“Running is a great release from lawyer stuff, so I’m already looking forward to getting back to training after this weekend’s race,” says David, an M&A associate in Perkins Coie’s Chicago office. After running her first marathon in 2017, she qualified for the trials at the Indianapolis Monumental Marathon in November in a blazing 2 hours, 44 minutes and 11 seconds.

Unsurprisingly, David finds it easier to train in the morning, saying, “It’s easier for me to get into work at 11 a.m. then it is to leave work at 5 p.m.”

Miller, Canfield, Paddock and Stone’s Ashley Higginson seconds that sentiment, “Lawyers are notoriously not awake during the mornings. In the afternoons, something always comes up.”

Higginson, who was a professional runner before her Biglaw days, says the other key to being at an elite level in such disparate fields as marathons and Biglaw is to abandon guilt:

Higginson is no stranger to elite-level running. Before her law career, she was a professional runner and raced the 3,000-meter steeplechase in the 2013 World Championships. But when it came to running marathons as a law firm associate, she says she had to take on a different mindset and adjust her expectations. She worked with her brother-in-law, a runner and an in-house attorney, to create a training regimen that’s flexible enough to accommodate a busy legal career.

“I don’t feel consistently guilty for what I can and can’t do,” she says. “It’s critical for someone who wants to be working and has a fitness goal to be balancing the realities of physical demands of work with training.”

Other lawyers who qualified for the Olympic trials include Caroline Veltri, an associate at Frascona, Joiner, Goodman and Greenstein; Jessa Victor, who works at Hawks Quindel; and in-house counsel Veronica Jackson Graziano of Partners Healthcare.

Good luck to all the legally minded marathoners at the Olympic trials this weekend.

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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).

This was achieved by a constitutional scheme that strengthened the powers of the executive against the other two arms of the state and by giving constitutional status to strong views held by the executive. The latter point is evidenced by a series of amendments meant to reverse decisions of the Supreme Court merely to impose the strong views of the executive. In the executive presidency, the framers found an effective devise to undermine traditional checks and balances utilised by most democratic governmental systems.

It is striking that these amendments were not subjected to public debate. The mere say-so of the executive was sufficient to justify fundamental political changes. As a consequence, political
intolerance became a driving force in constitutional reform. This is a recipe for disaster: a constitution must be able to outlive the political emotions of the day.

The surest way of achieving this is to subject constitution-making to an open and broad people-centred process transcending partisan political interests.
This is the lesson to be learnt from the haphazard and partisan constitution-making process of the period examined in this article.

Amendment I (1981): Black Advancement or Affirmative Action

This amendment was effected by Act No.
27 of 1981. It may appropriately be described as a “black advancement or affirmative action” amendment. The original Lancaster House provisions required appointees to the Senate Legal Committee and the Judicial Service Commission to be lawyers of not less than seven years experience.’3 The new government immediately realised that few blacks had the requisite number of years of experience to qualify for appointment and yet it was imperative in the new political dispensation for blacks to be appointed to key institutions.

Amendment 2 (1981): Establishment of Supreme Court and High Court

This amendment was effected by Act No. 25 of 1981. Before this amendment, the highest court in Zimbabwe was the High Court, which had two divisions: the Appellate Division of the High Court and the General Division of the High Court.15 The amendment merely created two courts from one, with the Appellate Division beir g transformed into a Supreme Court while the General Division became the High Court. There was no change of substance and the motivation for the amendment must have been to create a new look court consistent with the practice of other countries.

Amendment 3 (1983): Abolishing Dual Citizenship

This amendment was effected by Act No. 1 of 1983. Although it dealt with other issues, its most far reaching provision was on dual citizenship.

Amendment 4 (1984): Strengthening the hand of the Prime Minister vis-avis the non-executive President

The Lancaster House Constitution provided for a parliamentary executive system of government headed by a Prime Minister and with a non-executive President as head of state. The framers devised a system whereby the nonexecutive President, while largely acting on the advice of the Prime Minister, retained some discretionary powers in relation to certain specific issues.

Amendment 5 (1985): Provincial Governors

This amendment dealt with a new political institution in the form of provincial governors. Provincial governors were not provided for in the Lancaster House Constitution. The amendment inserted a new section 111 A in the Constitution which stated that “an Act of Parliament may provide for the appointment by the President of governors for any areas within Zimbabwe”. It did not specifically refer to “provincial governors” and was worded in such a way as to permit the appointment of district and/or regional governors.

Amendment 6 (1987): Abolishing the Reserved Seats for Whites

Among the most notorious provisions of the Lancaster House Constitution were those clauses that preserved the privileged status of the white population. The constitution provided for two voters rolls: a “white roll” on whom were registered white voters and a “common roll” on whom were registered all other voters.43 White voters participated in a separate election in which they elected their own members of the House of Assembly. Twenty seats out of one hundred seats in the House of Assembly were reserved for whites44 while in the Senate, out of forty members, ten had to be white.45 The latter were elected by an electoral college consisting, exclusively of the twenty white members of the House of Assembly.

Amendment 7 (1987): Executive Presidency

This amendment introduced the most substantial change to the governmental system in Zimbabwe. In one swap, the parliamentary executive system of the Lancaster House Constitution was metamorphosed into some obscure system most of whose features exhibited a presidential character.

Amendment 8 (1989): AttorneyGeneral

The most substantive portion of Amendment 8 dealt with the office of the Attorney-General. In the Lancaster House Constitution, the Attorney-General’s office was purely professional. Making the Attorney-General part of the Public Service was intended to create a nonpartisan official. Amendment 8 made substantial changes to this notion of the Attorney-General by turning the office, by and large, into a political institution.
This was achieved by making the Attorney-General “the principal legal adviser to the Government and taking the office out of the Public Service”.

Amendment 9 (1989): Abolishing the Senate and introducing a unicameral legislature

The Lancaster House Constitution provided for a bicameral legislature in which Parliament consisted of two chambers, a Senate and a House of Assembly. Amendment 9 abolished the Senate and established a unicameral legislature. The former “House of Assembly” became “Parliament” but with its composition increased from one hundred to one-hundred and fifty members.
Thus, the size of the new one-chamber Parliament was made bigger than its two-chamber predecessor. This raises questions about the intentions of the authors of this aspect of constitutional reform.

Amendment 10: Two Vice-Presidents

This amendment was introduced by Act No. 15 of 1990. Its sole purpose was to make provision for the appointment of a second vice-president. It did not make it mandatory for the country to have two vice-presidents but merely permitted the President to appoint “not more than two Vice-Presidents”.7″ Thus, it left it to the President to decide whether to have one or two vice-presidents.

Amendment 11: First Amendment of the Bill of Rights and Land Reform 1

The Lancaster House Constitution entrenched the Bill of Rights for the first ten years of independence. The entrenchment was in the following form: any proposal to amend the Bill of Rights less than ten years after 18 April 1980 required the approval of all members of the House of Assembly. Amendment 11 was the first attack on the Lancaster House Bill of Rights. It is significant that this first attack was largely directed at section 16 which protects private property. Section 16 had, in the first ten years of independence, been the main obstacle to the new government’s acquisition of land for resettlement for agricultural purposes.

Amendment 12: Service Commissions and Land Reform 2

This amendment was effected by Act number 4 of 1993. Its main focus was on rearranging the Service Commissions. The Lancaster House constitution had purported to settle most questions relating to the organisation and administration of the Public Service, the Police Force, the Prison Service and the Defence Forces. Providing for such issues in the constitution meant that every proposed change to the operational framework of any of these security arms of the state had to lead to a constitutional amendment. The government wanted flexibility in dealing with the security arms and this was achieved by amending the constitution and transferring matters of detail to an Act of Parliament.

Amendment 13: Reversing Supreme Court ruling on death row phenomenon and Land Reform 3

This amendment was effected by Act No. 9 of 1993. The main focus of this amendment was reversing the Supreme Court decision in Catholic Commission for Justice and Peace in Zimbabwe v AG and Others.’03 In that case, the CCJP made an application to the Supreme Court in terms of Section 24 of the Constitution to prevent the execution of four convicted murderers and to have the sentences of death set aside.

Amendment 14: Reversing the Supreme Court ruling in Rattigan and Land Reform 4

This amendment was effected by Act No. 14 of 1996. It had several aspects. The first was a reversal of the Supreme Court ruling in Rattigan and Others v Chief Immigration Officer and Others.’”*

In that case, the three applicants were all Zimbabwean citizens. The department of Immigration had refused their alien husbands permanent residence in Zimbabwe. They sought a declaration that their rights under sections 11 and 22 of the Bill of Rights had been infringed by the refusal of the respondents to permit their alien husbands to reside with them in Zimbabwe. It also held, obiter and in line with its earlier observations in In Re Munhumesol0′ that section 11 of the Constitution was not a mere preamble but embodied substantive rights which included the right to life, liberty, security of the person and the protection of the law.

Amendment 15: Change of Financial Year

This amendment was effected by Act, No. 10 of 1998. It was exclusively a technical amendment which changed the government’s financial year from (1 July to 30 June), to 1 January to 31 December, of each year.

Amendment No. 16 further limited such ‘unjusticiable’ compensation to improvements on land.

Ultimately, Amendment No. 17 was promulgated to oust entirely the jurisdiction of the courts over cases of acquisition of land by the state, thus rendering impotent national and international protections of the fundamental right to protection of the law, a fair hearing, and the independence of the judiciary.

•Amendment No. 17 was also a means for the state to restrict the freedom of persons to move out of Zimbabwe on the vague grounds of alleged public interest, national interests or economic interests of the state.
This was done to circumvent yet another Constitutional Court ruling in Chirwa v Registrar General3, which ruled that such restrictions to freedom of movement were in violation of the Constitution and therefore null and void.

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* Representatives of Barack Obama have sent a cease and desist letter to a Republican Super PAC for using snippets from Obama’s audio books. But soundboarding is so much fun! [CNN]

* A Texas judge is blaming low blood sugar on a tirade that he leveled against a criminal defense lawyer. [Texas Lawyer]

* A law firm accountant is facing grand theft and attempted murder charges for a rampage she committed against coworkers earlier this year. [Gainesville Sun]

* South Carolina is facing litigation over a law that bans teachers from discussing LGBTQ issues in the classroom. [Guardian]

* An attorney who gave up the practice of law five decades ago has decided to reinstate his law license at the age of 82. It’s never to late to resume the practice of law. [ABA Journal]

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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.

They argue that the proposed Constitutional Amendment No. 2 is largely about enhancing the power of the executive, consolidating dictatorship, weakening parliament oversight and negatively impacting on the independence of the judiciary and the principle of separation of powers-a view that is shared by several stakeholders across the country.

Speaking at a recent public dialogue meeting organised by the Crisis in Zimbabwe Coalition, Election Resource Centre and the Heal Zimbabwe Trust, the experts accused Mnangagwa of hurriedly proposing amendments to the Constitution before its full implementation.

The development has also left Mnangagwa isolated as key members of his Political Actors Dialogue forum (POLAD), which has been accused of singing praise to Mnangagwa, dismissed in totality his
proposed amendments. So grave is the matter that some of the POLAD members have threatened to pull out of the dialogue forum if Mnangagwa proceeds with his proposed amendments.

Professor Lovemore Madhuku, a law expert and President of the National Constitutional Assembly and also POLAD member accused Mnangagwa and his ZANU PF party for proposing amendments “for
nothing less than to show that they are in power and control of the government.” He added: “A Constitution is not a simple document that can just be amended at will. “It must be somewhat sacred. “Now it does not mean that it must not be changed but simply that it must be a fairly respectable document which you ordinarily ought not to interfere with.

“And when you visit it, you ought to realise that this document has nothing to do with the government of the day, that these set of rules go beyond the government of the day. “It will be extremely rare for those that you elect for a five-year term to think about amending the Constitution.”
Madhuku also reminded citizens that what Mnangagwa is doing is not new as his ZANU PF party has been securing its interests through amending the Constitution. “We have a problem with the government that has been running our country since 1980.

“They don’t respect the view that a constitution is higher than other laws. “They take the view that a constitution is like any other law and if elected (their) my first target is the constitution just to show that they are in power and in control of the government.”
The professor also clarified that the reason why the constitutional amendments should be rejected is that they are being driven by the government of the day of which has no business in amending the Constitution as the amendment process should be people-driven.

“We are saying no to an amendment that is dominated by the government of the day but yes to an
amendment that is dominated by the people”, said Madhuku in closing.
Jealousy Mawarire, a political analyst and Spokesperson of National Patriotric Front indicated that there is no basis for Mnangagwa’s proposed amendments hence they should be rejected.
“In refusing the amendments being promulgated by Amendment no.2 Bill, you look at some of the
issues around the appointment of judges.

“The president wants powers to appoint and even appoint beyond the prescribed age of 70 years.
“It is very clear why they are doing that, they have compromised the judiciary even after the coup. “They do not want the burden of starting to compromise new people, so they would rather carry on
with those that are already compromised.
“So the easiest way is to amend the Constitution so that they remain with Malaba and all the other
judges that are compromised.
“We have judges that presided over an application that the coup was constitutional. “I have never seen a constitutional coup because what I know in any coup that I have read about is that the first thing that you subvert is a constitution.

“We have heard honourable (Job) Sikhala being arrested for suggesting that we should remove ED (President Mnangagwa) and some of the people that are saying you can not remove a constitutionally elected President were the ones that were at the forefront in November 2017 removing a constitutionally elected president and you wonder, do we read the same constitution? “…let us take the opportunity,
seize the opportunity that has been opened up about these purported amendments to discuss the discourse on amending the constitution that we have but let us not allow ZANU PF to run with the agenda of amending the constitution. Let us resist that.
“We do not want a situation where if someone is afraid of Chiwenga (VP), he says no I do not want a running mate because if we win Chiwenga would kill me and take over
me.

“So in order for me to circumvent that let me change the Constitution from the current running mate clause and give myself powers to appoint. “That is not a principle that I think we should entertain as citizens and political players,” said Mawarire.

MDC Alliance Legislator Hon Khucaca Phulu argued that there is no basis for Mnangagwa’s proposed amendments except that of weakening all other institutions and strengthening the president.
“If you look at the amendments, they tend to strengthen the president and weaken the judiciary.
“They weaken everyone else. “So this amendment is a symptom of an illegitimate president who is attacking the constitution.

“A legitimate president will not attack the constitution. “So we are seeing the evidence of the illegitimacy in the manner how he treats the constitution. “We are consolidating the coup, there was also the stolen election and now we are consolidating the power of the stolen election.
“We, therefore, reject Constitutional Amendment No2 hook line and sinker.

“If there are any journeying amendments that we feel ought to come back then those amendments must come respectfully. “Our message is to let us implement, learn lessons and come back to talk about these amendments.” He added: “This (Constitutional Amendment Bill No.2) document I characterise it as a dangerous document, a document formulated by someone who is illegitimate and who is trying to deflect from the crises of governance that we have as a country.

Representing MDC-T, Ms Priscilla Misihairambwi said:“We can not go for this amendment without changing the electoral system. “These are the conversations that we need to begin making. “If this amendment is going to come back, let it be the answer to the electoral system.”

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