Author: TSA Press

This election is a raging dumpster fire of misery. And there’s one reason for that: Donald Trump has been spreading lies to his cult of stupid people, telling them that there is widespread voter fraud despite all evidence to the contrary, because he has been losing.

Yet, this country wasn’t founded by slouches. Sure, they had no indoor plumbing and had certain other obvious flaws (like, uh, you know, support for slavery). But our Founders did anticipate just the kind of electoral theft that Trump is trying to perpetrate. Over the centuries, the safeguards against a big orange dummy stealing the election have filtered through the various levels of government, right on down to the local polling station.

I can’t speak for all counties throughout the country. But I can speak for mine. That’s because I served as an election judge this year.

“Wait a minute,” my regular readers might say. “You’re a partisan hack! How can you be an election judge?”

Absolutely true. I would much prefer a Joe Biden administration to four more years of the country I love crumbling into the dustbin of history. I don’t think that is a surprise to anyone who has ever read pretty much anything I have written.

But, in this state at least, not only is partisan hackery not a disqualifier: it’s a requirement. Election judges here must declare their party of preference, and certain election tasks may only be completed by two election judges, one of either major party. These tasks include helping a curbside voter with special needs cast a vote, and delivering the ballots at the end of the night. In such sensitive tasks, there is an election judge for each major party keeping each other honest. No one casts a ballot without judges of both parties overseeing the validity of the process.

Maybe a more one-off consideration this year is why I’m serving as an election judge at all. This is a first for me, not because I don’t think it’s an important task, but because I just assumed people generally had it covered before. This year, I was asked to serve as an election judge. The city I am working for was having trouble finding people.

My head judge called me about 10 days before the election, sounding a bit worried. She asked me how comfortable I am with confronting people. Very, I said. As important context to that, I am a muscular white litigator in his mid-30s. It went without saying that my presence alone would be an asset against the dumbfuckery we’re all expecting this year, given that poll workers are usually on the older and frailer side of physicality. We have relied so heavily on the patriotic service of retired folks to work the polls that we have taken for granted not only the importance, but the relative difficulty, of the task. This time around, we have to specifically combat susceptibility to intimidation on the parts of voters and election workers. Much of this has always been a problem, but now we’ve all been made more aware of it. Like it or not, steps had to be taken against physical intimidation at the polls this year. And they were.

Finally, I would be remiss if I did not mention Minnesota Voters All. v. Mansky, 138 S. Ct. 1876 (2018). What a word-salad of judicial punting that train wreck of an opinion is. At any rate, the very least we can derive from it is that voters in certain states probably can’t wear shirts or buttons or hats directly promoting the candidates on the ballots (if they want to cast a vote, anyway). As to what else may or may not be prohibited, your guess is as good as mine. But rest assured, we election judges have at least tried to keep the MAGA hats and sun’s-out-guns-out Biden tank tops from entering the polling place.

So, there you have it. Hopefully by the time you’re reading this we have a free and fair election result that you can be a little more assured of the validity of by reading this column. And hopefully I haven’t been shot by some wingnut at the polling station.

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Jonathan Wolf is a litigation associate at a midsize, full-service Minnesota firm. He also teaches as an adjunct writing professor at Mitchell Hamline School of Law, has written for a wide variety of publications, and makes it both his business and his pleasure to be financially and scientifically literate. Any views he expresses are probably pure gold, but are nonetheless solely his own and should not be attributed to any organization with which he is affiliated. He wouldn’t want to share the credit anyway. He can be reached at jon_wolf@hotmail.com.

Facebook from time to time reminds me how old I am by showing me pictures of myself at various times in the past. While recently perusing my news feed, I was reminded that six years ago this month, I argued my first appeal in front of New York’s Appellate Division, Second Department. The photo brought back some vivid memories of waiting anxiously in the attorneys’ room before my appeal was called, and my brother Adam showing up to witness me deliver my first appellate arguments. At the time, I was about two years into my legal career, so it was kind of a novelty that I was arguing an appeal. However, my experiences over the years have shown me that younger lawyers should argue more appeals and motions for a variety of reasons.

One reason why younger attorneys should be more involved in oral advocacy is because they often devote more effort and dedication into arguing appeals and motions than senior lawyers do. Partners at numerous firms often have many tasks other than practicing law. This includes originating business, reviewing bills, ensuring that bills are paid, and dealing with administrative functions at a law firm. Moreover, partners often have more cases to oversee than associates, since they usually have several associates under their supervision who each has their own portfolio of cases. This can limit the amount of time and attention partners can devote to arguing motions and appeals.

However, associates are more likely to take pride and ownership over the opportunity to argue a motion or appeal. For instance, when I was assigned to argue my first several appeals, I was honored to be given the opportunity to participate in the appeals. I spent a significant amount of time reviewing the appellate record, briefs, and cases cited by both sides. Even though I was given a set number of hours to bill for preparing oral arguments, I ended up spending far more hours during my free time preparing for the appeals. I remember taking the briefs and appellate records with me whenever I was on the subway so I could thumb through the documents constantly. The extra consideration associates may give to oral arguments can provide clients the best possibility at success on an appeal or motion.

Younger lawyers should also argue more appeals and motions because they are often more familiar with a case than a partner or other senior lawyer. Associates often need to do the research and draft the briefs necessary in the appellate or motion process. By completing this work, associates are often more familiar with the arguments that will be most successful in a matter and the particular facts associated with a case.

One time earlier in my career, I drafted papers for a high-stakes summary judgment motion. The motion was based on some complicated estoppel arguments that required a detailed understanding of the law and facts of the case. It was eventually decided that the partner would argue the motion, presumably because the partner had argued many more motions than me up to that point in my career.

However, the partner was extremely busy at the time, and had not been closely involved with that particular case for years. He asked me to summarize all of the arguments orally to him before the motion hearing, and I am not sure that the partner read all of the papers that were submitted for the motion. At oral argument, the partner seemed extremely flat-footed when pressed on some issues, and he was unable to answer a few basic questions posed by the court and the other side. Our adversary, however, was extremely well-prepared, and it showed. In the end, our client had an unusually bad outcome after the summary judgment arguments. If I as the younger attorney had argued the case, perhaps I would have presented the arguments more effectively, and we should have selected the advocate who was most knowledgeable about the case.

Younger attorneys should also argue more appeals and motions since many jurists like seeing younger lawyers in their courtrooms. From my own personal experience, judges are more likely to give younger lawyers the benefit of the doubt and flexibility than older attorneys who should know better about the practice of law. One time, when I was waiting to argue an appeal, I saw an advocate (who was either a law student under supervision or a young attorney) absolutely crush oral argument on a criminal case. Not only were the judges impressed with this advocate’s arguments, but they also seemed wowed by how a young advocate could do so well on her first appeal. I have a feeling this perception helped that advocate’s client receive the best consideration possible. Some judges even actively try to incentivize lawyers to select junior attorneys as oral advocates. Many state and federal judges read this column and email me regularly, and I would love to hear the opinion of jurists about whether younger lawyers can make an impact on oral arguments, but from my own experience, it doesn’t hurt.

All told, senior attorneys like to argue appeals and motions themselves, since it is often seen as an honor to go to court on a case. Nevertheless, younger attorneys should argue more appeals and motions in many circumstances to best advance the interests of a client.

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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.

Last night, I stayed up as long as I could, hoping to see the end of a very tumultuous, divisive election. Based on the polls and the poll of polls, I anticipated that most media outlets would project a Joe Biden win before midnight. But that was not the case. The difference in votes were so close that the vote counters in a few states decided to continue counting in the morning. While I was a bit disappointed, when I look out my window and see all of the local businesses boarded up in anticipation of a riot, maybe it is best to let everyone get some sleep.

But from the results I have seen so far, there is no guaranteed “blue wave” that all of the Biden supporters were bragging about and what some Republicans were fearing. The Democrats are expected to maintain control of the House of Representatives although their chances of winning control of the Senate are uncertain.

As for the battle for the White House, the Democrats were unable to flip Florida, Ohio, and Texas as many believed they would. And the rest of the states can go either way until all of the votes are counted.

Even if Democrats are able to control the government in 2021, their control will be fragile. This means they may have to work with Republicans on some issues or see another change in the midterms.

So what happened? Why wasn’t this election a quick cakewalk for the Democrats?

The most logical explanation is that the pollsters were wrong. Maybe their attempts at “randomizing” their sampling group did not work out the way they expected. Or they didn’t get enough participants so they had to make bigger guesses. Or perhaps some people didn’t want to disclose they wanted to vote for Donald Trump.

Or maybe the influencers, celebrities, and random social media commenters were wrong. A lot of people were saying that the blue wave was coming because of the increase in by-mail voting. When I asked them why they assumed all of them would vote Democrat, all I got was speculation. They said things like: “People will vote quickly if they are unhappy with the current government.” Or, “People don’t want to catch COVID, and that is all Trump’s fault.” And some people simply said, “Because [F] Trump.”

So will polling be credible in the future? Or will people take it as seriously as professional wrestling? I think so, but a lot of changes will have to be made. First, some media companies will need to get out of the polling business altogether or hire an outside company to do their polling. One example is the New York Times. While I generally respect the publication, their recent actions — such as the suspicious resignations of James Bennet and Bari Weiss — might make nonliberals hesitant to talk to them. Others who are angry at them may just troll them with false responses. I also think that Fox News, MSNBC, and CNN should take similar action. Because of the perceived bias of their brands, they are more likely to get false answers from hostile participants.

Also, the public and journalists should not blindly give substantial weight to what celebrities say. Celebrities are people, and they are entitled to their opinions. But I don’t think many people are going to vote based on who a celebrity endorses. Instead, most just feel better about their decisions and beliefs if they see that a celebrity agrees with them.

Hopefully by the time this gets published, the election results will be finalized and there won’t be a lawsuit afterward. [Ed. note: LOL, still no final results. -SZ] While there might be some changes after the election, it will not be a blue wave that was promised by pollsters, influencers, and celebrities. One thing is certain. These people have lost their credibility. How much they lost depends on who wins the White House.

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Steven Chung is a tax attorney in Los Angeles, California. He helps people with basic tax planning and resolve tax disputes. He is also sympathetic to people with large student loans. He can be reached via email at sachimalbe@excite.com. Or you can connect with him on Twitter (@stevenchung) and connect with him on LinkedIn.

Yesterday, a publicly-listed British company called Hipgnosis Songs Fund announced a $323 million deal to buy the rights to 33,000 songs including The B-52’s “Love Shack,” Fleetwood Mac’s “Go Your Own Way” and Mariah Carey’s “All I Want For Christmas.”

Spinning Gold
Hipgnosis has been one of the most aggressive buyers of song rights in recent years, having raised over $1 billion to assemble a catalog of hits. The company sees dollars pour in whenever one of its songs is streamed, purchased, or performed.

For Hipgnosis and its backers, music royalties offer a relatively stable source of income that is uncorrelated with other asset classes. And in a world of near-zero interest rates, big money is listening: 

* Michael Cohen, President Trump’s former lawyer, suggested he voted for Joe Biden. No surprise there. [Hill]

* Police have released video of vandals tagging the home of a prominent New York City attorney. [New York Post]

* Major companies are urging law firms to enlist more diverse legal teams to handle client work. [Wall Street Journal]

* A Michigan attorney has been arrested for obtaining signatures for a petition opposing the emergency powers exercised by Michigan’s governor. [Michigan Live]

* A South Florida attorney has been disciplined for posing as her adversary’s client online and writing a fake negative review. This lawyer may have too much free time… [Miami Herald]

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Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

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

Which was the last state to lift the ban on alcohol sales on Election Day?

Hint: The Election Day ban on alcohol sales started in the mid-1880s and was intended to discourage bribery at the polls ( a long-standing U.S. tradition dating back to George Washington), but wasn’t lifted until 2014.

See the answer on the next page.

Things have, shall we say, deteriorated quickly for Leon Black. The story of the Apollo Global Management co-founder’s unfortunate relationship with the execrable Jeffrey Epstein has gone from “nothing to see here” to “alright so maybe there are 75 million things to see that these goddamned yellow journalists insist on continuing to bring up but no one cares, really” to “OK so maybe people do care but we’re looking into it (again)” to “if you’re gonna stop investing with people who hung out with a known pedophile you’re gonna have a hard time finding anyone to take your money” to The Wall Street Journal literally looking right past him in a matter of weeks.

Loyal readers know that this column has closely followed the multiple shocking immigration cases where children born to American same-sex couples were nevertheless denied U.S. citizenship. For at least four families that brought suit against the government — represented by the nonprofit legal group Immigration Equality, as well as Lambda Legal and other pro bono counsel — the government has insisted on applying the section of the immigration code applicable to “unwed” parents, despite the parents being legally wed. What was the difference between these couples and others that had no issues? Only that these couples were gay and used assisted reproductive technology.

In each case, the government advanced the argument that the “wed” section of the immigration code applies only when both parents are genetically related to the child, which, with current technology, is difficult for same-sex couple parents. And of course, that underlying biological fact causes immigration officials to scrutinize more closely gay couples than they do straight ones, meaning that a straight couple using assisted reproductive technology to grow their family often won’t face the same issues as a same-sex couple.

In good news, the couples facing discrimination based on the government’s interpretation have won resounding victory after victory in U.S. courts. First was the Dvash-Banks case, where two dads won a victory for one of their twin sons, and then recently had the ruling affirmed on appeal before the Ninth Circuit. The Kivitis, too, won in Maryland, and the Gregg-Mize family impressively won in the Deep South, where a federal judge appointed by President Donald Trump in Georgia held that the government’s interpretation of the immigration code raised serious constitutional concerns. Given that the government was initially appealing each of these losses, it looked like the fight would continue. But that all changed last week.

In double good news, the government opted not to appeal the Gregg-Mize decision, and dropped the Kiviti appeal. Double yay!

How Good Is The Good News?

It’s not clear how far of a reach the government’s possible reversal on the immigration code’s application to same-sex couples will be. The government may yet appeal the Ninth Circuit level loss in the Dvash-Banks to the U.S. Supreme Court. And, in the meantime, a similar case with the Zaccari-Blixt family, is still at the trial level, and it seems like the government may try to litigate the same issue there. But let’s hope that last week’s news indicates an impending complete reversal — no more appeals for Dvash-Banks or similar families, a road to recognition for Zaccari-Blixt, and future children of U.S. citizen same-sex married couples being fairly and squarely under the “wed” section of the immigration code.

Despite the good news, there are at least three red flags for LGBTQ+ families. First, last month, in a case where the U.S. Supreme Court rejected a request to hear an appeal of the Kim Davis case — the Kentucky clerk who refused to issue marriage licenses to same-sex couples — Justices Clarence Thomas and Samuel Alito merely concurred in the denial of certiorari. In the concurrence, they took the opportunity to describe the 2015 Obergefell decision–which gave same-sex couples the right to marry throughout the country — as having “ruinous consequences” for religious liberty. They asserted that the Obergefell decision “created a problem that only [the Supreme Court] can fix.” Key the ominous music.

The second flag is the Supreme Court’s newest Justice, Amy Coney Barrett. While Justice Barrett hasn’t yet had occasion to rule directly on these issues, there is evidence that her views — including her prior support of an anti-IVF organization before she was a judge — are unlikely to lead to judicial decisions in favor of the LGBTQ+ community.

Flag three is related to the second, and involves the U.S. Supreme Court’s pending ruling in the Fulton v. Philadelphia case. The case is scheduled for oral argument November 4. In that case, Catholic Social Services is claiming that it has a constitutional right not to be required to follow state anti-discrimination laws with respect to LGBGQ+ couples. The City of Philadelphia, on the other hand, is arguing that it is perfectly constitutional to require its contractors to abide by nondiscrimination laws, whether or not the contractors are religious organizations.

If the Court rules in favor of Catholic Social Services — and in particular, if they reach such a ruling by reading the Constitution to require broad exemptions to anti-discrimination laws — it could have serious consequences for LGBTQ+ individuals in other contexts, both inside and outside of the family formation context.

So where does that leave LGBTQ+ individuals right now? Well, obviously with a string of historic victories vindicating equal rights and equal benefits, but with an uncertain horizon ahead. And if there’s one lesson that we’ve learned over the last generation, it’s to always keep fighting the next battle for equality.

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Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

You’re probably trying to avoid stressing yourself out over the election, the results, and the games that will be played in court between the political football teams. It’s a big day today. BIG! HUGE! AIIIIIGH!!!!

I’m not going to talk about that here.

Instead, I’m going to talk about something I’ve been thinking about for a long time. That is: I never had a blankie as a kid. Or a teddy bear. I had nothing to which I could attach some moment of safety. In a sense, I kind of think a lot of my childhood was to ready me for 2020.

I thought about how I was smarter as a kid than I am now. To escape, I’d ride my bike all day. Climb trees. See nature (to the extent it existed near me).  They were distractions perhaps, but also things that put me in touch with the larger world around me. They also made me more at peace. Safe zones, as it were.

It’s hard to live in a realm of constant drama. Minute by minute it changes, knocking you off your guard from achieving some moment of stability and clarity. It’s the reason that we are exhausted, can’t sleep, and increasingly unable to have normal communications with one another.

What makes it WORSE is if you’re one of the folks in isolation during the pandemic. You’re the one in the house watching all the others play while you’re grounded. The FOMO is real, as is the resentment. And it might even be that your worst appears and you wish ill upon others who are engaged in such behavior just to justify the precautions you’ve taken.

I think it is easy to become absorbed in the drama because we lack the distractions that we typically use. The drama is ever-present, and even moments of escapism can be reminders of what we’re avoiding. It’s like walking away from the pot you hope boils, and are disappointed every minute it isn’t.

And if you’re a law student, you’re doing this all wondering about your grades, your exams, whether or not the Bar will choose to torture you like it did this year’s candidates, whether there will be other challenges that add more straws to your camel’s back.

The solution, I think, is to find moments of joy each day. That’s right: You need moments where your exclusive focus is on something that is pleasurable. Get your mind out of the gutter, and read on.

Some use meditation to achieve that joy. They enter their mind and find some clarity and peace. I’ve meditated before and hope to return to it. Those were moments that brought me sheer peace, and made me think that I could withstand anything. Regardless, it was a moment where the world did not intrude on my best days of meditation and was only mildly annoying on my worst. But it’s hard for me to sit still for any period of time, so I get it if this isn’t your thing. It wasn’t mine at first, either.

Another way is to set some time each week/day to speak with a nontoxic friend. I don’t mean the person who causes your blood pressure to rise. Not the one that wants to talk smack. I mean the ones you genuinely enjoy speaking with about topics that are pleasurable. The friends that want you to win. This might be easier for people who are in healthy relationships. But sometimes it’s possible for people who are not in one to find those connections as well. Sometimes it is easier to keep the world out that way.

If it is impossible to create a safe zone by yourself or with a friend, then it might be possible to escape to a different world. That can be with a book (preferably one that doesn’t mirror current events) or something nonelectronic. A puzzle. Something that distracts the mind that isn’t focused on the screen, the world, the drama.

Some achieve that moment through intense exercise. I’ve tried this, too. And there is something to be said about not being able to catch my breath such that the world no longer feels as pressing as my desire for oxygen. Okay, that’s a bit of an exaggeration. But the point is, those moments can achieve the same result, if you enjoy it. If it is merely another task, then you’re missing the point. Exercise might achieve another goal (such as lowering anxiety), but it isn’t a moment of pleasure.

It isn’t enough to “take a break” from the drama. What’s required is that there be something valuable and joyful beyond the drama. What’s required is that we take those moments — that we make time for those moments. It’s easy to say that we lack time for it, but for some reason we have all the time in the world to dread.

Maybe steal from the time spent dreading and give those moments to seeking joy. It won’t make the world a better place — that requires compassion. But it can make the world a momentarily better for you.

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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.