What law school was again named the 2019 Best Value Law School by preLaw magazine, a National Jurist publication?
Hint: The ranking is based on ultimate bar pass rate and two-year pass rate (15 percent); employment rate (35 percent); tuition (25 percent); cost of living (10 percent); and average indebtedness upon graduation (15 percent).
See the answer on the next page.
(Image via Getty)
I graduate at the top of my class at Harvard Law School. Afterward, the university’s president shuts down the school, since its mission of educating the best legal mind has been fulfilled.
I get a summer internship clerking for Ruth Bader Ginsburg. She’s so inspired by meeting me that she lives for another hundred years. …
I become a senator, a Supreme Court Justice, and the President of the United States—all at the same time. The Constitution allows for that now; the country amended it because I’m so polite, dress extra nicely, and send prompt thank-you notes after interviews.
I die peacefully in my sleep at a hundred and seven years old, surrounded by my loving family. As I look back on my long and successful life, my final words are, “I’m so grateful that my mom told me not to pursue comedy, an unrealistic and fanciful career choice.”
— Johnathan Appel, a comedian and writer, telling the world how great his life would have been if he went to law school, according to his mother, in a hilarious piece published in the New Yorker.
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.
Although the term “originalist” could in theory describe virtually every current member on the United States Supreme Court, for many supporters of traditional conservative originalism, the moment of triumph for the judicial philosophy occurred on Monday, April 10, 2017, when prominent originalist Justice Neil Gorsuch joined the nation’s highest court. With the addition of Brett Kavanaugh, another avowed textualist/originalist, one would likely expect originalism to exist at its all-time pinnacle of influence on the Court. Yet, when the most consequential cases involving some of our most fundamental liberties from the last couple of years are examined, entirely missing from the Court’s and often from the most prominent originalists’ analysis is an intellectual support based on original public meaning.
Instead, what has dominated the Court’s most consequential opinions are modern-based (politically conservative) value judgments that can stand in direct conflict with the lawful original intent of Congress. Take, for example, the case I was involved with last term, Nieves v. Bartlett. Here, the Court was determining whether a viable 42 U.S.C. § 1983 claim existed, yet, the only side, our side, that listed the language from the statute as a source of authority, lost. Unfortunately, the result in Bartlett can be found in most 1983 cases, where “the Supreme Court has taken a straightforward statute, plainly providing that any state official who violates someone’s rights ‘shall be liable to the party injured,’ and concocted an atextual, ahistorical doctrine,” to deny a remedy Congress plainly intended. Although Justice Gorsuch dissented, in part, from the Court’s Bartlett opinion based on originalism grounds, Justice Brett Kavanaugh joined the atextual, ahistorical majority opinion in full.
Contrast the shamelessness (even by self-proclaimed originalists such as Kavanaugh) of unilaterally altering the lawful, enumerated intent of Congress in the Bartlett case to strike down claims of police misconduct, with the Court’s stubborn refusal to “second-guess lawmakers’ judgments” when it comes to gerrymandering based on factors such as race, and you don’t need to be a constitutional expert to see the judicial activism going on here.
To be clear, and for whatever it is worth saying at this point, I subscribe to the view of constitutional originalism as the preferred dominated method of judicial analysis. But what I see in practice today, even from prominent originalists, is simply not originalism.
This upcoming term, a case will seemingly require the Court to weigh a textual conflict over whether discrimination against members of the LGBT community counts within the plain meaning intent of Congress to prohibit “sex discrimination.” As Nicholas Little explains, although it might seem counterintuitive to some, there is a powerful textualist, even originalist argument in favor of a definition that includes protection for LGBT people:
Focusing on the category of sex, here, we can see that if a woman is fired from her position because she is married to another woman, whereas a man would not be fired for being married to a woman, then the termination is the result of the woman’s sex. She is treated differently for not being a man. Similarly, if an employer permits women to wear skirts to work, and refuses to promote an individual who the employer sees as a man, because that individual chooses to wear skirts to work, that individual is being discriminated against for not being what the employer defines as “a woman.”
“But wait,” many people say. “There’s no way in 1964 Congress intended to protect gays or transgender folk.” And they aren’t wrong. In 1964 homosexual relations were criminal in much of the country – Illinois in 1961 was the first state to decriminalize such sexual activity by repealing its sodomy laws. But lack of intent doesn’t matter to textualists such as Justice Neil Gorsuch. To them, all we need to interpret a law is the law itself. The words passed by Congress, and their plain meaning, is what defines the scope of the law.
Under that analysis, it’s very tough to argue that firing a lesbian, or a transgender person, isn’t discrimination based on their sex. The Supreme Court has long held that gender stereotyping is covered by Title VII. In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), refusing to make a woman partner in an accounting firm because of her lack of femininity was held to violate the law. Requiring the plaintiff to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry,” as her supervisor advised her, violated the law. Men would not be required to act in that fashion to be promoted. There is nothing in the text of the law that suggests the same analysis should not apply to men and women simply because of their sexual orientation or gender identity. The law is the law – you can’t make hiring and firing decisions based on stereotypes of femininity and masculinity.
Yet despite this straightforward textual argument, Little, like myself, has serious doubts Justice Gorsuch will act with “intellectual integrity.” The reason is because of what Little calls Justice Gorsuch’s “position on religious exemptions.” I have been more blunt than Little and stated that when it comes to cases involving religious liberty, Justice Gorsuch has actively tried to supplant original public meaning and intent with his own personal views favoring religious belief at the great expense of free conscience rights of non-believers. The reason Justice Gorsuch suddenly flips from his avowed interpretive doctrine when it comes to the subject of religious liberty is entirely speculative. A logical inference, however, can likely be derived from the recent statements of our last two attorney generals, who, after being appointed by the same man, have portrayed Madisonian separation, i.e., secularism, as a dire threat to our Constitution and our country that must be stopped lest American morality crumble.
I will admit, the reason I am such a proponent of original, Madisonian religious liberty, is that it represents the best bulwark against religious bigots like former Attorney General Jefferson Beauregard Sessions and current AG William Barr who want to treat me as some kind of threat to my country’s “traditional values” unless I subscribe to their Abrahamic religion. Adherence to original public meaning has other virtues, of course, other than protecting oneself against the bigoted views of the Sessions and Barrs of the world, I just won’t expect to be seeing them in practice anytime soon.
Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.
Bill Isaacson (Photo via Boies Schiller)
I usually limit my “3 Questions For…” written interviews to three questions. But when you have the opportunity to correspond with one of the country’s best lawyers in a leadership capacity at one of its most successful law firms, you gladly make exceptions. Welcome to the inaugural “3 More Questions For” column, whereby we continue our discussion with Boies Schiller’s Bill Isaacson, who generously agreed to discuss some of his headline-making past victories. You do not become famous and successful winning the easy cases, of course. The cases discussed by Bill below were anything but easy — but that is what makes them important for us to learn from. Whether it is taking the initiative to uncover a price-fixing scheme by Chinese vitamin makers to taking on the NCAA on behalf of student-athletes, Bill has consistently proven that a true trial lawyer must demonstrate diligence and curiosity in equal measure — and that winning a case is very much predicated on the preparation that took place pre-trial.
As with last week, I have added some brief commentary to the answers below, but have otherwise presented Bill’s answers as he provided them.
1) One of your notable professional successes was succeeding in the first antitrust action against Chinese companies for price fixing, based on their manufacture and sale of vitamins into the U.S. You personally investigated and uncovered the price-fixing scheme at issue. Today, Chinese-U.S. relations are at the forefront of economic news, with a key issue being alleged Chinese theft of U.S. IP. Did you learn anything in the vitamin case that can help us think about how to relate to IP issues and China?
We learned from investigations into the formation of export cartels in China that following China’s accession to the WTO, companies in China were given a free hand to engage in all sorts of new commercial practices without the oversight of the government. Ironically for a communist regime, it became the Wild West, to some extent. When I see the air pollution in China from the lack of environmental regulation, I connect it to the same type of changes. Theft of IP fits within that same framework, to my mind.
GK: In case any of us ever forget the power we have as lawyers to effect positive change, it behooves us to recall Bill’s work in the price-fixing case against the vitamin makers. Rightly hailed as a landmark achievement, it reminds of the power of curiosity and initiative as precursors to using the legal process in order to right a wrong. And his observation that IP theft is a symptom of the Chinese government’s inability to contain the massive economic changes they have fostered is spot on.
2) Another notable success of yours was your work on behalf of college athletes in the O’Bannon v. NCAA case. One of the key issues in that case involved the NCAA profiting off the images and likenesses of athletes in video games. In this age of video games and social media, it seems like celebrities and athletes should be more mindful than ever over how their likenesses can be used to generate commercial value for others. What do you think are the next steps for college athletes looking to get their fair share of the enormous revenues generated by their athletic exploits?
The possibility of state legislation, such as is being considered in California, looms large for this issue. But there is still the prospect for more private antitrust litigation. It is worth remembering that the antitrust case against the NCAA is not that universities must pay college athletes; it is that universities may not form a cartel or agree not to pay athletes, including for their names, images, and likenesses. Can you imagine the reaction if technology companies all agreed among themselves to accept new programmers only through unpaid internships with scholarships to cover their living expenses? By providing educational internships and important training, the companies could claim to provide as much educational benefits as many colleges, but no one would tolerate such a system.
One next step forward challenging NCAA rules may come when a top college athlete files an action to protect his rights. Two years ago, when Trae Young played basketball for his single season at Oklahoma, or last year, when Zion Williamson played his one year at Duke, their names and images were everywhere on ESPN and regional conference networks promoting NCAA games. It is hard for me to believe that each of those individuals did not have a strong case to challenge the exploitation of their names, images, and likenesses. I also wonder if it could all change quickly if a college football team just agreed not to play their bowl game as a protest against the restrictions imposed on them.
GK: The exploitation of college athletes in revenue-generating sports is a continuing injustice. While an incremental step, Bill’s victory against the NCAA has helped create the conditions for a future sea change in the way those athletes are treated. Protesting exploitation is a necessary first step towards getting it to stop. Fortunately for the athletes in the NCAA case, they had a lawyer of Bill’s caliber to make their case.
3) Large copyright infringement verdicts are pretty rare, with your 2015 verdict for Oracle a high-profile example. What was your favorite part about trying a copyright case to a jury?
The case we tried for Oracle against Rimini Street was, to my mind, about theft of IP. Our goal at trial was to break down the walls that we contended Rimini was using to hide what it was actually doing. Achieving that required both intense technical work and precise cross examination of witnesses, both of which were gratifying. The Ninth Circuit in the last month affirmed an important injunction against Rimini’s continued use of Oracle’s copyrighted software that was another important step in that litigation.
GK: Here again, we see the value of curiosity and hard work as essential components of a trial victory. At the same time, winning at trial often involves weaving a moral narrative, particularly in IP cases, where themes such as rewarding the innovator or punishing the copycat are so often used before judges and juries. Telling that story persuasively is always easier for the trial lawyer when they share in the sense that their client’s cause is a just one. It is no surprise, therefore, that Bill was able to generate such a significant verdict for Oracle, believing as he did that Oracle’s IP was stolen.
Thanks again to Bill for being so generous with his time and observations for this audience. It is always a privilege to hear from those at the very top of our profession, especially when they have such interesting perspectives to share on a broad range of topics. I am always open to conducting interviews of this type with other IP thought leaders, so feel free to reach out if you have a compelling perspective to offer. La Cheeserie to all!
Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.
Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.
This. Except… kind of the opposite of this.
The University of Connecticut Federalist Society had an idea while sitting around drinking the blood of poor children and eating Chick-fil-A, and rather than keep that idea to themselves like literally everyone would have preferred, they decided to make a poster out of it and force everyone to deal with their douchebaggery.
Are you ready for October 23? Because October 23 is “Federalist Society Pride Day,” y’all!
Yes, next Wednesday, every FedSoc twerp will don their “Future ABA Not Qualified Federal Judge” pullover and try to incite a backlash from a student body that will almost assuredly eye them with more pity than rage. Is the “Violet” cut off the rainbow because that was Tinky-Winky’s color? So many questions.
For more on the event:
To some extent, this whole affair is another snowflake moment, with FedSoc kids complaining that no one likes them just because they’re morally bankrupt. There’s also a dash of Ben Shapiro-inspired “debate me, bro” — which is really less debate than “let me yell empty sophistry, bro” — in there as they so desperately want the other students to call them out so they can feel some sense of satisfaction in their own entirely self-imposed martyrdom.
But it’s also the natural consequence of outrage junkies upping the stakes to get another fix. MAGA hats aren’t doing it anymore… maybe we mock Pride by coopting it to complain that our struggle to defend the rights of rich white people is exactly like getting denied jobs and kicked in the face by homophobes. The only question is whether they plan to turn February into “Why Isn’t There A White History Month?” or “Actually, Martin Luther King Was A More Like Clarence Thomas Than You All Think Month.” Maybe both!
The Federalist Society writ large will passively distance themselves from this by pointing out that every chapter is its own entity that they can’t possibly control. It’s exactly what they said when every chapter in the country started catering all events with the same chicken menu to own the libs. Whatever the national organization wants to claim, it sits atop a collection of clubs that march in goose-step.
But, one may argue, Ted Olson argued for gay marriage and has rolled as a member of the Federalist Society Board of Visitors for years. Surely that’s proof that these students don’t represent the organization as a whole!
One may argue that, but they would be wrong. Because Federalist Society chapters are just troll farms where the conservative legal establishment feigns embarrassment before handing over federal clerkships to the most aggressive loud-mouth bigot they can find — the one who they can identify because they’re undoubtedly elected to a leadership position.
To rise above the din to become the candidate they hose down and turn into another Deputy White House Counsel, the FedSoc powers-that-be encourage, in both word and deed, students to be ever more confrontational to prove just how much they’re ready to be ideological warriors before the thin cloak of respectability gets draped upon them. When Leonard Leo is compiling lists of objectively acceptable (or not, sometimes!) nominees he’s looking for someone whose soul he knows outstrips their otherwise passively bland résumé.
They want David Souter in the streets and Sam Alito in the sheets, after all.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
Change is a-coming to the traditional law school admissions exam, the LSAT. As you may recall, the first-ever digital administration of the exam began with the July 15th test, with exam takers being assigned to take the test either on paper or on a tablet upon their arrival. (Beginning with the September administration of the LSAT, all test takers use a tablet.)
To make the transition to the digital format easier, July test takers had a one-time offer to get a look at their scores before deciding if they want to cancel them (usually test takers have to make that call before their scores are ready), as LSAC, the body that administers the LSAT, explained:
To ease the transition, LSAC is also offering July test takers a special option: regardless of format, July test takers will have the opportunity to see their score before they decide whether they wish to cancel it. Those who decide to cancel can choose to retake the test again through April 2020 free of charge.
In the podcast Keeping Up To Data, LSAC’s Vice President and Chief of Staff Susan Krinsky explained that a lot of wannabe lawyers took advantage of this opportunity. Approximately half (!) of the test takers canceled their scores from the July administration. To put it in perspective, normally between 2 – 3 percent of LSAT scores are canceled.
I spoke with Jay Thomas, Executive Director of Pre-Law Programs for Kaplan Test Prep, about this and he told me, “To call it historic is an understatement.” But, at the end of the day it was “not terribly surprising.” After all, July test takers had a unique opportunity and Thomas said many signed up for that administration without the typical amount of preparation because they felt, “What do I have to lose?” Thomas also said with the LSAC increasing the number of yearly administrations of the test (from four to nine), they are seeing a trend of procrastination among test takers, with prospective law students taking longer to decide when they’ll actually take the exam (some then have issues getting a seat at their preferred testing location), with some postponing the exam multiple times before they take it. But the good news, according to Thomas, is that the cancellation percentage was consistent across both formats, meaning there wasn’t an issue with the new digital exam.
And that’s very good news for bringing the LSAT into the future.
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).
Back in the heady days of law school when I still thought legal jokes were funny, I remember the vehemence with which my Civ Pro professor, a salty old stalwart (whose biopic would be entitled “Sit Down, Shut Up, I Wrote That Text Book You Ingrates Are Using” and he would be played by a hangry Gene Hackman), addressed the issue of forum shopping. For those of you who have successfully wiped Civ Pro from your memory bank (tell me your secret, please), forum shopping is a practice employed by litigators to get their cases heard in a particular court or jurisdiction where they think they will have the best chance of securing a favorable judgment. Or just to be a total pain in the ass. My professor said this was definitely the second reason that attorneys decide to forum shop.
Of course, there’s another form of forum shopping, so twisted and annoying that it should be eradicated from the earth along with gym selfies, candy corn, and shareable entrees. This in-house counsel variation on forum shopping will be used by your business partners to lure you into doing their bidding. Resist the urge at all costs. Why? Because if you don’t, every time you fall for this crap, a jurisprudence fairy loses its wings.
The in-house counsel trap goes a little something like this:
Hey Kay,
Wanted to talk to you about the kickoff of Project Dancing Goats on Mountain Top. [I’m making that up, but honestly, why are project names so lame and weirdly long at my company…who the heck wants to mark each draft “Project Dancing Goats on Mountain Top?”] I was surprised to learn that one of your compatriots is working on it instead of you. I don’t feel like she knows our business like you do and I’m not sure she has the chops to handle something that will be in all of our products by year end. I think it’s best that you step in here and take over.
You see it, don’t you? How thick the business partner is laying it on? Appealing to my vanity and legal savior complex? Help me, Obi-Kay-Kenobi, you’re my only hope. Blah, blah, blah. More importantly, look how the little sneak ended it. “I think it’s best that you step in…” Right, so if anyone were to call this weasel on it, he could say it was my call to step in or not. Shameless.
I will admit that when I was young and new at my company and the need to prove myself hung over my head like the shiny law school diplomas on the wall, this email might have sent me scurrying to comply. I wanted to be a good business partner, right? I should be part of the team that got this project done quickly and correctly, didn’t I? If I was the subject matter expert, then why shouldn’t I offer to take this off another attorney’s plate?
Because it’s exactly what the business partner wants you to do. In reality, the average business partner doesn’t care which attorney does his or her work, that partner just wants it done yesterday and with as little headache as possible. So, if there’s a shiny new recruit willing to expedite review and not make too many waves over the deal, it’s a no-brainer.
Worse, if you let a business partner forum shop among your team, you’re sending the message that at best you’re disorganized and out of synch, and at worst, you’re weak and willing to step on a teammate to get ahead. And that is so not the image you want to project. Business partners, like dogs, bees, and people who sell timeshares, can smell your resolve unraveling from a mile away.
So, do yourself and your team a huge favor. Name the beast. That’s right. At last month’s sales meeting, I raised the issue of forum shopping. Several offenders in the room looked away. They knew exactly what I was talking about. And for those who didn’t? I gave the following example to demonstrate why it’s annoying and counterproductive as a business partner to do this:
Business partner: I call Kay at 9:30 to ask her about a rather sticky FCPA question that’s holding up this deal getting signed. She tells me she’s heading into a meeting but will circle back by EOD. At 10:45, I’m feeling puckish, so I call Randy who promises me an answer by COB. His timeline is better than Kay’s, but, I really want to get out of here by 3:30 so I can go home and oil my beard with artisanal oils, so at 2:00, I call Stacy and proceed to harangue our newest attorney into giving me an answer on the fly.
Kay, Randy and Stacy: And this is what we mean by forum shopping.
Once you name the beast, put up a fence around it. Get with your team and decide how you want to address forum shopping. We have a weekly check-in meeting where we touch base on what we’re working on. It’s not 100 percent foolproof, but it does serve to cross-check who is working on what and with whom. Generally, the bigger the deal, the more likely a business partner will try to forum shop.
Finally, wrestle the beast to the ground. Our team has decided that the most effective way to deal with forum shopping is to redirect that partner to the correct attorney, or in Stacy’s case, she forwards the entire email chain to the correct attorney with the forum shopper on copy. Let me tell you that practice has drastically reduced the number of “Kay doesn’t have the chops to work on my stuff” comments. The important part is to be consistent and firm. Caving in to the “but Randy is out for a root canal, can’t you just take a quick pass,” is a sucker’s bet. Don’t be a sucker.
Because no one wants their biopic to be called “The Sucker Who Fell for Everything and Stood for Nothing.”
Kay Thrace (not her real name) is a harried in-house counsel at a well-known company that everyone loves to hate. When not scuffing dirt on the sacrosanct line between business and the law, Kay enjoys pub trivia domination and eradicating incorrect usage of the Oxford comma. You can contact her by email at KayThraceATL@gmail.com or follow her on Twitter @KayThrace.
(Image via Getty)
As the practice of law continues to morph inexorably from a “profession” to an “industry,” lawyers must contend with seemingly ever-increasing client demands, fiercer competition, tighter margins, and a baffling onslaught of technological hype.
Fortunately, there’s a solution.
Innovative practices are looking beyond traditional law firm management methods and embracing the practices of the world’s most cutting-edge manufacturing companies: Lean methodologies and systems-thinking.
In this free webinar, on October 17 at 1 p.m. ET, you’ll learn what it means to be a Lean law firm and how to employ systems-thinking to see your firm from a new perspective.
Learn how to measure and improve your operations in order to maximize the value you’re supplying to your client. Gain practical tips you can employ immediately to improve your firm’s financial position.
As regular readers of this column know, I lived in London from 2012 to 2018. (I’m back in Chicago now.)
A few people have asked me what I liked most about living in London. The truth is, there’s plenty to love. There’s the history, and the history, and the history. There’s the art, and the food, and the culture. There’s the weather. (Yeah, yeah: It drizzles a lot, but it never goes below freezing or above 90. Compare that to Chicago.) There’s the proximity to Europe (for the weekends) and the cheap air fares (to get there). But the best part of living in London for me may have been that I was offered the opportunity to live there for only two years at a time.
Thus, my wife and I were asked to move to London for two years. We ran around like crazy, because there’s an awful lot to do if you’ll be living in a place for only two years. At the end of two years, it would be okay to say, “I really need a nap.” But it would not be okay to say, “I lived in London for two years, and I blew the opportunity.” With each passing day, you could almost feel the sand pouring through the hourglass. We were time-constrained, and we knew it.
The truth, of course, is that we are all time-constrained.
But we don’t feel it quite as urgently.
When you don’t know the amount of time you’ve been given, you can waste it. Once you see the finish line, things become more urgent. Time’s a wastin’: Turn off the TV, get out on the streets, and explore this city.
When you move to New York for the rest of your life, you never bother visiting the Statue of Liberty. You can always do that next week.
When you’re shipped to London for two years, you certainly do visit the Tower of London. There may not be a next week.
As the two years were about to expire, my wife and I ran faster: Our opportunity was almost over, and we hadn’t yet done everything on our list. Then, the company asked us if we’d like to stay for another two years. Eureka! We accepted, and ran around like crazy for the next two years, because time was running short. We had only two more years in London.
After four years, same deal. We hadn’t yet gotten to the bottom of our list, and the company asked if we’d re-up. So we stayed another two years, for a total of six. And we ran, and we ran, and we ran.
Finally, we learned that our revels were ending; we would be returning to the United States. And so, for those last few weeks, we ran faster still: Stratford-upon-Avon! Let’s get out there! Blenheim Palace! If Churchill could grow up there, we could visit. Essaouira! We haven’t visited Essaouira! Where the heck is it? Buy a ticket!
Why is it helpful to live life in two-year increments?
Because when you’re heading to work in the morning, a million things are eating at you: “razza frazza frazza the traffic,” “razza frazza frazza opposing counsel,” “razza frazza frazza the boss,” “razza frazza frazza whatever.”
When you’re living in a place forever, you let those things bother you.
But when you’re living in London for just two years, you’re unfazed by the slings and arrows of daily life: “I’m walking down Regents Street heading to Oxford Circus to get on the tube to go to work! And I’m upset because the tube will be too hot and crowded? I must be crazy. I have only these precious two years in London; why don’t I just enjoy them?”
Oddly enough, you do.
When you’re aware of time constraints, each minute becomes more precious.
I don’t know how you revel in the joy of the moment — mindfulness, maybe? — but it’s worth a shot.
Because living life in two-year increments is an uncommon gift that everyone has been given, if only everyone cared to accept it. Maybe it’s time to pay attention.
Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at inhouse@abovethelaw.com.
(Photo by Win McNamee /Getty Images)
Democrats have lost on the courts. That’s not an opinion; it’s just a fact. Conservative ideology is triumphant across all article three institutions. Conservative voters have been taught to mouth court-sounding issues “mah guns” or “infanticide” to mask the true goals of bigotry and sexism that motivates that base. Outside groups like the Federalist Society or the Judicial Crisis Network pour money into promoting conservative judges and putting up campaign ads. The mainstream media is so cowed by the conservative onslaught that they parrot radical conservative views or unqualified conservative judges as “reasonable” possibilities. Republicans successfully stole an entire Supreme Court seat and managed to install an alleged attempt rapist on the Supreme Court, just as an “F You” to women who dare to wish for equal protection under the law.
If that is not what losing looks like, I don’t know what is.
There are Democrats who do not understand how deeply they’ve lost this battle. There are even Democrats who don’t understand why it’s important to win this battle. And then there are Democrats who think that the way to win going forward is to find acceptable older white men with centrist views who won’t immediately draw the attention of the conservative hive mind that will marshal against them.
The group Demand Justice has released a list of potential Supreme Court nominees. Their list is not for those Democrats. It’s not for Democrats who are scared of Republicans, of bigots, or of their own shadows. It’s not for progressives who are scared of JCN and FedSoc and their assorted overwhelming trolls. It’s a wish list of progressive legal and judicial stars. It’s a list that highlights that the progressive bench is deep and diverse and capable of bringing so much more to the table than whatever aging prosecutor cum jurist the centrist would offer up while begging conservatives not to be too angry. This list is an aspirational goal.
Now, a legitimate question is why we need such a list. People who are already paying attention know who the progressive stars are. People who are not paying attention are, you know, not paying attention and not going to start just because they hear Sherrilyn Ifill’s music in the background. There’s not a lot of evidence that progressive voters are actually moved by the Supreme Court, while there is a ton of evidence that conservatives love to campaign against the judges who will uphold pluralism and equality like the ones on this list. Might it be better for Demand Justice to do the normal progressive thing when it comes to the courts and, you know, hide? Tread lightly? Be mindful of pissing off the Republicans and avoid putting a name and a face on their true intentions?
Obviously, from the way I phrased the above, you can tell where I stand. I believe that Democrats have lost on the courts because they’ve spent the better part of 30 years being afraid of the issues most associated with courts. Americans are broadly against the kind of post-apocalyptic view of gun rights conservatives push with their interpretation of the Second Amendment. Americans are broadly in favor of a woman’s constitutional right to choose. Americans are broadly in favor of campaign finance reform. Americans are broadly in favor of equal protection under the laws, regardless of race, color, creed, or sexual orientation. Americans are broadly in favor of an interpretation of the 15th Amendment that includes people being allowed to vote.
But Democrats, at a leadership level, do not want to fight on these issues. They don’t want to fight for women — they want to triangulate, or do some other made-up strategy that is a synonym for bullshit. They don’t want to nominate aggressive progressives to balance out the arch-conservative takeover of the courts — they want to nominate gaumless centrists. President Barack Obama nominated a well-meaning white man to fill Antonin Scalia’s seat in hopes that Republicans would be shamed into playing ball. REPUBLICANS HAVE NO SHAME. It’d be nice if the Democrats recognized that before we all die.
That’s why philosophically, I like the list Demand Justice has put forward. The Merrick Garlands of the world are not on it. Instead, there are people like Ifill, like Gupta (both Vanita and Deepak, for those playing along at home). There are old standbys like Pam Karlan, new stars like Leondra Kruger, and my personal favorite, Larry Krasner. Folks, Larry Krasner would ignite criminal justice reform at the Constitutional level like nobody’s business, and I don’t even know how you’re a “liberal” if you don’t like that choice.
Is the list progressive? Yep. Can you remember the last time the conservatives got dinged because their list of reactionaries who hold gays and non-Christians in open contempt was “too conservative”? Yeah, me neither. Because the media never complains when the right goes too far right. So excuse me if I like people who can COUNTER Republicans instead of desperately trying to appease them.
I also like the list as a practical matter because, as you might have noticed, the Democrats are currently in debate over their nominee to take on Donald Trump. From 30,000 feet, sure, every single one of the Democrats running for president would nominate better judges than Donald Trump and Mitch McConnell. But at a more granular level, I do not know if every Democrat has the will and the vision to make aggressive Supreme Court choices. In fact, I suspect most of them do not. I expect the fear of Republicans is so ingrained in some of these people’s DNA that even if they get a chance to nominate a justice — assuming Mitch McConnell is defeated and thus the normal operation of judicial appointments is allowed to continue under a Democratic president — I assume most of them will nominate justices designed to placate Republicans instead of fight them.
As a progressive, my primary vote is still gettable and the people who support the kinds of judges on this list are the ones who have a chance at getting it. I’ll “vote blue no matter who” but I’ll be damned if I willingly walk into the “let’s just re-nominate Merrick Garland” camp unless I am dragged kicking and screaming the entire time.
Because I want to win. I reject the notion that the way to do that is be afraid all the damn time. This list, whatever it is, is not one birthed in fear. That’s a nice change when it comes to liberals talking about the Supreme Court.
Demand Justice’s Supreme Court shortlist
Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.