Author: TSA Press

When my kids were younger, the older one used to build these Duplo towers. And then his younger brother would toddle by and knock the tower down. And then the older one would build it back up again. And the cycle would continue until one of them hit the other and the victim would come crying to me. And I’d tell them to figure it out, and eventually we’d all go to bed.

That story seems relevant to today’s news.

A federal judge in El Paso blocked Donald Trump’s construction on WALL. Previous cases have focused on Trump’s attempt to unconstitutionally usurp the appropriations power from Congress. Currently, John Roberts is letting Trump steal money, perhaps because he agrees, perhaps because he thinks the Democratic nominee will eventually beat Trump and resolve the issue for him. Who knows.

But the El Paso case is proceeding on statutory grounds, not Constitutional ones. The judge found that Trump was in violation of the National Emergencies Act, because his declaration of a national emergence is fake, and Trump admitted it was fake when he opined that he was declaring a national emergency to get WALL more quickly.

From Protect Democracy, which represented the plaintiffs in this case:

Today, a Texas federal court ruled that President Trump’s proclamation of a national emergency along the Southern border violated federal law. The court declared that the president’s proclamation is invalid because it illegally sought to override Congress’s decision to not fund further border wall construction. The court invited the plaintiffs, El Paso County, Texas, and the Border Network for Human Rights to propose terms for an injunction that would prevent the government from using funds to build border barriers that Congress specifically refused to authorize…

In this case, the plaintiffs argued that the president’s national emergency declaration exceeded his powers both under statutory law and the Constitution, and that its mere issuance injured border communities. The court based its ruling on statutory grounds and did not reach the constitutional issues. As detailed in their complaint, President Trump declared the emergency after months of failed attempts to obtain additional funding for his border wall culminated in the longest U.S. government shutdown in history. He publicly acknowledged that there was no urgency, saying “I didn’t need to do this, but I’d rather do it much faster.” The administration then moved to transfer $8.1 billion for border wall construction efforts – $6.7 billion more than the $1.375 billion approved by Congress.

When reached for comment, WALL audibly groaned a sigh of frustration from the existential plane: “No injunction can arrest my erection upon your lands. Soon, very soon, you will see your Circuit of Five cast out your puny guard rails of statutory interpretation, and cower before a mighty stay. For your President sayeth WALL is already thus, and thus WALL must be.”

It’s almost bedtime. I’m sure John Roberts will clean up the bricks in the morning.

BREAKING: Judge Will Block Trump Border Wall in New Ruling [Protect Democracy]

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.

Click here for a more extended look at Rao’s “whackadoodle” dissent in the Mazars case.

According to data collected by ALM as part of the National Law Journal 500 Women’s Scorecard, which NLJ 500 firm has the highest percentage of female equity partners?

Hint: 47.4 of the equity partnership at this firm are women.

See the answer on the next page.

You’ve found the perfect blackout curtains on Amazon, recommended specifically for overworked and late-sleeping New York associates, vampires, and Alaskans. They’re inexpensive and ship via Prime, but then you notice a wisp of yellow out of the corner of your eye that spells doom for your purchase: 3.5 stars. You click out of the product and start the cycle anew, maybe using the star filter this time. As technology has burgeoned over the last 20 years, anonymous or unknown reviewers have become more and more relied upon to shape our judgment in all aspects of our life. The idea of rating something is nothing new, but the proliferation of technology has allowed it to spread to even the most niche sectors. Law firms are one of the industries impacted by this rise in technology. Various sites and forums are devoted to the very task or rating firms. Why might this be problematic?

1) The Raters Are Overrated. We tend to be poor judges of our experiences, especially if we have limited context or reference points. What we may see as unreasonable, may be the norm for all employers in the industry — or vice versa. Regardless, we are prone to black and white thinking. Distributions of reviews tends towards bimodal distributions of reviews at one-star and five-star reviews. Furthermore, interpersonal factors have the largest correlation between good and bad reviews. One explanation for this is that overwhelming positive or negative experiences motivate us to actually review a product or company. Research shows that the more someone reviews, the more evenly distributed their reviews tend to be. When it comes to law firms, most reviewers have only practiced at a few firms and have limited comparison points.

Moreover, what exactly are we rating? The discrete parts that make up an overall review may be composed of completely different categories based on who you ask and are more a reflection on their values. If you value work-life balance, you may give a sweltering New York litigation powerhouse a one-star review based on your unhappiness with firm’s encroachment into your personal life. Others who thrive in pressure cookers might find the firm perfectly aligns with their preferences. If we look even more granularly, we see another reason why current and former employees make for unreliable reviewers.

2) A Rose Is Not A Rose Is Not A Rose. Overall firm reviews reside in a vacuum, stripped from the individual components that are summed to generate that rating. The problem with this is that firms vary wildly from office to office, and from practice to practice. The experience of working as an associate at one firm in New York could be diametrically different to the experience of working in their San Francisco office. Even going up one floor in the same office, you may find the real estate practice to have a completely different atmosphere compared to your corporate practice. The experience is somewhat akin to college, where your grade and interest in your class largely depends on the professor teaching. Ultimately, the firm decides who to hire and sets the tone for corporate culture. As firms expand, this becomes harder to instill and police and sometimes incongruent attorneys slip in through the cracks — or the prospective bottom-line boost is enough to discount or ignore red flags. I cannot recount how many times I’ve heard: “The firm would be perfect, if only I didn’t have to work for this partner.” However, basing a lateral decision on firm personnel can lead to another complication.

3) As Constant As A Northern Star. It will come as no shock to you, that attorneys like to move around firms. The constant churn muddies the waters and can make it difficult to get an accurate read on a firm. The friend who told you not to move to her former firm because of the cantankerous rainmaker who made her life hell may be surprised to find out that the rainmaker is now on a permanent golf tour across the world. Associates tend to lateral every three years on average, while partners tend to stay a little bit longer, hanging on for five years. Since the composition of firms is changing so often, there are really only a few sources of information that can give you an unbiased and accurate view of the current market.

If you haven’t guessed it already, one is legal recruiters. We talk to thousands of people every year from attorneys to firm chairs, and have our finger constantly on the pulse of the market so that we can guide our candidates to the firm that makes aligns with all of their personal and professional needs. Using a source like Vault or the U.S. News and World Report can be tricky when assessing a prospective employer. For other industries, the resources available and corporate culture largely dictate your experience in the company. However, because law firms are more decentralized and have access to largely the same resources, your local practice bubble will largely dictate whether you have a positive or negative experience. Rather than relying on outdated information, feel free to contact me or my fellow colleagues at Lateral Link if you are interested in making a lateral move, armed with up to date and accurate information. Feel free to rate your current firm below and we’ll post the results next week and break down our observations.

Create your own user feedback survey

Ed. note: This is the latest installment in a series of posts from Lateral Link’s team of expert contributors. Michael Allen is the CEO of Lateral Link. He is based in the Los Angeles office and focuses exclusively on Partner and General Counsel placements for top firms and companies. Prior to founding Lateral Link in 2006, he worked as an attorney at both Gibson, Dunn & Crutcher LLP and Irell & Manella LLP. Michael graduated summa cum laude from the University of California, San Diego before earning his JD, cum laude, from Harvard Law School.

Lateral Link is one of the top-rated international legal recruiting firms. With over 14 offices world-wide, Lateral Link specializes in placing attorneys at the most prestigious law firms and companies in the world. Managed by former practicing attorneys from top law schools, Lateral Link has a tradition of hiring lawyers to execute the lateral leaps of practicing attorneys. Click here to find out more about us.

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It’s promotion time and White & Case welcomed 45 new partners to the firm effective in 2020. This breaks the firm’s previous record for largest class, set just last year. Another sign that White & Case is committed to its global expansion plan. Altogether, the new partners represent 13 practice areas in 21 offices.

In the United States, the firm promoted 16 attorneys, of which over half are women and five self-identify as diverse. Globally, 37 percent of the class is made up of women.

Partner promotions are one of the most underrated tea leaves to read when considering a firm’s, for lack of a better term, “health index.” What practice areas is a firm investing in? What offices are seen as growth opportunities? How well has the firm developed internal talent? From this list, it’s pretty clear that White & Case doesn’t see M&A slowing down any time soon.

Congratulations to all the new partners. You’ve finally earned the right to make unreasonable requests and make passive-aggressive jabs at junior associates that will haunt their quiet moments for years to come.

You shouldn’t do, well, any of that… but technically you’ve earned that right.

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.

[M]y initial reaction upon reading White House Counsel Pat Cipollone’s letter to the House is — adapting a line from the great legal scholar Tom Cruise (A Few Good Men) — to wonder whether the White House counsel was sick the day they taught law at law school.

Yes, it’s that bad. If one of my students made those arguments in a paper, I don’t think I could give that person a passing grade.

— Prominent libertarian legal scholar Ilya Somin, in some immediate thoughts given on Facebook after White House Counsel Pat Cipollone released his letter to Congressional Democrats, where he openly mocked the impeachment inquiry against Donald Trump, stating not only that the president could not “permit his administration to participate in this partisan inquiry under these circumstances,” but that it “lack[ed] any legitimate constitutional foundation” and violated “the Constitution, the rule of law, and every past precedent.” Somin isn’t the only prominent lawyer who found Cipollone’s letter absurd.

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.

My Law Jobs for Humans colleague and program co-chair Bill Henderson made my day not long ago. He told me, not for the first time, that a blog post I’d written early last year perfectly summarized the zeitgeist of the modern legal innovation career. “You said it in that blog post, Dan,” Bill said. Then going on, quoting my post, he said, “In fact, “uncertainty” may be the best word to sum up the challenge of pursuing a career in legal tech.”

It’s pretty cool when someone that you look up to – and someone who’s pretty smart him or herself (he was on Malcolm Gladwell’s podcast!) – glowingly quotes you back to yourself. 

But this post isn’t just an extended humble brag – at least, it isn’t from now on – my point is that this emerging landscape of law jobs is incredibly uncertain. There’s no clear entry point, no established career path, and no promises of a brass ring at the end. 

Personally, the uncertainty is precisely why I love working in this space so much. I don’t want to follow the beaten path and I get excited by new and uncharted territory. That being said, I also freak out regularly because I live and die by my wits and there’s no clear map to follow or brass ring to seek.

Enter Law Jobs for Humans. While we know we can’t instantly create career paths that have been decades, if not a century plus, in development, we can provide both examples and community.

First, precisely because we know the path is unclear and uncertain, in organizing Law Jobs for Humans, we’ve invited the most interesting and innovative career renegades to the event. It’s nearly impossible to build a freeway where not even a path has existed previously, but at Law Jobs for Humans we’re creating a space for those who have explored the unknown territory to tell us what they’ve seen and learned.

Second, we can’t eliminate the uncertainty but we can lessen the fear by limiting the loneliness. Striking out into uncharted waters can seem overwhelming but you don’t have to do it totally alone. The Law Jobs for Humans audience is made up of others exploring the frontier of the 21st century legal career – and we’re creating the space for sharing stories about those experiences and giving encouragement to fellow travelers.  

So, if you’re down to embrace the uncertainty in exchange for some amazing stories and the chance to explore uncharted territory, Law Jobs for Humans is for you.

Join us in New York City on November 15th to bridge the uncertainty gap and build a legal career for the 21st century.

Donald Trump lost in court again in his fight to ignore Congressional subpoenas with the brazen surety of Charles I. The D.C. Circuit ruled that his accounting firm, Mazars USA, must comply with a Congressional subpoena, because of course they must comply with a Congressional subpoena, and Trump’s argument that they don’t have to comply with a Congressional subpoena is and always has been deeply stupid and flawed.

You can read the full opinion against Trump here. It’s not particularly interesting. Trump is making a bad argument, and Clinton appointee Judge David Tatel explains why his argument is bad. It takes many pages. I am not a circuit court judge, in part because my opinion would have been, in its entirety: “Mr. Trump, what you’ve just said is one of the most insanely idiotic things I have ever heard. At no point in your rambling, incoherent filings were you even close to anything that could be considered a rational legal thought. Everyone in this court is now dumber for having listened to it. It is so ordered, and may God have mercy on your soul.”

But will the bad, legally incoherent arguments Trump makes to defend himself matter to Republican judges or judges that Trump himself has appointed? The integrity of Trump judges is in serious doubt. Today, in dissent, Trump appointee and Clarence Thomas acolyte Neomi Rao did nothing to assuage the fears that Trump judges will rule for Trump, rule of law be damned.

Neomi Rao is a problem. Everybody knew she’d be a problem when she was nominated to replace (wait for it) Brett Kavanaugh on the D.C. Circuit. Rao has been an open conservative troll since college, existing to surface the worst Republican talking points with a lacquer of legal jargon to make them sound somehow more acceptable. She’s what Tomi Lahren would sound like if Tomi Lahren got hooked on phonics.

But Rao has risen in Federalist Society circles precisely because she functions as a kind of legal Id for what the conservatives really want to do. She will “go there.” She will “say that.” Her arguments are facially laughable and need to be cleaned up by conservative brethren who are a little more devious and write with a little more polish, but Rao gives voice to the dark core of their thoughts.

And so it is in this dissent. Her critical point here is that Congress has the power to subpoena Mazars, but not under their oversight power, only under their impeachment power. Because Congress has failed to vote on a “formal impeachment investigation,” Rao argues that Trump and Mazars are free to treat Congressional subpoenas as if they don’t exist.

Here it is in her own words:

As explained below, allegations of illegal conduct against the President cannot be investigated by Congress except through impeachment. The House may impeach for “Treason, Bribery, or other high Crimes and Misdemeanors,” U.S. CONST. art. II, § 4, and has substantial discretion to define and pursue charges of impeachment. See The Federalist No. 65, at 338 (impeachable offenses “are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself”). While it is unnecessary here to determine the scope of impeachable offenses, Congress has frequently treated violations of statutes or the Constitution as meeting this threshold. Impeachment provides the exclusive method for Congress to investigate accusations of illegal conduct by impeachable officials, particularly with the aid of compulsory process. Thus, the key determination is whether this investigation targets allegations Congress might treat as “high Crimes” or “Misdemeanors.” To make this determination requires no search for hidden motives, but simply crediting the Committee’s consistently stated purpose to investigate “illegal conduct” of the President. Cummings Memorandum at 4; cf. Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 508 (1975) (“[I]n determining the legitimacy of a congressional act we do not look to the motives alleged to have prompted it.”).

The Committee’s stated interest in remedial legislation may support any number of investigations, including into the conduct of agencies and how officials administer the laws. Yet a legislative purpose cannot whitewash this subpoena, which— by the Committee’s own description targets allegations of illegal conduct by the President. The most important question is not whether Congress has put forth some legitimate legislative purpose, but rather whether Congress is investigating suspicions of criminality or allegations that the President violated a law. Such investigations may be pursued exclusively through impeachment. The House may not use the legislative power to circumvent the protections and accountability that accompany the impeachment power.

None of the above is correct. None of it. Neomi Rao has here made up a standard that does not exist, to support the political opinion of the man who appointed her. Let’s do a close read of the first paragraph:

• [A]llegations of illegal conduct against the President cannot be investigated by Congress except through impeachment. — The Constitution doesn’t even talk about impeachment “investigations.” It simply identifies the process of impeachment as the only way to remove a president from office. From a Constitutional perspective, impeachment “inquiries” can happen however the hell Congress wants them to happen. There’s no Constitutional provision saying that the House has to formally vote to conduct an “inquiry.” The Constitution simply requires the House to vote to bring a formal impeachment CHARGE, which is then litigated in the Senate. At this point, “following Donald Trump on Twitter” counts as an “impeachment inquiry,” if Congress wants it to.
• While it is unnecessary here to determine the scope of impeachable offenses, Congress has frequently treated violations of statutes or the Constitution as meeting this threshold. — This is Rao teeing up a later lawsuit where Trump will say, “I cannot be impeached because I didn’t directly violate a statute, PRESIDENTIAL HARASSMENT!” And everybody saying “so,” but Rao saying, “Yes, my liege.” She’s right to say that a discussion of what constitutes impeachable offenses at this time is “unnecessary,” which is why her throwing this in there is so obviously partisan and hackey.
• Thus, the key determination is whether this investigation targets allegations Congress might treat as “high Crimes” or “Misdemeanors.” — It’s hard to emphasize enough how facially stupid this argument is. Under this logic, ANY oversight of the President of the United States MUST BE attendant to a formal vote of an impeachment inquiry. This is lunacy. Rao is arguing that the Constitution requires process (impeachment inquiry vote) that the Constitution does not specify, in order to access a power that the Constitution grants (oversight authority), if Congress is even thinking of maybe one day exercising a duty the Constitution charges to Congress (bringing impeachment charges).

The second paragraph repeats the faulty logic of the first, but more stridently for people who are easily impressionable.

Now, one might ask why I’m spending so much time dissecting a bad dissent from a troll in a robe. Rao lost; who cares how she came up with the wrong answer? Well, I care because the bad argument laid out in this dissent is precisely the bad argument Chief Justice John Roberts will be pressured to adopt in a majority opinion if the Supreme Court grants cert on this coming appeal.

If Roberts, along with the other conservatives — two of whom owe their positions to Donald Trump and one of whom was credibly accused of attempted rape — decides they want to try to save the president, some version of Rao’s argument is what they’re going to go with. They’ll try to find a way to preserve the Congressional subpoena power (because Jesus Christ, the separation of powers DEMANDS that they preserve the Congressional subpoena power), but create, whole cloth, a new Constitutional process for Congress to exercise that subpoena power. “Originialism” generally and easily cedes to the Republican agenda when the rubber meets the road. I imagine at least three justices (Thomas, Alito, and Kavanaugh) will have no problem just making up a new Constitutional requirement if it helps Republicans. Rao’s dissent was primarily written to Neil Gorsuch — though she’s bad at this, so I don’t know if it will actually work. And then there’s Roberts who will be in a tough spot because he’ll have to preside over the impeachment trial at the Senate — a trial that he must know is coming regardless of whether Mazars turns over information or not — because he can read about the president admitting to high crimes and misdemeanors on camera just as easily as anybody else.

Having just explained how Rao, and the conservatives who are inclined to agree with her, are wrong on every level, if I were a House Democrat, I might well be inclined to give baby its bottle. Rao cannot dictate to Congress how they conduct an impeachment investigation, but if some pro-forma vote on an “inquiry” is the legally wrong hill they want to die on, I might just say: Fine, here’s your formal vote you intellectually dishonest assholes. Every day the Democrats spend fighting over parliamentary procedure instead of the crimes committed by the president in plain sight feels like a wasted day to me.

But, like, when my kid was four he kept pulling the dog’s tail, and I told him to stop but he didn’t listen so instead of breaking it up, I just let him keep doing it until the dog nipped him. And when he cried I just said, “I think you’ve learned an important lesson,” and walked away. Which is to say: Maybe I’m not the guy to talk to about “strategy.”

Rao’s argument is legal bollocks. There’s a decent chance at least one of the five Republican Supreme Court justices isn’t able to swallow it.

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.