Your Undergrad Degree Really Does Impact How Much Money You Make As A Lawyer

(Image via Getty)

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

According to a new study by Michael Simkovic, law professor at University of Southern California Gould School of Law, and Frank McIntyre, a professor of finance and economics at Rutgers Business School, lawyers with which undergrad major have the highest expected earnings?

Hint: Folks with this major can expect to earn $105,000, and an earnings premium of $78,000.

See the answer on the next page.

The State Of E-Discovery 2020

No one I know who is working in the legal industry thinks that less e-discovery work is moving in-house. A recent report produced by Exterro and The Association of Certified E-Discovery Specialists (ACEDS) confirms quite the opposite.

Full disclosure, I’m the president of ACEDS, and we are committed to providing information to the legal community that is helpful. So, when Exterro approached ACEDS a few months back and asked us to help produce their State of E-Discovery report, we happily agreed and promised to share the results as well.

E-Discovery Work Continues To Move In-House

The report, which is derived from a variety of industry sources, tells the continuing story of e-discovery work moving in-house to corporate legal operations professionals. Fifty percent of legal departments now feature an on-site e-discovery team. Of those, 60% now have dedicated IT services, a five-times increase over the year prior.

Chief legal officers are using more technology than ever before to drive efficiency. Sixty-three percent of CLOs say business risks like privacy rank as their top priorities. Seventy percent of CLOs think that the use of AI-based tools is poised to accelerate. And did you know that 80% of companies are saying the GDPR compliance has been more difficult than anticipated. It’ll be interesting to see the response to what is likely a growing privacy movement in the United States.

Also interesting is that 95% of federal judges would like to see greater participation from in-house legal teams, particularly when it comes to e-discovery issues.

In the sanctions arena, intentional misconduct leading to the spoliation of ESI is the cause of sanctions in 90% of cases. The 2015 amendments to the FRCP have clearly changed the landscape there. You can download the full State of E-Discovery report here.

One interesting factoid that is not in the report: Our friends at eDiscovery Assistant are reporting that since in the first half of 2020 there have been nearly 450 reported court decisions dealing with e-discovery sanctions.

Employment Is The Big Unknown

Although employment numbers are not outlined in the report, as you can see from ATL’s Law Firm Layoff Tracker here, the coronavirus deeply impacted law firms, with salary cuts, furloughs, and layoffs. And this does not account for the dreaded stealth layoffs. Bloomberg Law reported last month that nearly half of Biglaw firms made financial cuts. It is not entirely clear that we’ve seen the full impact there yet as we move into the second half of the year. We are likely to see more cuts if the billable hours do not ratchet up soon.

In fairness, there are now scattered reports that some firms that made cuts are now rolling back and restoring salary reductions based on better than anticipated financial forecasts.

On the service provider side, there have clearly been cuts too. But the light may be a little brighter. I spoke with Lou Mancuso, global recruiting director for Consilio, who’s been in the space for 12 years, and he told me that “we’re definitely seeing candidates from other service providers, and Consilio has continued to hold steady with recruitment efforts.” He added that “recruitment is not at an all-time high, but we’ve continued to grow, and we’ve been fortunate to continue hiring when that isn’t the case across the industry.”

The impact of COVID-19 on the corporate side is less clear. Colin McCarthy, who runs Legal Operators, a community of legal operations professionals who network and attend legal operations events, told me that “Times are in flux right now. We are seeing extremely talented people across the legal landscape being let go,” he said. “But on the flip side of that coin, I am seeing a lot of movement in companies in Silicon Valley hiring for attorney roles and legal operations positions.”

McCarthy told me that he recently had a conversation with the head of a national legal talent network and placement company that has identified over 12,000 legal jobs across the United States. “All the news is not bleak, McCarthy said. “I am rooting for people to get back to work!”

The Volume Of Work Will Increase

As we slowly creep toward safer social interaction, it seems fair to say that there is a simmering cauldron of litigation out there. Think about workplace safety; return to schools and office space; commercial real estate and leasing; travel and hospitality — all of these and other areas seem ripe for disputes.

And don’t forget bankruptcy and restructuring. While we seen some transactions close during the first half of 2020, it’s not even a guess that many deals probably faltered. Those will likely (hopefully) come back in 2021.

The implication, then, is that while more work moves in-house, clearly the workload will ramp up in the coming months. This should improve employment opportunities.


Mike Quartararo

Mike Quartararo is the President of the Association of Certified E-Discovery Specialists (ACEDS), a professional member association providing training and certification in e-discovery. He is also the author of the 2016 book Project Management in Electronic Discovery and a consultant providing e-discovery, project management and legal technology advisory and training services to law firms and Fortune 500 corporations across the globe. You can reach him via email at mquartararo@aceds.org. Follow him on Twitter @mikequartararo.

3 Questions For A Creative Solo (Part I)

When I saw that someone was brave enough to open an IP-focused law firm in New York City in the midst of our current COVID-19 craziness, I said to myself that I had to try to interview that person. And when I dug deeper, and saw the interesting story of the firm’s founder, my resolve grew only deeper. Thankfully, she agreed to my request for a written interview, which I am pleased to bring to this readership. So read on for an introduction to a tenacious, accomplished, and wise-beyond-her-years law firm founder.

Nikki Breeland is from Fontana, California, and grew up in the arts. She attended a magnet school for the performing arts, where she excelled in the theater, music, and dance programs. Nikki attended Mississippi University for Women, and obtained her B.A. in political science in 2013. She also attended Missouri University of Science & Technology where she obtained her B.A., summa cum laude, in history in 2015. Nikki received her J.D., magna cum laude, in 2018 from the University of Mississippi School of Law, with a concentration in entertainment and sports law, where she served as a member of the Mississippi Law Journal, Federal Courts Law Review, and Mississippi Sports Law Review. After graduating law school, Nikki served as a federal judicial law clerk for the Honorable Jimmy L. Croom at the United States Bankruptcy Court for the Western District of Tennessee for the 2018-2019 term. Nikki obtained her LL.M. in intellectual property from Cardozo School of Law in 2020 while serving as a textbook editor for Barbara Kolsun and Douglas Hand’s The Business and Law of Fashion and Retail. Nikki has been published twice, with her article, “Bad Blood”: Reconciling the Recording Industry and Copyright Protections on the Internet, published in the 19th volume of the Florida Coastal Law Review in 2019. Her first article, “All the Truth I Could Tell”: A Discussion of Title VII’s Potential Impact on Systemic Entertainment Industry Victimization, was published in the 25th volume of the University of California Los Angeles Women’s Law Journal in 2018. Nikki is licensed to practice in New York State and focuses on entertainment and intellectual property law at her firm, Breeland Law, PLLC.

As usual, I have added some brief commentary to Nikki’s answer below but have otherwise presented her answer to my first question as she provided it.

1) You have a great quote from Milton Berle prominently displayed on your website. How does that quote encapsulate your professional story so far?

NB: Ah, THE QUOTE. I have probably heard this quote a hundred times in my life, but it never really resonated with me until this year. I was on a mini beach weekend with my husband discussing what my plans were for my career, since I had been spending whole days applying for jobs and seemed to be getting nowhere, when we stopped off in a restaurant gift shop. My husband picked out an SPF shirt and a mug, and I was looking around at the trinkets when I saw it: a ring dish that said, “‘If opportunity doesn’t knock, build a door.’ — Milton Berle.” I stopped dead in my tracks and immediately bought it. That’s the moment I credit with giving me “the sign” we all desperately ask for and rarely ever get. I told my husband that night that I was going to take a more active role in my own career: I would start my own firm.

I will say, though, that the sentiment shows itself in my career path so far. I graduated from college when I was 21 years old, with a political science degree, and became a military housewife. There were not many opportunities in Waynesville, Missouri, for a recent graduate who would be moving in a few years, so I enrolled and got my second bachelor’s degree at a local university. Then, when my husband and I moved to our new duty station in Alabama, I realized that the opportunity for me to start a career was never going to present itself conveniently, so I applied to law schools within a 6-hour drive and started in 2016, living as a geographical bachelorette. In law school, my classmates got jobs working at huge litigation firms in large cities, but I knew I did not want that life. So, I worked smaller clerk jobs and went to school year-round, which helped me graduate a year early. I also used my law journal notes and a class paper to get published externally in my field. I was the first student to graduate from my law school with an entertainment and sports law concentration, after having to fight to receive it. After serving the U.S. Bankruptcy Court in Jackson, Tennessee, where I was again a geographical bachelorette, I took the New York Bar Exam and passed. Finding that not many law firms or professional opportunities were terribly fired up about an applicant with a Tennessee address, I decided that what I needed was a connection to tether me to the city, to give me a network, and to cement my specialty, so I enrolled in an LL.M. program which gave me excellent opportunities, like working with the Harry Fox Agency, Volunteer Lawyers for the Arts, and the Fashion Institute of Technology. Yet, even with a resume as full as mine, I could not predict a global pandemic, and when jobs did not come crawling to offer me an associateship, and with a little push from Mr. Berle, I made my own opportunity to live my dream: Breeland Law, PLLC.

I’m basically a carpenter at this point, show me where the nails and 2x4s are and I will get to work.

GK: It is hard to not be supremely impressed with Nikki’s tenacity, capacity for hard work, talent, and ambition, once you hear her story. Each of those characteristics will serve her in good stead in developing her firm’s business going forward. Moreover, her story stands as a lesson in perseverance and drive for her fellow recent graduates, as well as a shining example of the value of taking responsibility for one’s career progress. It is easy in our industry to focus on the gilded road seemingly placed before top graduates that smooths their way to prestigious clerkships or government work, or lands them as new hires at high-paying law firms. But that is the story for a small batch of law students each year. At the same time, the opportunity to carve out a successful career with a law degree is vast, even in the midst of the (creative?) destruction wrought by the current pandemic. Resilience, self-belief, and a willingness to learn from stories like Nikki’s are the building blocks for long-term success in what I have longed called our brutal (in the best sense of the word) yet noble profession.

Next week, we will conclude our interview with Nikki focusing on how she sees Breeland Law’s niche in the NYC IP marketplace, as well as her keen advice for today’s law students.

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.

Whistleblower’s Lawyer Gets Dumped By Malpractice Insurer After Trump’s Impeachment

(Photo by Evan Vucci-Pool/Getty Images)

By taking this decision, Hanover is sending a horrible message that is being echoed by the Trump administration, that whistle-blowers are not legitimate and do not deserve protection. One must question why this decision occurred now, in the wake of my representing a whistle-blower whose allegations not only proved to be true, but led to the impeachment of the president of the United States.

Mark S. Zaid, the lawyer for the government whistleblower whose concerns over President Donald Trump’s dealings with Ukraine set impeachment proceedings into gear, in comments given after Zaid was dropped by his malpractice insurer, Hanover Insurance Group. Zaid said his underwriter told him that Hanover had no “appetite” for his “high-profile” work, while Hanover says Zaid’s whistleblower practice is “ineligible” for coverage. A spokesperson for Hanover said, “This decision did not relate in any way whatsoever to any particular client of Mr. Zaid or the role that any such client may have played in the president’s impeachment proceedings.”


Staci ZaretskyStaci 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.

Florida Judge Blocks DeSantis Order For Schools To Reopen ‘Voluntarily’ Or Lose State Funding

Yesterday a judge in Leon County, Florida enjoined an order that would force Florida’s schools to reopen for in-person instruction next week, handing Governor Ron DeSantis yet another humiliating defeat in his spectacularly bungled coronavirus response.

From disappearing  people off the official death tolls, to barring county health departments from releasing their own COVID mortality data, to firing data scientists, to claiming college football players were safer in the locker room than at home, DeSantis has vanquished all comers in the duel to see which governor can handle this crisis worst. This was no less true in the academic arena, where the governor insisted that schools reopen for full-time, in-person instruction — damn the coronas, full speed ahead!

On July 6, Richard Corcoran, Commissioner of the Florida Department of Education, issued an emergency order that all school districts “must open brick and mortar schools at least five days per week for all students, subject to advice and orders of the Florida Department of Health.” Luckily, DeSantis had already barred the Department of Health from issuing any advice on whether to open schools, restricting its employees to explaining how to open in the safest manner possible. Subtle!

As added incentive to get kids into the classroom, DeSantis threatened to withhold money from schools which didn’t reopen. Specifically, the July 6 order allowed a waiver of the rule which calculates school funding by the number of students physically present at school in October, but only for those districts whose reopening plans were approved by the state.

The teachers union and the NAACP sued, alleging that the order was arbitrary and capricious, trampled local authority under Florida law, and disregarded public safety. And yesterday, Judge Charles Dodson of the Leon County Civil Division agreed.

As Judge Dodson noted, on August 6, Hillsborough County’s school board voted to delay reopening for in-person education on the advice of doctors, despite the fact that the representative from the Health Department refused to weigh in. The next day, Commissioner Corcoran threatened to withhold the waiver if they didn’t reopen fully. Faced with the loss of millions of dollars in state funds, the district reversed its position and agreed to reopen fully, a course of action the state described as “voluntary.”

Judge Dodson took a different view, though, accusing the state of “ignor[ing] the requirement of school safety” and abridging local districts’ rights under the Florida constitution.

Because Defendants cannot constitutionally directly force schools statewide to reopen without regard to safety during a global pandemic, they cannot do it indirectly by threatening loss of funding through the Order.

Worse still, the Department of Education put forth no metric for assessing  reopening plans other than vaguely gesturing toward the very Health Department DeSantis had just muzzled. When forced by the court to explain why Hillsborough’s delayed opening plan was rejected while those of Miami-Dade, Broward, and Palm Beach Counties were approved, the state mumbled that those counties were in Phase 1 of reopening, a standard which is mentioned nowhere in the emergency order.

“Without prescribed standards for approval of plans,” Judge Dodson wrote, “the Commissioner has engaged in ad hoc and unconstitutional decision making without considering local safety and the medical opinions of experts, local or otherwise.” So the language in the order threatening to withhold waivers for the funding calculation from schools which don’t reopen immediately and without regard for student and staff safety was stricken.

Not really a great day for DeSantis (HLS 2005). But never fear, the intrepid bungler has vowed to appeal and cram those kids back into the classroom next week, COVID be damned.

Florida Education Association v. Ron DeSantis
School reopening lawsuit: Judge rules in favor of Florida teachers [Tampa Bay Times]


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

Biglaw Firm Steps Up Its Support Of Working Parents

I’m not even a parent yet my social media timeline is clogged with working parents concerned with exactly what is happening for the 2020-21 academic year. COVID-19 is a real bitch, and school districts are struggling to balance the safety and educational goals of students, while frequently under economic threats from state governments that don’t want to admit the reality of a pandemic. It’s basically a mess, and parents are going to be pressed trying to juggle it all. And it’ll be even worse if the parents also have to balance a full-time job on top of it all.

At least one Biglaw firm sees the buzzsaw its employees with children are heading towards, and they want to do something about it. At Fenwick & West, they’re offering a series of new programs to support their employees as they try to tackle this impossible semester:

· Tutoring or Back-Up Care Stipend: Fenwick is providing up to $500 as a reimbursement stipend to Fenwick employees who are parents or legal guardians of children under the age of 18, to help defray some of the costs for tutoring or learning support or back-up childcare.

· Tutoring, Online Resources, Learning Pods: Partnering with Bright Horizons, parents who have enrolled will get a 20% discount on tutoring, schoolwork help and learning pods from the care provider’s partner vendors.

· Parent Support Workshops: They’re offering a Parent Support Workshop with a well-being coach and consultant to help parents create work-from-home health and well-being plans.

· Loaner laptops for students: While many school districts are providing students with technology tools for online learning, we can help bridge shortages for those families in financial need if our employees’ child’s district isn’t providing a needed technology resource.

· Parents Network: They’ve launched an internal Parents at Fenwick group, as an online forum for sharing resources and ideas and for connecting and providing peer support.

So, what are other Biglaw firms doing to support their working parents? We’d love to hear from you. Please don’t hesitate to let us know. Our vast network of tipsters is part of what makes Above the Law thrive. You can email us or text us (646-820-8477).


headshotKathryn 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).

International Biglaw Firm To Roll Back Salary Freeze, Hand Out Bonuses

Biglaw firms across the country have decided to partially or completely roll back their COVID-19 austerity measures, and this new trend has now been picked up across the pond.

Over in the United Kingdom, Kennedys — a UK top 50 firm that has one office in the U.S. and increased its gross revenue by 9 percent to reach a record £238 million ($312,313,358.00) in 2019 — deferred its performance-based salary increases and bonus payouts earlier this spring thanks to the coronavirus crisis. Staff members were supposed to have their salary reviews in May, while attorneys were supposed to have their salary reviews in September. Thankfully, the firm has decided to “press ahead and reward staff for their work.”

All employees at the firm, both lawyers and staff members, will have their salary reviews in November. Legal Week has additional details:

Nick Thomas, senior partner of Kennedys, said in a statement: “It gives me immense satisfaction and pride to lead a partnership which chooses to reward our staff during what is a challenging time for so many businesses. But the reality is that they’ve earned it and deserve it having demonstrated their ability to maintain productivity remotely, helped by our robust IT platforms.

“As a business we live and breathe by ‘doing the right thing’ for our people and our clients, and we will never lose sight of the fact that our success is down to our people.”

The firm continued in a statement that it would be honouring all staff bonus commitments this year, adding that they had not made any redundancies, pay cuts, or furloughing arrangements during the last few months.

Congratulations to everyone at the firm. Let’s hope more firms get on board with this salary restoration movement — and soon.

If your firm or organization is slashing salaries, closing its doors, or reducing the ranks of its lawyers or staff, whether through open layoffs, stealth layoffs, or voluntary buyouts, please don’t hesitate to let us know. Our vast network of tipsters is part of what makes Above the Law thrive. You can email us or text us (646-820-8477).

Kennedys To Pay Out Salary Increases and Bonuses After COVID-19 Delay [Legal Week]


Staci ZaretskyStaci 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.

St. Louis Gun-Waving Lawyers Deliver Funniest Republican Convention Speech Of The Night

(Screenshot via Twitter)

The first night of the Republican National Convention really brought it with Kimberly Guilfoyle hopped up on that Jason Statham Crank while her boyfriend spent his speech crying over the fact that his dad will never love him. Guilfoyle also pegged herself as a first-generation American despite being Puerto Rican which is, you know, AMERICA. They even threw in Herschel Walker, a former professional athlete whose primary career accomplishment was being traded for the roughly 8,000 draft picks that made the Dallas Cowboys insufferable again.

But the highlight was a living room address from Mark and Patty McCloskey.

A true masterpiece of the hostage video genre. This looks so much like they’re begging for ransom I found myself cross-checking their blinks with Morse Code.

Honestly, it’s getting harder and harder not to feel bad for these people. At a certain point, you can only watch Sideshow Bob step on rakes for so long before his own incompetence gets sad. These folks already jumped head first into cartoonish infamy and if people cared about them they’d advise them to lay low until the news cycle moves on. But instead, they’ve decided to try and recast themselves as normal people sitting on their couch and only managed to land themselves in another future comedy skit that will enter the canon of 2020’s greatest hits.

The show gets off the rails within seconds.

We’re speaking to you tonight from St. Louis, Missouri, where just weeks ago, you may have seen us defending our home….

Yeah, it’s not really “defending” when there’s not a threat. People marched down the street. It’s not really a threat unless you enter the discussion from the standpoint that large groups of mostly black people are by definition “a threat.” Spoiler alert, that’s the sentiment of this speech, which will take a wild turn in the middle to complain about housing discrimination laws.

When I first learned that the McCloskeys would speak at the convention, I figured they’d give some sort of bland Second Amendment rah rah speech. But instead they were tagged with pushing all the obscure racist dog whistle policy tweaks. First, the fair housing rule and then Mark garbles something about defunding the police and takes a swing at “ending cash bail so criminals can be released back out on the streets the same day to riot again.” What is it with these people and cash bail reform? It’s such a weird high horse for anyone to get on because cash bail by definition lets defendants — because they aren’t criminals at this point — back on the street. All eliminating bail does is say that we won’t punish poor defendants in ways that we would never punish rich defendants based on setting an artificial price on “risk of flight.”

The campaign seems to think the key to the suburbs is casting the McCloskeys in their restored turn-of-the-century palazzo as typical suburbanites. Imagine believing that suburbanites are more worried about fair housing regulations than what will happen when they send their kids to school next week.

The money line:

Not a single person in the out-of-control mob you saw at our house was charged with a crime. But you know who was?

No, who?

We were.

I’m just spitballing here, but maybe that’s because you were the only people committing crimes.

And, yes, it is a gated community which means the protesters were trespassing, though video of the march entering the area shows them walking through an open and unbroken gate which mitigates the argument that folks knew they were casually trespassing. And even if they were, aiming deadly weapons at people is going to trump trespassing every time. The video includes pictures of the event showing the protesters very intentionally NOT stepping onto McCloskey property. Unless they’ve adversely possessed the sidewalk (and, there are some places where sidewalks are designated as part of the property, but the point remains that these folks are pretty clearly holding at what the reasonable person would assume is the property line).

(Screenshot from RNC video)

All this “defending” and “out-of-control” talk would resonate better if they didn’t provide the contradictory photo evidence themselves.

Consider this, the Marxist liberal activist….

This is where McCloskey is going to complain about Cori Bush being on her way to Congress right now. Although he’s not going to give her the respect of calling her by her name, he’s just going to use the word “Marxist” a bunch.

Oooooh. Historical materialism! Hide the kids!

These radicals aren’t content with marching the streets, they want to walk the halls of Congress.

Isn’t that good? Like, wouldn’t that be better than guillotines?

“Trump brought us the greatest economy our country had ever seen.”

Putting aside that this isn’t true, that “had” looms rather large don’t you think? Frankly, it’s shocking that Mark managed to get the past tense in there past the RNC messaging gurus.

Hopefully that doesn’t spoil their ransom efforts.

Earlier: St. Louis Lawyers Wave AR-15 At Protesters Like Totally Normal, Totally Not Bonkers People


HeadshotJoe 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.

Marble Ridge Founder Won’t Have To Fight Criminal Charges, Run Hedge Fund Simultaneously

The Ninth Circuit Doesn’t View Commonly Used Gun Magazines As Unusual

The past few months have been somewhat of a topsy-turvy ride when it comes to the issue of gun control. This past June the Supreme Court rejected 10 different cases that could have expanded gun rights. The refusal to take up the expansion of gun rights caught some liberal-leaning organizations by surprise and the “theory that Second Amendment cases are in season” with a solid conservative majority on the Supreme Court seemed to be cast in serious doubt. Just over a week ago, however, the Ninth Circuit gave gun rights advocates reason to hope again.

Before we get into the specifics of the Ninth Circuit decision, it is vitally important to discuss the context in which this decision takes place. Because although we are currently living in an era where major restrictions on gun ownership have been overturned, or lapsed, the rate of violence, including gun violence, has nevertheless steadily decreased. Jacob Sullum at Reason recently summarized this remarkable trend well:

According to the FBI’s numbers, total homicides in the United States fell from 24,700 in 1991 to a low of 14,164 in 2014 — a 43 percent drop. The homicide rate fell even more dramatically, from 9.8 per 100,000 in 1991 to 4.4 per 100,000 in 2014 — a 55 percent drop. Homicides rose in 2015 and 2016, then fell in 2017 and 2018, when the rate was 5 per 100,000, up 14 percent from 2014. The FBI has not published final data for 2019 yet, but preliminary numbers for the first half of the year indicate that homicides fell by 7.4 percent.

The trends for murders committed with firearms are slightly different because the type of weapon used varies over time. Gun homicides fell from a peak of 17,075 in 1993 to a low of 7,803 in 2014 — a 54 percent drop. The number rose in 2015, 2016, and 2017, then fell in 2018, when it was 32 percent higher than in 2014 but still 40 percent lower than the 1993 total. The gun homicide rate in 2018 was about 3.1 per 100,000, half the 1993 rate.

As I have written before, the only thing that could turn the incredibly good news that gun violence is steadily decreasing into something depressing is if nobody actually believes it, which most Americans sadly don’t.

At the risk of going all “both sides” on you here, it must also be pointed out that there is a lot of blame to go around for the current misconception surrounding gun violence. The president’s repeated depictions of “American carnage” are simply not true, but a lot of people believe him anyway. Moreover, as Sullum points out, Joe Biden characterizes gun violence as an “epidemic” that is seemingly out of control when, again, the only notable attribute about gun violence rates lately is that they have gone down, drastically. Thankfully, our courts have largely not taken the bait with either form of misleading political rhetoric, choosing instead to focus on the facts. Which brings us to the recent Ninth Circuit decision.

The Ninth Circuit case focused on whether California’s criminalization of large capacity magazines (LCMs) that hold 10 or more rounds passes “constitutional muster.” As the court noted in its decision, these LCMs are extraordinarily common. In fact, they make up “about 115 million LCMs out of a total of 230 million magazines in circulation” and, perhaps most importantly, are commonly the standard with many handguns. If you are asking why it should matter that these LCMs are common in handguns, well, the Supreme Court has recognized that the handgun is the “quintessential self-defense weapon.” Moreover, like with the First Amendment, courts view the Second as an individual right. Indeed, the Ninth Circuit has recognized that gun-control must be individual-based and that general bans that limit this individual right to self-defense should be viewed with strict scrutiny.

In order to pass strict scrutiny, the government must have a compelling interest. But while the Ninth Circuit recognized that California did advance a compelling interest of “preventing and mitigating gun violence” in its LCMs ban, the decision to categorically criminalize “nearly every weapon that can be reasonably expected for use in self-defense” was not an acceptable means of achieving the compelling interest. Indeed, the Ninth Circuit decision goes into great length about the value of the legal right of self-defense that is essentially being taken away by California’s criminal prohibition, particularly on “those who may not be equally protected by the state.”

I understand that many will not agree with the Ninth Circuit, or me, on the subject of gun control. But we should be able to agree with basic facts about gun violence and acknowledge that these facts make the issue extraordinarily complicated. For example, it is a fact that many people should not be allowed to have guns and that most guns intended for self-defense will never be used. Indeed, bringing a gun into the home is to bring a certain degree of risk. But at the same time, it should be said that there is nothing illogical about courts recognizing the right of psychologically stable people, committed to safe handling, to use common tools such as firearms for their self-defense.


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.