Author: TSA Press

Late one afternoon in March 2018, I had just left work to meet a friend in Brooklyn when cops stopped me on the street. I had just graduated from law school, so I knew enough to keep my mouth shut. I invoked my rights, but it didn’t matter. They still tried to get me to admit to something I didn’t do.

After seven long hours in the precinct, they told me I could leave without charging me with anything. I had a big test coming up the next morning—the MPRE, the professional ethics portion of the bar exam. By the time I returned home from the precinct around 2 a.m., I couldn’t sleep. I was still going on adrenaline.

Still, I showed up and took the exam. And I passed. But when I got home, that’s when it all hit. That’s when I started crying and thinking about how, even at this point in my life, despite everything I have accomplished, this is still happening to me.

— David Ourlicht, a 2017 graduate of CUNY School of Law, recounting the details of a recent stop-and-frisk incident. Ourlicht served as one of the lead plaintiffs in Floyd v. City of New York, a class-action suit challenging the New York Police Department’s stop-and-frisk practices. Ourlicht won that case, and stop-and-frisk was branded unconstitutional. Ourlicht currently works as a public defender with the Legal Aid Society in New York City.

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.

Supreme Court watchers know that there’s been an assault on legal precedent recently — that’s a big part of what makes anti-choice laws like Alabama’s so scary. It turns out some Supreme Court justices are also concerned about this disturbing trend.

Elena Kagan spoke at at Georgetown University Law Center yesterday, and she had a lot to say about some of her Supreme Court colleagues’ penchant for overturning precedent. (As you may recall, four cases were granted cert this Term where the petitioner advocated for overruling settled law, and in two of those cases, the petitioner was successful. Kagan voted to maintain the precedent in all four cases.) Indeed, as reported by Law360, Justice Kagan called their willingness to overturn cases “a little bit immodest.”

She went on to wax about the importance of settled law:

[T]he “worst thing people could think about our legal system” is that the law changes drastically depending on the “preferences or predilections” of who is on the Supreme Court, “so you can never count on anything and you can never understand law as a stable continuing presence in people’s lives.”

“I think also the doctrine of precedent is one of humility,” she said. “And that means not thinking that, ‘Uh, here I am. And I just look at this case differently than the way many, many judges have looked at it in the past. And my opinion is better than theirs, so I’m just going to reverse what they say.’”

Of course, Justice Kagan does leave room for cases to be overturned, where the caselaw has become an outlier to changing standards or is “morally repugnant”:

But while she said that adhering to precedent should be a “heavy presumption,” Justice Kagan also said there were reasons to depart from past decisions of the court. In some cases, she said, society has evolved to the point where the precedent is “morally repugnant.” More often, however, “the particular case has become a real outlier, that the legal rules and doctrines have changed all around it, leaving it a kind of weirdness in the law.”

And what what kind of a case might Justice Kagan be speaking about? Funny you should ask, because she has some thoughts about this Term’s case on political gerrymandering:

“There’s no part of me that’s ever going to become accepting of the decision made,” saying the majority was “abysmally wrong” in deciding that there’s no manageable standard to ferret out unconstitutional gerrymanders.

I don’t think she’s alone in her disappointment that the Supreme Court decided to give political gerrymandering a pass.

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).

Last week, Alex Acosta stepped down from his role as Labor Secretary following a firestorm of controversy over the sweetheart deal he gave convicted sex offender Jeffrey Epstein. While the deal was public knowledge when Acosta was confirmed to the cabinet position, following Epstein’s July 6th arrest on child sex trafficking charges, new details of were hashed out and Acosta didn’t seem capable of making the case he should keep his job.

With Acosta out, many Republicans believed Patrick Pizzella, Acosta’s deputy, would get the nod, that is, if Donald Trump even got around to making a new nomination. But last night, the president announced over Twitter, natch, a Biglaw partner with a familiar last name would be his nomination for the new Labor Secretary.

That’s right, the late Justice Antonin Scalia’s son is getting the nomination.

And, as Politico, the outlet that first called the nomination, notes, having the name “Scalia” bandied about over the course of the nomination is a political boon, one that serves to remind Trump’s base just who got to fill Justice Scalia’s seat on the Court:

A Scalia nomination could become a base-pleaser for Trump, who as a presidential candidate built a relationship with right-leaning evangelical voters after promising to select a reliably conservative judge to replace the late justice on the court.

Trump grew close to the Scalia family during the confirmation of Justice Neil Gorsuch, who replaced the late conservative justice on the high court. Scalia’s wife, Maureen, attended a Rose Garden ceremony last July where Trump announced Justice Brett Kavanaugh’s nomination to the court.

Scalia received his J.D. from the University of Chicago and is currently a partner at Gibson Dunn, but does have notable government experience on his résumé. He served as the Solicitor of the U.S. Department of Labor and as a Special Assistant to the Attorney General. Scalia has a pretty successful track record in challenging government regulations in court, including a Maryland rule that would have required Wal-Mart to pay more for employee healthcare and an Obama-era fiduciary rule for retirement account advisors.

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).

To deal with power shortages, in part as repeated droughts hits hydropower, the country will now “promote the importation (and) local production of solar equipment and the use of solar power as an alternative energy source,” Monica Mutsvangwa, the country’s information minister, said Tuesday.

The government said it had set a target to get at least 1,575 megawatts of power from solar by 2030 – about the same amount of electricity the country produces today from a range of sources.

Zimbabwe’s government increasingly has called for expansion of renewable energy to meet power shortages, but a lack of effective coordination in policies has stood in the way, energy experts said.

Solar suppliers and renewable energy experts said the costs of putting solar systems in place in Zimbabwe have been too high, holding back expansion of the clean power source.

Patrick Bvumbi, who sells small-scale solar systems in Harare, said a Chinese-made 12-volt battery for use with a small solar system cost $75 – but import costs and taxes plus a markup meant he sold the battery locally for $350.

Although solar panels, lamps, inverters and lanterns have been duty free, the government had required 15 percent value-added tax plus customs duty on batteries and other solar system components.

Bulukani Masola, the chairman of Solahart Zimbabwe – the firm that installed solar panels to power traffic lights in Harare – said the customs duty was aimed at reducing imports of solar batteries to try to protect local firms that also manufacture the batteries.

But local production has not grown enough to meet the expected demand as the country tries to scale up solar power, he said.

Energy and Power Development Minister Fortune Chasi told the Thomson Reuters Foundation the aim of the new policy changes was to “encourage even ordinary individuals to come in and invest in solar projects”.

SIMPLIFYING SYSTEMS

To encourage wider use of solar power the government has introduced net metering, fed-in tariffs for clean energy and policy revisions to enable “independent power producers” to add renewable power to the national grid, said Misheck Siyakatshan, acting head of the Zimbabwe Energy Regulation Authority (ZERA).

Industry and Commerce Minister Nqobizitha Mangaliso Ndlovu said the government also is establishing a one-stop-shop investment center to help potential renewable energy investors process all the needed permits in one place.

“Our focus is to make sure that we facilitate smooth processing of investments” Ndlovu said in an interview.

Net metering regulations to allow renewable energy producers to add any excess energy they produce to the national grid have been in place since last year, he said.

“This initiative does not require one to be licensed but only requires households or premises to register with the power distribution company,” Siyakatshana said.

A handful of projects are already set to take advantage of the changes. Econet Msasa, a mobile phone firm, last month became the first company to connect its solar panel installation to the national grid.

Renewable energy investors, however, say they’d like to see even more change in Zimbabwe’s clean energy policies, such as more relaxed licensing rules for small producers.

Right now, for example, “if you want to invest as an independent power producer, you have to negotiate how much power one is going to sell to ZESA” – something that can be hard to predict, said Masola, of Solahart Zimbabwe.

AIMING SMALL

Renewable energy consultant Chandirekera Mutubuki, who has worked on a range of clean energy initiatives in Zimbabwe, said she hoped the new regulations would bring swift advances in clean power.

“I think the Ministry of Energy and Power Development (MOEPD) is on the right track if we start implementing solar options. The problem is that we talk for years and do not get any actual projects on the ground,” she said.

“The big megawatt plants are not the only solution. If anything, they cost too much and take way long to implement,” she said.

She suggested MOEPD focus on smaller systems, including providing loans to households to install solar panels, with the money paid back through their electricity bills.

“That will solve our load shedding headache because households will be off the grid,” she said.

Kalani Ndlovu, a farmer who in 2019 installed a solar mini grid at his farm at Umguza, in Matabeleland North Province, said it had proved a good source of energy for water pumping, cooking and lighting.

“Establishing the solar system at my farm cost me about $5,000. Initially the costs might look high, but I’m enjoying the benefits from solar as sunlight is plentiful,” he said.

“I’m planning to extend my solar project, to sell some of the units to my neighbors and even to the national grid.”

Post published in: Featured

* Eugene Scalia, a partner at Gibson Dunn, will be nominated as the next Labor secretary to replace Alex Acosta. If that last name sounds familiar, it’s because he’s the late Supreme Court Justice Antonin Scalia’s son. [NPR]

* “I disagree with it.” President Trump now claims that he was “not happy” with a crowd chanting “send her back” in relation to Somali-born Representative Ilhan Omar, a naturalized U.S. citizen, at one of his re-election campaign rallies. This, after Trump tweeted that Omar and three other congresswomen of color should “go back” to their countries, despite being American-born citizens. [New York Times]

* According to recently unsealed court records, per the FBI, then-presidential candidate Donald Trump and some of his top aides were very much involved in a series of hush-money payments made to porn actress Stormy Daniels and Playboy model Karen McDougal. Trump, of course, has very publicly denied having knowledge of such payments. [USA Today]

* The House of Representatives passed a bill to gradually hike the federal minimum wage to $15 per hour by 2025. Don’t get too excited, because this has little to no chance of passing in the Senate. [CNBC]

* In case you missed it, you shouldn’t really be surprised by the fact that a judge turned down bail for convicted sex offender and accused child sex trafficker Jeffrey Epstein. He’ll remain in jail until trial. [New York Law Journal]

* Disgraced former Case Western law school dean Lawrence Mitchell (now known as Ezra Wasserman Mitchell) was quietly let go without a contract renewal at the Shanghai University of Finance and Economics, where he’d been working as a visiting professor, after an investigation into his alleged misconduct. [Cleveland Scene]

* It’s been five years since FSU Law Professor Dan Markel was murdered in his own home, and we’re still waiting for his killers to be brought to justice. [Tallahassee Democrat]

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.

If you’re wondering how to use the last moments of summer to the fullest, there’s no more productive way to fill the time than with informative and engaging legal podcasts. Whether you want to catch up on current events, like the Epstein debacle or the 2020 census citizenship question, or you want to dive into legal content, like diversity in the industry or internet trends, Legal Talk Network has the perfect podcast episodes to keep you entertained and up-to-date. So instead of spending the last days of summer break binge-watching TV shows, check out your best source of legal podcasts.

Jeffrey Epstein’s Legal Aftermath

Joe Patrice and Elie Mystal discuss why the lawyers who enabled Jeffrey Epstein could potentially have their careers ruined as the SDNY brings new charges against him. They also cover Alex Acosta’s resignation.

The 2020 Census Citizenship Question and Gerrymandering

Guests Nicholas Stephanopoulos and Dale Ho dive into Rucho v. Common Cause/ Lamone v. Benisek and Department of Commerce v. New York, two cases that impact gerrymandering and the 2020 census citizenship question.

Pro Bono Scholars and Increased Representation: Dissecting Law Student Division Resolutions

Check out this episode for a deeper look at two resolutions the law student division is bringing before the ABA House of Delegates including a call for widespread adoption of pro bono scholars programs and increasing the number of law student division delegates.

The Mindful Law Firm—Using Positivity to Increase Well-Being

The workplace can be stressful and it is important to create an environment that encourages employee health and well-being. Anne Brafford shares ways firms can address problems and emphasizes the positive effects that result from investing in a healthier work environment.

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Access for All: How Justis Connection Brings Lawyers and Clients Together

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From Lawyer to Tech Entrepreneur

Pieter Gunst shares his experience transitioning from lawyer to legal tech entrepreneur. His story includes strategies for aspiring tech founders and resources he thinks are invaluable to legal tech start-ups.

Why Having a Mission Matters

What does it mean to be mission-driven? John Kassel, Managing Partner of one of Vermont’s leading law firms, and Sam Glover, Founder of Lawyerist.com, discuss why missions are more than just words or ideas—they are “the why” behind your legal practice.

Exploring Mary Meeker’s 2019 Internet Trends Report

Review the highlights from the 2019 Internet Trends report from analyst Mary Meeker and explore how current changes in usage could affect the future of the internet in this episode of the Kennedy-Mighell Report.

The Chocolate Covered Edition

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Conference Coverage

2019 AALL Annual Meeting & Convention

Celebrate the 20th anniversary of Fastcase with Bob Ambrogi, Ed Walters, and Phil Rosenthal. Hear about the beginnings of their company and how the expertise and vision of law librarians was instrumental in their initial stages of development.

NALA Annual 2019

Carl Morrison, host of the Paralegal Voice, reported on the 2019 NALA Conference & Expo including interviews with attendees and coverage of the latest legal topics, from eDiscovery to paralegal certification.

The MDC urges the SADC Organ on Politics, Defense and Security to take note of the deteriorating situation in Zimbabwe as a threat to peace and security in the region and take proactive steps to avert further deterioration and catastrophe. The resolution of the Zimbabwean crisis has become urgent in the context of an economic meltdown, rising citizen discontent and lack of elite cohesion within Zanu PF.

The Nature of the Zimbabwean Crisis

Zimbabwe remains trapped in a multi-layered structural crisis. The change of guard in November 2017 presented a window of opportunity for Zimbabwe to begin rebuilding following decades of economic meltdown, political instability and international isolation. Sadly, the opportunity has been squandered and Zimbabwe has further regressed politically, economically and socially. The military coup of November 2017 undoubtedly raised legitimacy questions that Zimbabweans and the international community had hoped would be cured by a free and fair election.

Nevertheless, the July 2018 elections further entrenched the legitimacy crisis through a fundamentally flawed electoral process that did not guarantee the will of the people. The 2018 plebiscite did not conform to the provisions of the SADC Principles and Guidelines Governing Democratic Elections and the African Union (AU) Declaration on the Principles Governing Democratic Elections. As concluded by the various international observer missions including the European Union Observer Mission, the National Democratic Institute (NDI) / International Republic Institute (IRI) Observer Mission, the Commonwealth Observer Mission among others, the elections failed the credibility test.

The electoral process was marred by irregularities including a highly partisan and captured Zimbabwe Electoral Commission, lack of transparency in the electoral process including on the printing and storage of ballot papers and poor stakeholder engagement by the Zimbabwe Electoral Commission, a party-State-military complex, partisan conduct of traditional leaders, partisan distribution of food aid, widespread Intimidation, abuse of state resources, biased State media, an Electoral Law that is not aligned to the Constitution of Zimbabwe including the disfranchisement of diasporans and post-election violence where seven unarmed protestors were shot dead by the military.

This flawed electoral process perpetuated the legitimacy crisis and is manifesting in the current socio-economic situation and a deteriorating human rights situation.

Socio-Economic Outlook

Zimbabweans are grappling with serious socio-economic problems including excessive power cuts of 18hrs a day, water rationing, shortages of basic commodities such as fuel and bread, collapse of social services including health and education, skyrocketing prices and high inflation that has doubled to 175% and poverty as evidenced by a staggering 83% of Zimbabweans living below the poverty datum line on less than US$ 0.35 per day. Corruption and patronage is rampant in state institutions as recently corroborated by the Auditor General’s report.

The knee-jerk outlaw of the multi-currency system though SI142 has further worsened the situation. The policy was prematurely pronounced in the absence of requisite macroeconomic fundamentals to support a sovereign currency including a trade surplus, at least 6 months import cover, a healthy capital account, productivity and high capacity utilization, single-digit inflation, the building of confidence and a realistic exchange rate. In the absence of these fundamentals, the policy has resulted in continued increases of prices and inflation, shortages and a high possibility that government will resort to the printing of money to cover its obligations, resulting in a debauched currency.

Human Rights and the Closing Democratic Space

The human rights situation in Zimbabwe is fast deteriorating and there is growing evidence of rising authoritarianism. A record-breaking 21 opposition and  Civil Society leaders including Parliamentarians and labour leaders face trumped-up and serious charges of subversion. Such persecution by the state is an abrogation of constitutionally guaranteed rights to freedom of expression, freedom of association, freedom of assembly and to free political activity. A few days ago, the labour leaders received anonymous letters with bullets in a clear move meant to intimidate the labour movement against exercising their right to demonstrate and petition as codified in Section 59 of the Constitution of Zimbabwe.

The MDC is also worried by the high levels of Impunity where perpetrators of human rights abuses are not held to account. The perpetrators of August 1 killings, where a total of 7 unarmed civilians were shot dead by the military have not been brought to book despite recommendations of the Motlanthe Commission.

Similarly, the security forces responsible for the 17 extra-judiciary killings and several sexually related violations among other violations of the January 2019 clampdown were not held to account.

At the center of these human rights violations are security forces, especially the military. Section 210 of the Constitution provides for an Independent Complaints Mechanism where citizens can get recourse in the event of violations by security forces. This vital organ will go a long way in dealing with militarisation and unaccountable security service and yet it has not been set up.

Derailed Reform Agenda

The Constitution of 2013 provided the basis of a new social contract and the beginning of a comprehensive reform agenda to address the structural challenges Zimbabwe faces. Nevertheless, non-implementation of the Constitution is blocking Zimbabwe’s democratic and developmental advance. Despite framing itself as a ‘new dispensation’, the current regime has paid lip service to the reform agenda.

The recent appointment of Utoile Silaigwana as ZEC Chief Elections Officer indicates the consolidation of militarization, further compromising the credibility and independence of ZEC and an indictment on Zanu PF’s sincerity to reform. Silaigwana was at the center of previous sham elections, including the 2008 elections. Zanu PF further continues to abuse state resources during elections. A recent letter from the Minister of Health and Child Care (see attached letter) directing the Permanent Secretary to supply medicines to hospitals and clinics in the Lupane constituency ahead of a by-election is evidence of the Zanu PF’sintransigence.

Similarly, the appointment of Justice Matanda-Moyo, wife to the Minister of Foreign Affairs and International Trade as Chairperson of the Anti-Corruption Commission is a clear sign that Zanu PF is not ready to reform.

The MDC has also noted the disappointing moves by the regime in simply changing the names of restrictive laws such as the Access to Information and Protection of Privacy Act (AIPPA) and the Public Order and Security Act (POSA), without changing the content, character and objective of these laws. The Constitution guarantees freedom of the media, freedom of expression, freedom of assembly and freedom of association.

The gazetted Maintenance of Peace and Order Bill is a replica of POSA as it retains the vast majority of provisions in the latter including the continued ‘sanctioning’ of public gatherings by the police and the use of force to disperse crowds. Similarly, the recently gazetted Freedom of Information Bill as part of the four bills that will replace AIPPA fails to give effect to the letter and spirit of the right to information as enshrined in Section 62 of the Constitution of Zimbabwe. The Bill has striking similarities with the repealed AIPPA including a host of limitations to the right to information such as the limitation on information pertaining to government borrowing. The Bill is also not in line with an international best practice including the African Union Model Law on Access to Information.

Defining a new course for Zimbabwe

1. Pressure: Advocacy and mobilisation of all progressive and democratic forces to build national consensus

2. National Dialogue: The dialogue must be credible, bankable, legitimate and guaranteed by the international community with specific deliverables, benchmarks and timelines through a mutually agreed and acceptable facilitator

3. National Transitional Mechanism: Agreement on an implementation framework on agreed positions

4. Comprehensive Reform Agenda: The implementation and rolling out of a comprehensive agenda for reform anchored on the return to legitimacy, agreement on a comprehensive reform platform and agenda, resolution of the economic and humanitarian crisis, resolution on the agenda for nation-building, national healing and the resolution of the social contract and international re-engagement and ending Zimbabwe’s international isolation

5. Free and Fair Elections: Zimbabwe must hold free, fair, legitimate, credible and sound elections under international supervision, pursuant to the comprehensive reform agenda.

Gladys Hlatywayo

Secretary for International Relations

Movement for Democratic Change