Author: TSA Press

When I got to law school, I thought John Paul Stevens was a “liberal.” That’s what I had been told. When the Supreme Court’s decision in Bush v. Gore came down in the fall of my 1L year, Stevens’s scathing dissent from that opinion seemed to confirm what I had been led to believe. Stevens wasn’t just a liberal but a “lion,” the leader of the progressive wing of the Supreme Court.

Learning that I was wrong is one of the ways I mark the difference between a layperson’s understanding of the law, and a lawyer’s understanding of the law. Yes, Stevens ended up as a reliable progressive vote, but that’s not because he was a progressive ideologue. It was because Republicans were successful in nominating conservative ideologues and the Court lurched rightward under Stevens’s feet. As Ian Millhiser put it on ThinkProgress:

Stevens stood still, while the Supreme Court’s center of gravity lurched to the right. “The Court has changed significantly,” Stevens wrote in 2006. “It was then more faithful to Brown and more respectful of our precedent than it is today. It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today’s decision.”

The decision was Parents Involved v. Seattle School District No. 1, which held that two public school districts violated the Constitution by implementing plans to desegregate their schools.

That case, Parents Involved, is the case where, writing for the majority, Chief Justice John Roberts unleashed his famous line: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Stevens, a Gerald Ford appointee, dissented from the opinion modern conservatives now think embodies a center-right perspective on race. Conservative judicial appointments have adopted such clearly anti-Brown (both literally and figuratively) policies that John Paul Stevens seemed liberal to them by the end.

Which is why we’ll never see judges like Justice Stevens again on the Supreme Court. Movement conservatives, led as they are now by the Federalist Society, have long abandoned the kind of judicial restraint and commitment to precedent practiced by “conservatives” like John Paul Stevens. Conservatives don’t like the precedents that say minorities are entitled to equality under the law, women are entitled to control over their own bodies, and gays and lesbians are entitled to love who they wish. It’s no longer “conservative” to be “restrained.” Now, conservatives want the unrestrained. They want the aggressive rollback of regulations, rights, and progress.

Over on Facebook, UCLA Law Professor Jonathan Zasloff wrote that he didn’t always agree with Justice Stevens. That was a feature of his jurisprudence, not a bug:

Perhaps [Stevens] didn’t have an overarching Theory Of Everything that he could apply formalistically and uncontroversially downward. What you knew, if you had a good case that honestly was trying to apply precedents, was that it was damn good to see him up there on the bench, that you would get a judge who would understand what was happening and wasn’t just going to ram through the latest fancy theory because it was the latest fancy theory.

He was a judge. And a damn good one.

Conservatives do not want judges who will apply their best guess at the law. They want judges who will impose their pet theories about the law upon cases and controversies. It is sad that a person like Justice Stevens, who couldn’t be pegged down before the brief was even filed, could no longer become a Supreme Court Justice for a Republican administration.

But the saddest thing of all is that, order to meet the radicalized threat posed by the kind of judges modern conservatives appoint, progressives had better start acting the same way. The Court has lurched right, if you want to drag it back to the center, Democrats need to start appointing hardcore progressives. Standing on the center of the see-saw does nothing to balance it out when there’s an elephant squatting on one end.

Republicans understand this, but I’m not sure liberals do. Even if Democrats retake political power in the White House and the Senate, I’m not sure they’re ready to do what is necessary.

Barack Obama surely was not. In many ways, Elena Kagan, who Obama appointed to replace John Paul Stevens on the Supreme Court, is a justice fully in keeping with the Justice Stevens style of conservative legal judgment that only looks “leftist” when plotted against the radicalization of the conservative movement. Kagan is no progressive firebrand. She’s no ideologue. She’s a precedent-loving centrist who stands against the conservative attempt to ignore precedent that disagrees with their pet theories. Had Obama succeeded in getting Merrick Garland on the Court, he likely would have ruled in much the same way as Kagan and Stevens before her. Compared to Neil Gorsuch, sure, Garland is “progressive.” Compared to, I don’t know, Vanita Gupta, Garland is a problem.

Only Justice Sonia Sotomayor stands out among Obama Supreme Court appointees as a true progressive, but she’s very much grown into that role. She didn’t necessarily look like she’d be the strong advocate of criminal justice reform that she’s turned out to be, when she was appointed by George H.W. Bush to the district court. She didn’t look like she’d be who y’all think Ruth Bader Ginsburg is when she was picked off the Second Circuit by Barack Obama. Progressives got lucky with Sotomayor.

The fact that the Democrats running for president have not told me what kind of nominees they will make for the courts is worrisome. The odious Judicial Crisis Network is already running ads, “warning” people that the Democrats have a “secret list” of ultra-liberal nominees, and the Democrats aren’t responding, “HELL YES, WE DO! In fact, HERE’S THE LIST of the awesome people we’re going to appoint to try to STOP YOU.” I don’t hear Larry Krasner’s name being talked about for a Supreme Court appointment, I don’t hear the promises to bring back Goodwin Liu, and I don’t hear Gupta being floated as the next justice. Instead, I hear people talking about rolling Merrick Garland (now 66 years old) back out there for another round.

John Paul Stevens was a model of what a Supreme Court justice should be. But now his watch has ended. We will never see his like again. We can’t hide behind the legal wall of precedent that people like Justice Stevens built for us. It’s time to send in some fire-breathing liberals and stealthy legal assassins.

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.

Why Law Firms Are Moving to the Cloud

Why Law Firms Are Moving to the Cloud

Clio

He’s not someone who’s historically been a champion of either political camp. He was a humble person who despite his position and stature, was at ease with all kinds of people, and able to bring them together.

One of the things that was said about him repeatedly was that he was a “judge’s judge.” Especially in a day and age when both parties jockey — certainly more on the right — to nominate judges who they see as transforming the law and embracing fairly strong ideological positions. Justice Stevens was the opposite of that, someone who was very skeptical of that style of judging.

He really strove for a kind of fairness in his jurisprudence, a nuance that resists ideological characterizations. He wasn’t a hero of the right like [Antonin] Scalia, or a hero of the left like Brennan or [Thurgood] Marshall. He’s done his own thing and that idiosyncrasy has in some ways kept him from the limelight.

— Dean Eduardo Peñalver of Cornell Law School, a former law clerk to Justice John Paul Stevens, offering fond rembrances of the late justice in the wake of his passing.

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.

Please explain to me why this country could land men on the moon and have them walk on the lunar surface 50 years ago, and women today still can’t break the glass ceiling in a  profession that still hinders us from gender parity.

Since most of the ATL readers were born at least a dozen or so years after the moonwalk (and I am not talking about Michael Jackson’s), it’s hard for millennials and those younger to understand how momentous that occasion was for us dinosaurs. We were in the middle of the Cold War and Russia had been beating the pants off of us in space, at least until President Kennedy said, essentially, “Enough, we’re going to beat the pants off Russia before the end of the decade.” And we did.

To see the nation and indeed the world hold their collective breaths was remarkable and those who witnessed the moon landing and moonwalk will never forget them. We had lived through a decade of turmoil: Vietnam, both the war and the anti-war protests; assassinations of President Kennedy, the Reverend Martin Luther King, and Senator Robert Kennedy; cities burning. I could go on. We all wanted something to hold on to, to show each other and the world that we could collaborate, come together as a team to do something that was unimaginable even a few years before. We had the will, the perseverance, the determination for Apollo 11 to succeed and it did. So did we.

Where is our will, our perseverance, our determination for gender parity in the profession? Don’t look at me. I’ve been jumping up and down about this for years, as have many of my dinosaurial colleagues (both women and men). Jumping up and down after a while gets tiring, and I’m tired, in fact, I’m pooped. So are many others.

Where is the leadership? I don’t care who it is and where it comes from.  It could be a one-eyed, one-horned, flying purple people eater.

I am tired of hearing how much progress we’re allegedly making in law firms. Please, spare me. Yes, we’re doing better in corporate, academia, and the judiciary, but I don’t think such achievements point the way to parity.

There have been a number of articles in newspapers and elsewhere — “think pieces” is what journalists call them — about why it’s so unlikely that we will, in my lifetime, and maybe even yours, ever see anything like Apollo 11 again. A recent article in the Los Angeles Times talked about why what happened 50 years ago could not be replicated now, and I think comments apply to our profession’s seeming reluctance to move forward.

What made Apollo 11 possible? It was a number of factors, including a tolerance for risk, a leadership culture, and a collaborative political environment, things that do not exist today. It was management, national commitment, and the personal motivation of the participants.

Speaking at Rice University in Houston in 1962, President Kennedy said that “we choose to go to the moon, not because it is easy, but because it is hard.” Yes, gender parity is not easy to achieve, yes, it is hard, but we need leadership, commitment, and personal motivation, to move the needle more than just a little bit. Do we have leadership, commitment, and personal motivation to make that happen? You tell me.

Yes, things have improved for women lawyers in the past 50 years. True, but only up to a point. More than 50 percent of current law students are women. It also doesn’t explain why, as women move up the ranks, their numbers dwindle, nor does it explain why women compose less than 25 percent of equity partners. Women fare better in leadership positions in both corporate and academic environments, not to mention the judiciary.

So, we put men on the moon, but we seem to be unable and/or unwilling to do what needs to be done for gender parity here on earth. For those of us who were sentient 50 years ago, who watched the lunar landing from wherever we were at that time, it seemed like the nation and the world were, for a few precious moments, one. That’s certainly not true today.

Gerry Griffin, an Apollo-era flight director, who later became head of the Johnson Space Center in Texas, said that the risk-taking culture of the time propelled the man on the moon project forward. That culture didn’t know what a comfort zone was. As he said in the Los Angeles Times article, “The leadership pushed decisions down in the organization, they didn’t elevate them. They trusted people below them. The idea was, let’s not worry about who gets credit; let’s not second-guess everybody.” That doesn’t sound familiar today.

Regardless of what some people say, gender parity is not a “pipeline” problem; there are plenty of women who can succeed in law firms, but who aren’t given opportunities to do so, and who then drop out the higher they rise. It’s not just leaving to take care of the family and/or the kids or to pursue other opportunities. It’s fights about origination credits; it’s reluctance to share the work. The biases are real. When women lead, men are more likely to react badly, using the old tropes of “bossy,” “aggressive,” or other similar unflattering and demeaning adjectives.

The moon is approximately 240,000 miles away. That distance may well be easier to span than closing the gender parity gap. As President Kennedy said, we need to do this “not because it is easy, but because it is hard.” We do lots of hard things, but gender parity needn’t be one of them.

Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.

In the past few weeks, multiple lawsuits have been filed regarding the epic embryo mix-up scandal. That scandal, in case you hadn’t heard, involves three couples and a fertility clinic in Los Angeles called CHA Fertility Center (“CHA”). Last week, I wrote about the federal complaint filed by a New York couple — anonymously identified as “A.P.” and “Y.Z.” The complaint describes how A.P. became pregnant with twins as the result of two embryos transferred to her by CHA. A.P. and her spouse believed A.P. was carrying her and her spouse’s own genetic children. When an ultrasound revealed that the twins were both boys — contradicting the embryo testing results prior to transfer that both embryos were female — the couple was concerned. However, CHA reassured them that ultrasound results are often inaccurate, and that they were definitely having two girls. Okay, well that’s that.

Oh wait. When the babies were born, not only were both babies male, but they were of a different race than A.P. and her spouse. To make matters even more complex, not only were the twins not related to the woman who gave birth to them, they were not even genetically related to each other!

Cut back to California. Last week, in a public statement, we learned another side of the story. Anni and Ashot Manukyan held a press conference to answer questions about their roles as victims of CHA and the egregious mix-up. They, too, were filing a lawsuit against CHA. The Manukyans described how they hoped for a child, and entrusted CHA with their embryos. Unfortunately, a successful pregnancy did not result from the embryo transfers that they underwent at CHA. One of such transfers occurred on August 20, 2018 — the same day, and same location as the embryo transfer with the New York couple. Now, it’s unclear whether Anni Manukyan might have had someone else’s embryo transferred to her! But that seems likely.

Several month later, in April 2019, CHA staff asked the Manukyans to come into the clinic for some “routine quality control” testing, and to have a cheek swab DNA test completed. Why? Oh, no reason. Except we now know that the testing was anything but routine. Instead, the clinic was surreptitiously working to determine who were the genetic parents of the twins born to the New York couple. The Manukyans were a match! The couple was soon informed — in person, with a mental health professional present — that they (surprise!) had a genetic child recently born to another woman in New York. Congratulations, right? Well, talk about shocking news.

Now We Get To The Positive Part

So this story seems pretty traumatic all around so far. But I had a chance to speak with New York Attorney Eric Wrubel for a different, more positive, perspective. (Wrubel has previously been a guest on the podcast I co-host, I Want To Put A Baby In You, for his landmark family law cases in New York State.) During the Manukyans’ press conference, Anni referenced Wrubel and his work representing her and her husband in the process of obtaining legal parental recognition of their surprise son.

When I spoke to Wrubel, his focus was not on the clinic’s actions or inactions. Instead, he was proud to report that New York law has developed to such an extent as to fully understand the legal implications of assisted reproductive technology, what had occurred, and to properly recognize the legal parents of the child. While the Manukyans were not legally recognized as the parents of their son until he was almost six weeks old, that is frankly lightning speed when it comes to the law’s usual pace. Wrubel described how New York law has evolved to recognize that families don’t always come in the traditional configuration — but families are formed in many different ways, and technology aids many families. Wrubel further described the lengths he and his clients went to in order to finalize the unification process in a manner that prioritized the well-being of the children. This included implementing a transition plan designed by a mental health professional. It is good to hear Wrubel’s report that, among the mess, professionals were there to help the victims and focus on the well-being of the children.

Perspective

By contrast, a similar situation previously occurred with a very different outcome. In Italy, in December 2013 (not that long ago!) two women — with similar names — underwent embryo transfer procedures on the same day at the same clinic. “Woman 1” didn’t become pregnant, but “Woman 2” became pregnant with twins. During the pregnancy, it was discovered that Woman 1 and her spouse were the genetic parents of the twins carried by Woman 2. Woman 2 gave birth to the twins and fought to keep the babies. Under Italian law, surrogacy is illegal, and a woman who gives birth to a child is the legal parent. As a consequence, the Italian judge ruled against Woman 1 and her spouse, and declared the birthing party and her spouse as the legal parents of the children. While issues of genetics and parenthood are complicated, most of us can likely agree that that was not the just outcome — resulting in Woman 1 and her spouse as genetic donors against their wishes and their genetic child being raise by another couple.

So at least that didn’t happen here. It is good to see a little ray of hope, that some elements — correcting the legal parental presumptions — were handled professionally and expeditiously. Thanks to Wrubel and New York law, a terrible situation was not made even worse.

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

Holding placards and singing songs denouncing the country’s finance minister, about two dozen union leaders representing teachers, nurses and other government workers gathered in front of the finance ministry offices in central Harare. A few police officers monitored the protest from a distance.

Leaders of the civil servants union said government workers would be unable to continue showing up for work if their salaries are not adjusted to match inflation.

“We have become slaves of the government. We just came as the leadership today but we will paralyze government operations if our demands are not taken seriously,” said Cecilia Alexander, leader of the workers’ union.

The inflation rate increased dramatically from 97% in May, according to figures released by the government’s statistics agency Monday.

Civil servants earn an average of 500 Zimbabwe dollars (about U.S. $50), just enough to buy 80 liters (21 gallons) of gasoline. They have rejected a “cushioning allowance” offered by the government that would have given an added 97 Zimbabwe dollars a month to each of the more than 300,000 civil servants.

The government has said it is reviewing the salaries.

Zimbabwe’s economy has been worsening in recent months, with prices of basic items such as cooking oil rising above the means of many while bread, gasoline, electricity and water have become scarce. Inflation accelerated following last month’s decision to re-introduce a Zimbabwean currency as the country’s sole legal tender.

Zimbabwe had not used its own currency since 2009 when the Zimbabwe dollar was abandoned after hyperinflation reached 500 billion percent. Since then the country operated with the U.S. dollar and other foreign currencies until the return to the Zimbabwean currency.

The re-introduction of the Zimbabwe dollar was praised by President Emmerson Mnangagwa as a “return to normalcy.” But for many who lost savings and pensions a decade ago, the move triggered widespread fears of a return to the hyperinflation days.

Hunger is growing in Zimbabwe, with a report on rural food vulnerability released Monday showing that 59 percent of the rural population, representing just over 5.5 million people, is food insecure due to drought and the unaffordability of basic food items.

Some have resorted to selling livestock and land, spending savings, withdrawing children from school and begging, according to the report compiled jointly by the Zimbabwe government, U.N. agencies and aid organizations.

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