Author: TSA Press

What if I told you that a substance, alcohol, is the direct cause of more human death and destruction than all other illicit substances combined and yet, remains readily available for legal purchase, including at drive-thru locations? What if I also told you that once upon a time the United States government, mostly for noble reasons, tried to ban alcohol, but that the promised cure of prohibition ended up being worse than the disease? This information alone should undermine every current argument justifying national prohibition policies of substances demonstrably less harmful to society than alcohol, right? Wrong.

Unfortunately, many in the United States refuse to learn the lessons of history and nevertheless insist that government authoritarian action in the form of a heavy handed and overtly discriminatory criminal system is the only solution to combatting drug use. However, although prohibition has largely remained a partisan issue (with conservatives generally supporting it, and liberals denouncing it), a growing chorus of right-wing figures such as Newt Gingrich are openly acknowledging the glaring faults of drug prohibition. As Newt correctly points out: “More than half of all people in federal prisons for drug offenses have no violent history, and more than one-quarter have no prior criminal history.” In other words, we have a system that locks up a lot of people, not because they have violated another, but simply “because we’re just mad at them” for selling products in high demand among the citizenry.

Moreover, conservative stalwarts such as Charles C.W. Cooke have taken note of the many terrible consequences of prohibition:

What are we to make of the fact that spending on prisons is second only to Medicaid as the fastest growing area of state budgets. What are we to make of the violence that has been done to privacy rights and the Fourth Amendment? What are we to make of the undermining of the important principles of federalism and of enumerated powers? Are we to assume that these are just minor downsides to a worthwhile program? Or are we perhaps to recognize that there is so much on the other side of the ledger already that we are getting almost nothing for our buck?

Most encouragingly, organizations made up of individuals who have worked in law enforcement are being created to inform the public that “drugs — even hard drugs — do much less harm to Americans than does the drug war.”

If so much consensus can be found acknowledging the problems with prohibition however, the question arises: Why do we as a society continue with such a failed/problematic policy? The answer, of course, includes many details. However, it is simply undeniable that, from the very beginning, the main force driving prohibition was/is racism. When studying the history of prohibition, author Johann Hari discovered that it came about in the middle of a race panic here in the United States:

After the Civil War, Reconstruction failed, and what you had were African Americans and Chinese Americans who—rightly—were pissed off. At various points they showed their anger—in fact, given how extreme their oppression was, it’s surprising they didn’t show a lot more anger. Many white Americans explained this growing rebelliousness at the start of the 20th century by saying that African Americans and Chinese Americans were forgetting their place, using drugs, and attacking white people. If this sounds bizarre, that’s because it was.

The official statements are extraordinary. A typical one said, “The cocaine nigger sure is hard to kill.” Sheriffs across certain parts of the United States increased the caliber of their bullets because they believed African American men were taking cocaine and ravaging and attacking white people. The main way I tell about that in the book is through the story of how the founder of the war on drugs, Harry Anslinger, played a crucial role in stalking and killing Billie Holiday, the great jazz singer, which blew my mind when I first learned it.

Using prohibition as a means to legally attack and harass minorities has proceeded into the modern era. As John Ehrlichman, the former domestic-policy advisor to former president Nixon would later admit:

The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people. You understand what I’m saying? We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.

Of course, not everyone who supports prohibition today is a racist. However, it has always been impossible to deny that the policy of prohibition results in a uniquely racist impact. For example, the war on drugs is being waged almost exclusively in communities of color despite the fact that studies consistently show that people of all races use and sell drugs at remarkably similar rates.

Adding to the tragedy and horror of prohibition is that the continued fear mongering and lying about drugs and drug users by prohibitionists is preventing the implementation of other, better policies. Policies outside of prohibition have a proven record of accomplishment in driving down rates of drug use and societal harms associated with drugs. This is perhaps the most important point to make, which is that the alternatives to prohibition have been tried, spanning decades of time, and the results unambiguously demonstrate the superiority of these alternatives.

If you want to reduce heroin addiction for example, there is no greater model to follow than that of Portugal and Switzerland. Almost two decades ago, these countries took the exact opposite approach to prohibition here in the United States and instead focused on reconnecting heroin addicts with society and turning their lives around. The results were that unlike here, rates of broader addiction, overdoses, and property crimes all dropped dramatically. Put simply, there is no legitimate or moral claim for maintaining prohibition today that can be backed by evidence, while centuries of evidence can show that prohibition is not only a racist, costly failure, but a direct cause of more harm than drug use could ever create.

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.

The Affordable Care Act and its associated health insurance exchanges have been a major target for Trump Administration policies meant to undermine the 2010 law.

Moves like the cutting funding for consumer education on open enrollment, reducing cost sharing subsidies, zeroing out the individual mandate penalty and the emergence on non-ACA compliant short-term health plans have led to some fretting about whether the exchanges and the overall law can survive.

Last year, represented a record high in insurer profitability on the exchanges and 2019 average premiums fell slightly as a result. Still – for now at least – it appears that insurers offering plans on the individual exchanges continue to be profitable.

A Kaiser Family Foundation analysis of the individual insurance market found that in the first three months of 2019, medical-loss ratios for insurers landed at 73 percent.

While that number could rise through the rest of the year, the percentage is lower than the first few years of the ACA and signal an upward trajectory for participating insurers.

KFF also analysed average gross margins on a per member per month basis, essentially how much premiums outstrip claim costs for each enrollee.

The $134.30 individual gross margins for the first three months of 2019 are higher than any other year of the ACA’s existence other than 2018.

When it comes to which insurers are standing out, the KFF found that Blue Cross Blue Shield affiliates have had consistently higher gross margins than competitors. For the first quarter of 2019, the gap in average gross margins per member per month was $56 between Blue and non-Blue plans.

Average monthly premiums fell from $490 to $488 between 2018 and the first part of 2019, while claims have risen from $336 to $354.

That increase in claims suggests that the repeal of the individual mandate penalty did not lead to the mass exodus of healthy members from the insurance exchange that some observers feared.

“Taken together, these data suggest that the individual market risk pool is relatively stable, though sicker on average than the pre-ACA market, which is to be expected since people with pre-existing conditions have guaranteed access to coverage under the ACA,” the report states.

“(E)arlier concerns that the market would collapse or insurer exits would lead to counties with no coverage available at all have proven unfounded.”

To be sure, structural problems exist within the ACA exchanges, especially in rural areas where there is limited competition among insurance providers, but KFF’s data illustrates that the program remain stable for the time being.

However, the overall status of the ACA remains in flux after U.S. District Court Judge Reed O’Connor ruled that the sweeping law was unconstitutional last December. The statute remains in place during the appeals process, which is headed next to the 5th U.S. Circuit Court of Appeals.

Picture: tomertu, Getty Images

A night on the town for a few judges turned sloppy and then violent and now one of the judges who was shot in the altercation is facing charges.

Unraveling this story is a little difficult but from what is known is that Judge Andrew Adams and Judge Brad Jacobs, both of Southern Indiana’s Clark County, were in Indianapolis for a judicial conference and decided to take in the big city. From the IndyStar:

After hopping around several Downtown restaurants and bars late April 30 and into the morning hours of May 1, the judges tried to enter the Red Garter Gentleman’s Club, police said, but it was closed. They went to the nearby White Castle instead.

I’m going to give them the benefit of the doubt and assume they were playing some “color-themed establishment bingo” and not anything untoward. At some point, it’s not entirely clear when, Judge Sabrina Bell joined the group and all three were chilling in the White Castle parking lot when everything got ugly. Two guys in an SUV pulled up and got into a fight with Judges Adams and Jacobs:

During the struggle, one man raised to his knees, pulled a gun from his waistband and shot Adams in the stomach. Nearby, Jacobs and another man were wrestling. The other man held onto Jacobs, police said, when the shooter walked up to Jacobs and shot him in the chest. After Jacobs fell to the ground, one man held him down while the shooter held the gun against Jacobs’ chest and shot again.

Then the two men drove away, leaving the judges behind.

The police and prosecutors are keeping details frustratingly tight around this case so there’s no disclosed motive for the fight, but what we do know is that the shooter and his accomplice have been charged… but so has Judge Adams. The judge is facing “seven counts of low-level felony and misdemeanor charges, including two counts of Level 6 felony battery.” Judge Jacobs faces no charges.

The whole thing is an even bigger mess because prosecutors empaneled two grand juries and put up firewalls between individual prosecutors so everyone was able to be offered immunity in inquiries where they were victims without impacting the grand jury considering charges against each as perpetrators. All three charged men are free right now — for some f**king reason — and are expected to turn themselves in this week.

Conferences, man. I’m starting to get nervous about my next big legal tech show. I hear the EPCOT Center can get really rough.

Indiana judge is indicted for his alleged role in his own shooting at White Castle [IndyStar]

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.

In today’s increasingly intricate international legal and regulatory environment, investigations are more crucial — and complicated — than ever. We want to take a deeper dive into the investigations space in all its variety: regulatory, workplace, due diligence, cybersecurity, and all the rest. We are asking all of you out there in the corporate world who are involved in investigations to share your insights. Whether you are in-house counsel,  an investigations department attorney, a compliance professional, or play some other role in the investigation process, we want to hear from you.

The Varsity Blues scandal has already sunk a Biglaw managing partner and may end up sinking a whole law firm’s role in the case based on the most recent flurry of documents in the Lori Loughlin and Mossimo Giannulli criminal case.

When you have over 2500 attorneys, there’s bound to be a conflict or two. That’s what prosecutors claim is afoot with Latham & Watkins, which are representing Loughlin and Giannulli in their admissions bribery case.

At issue are reports that USC, the school where little Aunt Becky got in, then allegedly, illicitly, and promptly declared that she wasn’t going to go to class, is threatening to sue Loughlin and Giannulli for undermining their academic reputation. Entirely unrelated, USC has tried and failed to make it a whole 24 hours without sticking its reputation into the business end of a meat grinder.

Regardless of whether or not USC had a reputation to compromise, the threat of a lawsuit has got prosecutors on the move because Latham & Watkins has also represented USC and the government smells a potential conflict.

Latham, for its part, doesn’t see a problem:

They argue, “USC is not a party to this case, and its status as an alleged victim does not automatically trigger a conflict of interest requiring Latham’s withdrawal. Latham will avoid any direct adversity with USC by relying on co-counsel to handle any cross-examination of USC witnesses and any restitution proceeding in which USC’s financial interests are directly at stake.”

That’s all well and good, but is Latham really able to do its best work if it can’t cross-examine the USC witnesses? Presumably that’s going to be some key testimony.

For now, everyone on the defense side is comfortable with this arrangement. But if USC files suit or some USC witness testimony takes a weird turn, things could get messier than a Varsity Blues kid’s SAT math section.

Why Lori Loughlin and Mossimo Giannulli’s law firm is speaking out about ‘baseless’ accusations [Deseret News]
Lori Loughlin and Husband Claim Criminal Charges Are ‘Baseless Accusations’ [The Blast]

Earlier: Biglaw Firm Ditches Partner Nabbed In College Admissions Scandal

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.

* Joe Biden hires Covington & Burling as campaign counsel. At this rate, that means they’ve got some solid business until about, say, South Carolina. [National Law Journal]

* Ironically, Law and the Business of Baseball class taught by Mets fan. [MinnPost]

* This government lawyer is a “Replikate” which is a term that I now desperately wish I’d never learned. [GMA]

* Philadelphia has finally gotten its electronic court filing system back after six weeks. Finally, the city’s all-important bird law docket can be cleared. [Law.com]

* … and now Georgia’s system is slammed by Ransomware. [Ars Technica]

* In a victory for Fair Use, Andy Warhol’s series of Prince works ruled transformative. [Law360]

* Justin Fairfax has stepped away from MoFo. [Washington Post]

Earlier this week, thanks to the recently released National Law Journal 500 ranking, we found out which U.S.-centric Biglaw firms were the biggest of them all in terms of headcount. As a companion piece to the NLJ 500, today we’ve got the NLJ Women’s Scorecard, a ranking of the percentage of female attorneys and percentage of female partners at the largest 350 firms in the country.

For this ranking, both equity and nonequity partners were counted as partners, while nonpartner or “other” figures include special counsel, of counsel, and other staff attorneys. Temporary and contract attorneys aren’t included in the count. In the event of a tie, the higher rank is awarded to the firm with more female equity partners.

This year, 271 of the nation’s 350 largest law firms by head count answered the survey for the Women in Law Scorecard, which ranks the nation’s largest law firms by representation of women attorneys. Among all 271 firms surveyed, women comprised 36.5% of 141,466 attorneys in 2018. But the equity partnership ranks were only 23.5% women, out of 59,000 total partners. Women comprised 47% of the 67,166 associates at all 271 firms.

Without further ado, here is the NLJ Women’s Scorecard Top 10 for 2019:

1. Berry Appleman & Leiden
2. Fragomen
3. Kubicki Draper
4. Kaufman Borgeest & Ryan
5. FordHarrison
6. Constangy Brooks Smith & Prophete
7. Littler Mendelson
8. Foley & Mansfield
9. Hanson Bridgett
10. Kelley Kronenberg

You may be wondering where the largest, namebrand Biglaw firms appear on this list. While the majority of the top 30 firms on the scorecard have a head count of fewer than 300, there were some exceptions, with Littler, Ogletree, Jackson Lewis, and Lewis Brisbois all making an appearance in the top 30. Other firms, like Ropes & Gray, O’Melveny, and Thompson Coburn made major strides in the right direction when it came to “not just about bringing women into the firm, but keeping them.”

Congratulations to all of the firms that succeeded in boosting their ranks in this year’s Women’s Scorecard by placing women in leadership roles and fostering a pipeline of female and diverse attorneys.

You can check out the rest of the rankings here.

The NLJ 500: Women’s Scorecard Chart 2019 [National Law Journal]
The NLJ 500: Climbing Mountains, Cracking Ceilings [National Law Journal]

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.

Last month, we learned that Brett Kavanaugh was hiring Amy Chua’s daughter as a Supreme Court clerk. That came as no surprise to regular readers of Above the Law. It was, potentially, a surprise if you made the critical mistake of believing Amy Chua, who promised that Amy Chua’s op-ed defense of Kavanaugh had nothing at all to do with her daughter’s career prospects. It might have come as a surprise if you made the critical mistake of believing Amy Chua’s daughter, who assured people on Twitter that she would not be clerking for Kavanaugh “anytime soon” because of her Army commitments. But hopefully, you were neither ignorant nor gullible enough to believe either of those things.

But, Amy Chua was not the only person who led a spirited defense of the ethically challenged Kavanaugh after he was nominated to the Supreme Court. And it turns out, Amy Chua’s daughter is not the only person who will professionally benefit from “early adoption” of a man who would go on to be credibly accused of attempted rape. A tipster brought this to our attention:

ATL has already posted about Kavanaugh’s 2021-2022 hires, but with respect to one hire in particular, you might be interested in the unseemly fact that Kavanaugh hired Athie Livas, the very YLS student who spearheaded (and is listed as the very first name in the particularly vapid YLS pro-Kavanaugh open letter prior to his confirmation. It’s unusually convenient and blatantly un-meritocratic that many of Kavanaugh’s first clerk hires (Chua-Rubenfeld, and now Livas) appear to be quid pro quo exchanges for their public displays of support rendered during his confirmation.

To refresh your memory, here’s the referred to Kavanaugh support letter. You can pull it up on whitehouse.gov, because remember, these are the kinds of letters Trump and the Republicans used to defend Kavanaugh, who would later go on to have 83 ethics complaints lodged against him and then dismissed because nobody but Congress can hold a Supreme Court justice accountable. Here’s part of that letter, which is indeed “particularly vapid.”

Judge Kavanaugh is eminently qualified to serve as a Supreme Court justice. Judge Kavanaugh, a graduate of Yale College and Yale Law School, is one of our nation’s most distinguished jurists. In his twelve years of service on the United States Court of Appeals for the D.C. Circuit, he has demonstrated a principled approach to interpreting the law. He has reached legal conclusions free of political partisanship. Judge Kavanaugh has devoted his professional life to upholding the rule of law and our Constitution.

The Brett Kavanaugh confirmation process is a stain upon Yale Law School. To be sure, it’s a stain upon the United States Senate — Lindsey Graham and Susan Collins especially — and a terrible reminder of what this country will let privileged white boys do to women. But Yale Law School’s reflexive support for this guy and defense of his career-long partisan hackery on the theory “he went to Yale, tho,” is really shameful.

Yale, I’m sure, would like people to forget its role, and there are a lot of people out there who would gladly oblige them. But they can’t get away from it, because Kavanaugh keeps handing out clerkships to Yale students who stood for him like he’s trying to quickly pay off some “baseball ticket” debt. The man is unethical to his core, and Yale students keeps benefiting from that.

In five years, in 10 years, Yale will get its wish. Kavanaugh will be a well-established nightmare, but most people will forget how Yale helped him get over. Most people will forget the name of Amy Chua’s daughter or this vapid Kavanaugh stan, and they will go on to have successful careers in law or politics. And maybe one day a future generation of Yale faculty will have the opportunity to shamelessly support their nominations to the federal bench. And the only person who will remember the ethically challenged way these two got their start will be me, only I’ll be old and washed-out and trying to shove “literature” in your hands as you wait at the crosswalk for the light to change.

But I will remember.

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.

Roy Moore, who got tossed from the Alabama Supreme Court twice and then managed to lose a statewide election to a Democrat — an accomplishment that rates right between cold fusion and enjoying a transcontinental flight in coach — is running for Senate again because he terrifyingly believes Alabama might just give him another shot. Unfortunately for Moore, all those allegations that range from harassment to molestation of underaged girls are still out there even though he’s assured the public that he’s cleared it all up.

The crux of Moore’s claimed exoneration is a polygraph test that he passed when he was trying to prevent the state from certifying the election he had already lost to Doug Jones. He could have taken the test, you know, before he lost and maybe waved it around in an effort to get people to not abandon his candidacy like vegans from a pig roast, but no one’s accusing Roy of strategic brilliance.

But now that test is potentially coming back to haunt him because attorneys for Leigh Corfman, a woman who claims Moore molested her when she was 14 and he was 32, say they weren’t given the test results when they deposed Moore in a defamation suit Corfman brought against Moore… but now they have some serious questions to ask about it.

“To the extent that the results of the polygraph examination administered on him are reliable, Mr. Moore likely failed,” the motion filed Monday stated.

The motion further argues that the test itself was used as the basis for more defamatory claims against the woman.

For his part, Moore says he passed:

In an email statement Monday to AL.com, Moore said, “According to the deposition taken of my polygraph examiner, his findings that I was telling the truth about never knowing Ms. Corfman are backed up by two qualified examiners of this state. My examiner was the only examiner to administer the test. This is another way of delaying her testimony which they have avoided thus far. To our knowledge, Ms. Corfman has not taken a polygraph and has not submitted to testimony under oath before a court reporter. This comes about after my announcement to run for the US Senate after a year’s delay in court. Why doesn’t the press ask her if she has taken a polygraph and why she won’t testify?”

This is where we’re obligated to point out that polygraph tests are pretty much junk science. Yet the mystique remains and now we have Moore boasting his test results and challenging Corfman to take one, Corfman’s lawyers pointing out that Moore failed, yet not putting Corfman up for one, and the Alabama courts — correctly — not letting any of this trumped up Magic 8-Ball stuff get into court.

Amidst all this, Moore is still running for the GOP Senate nod against Tommy Tuberville. Oh my, he’s going to win, isn’t he?

Roy Moore ‘likely failed’ polygraph test, Corfman says [Al.com]

Earlier: Remember That Time Brett Kavanaugh Said Polygraphs Are Important In Making Hiring Decisions?
Polygraphs Are Dumb But Chuck Grassley’s Going To Drag Us Down This Rabbit Hole Anyway