Author: TSA Press

During last night’s Democratic debate, Senator Kamala Harris beat former Vice President Joe Biden about the face and neck over his views on segregation and busing. Back in the 1970s, “busing” was one way to integrate schools that Joe Biden, generally speaking, opposed in part and supported in part. During the debate, Biden literally asked to be saved by the bell, saying to no one in particular that “my time is up.” But after the debate, in the spin room, Biden tried to make a fine distinction between de jure segregation, which Biden opposed, and de facto segregation. Biden didn’t specifically say he supported de facto segregation, but he seemed to be suggesting that the remedy for that was not a power of the federal government. Or something.

At a surface level, this can sound like a debate about the past, and that’s certainly how Biden and white men of a certain age who agreed with Biden back in the day want you to think of it. But this debate is very much about the present, and what Biden will do, or Harris will do, to stop the very real segregation that we still experience today.

First we must define our terms, and lawyers know that the first term to understand here is “with all deliberate speed.” That’s the language from Brown v. Board of Education II. The original Brown decision ordered desegregation, but it didn’t say how or, most importantly, when. Brown II came out with some of the details and included the line that schools should be integrated with all deliberate speed.

Well, if you give segregationists a soft deadline, they’ll find a way to never get around to it. Fast forward to the 1970s and, guess what, many schools were not integrated.

The 70s-era fight for desegregation centered around “busing.” After Brown, segregationists — from the North, South, East, and West, mind you — pretty quickly figured out that you didn’t really have to integrate schools if you had one school close to where all the white people lived in your town, and another school close to where all the black people lived in your town. Busing was the process where black kids from “the wrong side of the tracks” would be put into white schools, and occasionally (though more rarely) white kids from “the good part of town” would be sent to schools in black areas.

As you can imagine, some white people — some of whom I’m sure didn’t have “a racist bone in their body” — had a serious problem with this. And so we had more Supreme Court cases. The most famous of these is probably Swann v. Charlotte-Mecklenburg Board of Education, decided in 1971. There, a unanimous Court ruled that federal courts could impose “equitable remedies” upon school districts which violated orders to desegregate. Essentially, Swann allowed busing to be a thing.

But, racism never takes a defeat lying down. For white people, the obvious solution to desegregation and busing was what we now call “white flight.” White people abandoned “urban” areas and fled to the surrounding suburban counties, where they could have their whites-only schools without meddling from the government.

That led to another Supreme Court busing case, Milliken v. Bradley. There, Detroit wanted the right to bus children — kindergartners, actually — to surrounding districts, in the name of desegregation. That proved to be a bridge too far for the Burger Court. The Court ruled 5-4, over a dissent from Justice Thurgoood Marshall, that white suburban schools could not be forced to desegregate unless it could be shown that the district lines were drawn, on purpose, with the goal of segregation. The decision also emphasized the importance of “local control” over these kinds of state decisions, since technically the NAACP was suing Michigan Governor William Milliken to force him to desegregate schools in suburban Detroit.

And… that explains Detroit, actually. Know that every time you crap on Detroit, what you are doing is victim-blaming black people because white “working class” folks with good jobs at General Motors FLED DETROIT so that their kids wouldn’t have to go to school with black kids, and the Supreme Court said that was cool.

In any event, Milliken is how we get to the important legal distinction between de jure and de facto segregation. De jure segregation is segregation imposed by the law. De facto segregation is the kind of segregation that, ALLEGEDLY, occurs just by happenstance. You know, like white people are just walking around, minding their own business, and whoops, they trip on some racial segregation in schools. “Oh noes,” one imagines these white people saying. “I haz whites-only schoolz now? Whoopsie!” By the 1970s, it was easy for people to come out against de jure segregation; the battle line was over de facto segregation, because the Supreme Court had made de facto segregation a thing that states were allowed to do under the rubric of “local control,” which was a less rebellious way of talking about “state’s rights.”

Enter Joe Biden. Biden was first elected to the U.S. Senate in 1972, when I was minus-six according to the anti-choice lobby. He was right in the middle of the busing debate. And his record on busing is not great. From Mother Jones:

During one debate on the Senate floor, Biden said, “I have become convinced that busing is a bankrupt concept,” as he backed an anti-busing measure sponsored by avowed segregationist Sen. Jesse Helms. When a federally mandated integration program was set to begin in Biden’s home state in the late 1970s, the Delaware senator co-sponsored an amendment, tacked on to an education appropriations bill, which would have limited courts’ ability to order busing and imposed a halt on all pending busing orders around the country. The Washington Post at the time called it “the most far-reaching antibusing measure to receive serious consideration in the Senate.” (It failed by a slim margin.)

What Kamala Harris was asking Joe Biden to do during the debate was explain, apologize for, or disavow his own actual position here.

Instead, Biden defended it. From The Hill:

“I supported busing to eliminate de jure segregation,” he told MSNBC after the debate. “But what we’re talking about is whether or not the Department of Education, as opposed to the courts, could order de jure segregation, meaning segregation imposed by law.”

Yes, we know that Biden doesn’t believe in legally mandated segregation. The question is whether he still believes in allowing schools to functionally segregate without interference from the federal government. Does he agree with the majority opinion in Milliken, or does he agree with Thurgood Marshall’s dissent? That is the question.

Like I said, the Biden people want you to think that this is a conversation about the past, but it’s actually a conversation about now, because de facto segregation is exactly the school segregation we have left. And, as most blacks and Latinos already know, it’s the “liberal” states, the ones Democrats control, where black and brown students face some of the most intense segregation. From the New York Times:

White students now account for less than half of the nation’s public school students, and Latinos are the most deeply segregated racial group in schools, according to the researchers.

While segregation was once most severe in the former states of the Confederacy, in 2016 it was in four liberal states — New York, California, Maryland and Illinois — that black children were most likely to attend intensely segregated schools. Latinos were most likely to attend intensely segregated schools in California, New York, Texas and New Jersey.

Nationwide, 42 percent of Latino students and 40 percent of black students attended schools where less than 10 percent of their peers were white in 2016. Those numbers have been rising since 1988.

We are in this situation in large part because of Milliken and polices like the ones Joe Biden has supported in the past. It is completely fair to expect him to have an answer for how he’ll address this present injustice in the future.

It’s also fair to ask Kamala Harris the same question. I don’t think she’s proposing to bring back busing, and even if she wants to, Milliken remains terrible but unchallenged precedent. But she pretty clearly favors using the federal government to readdress the ONGOING problem of de facto school segregation, while Biden has been against using federal power to address that problem since 1972.

Debates usually don’t matter. But this debate does matter. This is a substantive problem for Joe Biden, and at some point he’s going to need to address it. If he’s going to run on the nostalgia of being an old white guy, at some point he has to address what old white guys believed about the integration of our schools.

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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.

Yesterday, the Supreme Court put the kibosh on the proposed 2020 census question that would have asked respondents about citizenship. In a wild Frankenstein’s Monster of an opinion, Chief Justice Roberts basically couldn’t convince himself to ignore all the damning “hey this is a pretext, don’t tell nobody” documents out there. The case was remanded but the bottom line was there’s really no way to put that question on the 2020 census.

In response, Trump said he’s asking for the census to be delayed:

Constitution nerds might remember that the census is one of those things mandated by the founding document that can’t be changed up on a whim by a president trying to find a way to drive down representation. In theory, someone will inform him of this fact and the census will go forward anyway.

But Professor Tribe thinks the mere ask could be an ominous sign:

While it’s hard to imagine that one would fly, there’s almost as much harm in asking the question than in getting the answer. If the country even starts joking about constitutional mandates becoming negotiable, then all sorts of unappetizing stuff lands on the table.

In one of the all-time greatest Simpsons songs — “I’m An Amendment To Be” — the anthropomorphic flag-burning amendment explains that “if we change the constitution…” and the boy responds “then we could make all sorts of crazy laws!” But if we don’t think we need amendments… or even statutes anymore. Hoo boy.

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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.

I attended a legal networking event last night so I thought I would write about my general experiences at these events. Networking is a necessary evil when it comes to practicing law. Whether you are a solo practitioner, at a large firm, or working for a government agency, networking is an important skill to master. There is always the temptation to avoid these events because who really wants to spend their evening talking to strangers about their professions. Here are some techniques that have helped me get something out of networking events.

1. Avoid Clustering

The easiest thing to do at a typical networking event is to cluster with your friends and colleagues into a small area. Not only will you make it impossible for others to feel like they can infiltrate your group, but you’re not really going to get anything out of talking to people you spend most of the day with anyway. I know it’s in most people’s nature to want to stay in a safe, non-threatening group setting, but putting yourself out there and making new connections will be the best thing you can do at a networking event.

2. Be Friendly

I think the first thing I did last night was to remember to put a smile on my face and to be friendly. I know you are probably not going to meet your new best friend or future partner at this event, but you can likely make a new LinkedIn connection and you never know what that connection could lead to. By being friendly and willing to talk to someone you’ve never met before, you are opening yourself up to the possibility of getting a new case or meeting someone in a different practice of law who may even refer something to you or your firm in the future.

3. Monitor Your Alcohol Intake (If You Partake)

The worst thing you can do at a networking event is to make the wrong impression on a new connection. A lot of these events will offer you a free open bar. As tempting as it is to take full advantage of free libations, you have to remember to pace yourself or even limit yourself to just a drink or two. Remember, you’re not going to impress anyone by being the lawyer who drank the most. In fact, the only impression you will make is that you were that person who everyone will talk about at the next networking event.

4. Go into the Event with an Open Mind

The funny thing about these events is that if you are willing to take a risk and speak to someone you don’t know; you may learn something. Contrary to popular belief, I think that lawyers are actually quite interesting and intelligent people. You may end up talking to someone who practices a different type of law than you, and it may catch your interest enough that you think about changing career fields. Or even more importantly, you may end up speaking to a hiring partner or a judge who you have heard about. You never know what can happen at these events, so take the risk and go into it with an open mind.

We all know networking is a necessary evil. So, if you avoid clustering, be friendly, monitor your behavior, and go into these events with an open mind, you will be able to get something out it. Whether it’s a meeting a new friend or establishing a connection with a powerful judge or partner, there are always opportunities at networking events. Don’t be awkward and go for it.

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Peter S. Garnett is an attorney at Balestriere Fariello who represents clients in trials, arbitrations, and appeals. He focuses his practice on complex commercial litigation and contract disputes from pre-filing investigations to trial and appeals. You can reach Peter at peter.s.garnett@balestrierefariello.com.

When you think of a kimono, do you think of Kim Kardashian?

Probably not, because kimonos are a traditional garment dating back to at least the 8th century. We pretty much all know what they look like. And they do not look like Kim’s new line of bodywear. Yet she’s trying to name her line “Kimono” because it starts with “Kim” and it’s a clothes thing… I guess.

As you might imagine a lot of people are concerned about this cultural appropriation:

But racial disparagement isn’t an impediment to trademark these days so it’s only the court of public opinion that could convince the budding lawyer to change course and find a new name for her wearable wares.

Unfortunately, the counter-intuitive world we live in means Kardashian’s tenuous claim upon the “kimono” mark is potentially stronger because people are upset about it.

“By creating a social media uproar she has actually strengthened the case that people will recognize the word ‘Kimono’ with her own line of clothing and her brand,” [trademark attorney David] Leichtman said.

Of course, not everyone is equally suited to create as much impact as Kardashian is in a single tweet, considering her 61 million followers.

“The reason why Kim Kardshian is uniquely positioned to acquire secondary meaning is because consumers now know to connect the brand to her,” explained Joel MacMull, an intellectual property attorney at law firm Mandelbaum Salsburg. “It’s bonafide acquired distinctiveness, people will say, ‘I know ‘Kimono’ and I know it relates to Kim Kardashian.’”

Getting people angry at a weak mark should not be the pathway to turning a weak mark into a strong mark. That’s just legally sanctioned upward failing. And yet here we are.

Why the backlash over Kim Kardashian trademarking ‘Kimono’ strengthens her legal case [Yahoo Finance]

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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 2017, FCC head Ajit Pai came under fire for filling a new “Broadband Deployment Advisory Council” (BDAC) task force with oodles of industry representatives, but few if any consumer representatives or local town or city officials. Not too surprisingly the panel saw a significant amount of controversy, several protest resignations, and the arrest of a one-time panel chair for fraud, but the panel itself never actually accomplished much of anything to address the problem it was created for.

This week more data emerged on the details behind the arrest of Pai’s former council head Elizabeth Ann Pierce. Pierce, the former CEO of Alaskan telecom provider Quintillion, is headed to jail after a pretty elaborate fraud scheme that bilked numerous investors out of some significant cash. Pierce effectively conned numerous parties out of millions by forging sales contracts, used a significant chunk of the money for “personal expenses,” then hid the scope of the fraud from her own colleagues and other Quintillion executives:

“Between May 2015 and July 2017, Pierce engaged in a scheme to induce two New York-based investment companies to provide more than $270 million to construct the Quintillion System by providing them with eight forged broadband capacity sales contracts and related order forms under which Quintillion would obtain guaranteed revenue once the Quintillion System was built (the “Fake Revenue Agreements”).

Under the Fake Revenue Agreements, four telecommunications services companies appeared to have made binding commitments to purchase specific wholesale quantities of capacity from Quintillion at specified prices. The cumulative value of the Fake Revenue Agreements was approximately $1 billion over the life of the Fake Revenue Agreements. In reality, the Fake Revenue Agreements were completely worthless because Pierce had forged the counterparties’ signatures.”

Just the person you want leading a council on fixing the broken US telecom sector, right?

Again, the council Pierce headed was supposed to help fix the broken US broadband sector and extend service to less connected areas, but hasn’t done much of anything. And the things the council has recommended teeter toward the absurd: like the time it suggested that companies like Google, Netflix, and Facebook pay a “tax” to ISPs to fund the broadband network investment telecom monopolies routinely refuse to do themselves (such a tax has been on AT&T’s policy wishlist for years, and is effectively what really began the entire net neutrality debate more than a decade ago).

In some areas, Pai’s FCC tenure has been ruthlessly efficient at neutering FCC oversight of natural telecom monopolies and giving those monopolies absolutely everything they want. In other instances it’s been plagued with an almost preternatural ability for absurd controversy, incompetence, and bizarre missteps. A commission tasked with doing something it refuses to do, headed by somebody now going to prison for fraud, certainly falls into the latter camp.

Former Head Of Ajit Pai’s Broadband Advisory Council Is Headed To Prison For Fraud

Earlier: The End Of The Open Internet: Cory Doctorow’s Op-Ed From The Future
State Judge Prefers Prior Restraint To The First Amendment, Orders Blogger To Delete Supposedly Defamatory Posts
Trump Thinks That The Government Can And Should Sue Internet Companies Because He Doesn’t Like The People Who Work There

“This is a ground breaking initiative that needs to be multiplied many times over,” noted the CEO of Gender Links that organised the mission with support from the African Women’s Development Fund, HIVOS and UN Women. “SADC has every possible permutation of electoral system and quotas to show what works. The answer are in our hands.”

The 2018 national elections in Zimbabwe witnessed a decline in women’s political representation at national and local level. Women’s political representation has fluctuated over the past ten years since 2008. Following the adoption of the new Constitution in 2013, the proportion of women in the national assembly increased from 14% to 32% and in the Senate from 33% to 48%, resulting in overall representation of 34% women. In the 2018 elections, this proportion reduced to 31%. Zimbabwe has a 30% proportional representation quota for women at national level which expires in 2023, raising concerns that even the limited gains made over the years may be lost. However, there is no legislated quota for women at local government level presenting a threat to women’s participation. With women occupying only 1 out of 4 political positions worldwide legislated quotas become an important tool to improve women’s representation in politics.

Gender equality is guaranteed in the country’s constitution. Zimbabwe has also committed to gender parity through regional and international instruments it is signatory to. The SADC Protocol on Gender and Development encourages member states to ensure equal and effective representation by women in decision-making in the political, public and private sectors, including the use of special measures.” On the other hand, the Sustainable Development Goals (SDGs) encourage states to “ensure women’s full and effective participation and equal opportunities for leadership at all levels of decision-making in political, economic and public life.”  It also calls upon states to “adopt and strengthen sound policies and enforceable legislation for the promotion of gender equality and the empowerment of all women and girls at all levels.”

The gender and elections experts will share lessons learnt from the implementation of the different electoral systems and how they work in their countries.

This meeting seeks to come up with a clear strategy for lobbying and advocacy to increase women’s political representation and participation at both the local and national level.

Post published in: Featured

Zimbabwe banned the use of foreign currencies this week, demanding that businesses accept only local currency.

This has triggered fears of a return to Robert Mugabe-era inflation, which peaked at over a million percent. That was brought to a sudden end in 2013 when the country allowed trading in foreign currencies, and inflation dropped virtually overnight to under 10%. The decision to allow trade in US dollars, South African rands and Botswana pula was widely credited for stabilising the country’s shambolic economy. The collapse was primarily driven by a massive fiscal deficit and the reckless printing of money by the Reserve Bank of Zimbabwe (RBZ).

Yesterday, the so-called Real Time Gross Settlement (RTGS) dollar strengthened to 11 to the US dollar from a low of 14 earlier in the week, according to some reports. Economist Eddie Cross, one of the architects of the new financial regulations and a former Movement for Democratic Change (MDC) parliamentarian, says the new measures are aimed at reducing the RTGS dollar to around four to the US dollar. That should also bring inflation down from its current level of about 100%.

It was this spiralling inflation, and the inability of ordinary Zimbabweans to survive in a country where hard currency became the preferred legal tender, that prompted the sudden move. Most Zimbabweans struggled to lay their hands on US dollars and rands.

Several measures were announced: the formation of a monetary policy committee similar to that of the SA Reserve Bank to make decisions on interest rates; an increase in short-term lending rates from 17% to 50%; and an increase in forex for trade on the inter-bank market.

Curbing forex opportunists

One of the purposes of these measures is to reduce the massive arbitrage opportunities available to those with access to foreign currency. Because the price of fuel is controlled at Z$3.50 a litre by the state, more than 2 000 heavy duty fuel trucks enter Zimbabwe every day to transit the country to states to the north and east, using the low fuel prices to fill their tanks.

It is reckoned that 2-3 million litres of diesel is being shipped out of Zimbabwe each day because of this pricing gap.

Fuel can be purchased in Zimbabwe for the equivalent of US$0.20 a litre and sold in Botswana for the equivalent of US$1.30 a litre – an easy path to quick riches for thousands of truck owners.

“Many people were borrowing local currency at 17% so they could engage in these arbitrage opportunities, but this had the effect of driving up prices for everybody else,” says Cross. “By hiking short-term interest rates to 50%, this makes it far less attractive for arbitrage. This should result in lower inflation across the board over the next few months. I think these measures are a step in the right direction, and we should see the parallel market rates for the RTGS dollar continue to strengthen.”

In February this year finance minister Mthuli Ncube instructed the RBZ to set up an inter-bank market for forex. The reserve bank resisted the instruction until President Emmerson Mnangagwa stepped in and insisted that the bank adhere to the Short Term Stabilisation Programme that had been adopted in 2018.

Tax threshold may be raised to offset the effects

The resurgence of inflation to 100% – though far less frightening than had been the case prior to 2008 – makes it increasingly difficult for families to survive. One of the measures being considered is to raise the threshold for paying income tax from RTGS$500 to RTGS$2 000, which would compensate for the effects of inflation.

Despite the rise in inflation in recent months, Zimbabwe has accumulated forex reserves of about US$1 billion and a fiscal surplus of US$2 billion.

Companies are required to remit 55% of forex earnings to the RBZ, amounting to about US$3 billion a year. Half of these retentions will now be made available on the inter-bank market as part of the package of stabilisation measures.

The RTGS was de-linked from the US dollar in September 2018, after which the exchange rate fell from RTGS$4:US$1 to 14:1 earlier this month. The improvement this week to 11:1 is perhaps an early sign that the measures are working.

‘A plan to hoover up forex’ from business

Other Zimbabweans are not so convinced. James Chidakwa, an opposition MDC member of parliament, says there are suspicions that this is a plan by the RBZ to hoover up all the forex from businesses.

“It will all end in tears for the rest of the people,” he says. “Not so long ago Ncube was asked what we should do about traders who ask for US dollars. His response was that it was perfectly legal for them to do so because we’re in a multi-currency economy.

“We have a two-headed beast running the country. How do businesses price their goods and services let alone replenish their goods?

“Another round of price madness has effectively been promoted. As MPs we are sandbagged with these people [those who run the country’s finances]. Ncube does not know what he is doing. This also reflects badly on the president’s judgement, by hiring someone who failed to run a bank [Ncube was chief economist and vice president of the African Development Bank] to turn around a failed state’s economy.”

The MDC yesterday said the new measures amount to the reintroduction of the dreaded Zim dollar, without addressing the economic fundamentals to support the local currency.

‘Nation ambushed’

“Despite government’s promise that it would introduce a new Zimbabwe currency in the next nine months while it addresses the fundamentals, the regime today just ambushed the nation and reintroduced the Zimbabwean dollar as the only legal tender in local transactions,” said Luke Tamborinyoka, MDC deputy national spokesperson.

“This means that the multi-currency regime, which provided some modicum of decency and predictability, has been thrown out of the window in favour of the volatile local currency that is not backed by adequate gold and foreign currency reserves.”

The trust and confidence that are vital to public willingness to transact in a new currency are not present.

“It remains to be seen how the market will respond to the madness, but the knee-jerk monetary policy introduced in the dead of the night is reminiscent of the rushed decisions of this regime,” said Tamborinyoka.

“The fuel price increases announced by Mnangagwa himself in the dead of night and that caused a furore in the country’s economy are a case in point.”

Ask any partner at any law firm to describe their book of business, and dollars to donuts they’ll give the same answer: a number. The number the lawyer reports will represent the amount of revenue that lawyer believes he or she is responsible for bringing into the firm. That magic “book size” is the industry standard, our shorthand for someone’s business generation success.

When headhunters reach out to lawyers, the first question they ask is, “What’s your portable book?” Generate enough revenue and you’ll make equity partner. Rake in enough revenue and you’ll be courted all over town. These are the numbers our careers rise and fall on. Revenue is the defining statistic of the private legal world.

Despite the legal industry’s obsession with revenue, the truth is revenue tells you very little about the strength of a book of business.

Not all practices are created equal, and not all books are created equal. Some practices command high rates, some low. Some practices get paid on every cent they bill, some have to expect substantial write-offs as a matter of course. Some practices collect on their invoices, others pray.

Most importantly, the amount of money a firm has to spend to get their revenue in the door varies wildly, and isn’t always simple to measure. This rabbit hole goes deep. There are countless books, CLEs, and consultants focused on the topic. But if you’re looking for the quick and dirty version, you take the gross revenue recovered as a direct result of an attorney’s business generation efforts and you subtract the labor costs, overhead, and other costs expended to produce that revenue. It sounds simple, but it’s surprisingly complicated to capture when you get into issues like calculating timekeeper cost rates, controlling for underutilized timekeepers, and fairly allocating overhead.

Another Tragedy of The Commons

I wrote a few weeks back on how law firms need to get smarter about tracking and allocating internal overhead. When firms turn a blind eye to exorbitant and anomalous uses of firm resources, partners are incentivized to rack up big expenses that benefit individuals far out of proportion to the costs the partnership bears. By ensuring partners have some financial accountability for their decisions, a firm promotes efficiency and profitability for everyone.

Smart cost tracking isn’t just crucial to keeping a firm’s costs down — it’s a necessary component of understanding the true value of a partner’s book of business.

Say you’re running a firm, and you were forced to pick one of two candidates for lateral partnership. Candidate One services a major, publicly traded client, one they’ve had a relationship with for 20 years. This client alone throws off enough work to keep that candidate, a paralegal, and three associates busy full-time. Candidate One’s book of business is a solid $1.5M a year.

Candidate Two runs a practice servicing one-off clients. They keep themselves and a paralegal busy. They’re also going to need $100,000 in marketing support to keep their book of business going, and that book of business is valued at $1M a year.

To most law firms, Candidate One is the clear winner. Their book of business is larger, they have a reliable “big firm” model client, and they’ll keep firm associates busy. They also don’t need a major capital investment to keep their book functional, unlike Candidate Two.

But let’s complicate the example with some figures. Those two associates that Candidate One needs don’t come free, nor do paralegals. If the associates cost the firm $300,000 a year in salary and overhead allocation, and the paralegal an additional $150,000, Candidate One’s book of business is actually only turning a $450K profit off their work, out of which we’ll need to pay Candidate One’s own salary and overhead. In comparison, Candidate Two is only spending $150K on a paralegal and $100K on marketing, leaving their more modest book to generate $750K in profit. Candidate Two wins the profitability fight, despite their smaller and less “impressive” book.

Firms that understand this profitability gap can go out and cherry pick high-value, underpaid partners from around town. Firms that don’t will be stuck overpaying for partners who might turn them a profit, but won’t leave much left over for the firm as a whole.

Getting Smarter

Change is hard, and I don’t expect any law firm to have an easy time shifting its constituents’ focus from a revenue model to a pure profitability model. Nor should they. The truth is that large books of business can have benefits beyond raw profit, including reputation and the fact that big books can cover a significant amount of fixed overhead expenses. So profit is part of the answer, but not the only answer.

Where I have seen firms try to make that change, I’ve often heard the counterargument that profitability models are divisive and dangerous for the partnership. They pit partners against one another in a battle of profit, dividing lawyers into alphas, betas, and don’t-need-yas. They threaten the firm’s “culture,” a trap I’ve written about before. Most of these claims are unfounded and are thrown around as a way to put the brakes on change, which lawyers notoriously loathe.

Every time I’ve seen a firm make the transition to a model that factors in profitability, it’s been for the better. My own firm made the shift several years ago, and it’s been one of the best decisions we’ve made. It’s contributed to double-digit growth in major metrics in the face of an economy where most middle-market firms are struggling to tread water. Better yet, we’ve had so many partners coming up with great, creative ideas about improving the firm’s profits, reducing its expenses, and making it a better place for everyone here. Our culture has become one that fosters innovation. Our attorneys have taken to heart the business-world mindset that’s so often lacking in Biglaw, and we’re so much stronger for it.

Nothing strengthens a sense of culture like success. Who wouldn’t want to be part of a smarter, more efficient, and wealthier business? Take the plunge, do the work, and close the book on outmoded ways of valuing our profession.

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James Goodnow is an attorney, commentator, and Above the Law columnist. He is a graduate of Harvard Law School and is the managing partner of NLJ 250 firm Fennemore Craig. He is the co-author of Motivating Millennials, which hit number one on Amazon in the business management new release category. As a practitioner, he and his colleagues created a tech-based plaintiffs’ practice and business model. You can connect with James on Twitter (@JamesGoodnow) or by emailing him at James@JamesGoodnow.com.

Welp, I thought the Supreme Court would dodge the DACA issue until after the election. But apparently, some of the justices are feeling feisty.

The Supreme Court released some orders today, the last day of it’s term. In a surprise move, the Court agreed to hear the government’s appeal over the Deferred Action for Childhood Arrivals program. They’ll hear the case next fall, which means that they’ll probably issue a decision next year. That means [checks calendar] yep, that means DACA, one way or the other, is likely to be decided just before the national party conventions in an election year.

Fun! [Weeps softly].

Like I said, I thought they would dodge. Donald Trump tried to end the DACA program, early in his tenure. The Democrats tried to shut down the government for, like, a day. Then Chuck Schumer cried or folded or folded while crying or did whatever it is that Chuck Schumer does when he loses.

But then the courts stepped in. Federal judges prevented Trump from ending the program. As I’ve written before, DACA exists by executive order, Trump CLEARLY has the power to end the program, as long as he gives a colorable reason for doing so. Judges have called the administration’s decision to end the program “virtually unexplained.” The government has had an appeal to those ruling sitting in front of the Supreme Court for a while now.

The easiest move for the Court would have been to ignore the case until after the election. Either Trump wins and they’ll have to get into it. Or Trump loses and the issue is moot.

But, clearly, something changed. You only need four votes on the Supreme Court to grant cert, and we don’t ever know who the votes are. I feel confident that Chief Justice John Roberts was not one of the four. But beyond that, I really don’t know. Maybe the other four conservative justices are so red-assed about Roberts’s decision in the Census case yesterday, that they want to stick it to the chief. Maybe the progressives are hopeful that the chief now sees that the Trump administration lies and is willing to put a stop to it? Maybe this is the long awaited conservative attack against the nationwide injunction? Maybe four of them think that this is a good election issue, or one side or the other: Trump’s cruelty towards people who have lived a good life after they were brought here through no fault of their own tends to rile up Trump’s sick base, AND the resistance against him. Maybe four justices just got sick of being scared of the issue.

We can all come up with theories about why the Court is taking the case, but the fact is that they are taking the case. Hold onto your butts.

Supreme Court Will Hear ‘Dreamers’ Case [New York Times]

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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.

* Apparently greenlighting partisan gerrymandering and severely undermining future protections against openly racist redistricting wasn’t enough. Conservatives are very angry that John Roberts questioned the Trump administration’s rationale for the census simply because there are actual documents that say, “we’re lying about this rationale.” [National Law Journal]

* How the legal academy could learn from the Harry Potter books. Mostly cheaper tuition. [ABA Journal]

* The firms that did the most winning at the Supreme Court this go around. [Law360]

* This case was a real s**t show. [Legal Cheek]

* NY judge says prominent attorney is ruining his reputation in battle with Justin Theroux over roof plots. [NY Daily News]

* Amidst everything else, Paul Manafort pleaded not guilty yesterday. [Courthouse News Service]

* The disturbing history of that statute Castro and Beto fought over. [Washington Post]