Women Of A Certain Age: Herstories

Sarah T. Hughes. (Photo via Archives Department/State Bar of Texas)

March is Women’s History Month. Despite the disheartening news that women and people of color continue to advance incrementally in the profession (and that’s politely putting lipstick on a pig), there have always been women lawyers and judges fighting challenging odds to make a difference. Sandra Day O’Connor, the first woman appointed to the United States Supreme Court, Ruth Bader Ginsburg, and then Sonia Sotomayor, and Elena Kagan, and most recently, Amy Coney Barrett. Four women out of nine presently sitting on the Court. Until 30 years ago there were none. And witness Vice President Kamala Harris, a woman lawyer and a BIPOC.

Do any of my fellow dinosaur lawyers remember the name of the federal district judge in Dallas who swore in Lyndon Johnson as president on November 22, 1963, the day that President Kennedy was assassinated? It was Sarah T. Hughes.

I didn’t know anything about her except what I remembered from that November day and time. So, I consulted Wikipedia to learn more about Judge Hughes.

President Kennedy appointed her to the Federal District Court for the Northern District of Texas, and I would guess that the last thing she ever thought she would have to do would be to swear in Johnson after Kennedy’s murder. She was a close friend of the Johnson family and it is said that LBJ wanted her to administer the oath of office to him and even waited for her to make the drive to Love Field in Dallas to do so.

Born in 1898, Hughes graduated from George Washington University Law School along with her husband in 1922. They moved to Dallas after graduation, and no surprise, he was able to find a lawyer job easily, she not so lucky. (Sound familiar?) So, she started out essentially as a solo, using space from a small firm and taking some of their cases in exchange for her services as a receptionist. Hughes became involved in a number of women’s organizations in Dallas and entered politics in 1930 when she was elected to the Texas House of Representatives.

In 1935, she was appointed to the Fourteenth District State Court in Dallas, and repeatedly re-elected until 1961. Judge Hughes was the first woman state district court judge in Texas.

Even though women had won the right to vote in 1920, in Texas, women were not allowed to serve as jurors. Judge Hughes could be a judge, but not a juror. She pushed for an amendment to that effect, but it went nowhere. Partially due to her work, Texas law changed in 1954 so that women could indeed serve as jurors.

In 1961, President Kennedy appointed her to the United States District Court for the Northern District of Texas. Originally a recess appointment, Kennedy nominated her again in January 1962, and she was confirmed 60 days later. She was the first female federal district court judge in Texas, and only the third federal district female judge in the country.

Hughes was on a three-judge panel that originally heard Roe v. Wade in the years before it went to the United States Supreme Court. She was also very involved in upgrading conditions at the Dallas County Jail.

Imagine all that she did in times that were far worse for women lawyers than conditions today. She lived through the Depression, both world wars, and many other perilous times. She distinguished herself through her work and her life and wasn’t afraid to make enemies if doing so was in furtherance of her goals.

Closer to my home, how many lawyers east of the Sierra know the name Joyce Kennard? She was an associate justice of the California Supreme Court from 1989 to her retirement in 2014. If there is any woman, any person, who personifies grit, determination, perseverance, and achievements, it is Justice Kennard, a woman of mixed race who overcame tremendous hardships to become an associate justice.

Born in 1941, Kennard grew up in a Quonset hut in Indonesia during World War II. English was the third language she learned, after Dutch and German. During the war, her Dutch father died in a Japanese prison camp. She and her Chinese-Indonesian mother and other family members were sent to a protective camp to wait out the war’s end.

Kennard felt the heaviness of racism as she grew up. Classified as “nonwhite,” the family’s living conditions were poor. One of the justice’s first glimpse of life beyond hers was a Sears catalog that a friend showed her. She is female, an Asian, and a person with a disability (an above the knee amputation for a tumor when she was a teen).

Her disability prevented her from attending college in the Netherlands, where she and her mother eventually moved after the war. After arriving in the States, and undeterred, she worked her way through the University of Southern California and while working as a legal secretary was encouraged to go to law school.

After graduation, the civil division of the California Attorney General’s office wanted to hire her … as a secretary. (Shades of Sandra Day O’Connor.) Kennard landed at the California Attorney General’s office in the criminal division. From there, her trajectory was straight up. She went from a job as an appellate research attorney to the Los Angeles Superior Court to the Court of Appeal and then, in 1989, appointed to the California Supreme Court. Justice Kennard was only the second woman appointed to that court; the first, Rose Bird, who had been both the first woman and first woman Chief Justice on the Court had been ousted several years before in a retention election.

Until Kennard retired in 2014, she was a justice with a very independent streak. She did not go along to get along, and her judicial opinions (often dissents) show that independence. She was one of the four votes needed to strike down Proposition 8.

All women lawyers and judges have herstories. We should recognize and celebrate these two women and their achievements. Phooey on “incremental advancement.”


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.

Trump Lawyer Tells SCOTUS It’s Illegal For Kids To Say Filthy Cusses

(Image via Getty)

“Fuck school fuck softball fuck cheer fuck everything,” a Pennsylvania high school student posted on Snapchat one Saturday about three years ago, accompanied by a photo of herself and a pal giving the finger. The student, B.L., was angry about not making varsity cheer as a sophomore, and posted the “Snap” to about 250 friends, at least one of whom screenshotted the image and shared it widely.

“Several students, both cheerleaders and non-cheerleaders,” narced her out, going to the cheer coaches “visibly upset,” to “express their concerns that [B.L.’s] Snaps were inappropriate.” Because high school sucks like that.

But instead of telling her to cut it out and delivering the standard lecture on inappropriate social media posts leading inevitably to living in a van down by the river, the coaches threw her off the cheer team. 

Gimme an L! Gimme an A! Gimme a W! Gimme a SUIT!

So her family sued, saying the punishment violated B.L.’s First Amendment rights. And both the trial court and the Third Circuit agreed, but the Mahanoy Area School District appealed to the Supreme Court, and the Justices granted certiorari on January 8. So either they’ll hold that the school had a right to impose punishment on out-of-school speech, or they’ll agree that B.L. had a First Amendment right to act like a normal 15-year-old and the school should just chill out.

OR! Might there be a third possibility no one had counted on?

Well, no, there wouldn’t. But that didn’t stop Donald Trump’s attorney Jay Sekulow, ringmaster at the AHEM “charitable law firm” run by his family under the moniker The American Center for Law and Justice, from weighing in.

This week the ACLJ filed an amicus brief in support of … NOBODY. Their position is that schools who “face a constant temptation to impose a suffocating blanket of political correctness, institutional image protection, or both, upon the educational atmosphere,” shouldn’t be allow to do cancel cultures to children. But also it should be illegal for kids to say filthy cusses to their (so called) friends, because “There is no First Amendment right for a minor to broadcast obscene language and gestures to other minors.”

That’s right, they’re going to “protect” the First Amendment by taking the narrow path for schools to police children’s speech if it might materially and substantially disrupt the work and discipline of the school, and broaden it to a generalized right of government to police all interactions between minors.

Gotta protect the children! With a muzzle.

Making a truly bizarre analogy to a case involving “fighting words,” Sekulow argues that the problem with B.L.’s Snap wasn’t that she criticized the school, but that she used profanity.

B.L.’s expletive here was simply a crude insult of the sort that aims to incite a hostile reaction. The whole point of using foul language instead of “I’m sick of” or “The heck with” would seem to be to offend. While Cohen v. California immunized an adult’s profane printed political expression on a jacket against criminal prosecution, the Fraser case clarified that this ruling does not necessarily apply to students addressing other students, as here.

If public schools, as an agent of the state, could penalize kids for having a pottymouth on Snap, they’d have to expel the entire student body. But if that’s what it takes to “protect” the First Amendment, it’s a sacrifice Jay Sekulow is willing to make.

“It’s rare to see someone with enough hubris (or stupidity) to claim that their brief asking the Court to narrow the First Amendment is actually meant to protect free speech,” First Amendment lawyer Ari Cohn told ATL. “It’s a clinic in dishonesty and incompetence.”

Presumably the court will treat this latest outburst by Sekulow the way they did his appearance to argue that Trump had a magical shield of “temporary presidential immunity” that thwarted New York’s attempts to investigate his company for criminal conduct, i.e., like a fart in an elevator, holding their noses and waiting for the doors to open and let them out already.

Will they say “to heck with you,” Jay Sekulow? “I’m sick of you” and your pathetic, TV antics? Or will they just say FUCK IT, only to be carted away by the bailiffs?

Only time will tell.

Mahanoy Area School District, Petitioner v. B. L., a Minor, By and Through Her Father, Lawrence Levy and Her Mother, Betty Lou Levy [SCOTUS Docket]


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

Post Pandemic Practice Profiles

A year ago this week, the pandemic took the nation by storm. Yet at the time, none of us could predict that the novel corona virus would shut down courts and place many law firms that hadn’t kept pace with, or weren’t willing to learn new technology at risk. And so two months into the pandemic, I interviewed, via Zoom, 14 intrepid solo and small firm lawyers to learn about how they were weathering the storm and what lay ahead. As you can tell from the original interviews, all of the lawyers, in their own way had figured out how to keep the wheels of justice turning and continue representing clients all while ensuring that their staff remained safe. Some of the attorneys we interviewed had never before used Zoom but became expert quickly, while others had been operating remotely for years so never skipped a beat. But all had one mission: that the show must go on.

Now, a year later, we’re checking in with eight of our subjects to see how they fared.

Paul Spitz

Paul Spitz of  Spitz Law Firm ( www.spitzbusinesslaw.com/) specializing in the practice area(s) of Business/Corporate/Transactional/Startups and licensed to practice law in Ohio, California.

What surprised you most about the pandemic?

How stupid and selfish people are, how unwilling to make sacrifices and do things for the common good

What was one positive that came out of the pandemic for your practice?

My transition to work from home was pretty seamless, so I guess I save a lot on gas

What do you miss most about pre-pandemic practice?

Being around other people, being able to meet people

What lies ahead for  your law firm, and more broadly, the legal profession?

Hard to say. I think the legal profession will need to rethink having lavish office space. Also, at least in corporate work, the trend of not having everyone in the same room, and of using tools like Docusign, video calls, etc., will only continue.

What’s a quote or piece of advice that became a mantra or got you through this last year?

Just because we are working from home doesn’t mean we should always be working

Ryan McKeen

Ryan McKeen of Connecticut Trial Firm ( https:/cttrialfirm.com) specializing in the practice area(s) of Personal Injury and licensed to practice law in Connecticut.

What surprised you most about the pandemic?

The level of connection that I was able to maintain with people despite not seeing them.

What was one positive that came out of the pandemic for your practice?

Remote court appearances make life a lot saner.

What do you miss most about pre-pandemic practice?

Lunches with people.

What lies ahead for  your law firm, and more broadly, the legal profession?

Hopefully more remote hearings and depositions.

What’s a quote or piece of advice that became a mantra or got you through this last year?

Can’t break me.

Michael D. J. Eisenberg

Michael D.J. Eisenberg of  Law Office of Michael D.J. Eisenberg, Attorney and Counselor at Law ( www.eisenberg-lawoffice.com ) specializing in the practice area(s) of Veterans Benefits Appeals, Military Records Corrections, Military Medical/Physical Boards and Federal Employee Employment Law and licensed to practice law in All 50 states, DC, and PR.

What surprised you most about the pandemic?

How the Department of Veterans Affairs was able to move to online virtual hearings.

What was one positive that came out of the pandemic for your practice?

The VA Board of Veterans Appeals seems to have accelerated their operating speed.

What do you miss most about pre-pandemic practice?

Face-to-Face in person meetings.

What lies ahead for  your law firm, and more broadly, the legal profession?

As a solo practitioner, I have already been working in a virtual office.  This has allowed me to hit the ground running with the total-virtual work lifestyle the pandemic has created. I believe large-size law firms, medium-sized law firms, and clients better appreciate the logistical and financial efficiency a virtual work lifestyle provides them.  I foresee many firms of all sizes keeping a foothold in the virtual office environment even after the pandemic ends.

What’s a quote or piece of advice that became a mantra or got you through this last year?

Work lifestyle may of changed, but the practice of law remains the same…

Adam Zuwerink

Adam Zuwerink of West Michigan Law, P.C. ( westmichiganlaw.com ) specializing in the practice area(s) of Estate Planning and licensed to practice law in Michigan.

What surprised you most about the pandemic?

The wide range of emotions and viewpoints from clients regarding public health.

What was one positive that came out of the pandemic for your practice?

Zoom is now an acceptable form of meetings for clients.

What do you miss most about pre-pandemic practice?

Breakfasts and lunches with professional referral sources.

What lies ahead for  your law firm, and more broadly, the legal profession?

Wide-spread use of video communication has reduced geographic boundaries even more.

Devon Slovensky

Today’s profile is Devon Slovensky of  Slovensky Law PLLC ( https://slovenskylaw.com/ ) specializing in the practice area(s) of Family Law and licensed to practice law in Virginia.

What surprised you most about the pandemic?

I was surprised by how family law seemed to be largely unaffected – no large increases or decreases in cases.

What was one positive that came out of the pandemic for your practice?

The best thing for law that came out of the pandemic was increasing receptiveness to the Courts of technological solutions.

What do you miss most about pre-pandemic practice?

I miss seeing my colleagues more regularly and bar events.

What lies ahead for  your law firm, and more broadly, the legal profession?

I will be working remotely more often, and I am sure other attorneys will as well.

What’s a quote or piece of advice that became a mantra or got you through this last year?

Just keep truckin’

Rebecca Neale

Today’s profile is Rebecca Neale of  Bedford Family Lawyer ( https://bedfordfamilylawyer.com ) specializing in the practice area(s) of Domestic relations, estate planning and licensed to practice law in Massachusetts.

What surprised you most about the pandemic?

I am continually surprised that the situation is always changing. Once we develop a rhythm with work or school, something will change that will force us to evaluate options. Even in 2021, Courts continue to change the procedural rules, vaccination rollouts have been stressful, and school schedules changed as well.

What was one positive that came out of the pandemic for your practice?

We have streamlined our digital paperwork management and our internal systems, which has been useful. Another positive outcome is being able to appear for hearings via Zoom and meet with clients via Zoom. I anticipate more clients will meet with me via Zoom in the future, even if they have the option to come in to the office.

What do you miss most about pre-pandemic practice?

I really miss the in-person events with my colleagues. In particular, I would get together each month with colleagues in a few different groups, and I can’t wait to start seeing each other in person again. Zoom just isn’t the same for socializing.

What lies ahead for  your law firm, and more broadly, the legal profession?

I anticipate that my firm will continue to grow. As we streamline our processes and I learn to delegate more, I hope to hire more staff. The legal profession is at a crossroads at the moment, with lawyers who are mothers being stretched to the brink but also working from home and new insight into the impact of racism in the profession, I hope that the profession is able to pivot towards being more welcoming. But, the jury’s still out on that.

What’s a quote or piece of advice that became a mantra or got you through this last year?

“We Can Do Hard Things” — Glennon Doyle

Liisa Speaker

Liisa Speaker of  Speaker Law Firm ( speakerlaw.com ) specializing in the practice area(s) of Appeals and licensed to practice law in Michigan.

What surprised you most about the pandemic?

That we were remote working for way longer than I ever anticipated (I thought 12 weeks would have been a long time)

What was one positive that came out of the pandemic for your practice?

I have expanded my practice to help certain trial attorneys before the case reaches/needs an appeal.

What do you miss most about pre-pandemic practice?

Having all of my team at the office.

What lies ahead for  your law firm, and more broadly, the legal profession?

As long as courts continue to allow remote participation, it enables us to help out more folks and trial attorneys around the state before the appeal stage. It also saves our clients money when we don’t have to travel for oral argument at the Court of Appeals. I think courts will be more willing to allow remote participation on a case-by-case basis.

What’s a quote or piece of advice that became a mantra or got you through this last year?

Pandemic or not, we are forging ahead, growing the firm, and helping more people.

Jeralyn Lawrence

Jeralyn Lawrence

Jeralyn Lawrence of  Lawrence Law ( www.lawlawfirm.com) specializing in the practice area(s) of Family Law and licensed to practice law in NJ.

What surprised you most about the pandemic?

It was terrifying at first. I was absolutely worried about getting sick and also losing my business. I was surprised and thankful for how quickly we, and most family and divorce lawyers, were able to transition to the remote world.

What was one positive that came out of the pandemic for your practice?

So many! More time with my family and much less work stress because we are not rushing to court or meetings. Not having to fight traffic or commuting stress has been beyond wonderful.

What do you miss most about pre-pandemic practice?

Not very much but I do miss the socialization with colleagues and friends.

What lies ahead for  your law firm, and more broadly, the legal profession?

Having survived this, I truly feel like there is nothing that can stop us. I anticipate more growth and absolutely believe our profession will embrace and remain virtual, in whole or in part.

What’s a quote or piece of advice that became a mantra or got you through this last year?

Take it day by day. Life and business can change in a minute. Be flexible. Believe in yourself and your team and the sky is the limit.

Man Attends Zoom Court Hearing From His Victim’s Home, Gets Arrested

(Image via iStock)

The list of Zoom foibles is legion at this point. Whether it’s shoveling food in your piehole while on camera, responding to a judge with “sneaky bitch,”  having sex on camera during a hearing, or sharing your racist views with the world when you thought you were no longer recording, a lot has gone wrong for lawyers trying to go about their jobs in a virtual world. Well, here’s a story where the lawyer, a prosecutor, gets it very right.

Coby James Harris of Sturgis, Michigan, is facing charges he assaulted his girlfriend, Mary Lindsey. He was out on bond on March 2nd, when both Harris and Lindsey appeared virtually at a court hearing. It should be noted at this point that a condition of Harris’s release was that he not have contact with Lindsey.

During the course of the hearing Assistant Prosecuting Attorney Deborah Davis noticed something was amiss, and she expressed those concerns to Judge Jeffrey Middleton, as reported by KIRO 7:

“Your Honor,” Davis said. “I have reason to believe that the defendant is in the same apartment as the complaining witness right now, and I am extremely scared for her safety. The fact that she’s looking off to the side and he’s moving around, I want some confirmation that she is safe before we continue.”

The judge wanted to know where Lindsey was:

“Ms. Lindsey, where are you right now?” Middleton asked.

“Um, I’m at a house,” she responded. “It’s my house.”

Middleton demanded to know the address, which she gave him.

Judge Middleton then asked Harris where he was located, but he provided a different address — one he could not corroborate:

He declined, however, to take his cellphone outside and snap a photo of the house number, telling the judge his battery was low and that the phone was plugged into a wall charger.

In a dramatic turn, police officers were sent to Lindsey’s home to check on her status:

“Ms. Lindsey, would you go answer the door?” Middleton asked.

“Take your phone with you so that we know you’re OK,” Davis told her.

Lindsey could be seen walking to the door and answering it, at which point her connection to the call dropped.

Harris, who kept looking off-screen, also vanished from the call.

When Lindsey’s connection to the hearing was reestablished, Harris could be seen in handcuffs.

“Your Honor, me and Mary both don’t want the no-contact (order). I ask that that be dropped,” Harris said. “I’m sorry I lied to you. I knew the cops were outside. I don’t know why I…”

Middleton interrupted Harris.

“Mr. Harris, my advice is, don’t say anything else. Take the cigarette out of your mouth,” the judge said. “The hearing is adjourned. Your bond is canceled.

“If you have $10 million, you can’t bond out. In addition, the prosecutor’s probably also going to charge you with obstruction of justice.”

Middleton said that even if both Harris and Lindsey want the bond conditions lifted, prosecutors do not.

“We’re serious as a heart attack,” the judge said.

The judge noted the… unique circumstances that led to the revocation of Harris’s bond:

“This is an issue we didn’t have when we were having live court,” the judge said. “That’s the first time I ever had anybody sitting in the next room potentially intimidating a witness to assault.”

And a special shoutout to Davis, who noticed something was wrong in the first place.


headshotKathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

Law School Deans Respond To ‘Whiteness’ Ranking, Acknowledge Student Body Is Still Too White

Earlier this week, a new report ranking the whitest law schools in America was released, where some law schools were called out for their “inappropriate,” “excess” whiteness during a time when diversity and inclusion should be given special consideration. At least two law school deans are taking their school’s place on this ranking quite seriously, and they reached out to students to let them know.

Deans Jessica Berg and Michael Scharf of Case Western Reserve University School of Law — ranked 144 out of 200 on list (the lower the score, the higher the whiteness) — emailed students to let voice their concerns. The Washington Free Beacon has the details:

“First, we should not be satisfied with the diversity of our student body, even on the measures used in this study,” Berg and Scharf said. “It does not mean we have an equitable number of students who identify as Black, Native American, Latinx, Asian American, Pacific Islander, or other under-represented groups.”

The percentage of minority students in the school’s first-year law classes, however, exceeded the percentage of nationwide minority applicants by 13 percent. Case Western has increased the percentage of first-year law students “who do not identify as white” by 11 percent since 2004, the deans said in the email.

Case Western happens to be a law school that’s already doing a great deal of work to diversify its incoming classes and incorporate racial justice initiatives into its learning environment, and the deans still don’t think they’re doing enough. In a world where racial equity still hasn’t been given its due in law school academia and admissions, that’s quite refreshing.

Deans Berg and Scharf released this statement: “We are committed to diversity and inclusion in all aspects of our law school community and know that we still have work to do in this area. This study draws attention to one measure, but its greater impact may be to help reinforce the need for additional conversations and initiatives.”

Will other law school deans take this ranking seriously and attempt to make changes to further diversify their incoming classes? We remain hopeful.

Law School Deans Chastise Student Body as Too White [Washington Free Beacon]


Staci ZaretskyStaci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

Law School Professor Fired Over Racist Comments That Went Viral

Well, that *was* quick. When I wrote about the controversial Zoom incident involving Georgetown University Law Center professors Sandra Sellers and David Batson, I hoped the law school would move quickly on the matter, but this is faster than even I’d imagined.

As a quick recap, Sellers was caught on camera saying of a Black student in a negotiations class she teaches with Batson that “a lot of my lower ones [students] are Blacks. Happens almost every semester. And it’s like, oh come on, you know? There are some really good ones, but there are also some that are just plain at the bottom and drives me crazy.” While Batson just seems to nod in agreement. It’s truly an astonishing display.

The law school’s Black Law Student Association called for the immediate termination of Sellers. Dean William Treanor just sent an email to the Georgetown Law community, letting them know that’s exactly what’s been done.

I informed Professor Sellers that I was terminating her relationship with Georgetown Law effective immediately. During our conversation, she told me that she had intended to resign. As a result of my decision, Professor Sellers is no longer affiliated with Georgetown Law. Professor Batson has been place on administrative leave pending the investigation by the Office of Diversity, Equity and Affirmative Action, the results of which will inform our next steps. Until the completion of the investigation, Professor Batson will have no further involvement with the course in which the incident arose.

He went on to note:

We are taking significant steps to ensure that all students in this class are fairly graded without the input of Professor Sellers or Professor Batson.

Dean Treanor also said that this is not the end of the law school’s response. But no word, as of yet, whether BLSA’s other demands (a “public apology from Professor David Batson in his failure to adequately condemn Sellers’ statements; critically assessing and improving its current subjective grading system, including an audit of Professor Sellers’ past grading and student evaluations to account for her admitted biases; and committing to hiring more Black professors who will be better situated to fairly assess Black students in a non-biased manner.”) will be met.

Read Dean Treanor’s full email below.


headshotKathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

Now That The SEC Thinks About It, It Is Strange That Citadel, Et. Al.,Pay So Much For The Right To Execute Free Trades

Nothing is truly free. “Free shipping” just means the shipping costs have been factored into the price. “Free streaming service” just means you pay for it with your time watching commercials. Free toasters, free trips, free timeshares: You’re paying for all them somehow, because nothing is actually free.

Harvard Law School ‘Negotiating Efficient Sex Slavery’ Article Shockingly Poorly Received

The golden god of efficiency must be honored with scholarly sacrifice. Without new and more interesting ways of proving that the entire legal order is just a wordy supply and demand graph, Moloch will be displeased. And if that sometimes means writing an article about the contractual considerations of running a multinational sex slavery operation, so be it.

Cash rules everything around me, y’all.

Professor J. Mark Ramseyer of Harvard Law School has dutifully penned his offering to law and economics titled “Contracting for sex in the Pacific War” which already seems a little dicey, but let’s see what he’s on about:

The contracts themselves followed basic game theoretic principles of credible commitments…. Together, the women and brothels concluded indenture contracts that coupled a large advance with one or two year terms. Until the last months of the war, the women served their terms or paid off their debts early, and returned home.

It’s a testament to this article’s scope and vision that “indentured servitude good” is going to be the least troubling conclusion of the piece. And we don’t even have the bandwidth to get into his implicit assumption that an efficient prostitution industry would involve a non-worker owned brothel as an intermediary between a sex worker and a client, skimming money from the woman’s work to line the pockets of pimps. To dwell on that misses the point in this specific historical context, but it’s a problematic presumption just sitting there too.

What Ramseyer is talking about is Japan’s WWII practice of providing “comfort women” for its invading forces. His article operates from the premise that the women working as prostitutes to Japanese soldiers at the front throughout the war were willing contractors, as opposed to women kidnapped from conquered nations and pressed into sex slavery. The Korean Association of Harvard Law School responded with a statement digging into the history that Professor Ramseyer glossed over in order to reach his sweet contractual efficiency conclusion:

Professor Ramseyer’s deficient presentation of the historical record is demonstrated by his bibliography. Korean perspectives and scholarship, both rich sources of material on this topic, are almost completely absent in his work. Scholars studying history understand the possibility of post-hoc revisionism and bias. To counter such effects, they consult a wide-ranging set of materials from a variety of sources. Professor Ramseyer does not.

He also ignores expansive scholarship done by international organizations, such as the United Nations and Amnesty International, which has conclusively found that the “comfort women” were coerced, kidnapped, or forced by the Japanese government. After its independent inquiry, the Japanese government itself acknowledged as part of the Kono Statement that “the then Japanese military was, directly or indirectly, involved in the establishment and management of comfort stations.”

At this point, it’s worth noting that Ramseyer’s title is “Mitsubishi Professor of Japanese Legal Studies at Harvard Law School.” Mitsubishi found itself on the unhappy end of a South Korean court ruling demanding that it provide compensation for the Koreans that it pressed into slavery during the war. It’s safe to say his chair’s benefactor has an interest in anyone willing to explain that they just efficiently negotiated wartime employment contracts based on balancing Mitsubishi’s desire to meet the nation’s high demand for munitions and the workers’ desire to not be executed by a colonial army.

Well, what is Ramseyer’s argument here anyway?

The comfort stations operated as the overseas military analogue to the private brothels in Japan and Korea. Whether in Japan or in Korea, brothels hired, and women looked for work. The work at stake in these transactions involved sexual services, but the economic logic to the arrangements that the two parties – brothel and prostitute – negotiated reflected the resources and alternative opportunities that both sides understood each other to hold….

OK.

Yes indeed, parents did sometimes sell their daughters and brothels did sometimes trap women or keep them virtually imprisoned.

Well, Mark, that seems like a big f**king problem for your article! That scholars estimate between 50,000–200,000 women were forced into the system mostly from occupied nations — which at the height of Japan’s expansion included everything from China through Southeast Asia to the Philippines, to New Guinea — undermines the explicit claim of the article that this was a phenomenon involving primarily Japanese and Korean women.

Ramseyer’s response to the “sure, sometimes women were trapped” argument is that “the economic logic… to the contractual arrangements reflects the fact that brothels could not – and did not – trap or imprison all or even most of the women.” The “relying way too much on elementary economics” logic is that because some women were paid in this manner, that must represent the bulk of the system because otherwise they’d just use the coerced women for free.

This is one of a number of economic conclusions he leaps to haphazardly. Could the notoriously racist culture of wartime Japan placed a premium on Japanese or Korean prostitutes over captured sex slaves that justified his evidence that some number of the former category were paid for their work despite the availability of exploited women? Of course. Is this addressed? Nope!

He’s confident that Japan just exported its domestic prostitution industry intact to its wartime rampage. And the local industry did not engage in any sort of coercion! Ramseyer knows this because pre-war data suggests that women had six-year indentured contracts but generally left the work early:

In practice, the prostitutes repaid their loans in about three years and quit. Surely, historians some- times insist, the brothels must have manipulated the charges for food and clothing to keep prostitutes mired in perpetual debt. At least on a large scale, however, they did not do this. Probably, the brothels – established institutions with a large capital investment – realized that cheating on their initial contract would raise their future recruitment costs. Not only did the brothels specifically promise a woman she could quit debt-free at the end of six years regardless of the revenue she generated, they generally kept their promise.

Not to introduce unsavory economics to this already deplorable hypothesis, but maybe it’s because, generally speaking, there’s higher demand for a 19-year-old prostitute than a 45-year-old prostitute? There’s a consistently replenishing supply of new sex workers — the brothel would have few incentives to keep someone longer than their term of servitude. They didn’t hold women longer for fear that it would “raise their future recruitment costs”? What?

Ugh, now I’m doing the economics thing. See how pernicious this is? And I’m calling it pernicious as an economics major.

Still, the article is reasonably sound when detailing pre-war prostitution. There’s hand-waving over the misogyny involved in selling daughters and the idea that brothels honored contracts because they were just generous, honest brokers, but if the article ended here it wouldn’t be so bad as an account of how the 1920s Japanese prostitution industry contracted.

Friends, it does not end here.

At this point, Ramseyer begins his cherry-picked account of women from Japan or Korea who worked in military-approved “comfort stations” throughout the war. Some women in this position joined voluntarily and fared well financially and Ramseyer is quick to cite their accounts. That thousands more women — from those countries and beyond — have detailed accounts of their kidnappings and coercion does not concern Ramseyer.

And that’s the real problem here. Analytically, this article could even have been written acknowledging the widely documented systematic oppression while noting that, for a small number of documented workers, the work was voluntary and those women were paid a premium because the brothels cynically added willing workers to the coerced because they were in higher demand. But this article isn’t really about those rare voluntary workers, it’s about painting a synecdoche of Japan’s overseas prostitution industry — these women were willing and well-paid, so therefore pay no attention to the war crimes behind the curtain. In other words, it’s one thing to honor the fact that women can voluntarily become sex workers, and another to indulge the “happy hooker” trope to erase hundreds of thousands of coerced, kidnapped, and exploited sex slaves.

Law and economics started out as a delightful offshoot of legal positivism designed to prove that gutting environmental regulations was a good idea. “Well, actually, who needs safety inspections for aspirin? See that long string of variables in this journal article? It’s science.” These days, law and economics is as at home defending class actions against corporate abuses as it was in justifying the destruction of environmental regulations, but whatever side of the aisle a scholar is on, it’s all about pigeon-holing their subjective conclusion into a vaguely mathematical account of “efficiency.”

In this way, we may truly be witnessing the apotheosis of law and economics: a full-throated revisionist war crime denialism recounted as a contract negotiation case study. If you can use the tools of the discipline to tackle that, then there’s really no limit to how empty this signifier has become.

Perhaps marrying law to a discipline that famously quips of itself, “the way to open a can on a deserted island is to assume we have a can opener” isn’t providing the unassailable support the authors think it will.


HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

ABA TECHSHOW 2021: It’s Virtual But Still Has Lots To Offer

It’s the end of a long winter and you know what that means: it’s time for the ABA TECHSHOW! This year, the conference is virtual out of necessity. It won’t be quite the same, but I can tell you this: thus far, it has exceeded my expectations, as I explain below.

But first, let’s back up a bit to last year’s conference. For many of us in the legal technology space, it was one of the last times we were able to get together before the pandemic struck. Social distancing became the norm very quickly thereafter. As a result, the TECHSHOW planning board made the decision to hold the conference virtually some time ago, and while I’ve been excited to see what it would offer, I wasn’t holding out much hope. After all, by all accounts, there were no plans to hold an avatar-based conference, and as regular readers of my column know, I’m all about that type of online conference.

It turns out that ABA TECHSHOW 2021 is definitely structured more like a “traditional” virtual conference. You can learn all about the ins and outs of this year’s show here.

As a result, when I logged on for the first time, I wasn’t particularly excited about its potential since, in my experience, this type of virtual conference tends to be very flat and somewhat boring. That being said, this year’s conference has surprised me. For starters, there’s just something about the ABA TECHSHOW that draws me to it each year, and somehow that comes through even in a virtual setting. I’m not sure if it’s the gathering of so many legaltech enthusiasts, the forward-thinking educational content, or the collection of so many cutting-edge legal technology products in one exhibit hall. Whatever it is, the aspects of the conference that make it unique managed to shine through despite the virtual setting.

For starters, the virtual format is probably the best one I’ve seen so far. It’s easy to navigate and the user interface is colorful and uncluttered. The sessions themselves are about as good as virtual CLEs can be, and the programming this year covers a vast array of legal technology topics, ranging from cybersecurity and collaboration to law practice management, marketing, and artificial intelligence.

Similarly, the Start Up Alley competition held at the beginning of the conference felt just as lively as ever, and the best part about it was that seat access wasn’t an issue this year! If you didn’t attend and are interested in finding out who won, Bob Ambrogi provides that answer in this post.

Next, let’s talk about networking. The networking aspect of the conference is muted compared to year’s past, but that’s to be expected when a conference is held online. Despite the  limitations inherent in networking virtually, one aspect of the platform’s networking functionality that was a pleasant surprise was the ability to hold video networking sessions, which is a decidedly more interesting way to interact than through chat messaging. That being said, I do wish there had been one or two atypical networking sessions scheduled with the sole goal being to provide conference attendees with a bit of fun: perhaps a wine tasting, cooking demonstration, or a trivia session.

Finally, there’s the virtual Exhibit Hall. If you’re in the market for a particular legal technology product, an online exhibit hall has its benefits. For starters, you don’t have to worry about sore feet — instead, you can just click on a link and check out the software. The virtual booths have videos and other information available along with “live” company representatives who are available to answer any questions you might have or even provide a demo of the product. In some ways, virtual exhibit halls can be a more streamlined way to research legal software.

Last, but not least, although I haven’t worn my “press hat” while attending an ABA TECHSHOW for many years now (since MyCase, the company I work for, exhibits at the conference), I did end up attending a virtual demo of a product after being asked to do so. During that meeting I learned all about ALN LegalNet’s newly released product ALN Cloud.

In addition to offering their customers the affordability, convenience, and security benefits that go hand-in-hand with most cloud-based software, their new cloud-based platform makes it easy for ALN LegalNet’s customers to easily access and view their workflows while simultaneously mitigating risk with real-time court rules and feature updates. Customers can also take advantage of the new mobile apps which provide “enhanced functionality for docketing professionals on the go by integrating calendars, court rules and case monitoring alerts.”

Of course, there are lots of other great software programs available for your perusal on the virtual Exhibit Hall floor, so make sure to check them out. And if you’re attending the conference, take a minute to send a virtual “hello” my way. I’d still love to hear from you even though we can’t connect in-person this year — and I’m keeping my fingers crossed that next year we can raise a glass together in Chicago!


Nicole Black is a Rochester, New York attorney and Director of Business and Community Relations at MyCase, web-based law practice management software. She’s been blogging since 2005, has written a weekly column for the Daily Record since 2007, is the author of Cloud Computing for Lawyers, co-authors Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York. She’s easily distracted by the potential of bright and shiny tech gadgets, along with good food and wine. You can follow her on Twitter at @nikiblack and she can be reached at niki.black@mycase.com.

Lawline Names Top Women Faculty 2020

Every year, Lawline puts together a list of our Top Women Faculty from the previous year in order to spotlight their accomplishments for Women’s History Month. 2020 was a tough year for instructors, who needed to adapt rapidly to filming over Zoom (along with everything else), and the attorneys on this list rose to the challenge spectacularly. Our top women faculty are at the top of the game in their practices – which range from employment law to civil rights, and everything in between – and also masters of pedagogy, making an impact on attorneys across the country. They are on the front lines of developments in cybersecurity, constitutional law, diversity and inclusion, and more, providing practical, actionable advice that attorneys can implement immediately to improve their practice. The women on this list taught some of the most-watched, highest rated programs Lawline produced in 2020 – and we are incredibly proud that we provided the platform for them to shine.

Without further ado, it is our pleasure to introduce our Top Women Faculty of 2020: