Every T14 Law School Is Mandating COVID Vaccinations For Students

I’m waiting to see what the impact of the Delta variant is on all of this. The floodgates have definitely opened on vaccine mandates.

The students at Penn have greeted this with really open arms, because for them, as successful as remote education was, I don’t think anyone feels like it was anywhere near as successful as the education we can offer in person.

— Professor Eric Feldman, a health policy expert at the University of Pennsylvania Carey Law School, commenting on the vaccination mandates that have spread across all of the most prestigious law schools in the country. Vaccines are currently required at 93 American Bar Association-accredited law schools, which is 47% of all such schools. Professor Dorit Reiss, who studies vaccine policy at the UC Hastings College of the Law, said of the new requirements, “I don’t see the courts finding vaccine mandates during a pandemic unconstitutional.”


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.

Right-Wingers Mocking The Jan. 6 Hearings Reveal Their Own Responsibility

(Photo by Tasos Katopodis/Getty Images)

Upon seeing someone in emotional distress, a normal human being naturally responds with empathy. That was the case during Tuesday’s congressional hearing on the Jan. 6 storming of the Capitol, with committee members such as Republican Rep. Adam Kinzinger of Illinois visibly affected as Capitol and Washington police officers recounted horrors like Michael Fanone suffering a heart attack after insurrectionists beat him, or Harry Dunn saying it marked the first time he was called the n-word while in uniform.

Nevertheless, not everyone is a normal being, especially right-wing media and political figures who responded to the hearing with mockery and derision. By downplaying and denying the Jan. 6 attack for months and dismissing Tuesday’s hearing, these people revealed their true goal: to exculpate themselves after years of carefully stirring the toxic stew of bigotry and illiberal populist rage that made the attack inevitable.

I’ll leave it up to the commission to decide who knew what, and who among elected officials may have been in on the attack. But for now, a selection of right-wing public figures’ reactions to the hearing – which followed Senate Republicans blocking the creation of a 9/11-style independent bipartisan commission – is revealing.

Ohio Republican Rep. Jim Jordan tweeted, “What’s the difference between Democrats and Never Trumpers?” He has since sought to deflect and draw attention to Black Lives Matter protests in summer 2020, while disingenuously highlighting insufficient Capitol security.

Fox News host Laura Ingraham gave a mock trophy for the officers’ “performance” on her show, while her colleague Tucker Carlson employed his usual just-asking-questions rhetorical tactic in an attempt to discredit the whole thing.

And Glenn Greenwald attempted sarcasm, tweeting “Harris/Liz-Cheney 2024,” before writing on his Substack that the hearing’s real purpose was “exploiting police emotions for partisan gain and security state power.” Greenwald had already spent months sowing doubt about the connection between the insurrection and the death of Capitol Police Officer Brian Sicknick and has lately been pandering to anti-vaxxers.

The indifference, the opportunism, the callousness, the mendacity of these people – it’s all equal parts infuriating and disturbing because no honest person could watch the horrifying footage and conclude that the Jan. 6 attack was anything but an attempted coup by white supremacist terrorists who got their marching orders from Donald Trump and whose fascistic movement poses an ongoing threat to this country’s democracy, and indeed its very future.

But while shocking, their flippancy is not surprising.

After all, it was Jordan who went out of his way to derail every congressional hearing about Trump’s abuses of power. It was Ingraham and Carlson who blew dog whistle after deafening dog whistle to appeal to white nationalist sentiments among their viewers. And it was Greenwald who claimed to oppose Trump while courting his cult and bending the horseshoe’s far-right and far-left poles together by relentlessly attacking Trump’s critics, purportedly from the left, often during creepily amicable appearances on Carlson and Ingraham’s shows.

Yet, the officers’ testimony laid bare the perfidiousness of Jordan, Ingraham, Carlson, Greenwald and everyone else who would have you believe it wasn’t an organized coup attempt or was somehow not as serious as it was and that its implications are anything less than terrifying for anyone who values liberal democracy.

So caught with their proverbial pants down, it’s unsurprising that the people who laid the cobblestones on which the insurrection marched have mounted a disinformation and whitewashing campaign, presenting the terrorists as “tourists” or suggesting it was just a minor incident, and not an organized attempt to thwart the democratic process. The bigger question is why they are so intent on pretending the attack wasn’t what anyone who saw it could readily tell it was.

A likely explanation is that they know of their guilt and are desperate to absolve themselves, albeit for self-serving reasons rather than genuine remorse. But they’re part of a far deeper pathology within the conservative movement.

Fascism has been slowly taking over the movement, like a cordyceps fungus consumes the tissue of a caterpillar while leaving its overall shape intact, ever since the Southern Strategy, when Republican Party sought the votes of racist white people embittered at the Democrats’ embrace of civil rights. Trump’s 2016 election and the attack on the Capitol were the mushrooms finally bursting from the caterpillar’s head from mycelia that had spread for decades.
It turns out the party of Lincoln had made a pact with the devil, seeking power via an American right whose support for democracy was always conditioned on democratic processes’ support for white, Christian, male supremacy. That might explain why today, self-described conservatives who don’t even pretend to uphold liberal democracy thrive under their movement’s imprimatur as they envision an America resembling Hungary under autocratic Prime Minister Viktor Orbán, or worse. Just look at newly elected House members like out-and-proud white supremacist Marjorie Taylor Greene and far-right terrorist ally Lauren Boebert. Or Republican-led state legislatures’ shameless assaults on Black and Latino voting rights. Or the insidious utterings of erudite intellectual Nazgul like Sohrab Ahmari and Adrian Vermeule. Or “Hillbilly Elegy” author J.D. Vance calling for abolishing childless liberals’ right to vote and “Fox & Friends” calling that idea “interesting.”

But however advanced the GOP’s fungal infestation was by the time Trump contaminated the White House with its spores in 2017, he was the one who truly weaponized it. More than anyone, he made the party safe for unvarnished bigotry and authoritarianism. He exacerbated polarization and division whenever possible, even to the extent of deliberately hobbling the nation’s ability to address the COVID-19 pandemic, including racist attacks on Asian people.

Along the way, right-wing media and political figures have aggravated that division and kept the fascist cordyceps watered and fed. Greenwald, for example, showed an aptitude for attacking government institutions and especially journalists who tried to hold Trump to account while steadfastly denying he was a Trump supporter. Carlson peddled white resentment and conspiracy theories, disingenuously claiming he was “just asking questions.”
I’m between believing on the one hand that the right’s ridicule and dismissal of the hearings is just a cynical attempt to dodge blame, and on the other that it’s meant to derail serious inquiries into the Jan. 6 attack in the hopes that it will happen again. The intent probably depends on the individual, but the latter case is certainly plausible: In a July 23 interview with CNN, new Capitol Police Chief Tom Manger said based on extremist chatter online, they’re planning another action in August. It’s not hard to imagine that many public figures showing disregard for the continued threat in fact sympathize with it.
Regardless, it’s clear that they don’t want the American people to know who laid the groundwork for the Jan. 6 attack and seek to thwart efforts to address its underlying causes. But if we don’t address them, the growing organized fascistic movement that has taken root in this country could very well try to overthrow democracy again, and next time it might even succeed.


Alaric DeArment is a journalist in New York. Follow him on Twitter at @biotechvisigoth.

A Return To In-Person Healthcare Could Bring Novel Challenges

Now that safe, effective vaccines for the COVID-19 virus are widely available in the U.S., healthcare providers have been preparing for patients to walk back through their doors.

The challenges they’ve uncovered are not what you might expect.

Providers can implement the “gating criteria” provided by federal agencies without breaking stride, but they also could face a high number of patients in poor condition because of delayed care, according to Kevin Devaney, a member of the Ohio-based law firm Eastman & Smith Ltd. Devaney is also a registered pharmacist and attorney who assists healthcare clients with compliance issues and business transactions. 

Business processes also changed as a result of the pandemic, Devaney said. For instance, the days of healthcare providers using inventory management to control costs are probably gone for good. The pandemic taught everyone the value of a stockpile. 

(Stay up to date on the latest in health care law with the Practising Law Institute’s upcoming offerings.

The ‘Gating Criteria’ 

In early June, the Centers for Medicare and Medicaid notified healthcare providers who want to reestablish full service medical care of “gating criteria” developed by federal agencies. The criteria include determining whether Covid infection rates are low enough in the locale, the ability and capacity to respond to a surge, adequate testing capabilities, a program to test patients 24 hours before a non-emergent procedure, and adequate staffing. According to Devaney, for many healthcare facilities, measures like this were already in place.

“This is a fast-moving phenomenon. The whole gating stuff? We’re kind of past that.” 

Devaney said that although the guidance offered by federal agencies was welcome and studied, it wasn’t all that necessary. 

“My clients in the healthcare system, they have experience containing infectious disease,” he said. “They brought those lessons to bear. Basically, it’s disaster preparedness. They leaned on their collective wisdom.”

Their knowledge was hard-won. “This is like a natural disaster,” Devaney said “They know how to take care of a burn victim, but how about 200 burn victims flooding the emergency department at the same time? Same with the pandemic. They know how to handle one person with a viral infection. Now, make it 2,000.”

Of course, healthcare providers have good reason to become well-acquainted with federal guidelines and make sure they are in compliance. The reality that CDC or CMS recommendations can’t directly lead to lawsuits because they don’t create a private right of action doesn’t mean plaintiffs won’t use the guidelines to establish a standard of care. And woe to the healthcare provider who fails to meet the standard of care.

“Theoretically, if a hospital ignored gating requirements … would someone point and say, ‘They didn’t meet the standard’ and then sue under state negligence law? It’s likely.” Devaney explained. “I don’t think a hospital’s failure to meet a requirement in and of itself would lead to federal action, but it does establish a standard,” that can be used in state tort law.

Delayed Care, Sicker Patients

Many hospitals and other healthcare providers have returned to normal business operations, but the caseloads have yet to return to pre-COVID levels, Devaney said, at least judging by his clients. This can be a double-edged phenomenon.

The positive side is that, due to fear of infection, people aren’t going to the emergency department for relatively minor ailments. 

“Cases like that aren’t sucking up ED resources,” he said. “People have used telemedicine and have established relationships with primary care physicians, and that’s a good thing.”

So, even though fewer patients are passing through the hospital doors, providers are reassured that people are getting the appropriate level of care.

“I think what has my clients concerned now is a continued reluctance for people to get into the system,” Devaney said. “When they show up they are going to be sicker. They are going to be forced to show up. Maybe someone has diabetes or some other conditions and they should be seeking care. This pent-up demand will come. That wave will eventually hit.”

Also, to provide care to these patients is going to be a lot more expensive, he said.

Healthcare systems and insurers often stress the importance of preventive care. The pandemic might have set back those efforts significantly. Devaney said his clients are worried the pandemic “means only when you get sick enough will you show up.”

Vaccines 

One way to reassure people that it’s safe to go back to the doctor would be to make sure everyone in a given facility is vaccinated, but the healthcare profession has its share of vaccine-hesitant people.

“What we’re finding is a high percentage of health-system employees get the vaccine, but some won’t,” Devaney said.

Mandates could happen if more huge multi-state healthcare systems take that big first step. The Biden Administration’s announcement that federal employees either have to get vaccinated, or be regularly tested and wear a mask while on the job, could strongly also influence private sector employers, given that the federal government’s rule could affect two to 10 million people depending on its exact language. Of course, pushback against the rule is expected.

Nonetheless, “if market leaders come out and say, ‘Hey, we’re in the business of science. You have to get this vaccine,’ I think everyone will say, ‘Me too,’” Devaney said.

The big systems might be waiting for full-fledged Food and Drug Administration approval as opposed to the emergency authorization now in place, Devaney explained.

At the time this article was published, the FDA still had not fully approved the vaccines, despite the fact they’ve been in wide use for months thanks to emergency authorizations. A recent briefing in the New York Times explained why it matters, quoting a former surgeon general who said the absence of full approval “‘leaves schools, colleges, businesses in a legal quandary’” when it comes to mandates. 

The lack of full approval also feeds “uncertainty and skepticism” among Americans who’ve been reluctant to get a shot, the briefing said.

But the FDA’s slow pace is not the only issue facing healthcare providers when it comes to vaccine mandates, Devaney said.

“Some health systems are reluctant to impose it because they have a healthcare staff shortage,” he said. He describes a scenario where a provider mandates the shot only to lose a big group of vaccine skeptics from the vital nursing pool.

“My prediction is that eventually there is going to be a requirement. Probably after it’s approved. Others will latch on if every health system in town requires it.”

The Business Effects

Perhaps surprisingly, healthcare providers are not waiting anxiously for a return to full-service care to save them from insolvency. While Devaney witnessed some failures, he said overall, 2020 was not as bad as expected.

“I had a client with an ambulatory surgical center that shut down. Early on, there was a lot of real and justified consternation,” he said. “Providers we’re saying, ‘We’ve never done this before.’ Brutal conversations were held between large physicians’ groups saying we can’t meet our financial obligations.”

Fortunately, banks turned out to be open to accommodation.

A healthcare provider might have said, “‘Okay, for the next three months we’re not going to pay you,’” Devaney explained, “‘and then we’ll tack those payments onto the end of the loan.’ This was done on a month-by-month basis in the first quarter of [the pandemic], then it smoothed out and people regained their footing.”

Devaney also said the Payroll Protection Program “helped tremendously.” Part of the Coronavirus Aid, Relief, and Economic Security Act passed in March of 2020, the PPP program offered loans to cover up to eight weeks of payroll.

That’s not to say everything was business as usual. Devaney reported that the pandemic changed supply-chain management. These changes are likely to stick, even as the country has its sights on the post-pandemic provision of care.

“Hospitals are keeping on hand far more supplies than they ever did,” Devaney said. For example, “it used to be they would get [surgical] gowns for the week on Monday and use them up, part of this idea of inventory management to keep costs down.”

Now, hospitals are buying more than they can use, after difficulties early in the pandemic.

“I’m not hearing now that people aren’t getting what they need, just that they want to have a cushion,” Devaney said. “They want to say, ‘Well, we’ve got plenty. We can ride it out.’”


Elizabeth M. Bennett was a business reporter who moved into legal journalism when she covered the Delaware courts, a beat that inspired her to go to law school. After a few years as a practicing attorney in the Philadelphia region, she decamped to the Pacific Northwest and returned to freelance reporting and editing.

Who In Biglaw Is Most Excited To Go Back To The Office?

I speak with Stacey Breen, Managing Director at Major Lindsay & Africa, about the twists and turns of her career that led her to her role at MLA, and the motivation behind their recent Return to Office Survey. We discuss the most surprising results of the survey, including generational differences in pandemic experiences. Additionally, we talk about some of the challenges women faced during COVID and what the industry can do to fix them as we return to the office.

The Jabot podcast is an offshoot of the Above the Law brand focused on the challenges women, people of color, LGBTQIA, and other diverse populations face in the legal industry. Our name comes from none other than the Notorious Ruth Bader Ginsburg and the jabot (decorative collar) she wore when delivering dissents from the bench. It’s a reminder that even when we aren’t winning, we’re still a powerful force to be reckoned with.

Happy listening!


Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. 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).

An Education On Defamation

(Photo by Simon Dawson – WPA Pool/Getty Images)

In my most recent column, I skimmed the surface of our First Amendment free speech rights, prompted by comments made by Prince Harry, labeling the First Amendment as “bonkers.” I discussed the fact that here in the United States, the government cannot persecute or prosecute you for what you say or write. It doesn’t matter how unpopular or hateful the speech might be — so long as the communication is not creating an imminent danger or risk of unlawful behavior, the First Amendment protection is generally afforded. In short, the government cannot punish dissent by limiting exercise of free speech.

But what about nongovernmental entities and people? Can you take action when someone says or writes something about you that you may find offensive or false? In certain circumstances and within certain limitations, yes. There exists a private right of action against those who spread negative misinformation. We call that defamation, and it is an area of law to which I have chosen to dedicate much of my career. I can talk all day about defamation, but for this article, I’m going to do my best to simply introduce the two of you.

Before I get into the details, let me take a moment to pump you up for what you’re about to hear. I sometimes refer to defamation law as “gossip law” — it is a chance for someone to fight for their reputation when others have tarnished it with false rumors and outright lies. Did someone spread a terrible rumor about you in middle school? Depending on the content of the rumor and the way it damaged you, you could have sued that bully using our good friend, defamation law. (It should be noted that most states have a very short — blink and you missed it — statute of limitation of just one year from the date of communication, although a few states give you two to three years. Regardless, the window of time to sue your middle school tormentor has likely closed.)

Now onto the facts: Defamation is the umbrella term for both libel (written defamation) and slander (spoken defamation). Defamation laws have been established and litigated for centuries, dating back to the 1700s. From the onset, the courts established that “truth” is an absolute defense to defamation claims. This remains the controlling precedent, and still today anything you say or write — no matter how negative and damaging — is not defamatory so long as it is true.

A conclusive definition of what constitutes defamation in the United States is difficult, since it is defined differently state by state. Each state has established its own set of standards and elements a plaintiff must meet to successfully plead a defamation claim. In general, a statement -– whether spoken or written –- is defamatory if (1) it is a false statement purporting to be fact, rather than an opinion; (2) the statement was published or communicated to a third party; (3) it was communicated with fault amounting to at least negligence; and (4) communication of the statement caused harm to the plaintiff.

But there’s a twist (I told you that defamation law is fun and exciting). There’s a very special part of defamation law that doesn’t require that the plaintiff be damaged in any way — this is when the communicated statement constitutes what we call “defamation per se.” The best way to summarize defamation per se is that the statement is so bad that damage is simply presumed. This once again varies by state, but may include statements accusing someone of a crime, an inability to perform their profession, an immoral act, or a loathsome disease. The thought process behind this exception to damages is that if someone were to publish claims that you robbed a bank, even if you haven’t lost your job due that statement, such claims could follow you and affect your standing in the community or future earnings.

There are many interesting aspects to defamation law, which I won’t get into now but hope to in the future. You don’t have to say something outright for it to be defamatory. You could imply it, like if you were to say, “Bob was standing near the door to the women’s locker room. I’m not saying he was peeping … but you know …” and Bob (depending on the state) may have a viable claim against you. There’s also “false light,” which is a privacy tort and cousin of defamation. It is sadly not recognized in New York but is an available cause of action in other states, such as California. An example of false light is publishing a photograph of a local farmer next to a headline that says “Bestiality on the Rise.” By using that farmer’s image, even if he wasn’t the subject of the article, the publication has placed the farmer in a false light, creating an impression that the farmer was more than just friends with his animals.

Defamation law experienced a turning point in 1964 with the case New York Times v. Sullivan. This part should be of particular interest and concern for Prince Harry, who some may remember was the original catalyst for this multi-article series on protected speech (although I have clearly detoured). This landmark case, cited in most briefs I’ve encountered in defamation cases, held that public officials and public people (i.e., celebrities) could only win a defamation lawsuit if they could prove that the defendant acted with “actual malice,” meaning the defendant either knew that the information was false or acted “with reckless disregard of whether it was false or not.” As an example, let’s assume for a moment that Lucille Bluth and Buster Bluth were real people and not just characters on the significantly underappreciated “Arrested Development.” If TMZ published a story falsely claiming that Lucille had committed tax fraud, based on Buster telling them Lucille had done so, then Lucille would have a viable claim for defamation against TMZ. This is because TMZ would have published the story without any due diligence into whether it was true. However, if TMZ published the story “Buster Bluth accuses Lucille Bluth of tax fraud” they’d be in the clear since that is a truthful story — Buster did in fact make that accusation in this fun little hypothetical about the thrilling world of defamation law.

This heightened standard could present a problem for Harry and for Meghan should they ever pursue a defamation case in the United States, because each is clearly a public figure and thus has to meet a higher burden than you or I would have to meet. They’d have to prove that the defendant acted with actual malice. I am not an expert in U.K. defamation law and thus do not know how this additional burden would have affected any of their previous lawsuits — those of which involved defamatory content. Since Harry and Meghan filed six separate lawsuits between Fall 2019 and Fall 2020 (mazel tov to the attorneys they keep on retainer!), I would need to write up few more articles to cover the effects U.S. laws would have had on their cases. What I do know is that the U.K.’s defamation laws differ from those in the U.S. in one very significant way: In the U.K., the burden is on the defendant to prove that his or her statement was true; in the U.S., the plaintiff bears the burden of proving the falsity of the statement. That’s a fairly material shift that would certainly affect any case.

It remains to be seen if the Sussexes file any defamation lawsuits with the U.S. courts, and perhaps I’ve given them some information to consider before they do so. As for you, the actual reader, I hope I have shed some light on this fascinating and ever-evolving area of law. While we have the First Amendment protecting our free speech rights, there are repercussions for spreading false information about someone else. We have a system in place that allows a person who has been harmed by false communications to seek justice and hopefully recoup any losses they experienced as a result of those communications. So you may not be forced to shut your mouth, but you might have to open your wallet.


Diana Warshow is Senior Counsel at Nesenoff & Miltenberg, LLP in New York, NY. Practicing law since 2008, Diana’s work focuses on defamation and Title IX law. She represents clients in libel and slander claims against media companies, written publications, tech companies, blogs, and social media sites. She also represents students in disciplinary proceedings at high schools, colleges, and post-graduate institutions around the country. You can reach her by email at DianaWarshowEsq@gmail.com and connect with her on LinkedIn.

Amy Chua Broke The Rules… So Let’s Punish Students. Sounds Like Yale

Oh, we’re going to talk about Amy Chua again. Exciting right!

Well, there is now an anti-backlash that is right here to say this Chua mongering is not deserved! Here it is… but… I like Libby’s cheeky version:

It does feel that way some times. So much so that a former law school dean in a weaker moment decided to misplace the blame: “(I blame this all on @ElieNYC and @DavidLat, but glad to see them taking the higher road these days. Grateful).” I won’t defend the cattiest, most boot-licking eras of this website’s past, but I’m very much going to defend the part where we came in and said, “Hey, maybe enabling a professor that an independent body identified as a sexual predator is bad.”

Call me old-fashioned, but… yeah… you don’t get to harass people. In a world where no one called out this behavior, it went unaddressed and that’s the whole problem.

Anyway, the most recent entry in the Amy Chua tour is this piece in The Atlantic which is actually not about Chua — because Bruenig, like some earlier great journos on this case, senses that the story isn’t really about Chua and cancel culture as much as she might want to concoct it. It’s about students wrapped up in a bad scene and now, because it’s Yale, they’re thinking about punishing the students instead of the grown ass adults.

Not that the Guest had any reason to contemplate any of this when, early in the spring semester of 2021, he decided to step down as an executive editor at the Yale Law Journal. The Guest, who describes himself as half-Korean, had misgivings about the way the journal’s staff had responded to his questions about the lack of racial diversity in its ranks, and his suggestions for addressing it. Still, even after making his decision, the Guest felt uncertain and unsettled. He confided this to the Visitor, who as a Black student at Yale Law had wrestled with similar questions, and she took it upon herself to bring them up with Chua during a Zoom meeting that served in place of the professor’s usual office hours. At that point, the Visitor recalls, Chua casually offered to talk with the two of them about the Journal affair at her home in New Haven, and the Visitor called the Guest to pass the invitation along.

As this scandal brewed, some tipsters urged us to call out the people that Bruenig identifies as Guest and Visitor here, and we didn’t. You know why? Because they didn’t do anything wrong. In fact, I early on noted that the impropriety of her meetings with students has exactly nil to do with whether or not those students were right about how busted the law school may be.

Both things can be true.

Yale Law School is a funny place: Everyone you talk to says they’re there more or less for charity work, but somehow the graduates keep getting rich and famous. While we all contemplate that mystery, the Guest and the Visitor will be contemplating something very different—how to recover from this strange turn of events. The Guest, whose only documented offense was visiting Chua to talk about his run at the Journal, withdrew his application for the Coker fellowship, and applied for no clerkships. The Visitor quietly accepted one fellowship, and likewise declined to seek any clerkships, reasoning along the same lines as the Guest. What else could they have done? It takes an admirable perceptiveness to know when the truth can’t save you anymore.

Not so sure they get rich and famous as much as they topple regimes, but the point remains. You know who should be punished for Amy Chua letting students hang out in her house after her husband got nailed for sexual harassment? NOT THE STUDENTS. Seriously. You may think you’re the unique and special snowflake who can advise them… you might be right!… but this is the point where you do it at fucking Starbucks.

Honestly, I’m not trying to write about these professors all the time. I feel I have to as long as this keeps happening.

The New Moral Code of America’s Elite [The Atlantic]

Earlier: Amy Chua Keeps Inviting Reporters To Her Home As If That’s Not Exactly How She Got Into This Mess
Amy Chua Denied Hosting Parties That Got Her In Trouble — Contemporaneous Texts Disagree


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.

So You Want to Lead Your Firm? Be Careful.

Global Chair. Head of Litigation. Office Managing Partner. Those are some nice sounding titles, right? In a profession that emphasizes prestige and status, it isn’t surprising that many high-achieving partners aspire to lead their firms. For a partner who has achieved success at each rung of the Biglaw hierarchy, the pinnacle of leadership may seem like a natural next conquest. But if you’re in a position to reach that pinnacle, you should ask yourself two questions before accepting the appointment. First, why do I want this job? Second, is the timing right?

Realities of law firm leadership

Successful law firm partners are accustomed to interacting with powerful corporate executives. Watching their clients run companies or in-house legal departments naturally encourages some lawyers to think, “hey, I could do that!” And what better way to prove it than by chairing their firm?

It’s important to recognize that the power wielded by a Managing Partner is materially different from that of a CEO. Companies are fundamentally hierarchical organizations, and although the most effective CEOs will inspire employees to align with the CEO’s vision, the reality is that a CEO can act unilaterally where necessary. Reporting lines are clearly delineated, and team members who resist directives from senior leadership are unlikely to last long. Moreover, employees who quit are rarely in a position to take a substantial portion of the company’s business with them.

Compared to a CEO, a Biglaw Chair is generally in a weaker position to drive change unilaterally. We can all think of examples of exceptionally powerful Managing Partners—often these are founders of their firms with their names on the letterhead. But in the more typical case of a partner who rises up the ranks to assume the role of Chair, the experience of leadership is more herding cats than giving orders. Partners are owners, and they feel entitled to a real say in the firm’s direction. This is especially true of the rainmakers, whose power is reinforced by their ever-present ability to take their book of business elsewhere. In contrast to the efficiencies of hierarchical corporate structures, law firm leadership entails a slower, more collaborative and constrained process.

Another notable difference between CEOs and Biglaw Chairs is that Biglaw leaders frequently are not the highest paid members of their firms. CEOs are generally assumed to have outsized responsibility for the financial performance of their companies, and their outsized compensation reflects this. In a law firm, the dynamic is different. A Managing Partner plays an important role in ensuring smooth operation of the firm, but revenue is generally credited principally to the decentralized business development efforts of individual partners. (Recall the analogy we recently drew between law firm partners and franchise owners.) Outsized compensation is earned through rainmaking, not through leading the firm in an administrative capacity.

Before agreeing to become Chair, you would be wise to take a step back and reflect on why you aspire to firm leadership. It is a challenging job, and compared to practicing full time, you aren’t likely to earn a premium for assuming a top leadership post. Make sure you look beyond the title when assessing the desirability of these roles.

Pitfalls of an early rise to the top

Presuming you are under no illusions about what leadership will entail and you have decided that you want the role, the second critical issue is timing. Star partners often ascend to the top of their firms as soon as the opportunity presents itself. This makes perfect sense on one level—who knows if you’ll get a second chance at a later date? But if you are offered the opportunity to lead your firm as a mid-career partner, it’s important to think through the potential pitfalls.

The main risk is that you’ll come to the end of your leadership tenure and will be poorly positioned to resume your practice. If you expect chairing the firm to be your last job, you don’t have to worry about giving up your book of business. But if you take on the leadership role as a mid-career partner, with the expectation of practicing for another decade on the back end, you need to be mindful of the difficulties of reintegrating into full-time practice.

The nature of the risk depends on whether the Managing Partner role is a full-time job. If you are expected to devote your full attention to leadership, you will necessarily have to hand over your practice to other partners. And if you do that, you shouldn’t expect to get it back several years down the line. Transitions of this sort tend to be sticky: by the time you return to the scene, your clients will be accustomed to dealing with those other partners and may not see a benefit in switching back to you. In an era in which firms increasingly prioritize profitability above all, you will struggle to return to your pre-leadership position of strength without a robust book of business.

If your firm expects you to continue to practice part-time while in leadership, the risk of losing your client relationships is mitigated, but your practice may still be impaired. Your competitors will be focused solely on building their books, whereas you will be distracted by your firmwide responsibilities. Remember: fancy titles are nice, but your long-term value to the firm derives from your ability to grow and maintain your practice.

You should assume that taking on the Chair role is effectively a retirement plan. If that makes you uncomfortable, it’s probably best to delay the job for now.


Ed. note: This is the latest installment in a series of posts from Lateral Link’s team of expert contributors. Michael Allen is the CEO of Lateral Link. He is based in the Los Angeles office and focuses exclusively on Partner and General Counsel placements for top firms and companies. Prior to founding Lateral Link in 2006, he worked as an attorney at both Gibson, Dunn & Crutcher LLP and Irell & Manella LLP. Michael graduated summa cum laude from the University of California, San Diego before earning his JD, cum laude, from Harvard Law School.


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The Great Law Firm Reopening Tracker: Vaccination Mandates Are Now On The Table Thanks To The Delta Variant

Firm Reopening/WFH Policy Arent Fox On July 6, all of the firm’s U.S offices will be open, and employees will likely come in once a week, eventually working their way up to coming in twice a week; it’s expected that all personnel will maintain a “routine physical presence” in the office, but remote work flexibility is still on the table Baker McKenzie Firm is planning to reopen its North American offices in early September; remote work from home is still on the table at the firm, but in-person interaction will be highlighted Cadwalader Office attendance is encouraged, but not required, through Labor Day 2021; thereafter, and through year-end, office attendance is expected, but not on a full-time basis; in 2022, the office will be the “primary workspace” for attorneys and staffers Clifford Chance The firm will return to office-based working, starting on September 13, with up to two remote days each week for both attorneys and business professionals (and time spent with clients outside the office will be considered time in the office); the firm will require all employees to be vaccinated by September 13, and provide proof of vaccination Cooley For the remainder of 2021, the firm won’t institute a “mandatory” return to office date or require a minimum number of in-office days, and notes that “our workplace of the future will be neither fully remote nor fully in person”; by Labor Day, anyone working in-office or visiting an office must be fully vaccinated Covington Employees are expected to return on September 7, and the firm will use a hybrid work model for attorneys and staff; employees should plan to spend at least three days in the office and will be able to work two days remotely; new associates encouraged to work more than three days per week in-office Dechert Firm hopes attorneys will come into office on voluntary basis this summer; attorneys expected to come into office starting on September 13, on at least a part-time basis; firm will allow for hybrid work arrangements, but requests that lawyers spend about half their time working in-person on days of their own choosing; firm “strongly encourages” vaccination Davis Polk Firm is setting up two days in May for a “Spring Back to the Office” program; Davis Polk will remain in a “voluntary return posture” until Labor Day, and will then switch to a hybrid return model (details to be announced after July 4th); the firm’s full reopening plan includes 3-4 workdays spent in-office with the possibility of floating remote weeks for attorneys Davis Wright Tremaine Firm has announced that once its employees are eligible to get vaccinated, they will be encouraged to do so soon as possible; thereafter, only those who have been vaccinated will be allowed to enter the office or to attend firm-sponsored events; in the future, the firm will require proof of vaccination Dickinson Wright Firm has informed all employees that they must be vaccinated in order to come into any of the firm’s 19 offices; the new policy will also apply to all firm events Faegre Drinker Firm’s hybrid work schedule is set to begin after Labor Day, and lawyers will be free to make their own in-office schedules; firm has a voluntary vaccination policy, and fully vaccinated employees may request exemption from the firm’s mask mandate; employees must complete daily health screenings Fenwick & West The firm has implemented a vaccine mandate as part of its health and safety procedures during its soft opening and will “require all personnel to be vaccinated before coming into our offices”; the firm will “provide wide latitude and flexibility for remote work” through the end of 2021 Gibson Dunn Firm will will welcome employees back to the office on September 13, but lawyers will be free to make their own schedules, working remotely “whenever it is appropriate” becayse such flexibility is needed for lawyers to have “full, well-rounded, happy lives” Goodwin Procter In-office operations at the firm will resume on September 13, 2021; the firm will be “taking a flexible approach to working from our offices,” and does not expect the five-day, in-office workweek to return; lawyers are encouraged to be in the office at least three days per week starting the week of September 13; firm will begin to “hotel” office space for those who will be in the office fewer than three days per week; vaccination is not required, but will be “strongly encouraged” Hanson Bridgett Firm introduced a vaccine mandate on July 23, and the new policy will apply “for anyone working in or visiting any of Hanson Bridgett’s five physical office locations or attending a firm-sponsored event at other locations”; paid time off will be provided for employees to get vaccinated; 93% of its personnel are already fully vaccinated Hogan Lovells Firm states that only fully vaccinated employees may return to the office prior to September 13; thereafter, the firm will assess whether vaccinations will still be required for entry Hueston Hennigan Employees were encouraged to return to the firm on a voluntary basis starting on June 15, with one requirement: vaccination, with proof; the firm had been planning a full return to the office after Labor Day, but the new surge of Delta infections has made management start to rethink things Jenner & Block Firm will start allowing lawyers to return to U.S. offices, on a voluntary basis, starting June 7 (subject to government occupancy restrictions, social distancing, employees being vaccinated, or having a negative PCR test); this is the first phase of the firm’s plan, with the ultimate goal of having as many offices as possible return to normal occupancy levels, with appropriate flexibility, and office as the primary workspace Jones Day Lawyers at the firm’s D.C. office, “who are able to do so,” are encouraged to start working from the office on May 24; rooftop get-togethers will begin on June 13 Katten Firm will reopen after Labor Day, but will not require lawyers to spend a “particular number of days in the office” Kirkland & Ellis Because the firm believes that an “office-centric work environment is necessary,” starting on September 7, lawyers should plan to return to the office as their “routine baseline” Kramer Levin The firm is expecting attorneys to return to the office “sometime in September, but not before September 20”; attorneys will not have to work in-office every day (firm is “planning for our attorneys to be able to work some days in the office and some days remotely on average each week”) Kelley Drye The firm is encouraging its lawyers and staffers to voluntarily come to the office “from time to time” this summer; after Labor Day, firm “expect[s] to move to a fuller return to the office with flexibility for remote work” Latham & Watkins The firm will undergo a “gradual transition” back to the office this summer, with the “general expectation” that by mid-September, attorneys and staffers “will have re-established their regular routine of working from the office” Loeb & Loeb Firm will invite employees back to the office in three phases: after the July 4th holiday, employees can visit the office voluntarily; after Labor Day, the firm will encourage a “somewhat more meaningful return to office,” which will last “through at least the end of 2021”; thereafter, Loeb will evaluate its new hybrid way of working to figure out what will the future of the firm will look like Lowenstein Sandler Firm announced on April 30 that it would be rolling out a three-phase reopening plan, until July 4, employees are invited to “try out the office”; starting July 6, employees are invited to return on a voluntary basis for “a day or two each week”; after Labor Day, employees are expected to be working in an office “most of the time” (i.e., three or more days each week); effective August 2, the firm will require all employees to be vaccinated to return to office; firm may delay next stage of its reopening plans due to recent surge of Delta infections Mintz Firm has announced that employees may return voluntarily starting on July 6, and those who are vaccinated will no longer need to wear masks or socially distance from colleagues; those who are unvaccinated will not be allowed to enter building and will continue to work remotely until September Orrick Firm is targeting a September return to work (post-Labor Day), and those who are able to do their jobs remotely will not be required to return to the office five days a week Paul Hastings Lawyers and staffers are expected to return to the office on September 7 (potentially on an everyday basis); according to firm’s return-to-office memo, “by default, we should work from the office when we are able”; in a second memo, the firm seems to have walked back its prior “by default” language, stating its intention to remain a flexible workplace Paul Weiss Attorneys and staff are expected to return to the firm on September 13; the firm will be requiring everyone who enters its offices to be fully vaccinated Perkins Coie Lawyers and staffers are expected to return to the office on October 1; lawyers will come into the office a set number of days (and they’ll able to choose which days themselves); more than half of employees have already been vaccinated, but the firm will still require masks and social distancing Reed Smith Firm will roll out a three-phase reopening plan: in June, the firm will host “Welcome Back Wednesdays,” where all employees will be encouraged to sign up to work one office Wednesday; on July 6, the firm will have a soft opening, where employees will be able to come into the office by reservation only; on September 7, all U.S. offices will be fully reopened; lawyers will not have to work a set number of days in the office, even when the firm has fully reopened, but will be expected to maintain somewhat of a “routine physical presence” Ropes & Gray “Permissive office usage” will continue in U.S. offices until Labor Day in September; thereafter, the firm will provide “at least 45 days’ notice before moving from permissive usage to a broader office return”; on May 5, the firm announced a three-phase reopening plan, culminating in November with a three-day, in-office workweek; firm will provide free food every day of the week after Memorial Day through Labor Day Sanford Heisler Firm has announced a COVID-19 vaccination requirement for all of its attorneys and staff prior to their return to the office; firm plans to reopen its offices in June, and employees are expected to come in at least part-time by September Sheppard Mullin The firm has announced a relaxed, three-phase reopening plan, inviting those who are fully vaccinated to return to work on “some days,” to “do your best” to come to the office “on some days” after July 6, with the expectation that people to “come to the office on some days” on September 7 and thereafter Sidley Austin The firm is in the midst of a “gradual and flexible transition” to its U.S. offices, and “[o]pportunities to work remotely will remain during the transition and in the future”; the firm is focusing on “empathy and understanding” in its return to the office, and will “preserv[e] the ability to work remotely as needed and appropriate” even after it fully reopens in September Simpson Thacher Firm will formally reopen on September 13, 2021, with “the ultimate goal that attorneys be in the office 3-4 days a week on average”; STB will “strongly encourage” all personnel to be vaccinated Skadden Arps The firm is setting its sights on a September 13 formal reopening of its U.S. offices, with a hybrid work model that will include at least three days of in-office work, but “remote work flexibility will be part of our work routine going forward”; the firm is not requiring vaccinations, but unvaccinated employees must be tested for COVID-19 prior to entering the office Stroock Both attorneys and staff members will be able to work on a hybrid schedule to “break down … class barriers” Sullivan & Cromwell The firm will require its attorneys to return to the office in July; associates unhappy with seeming lack of remote work opportunities; chair Joe Shenker claims the return to office is not mandatory, but “strongly” encouraged Venable The firm will make a “gradual return to the office,” but hasn’t provided a formal reopening date yet, hoping instead to “populate our offices in greater numbers beginning in September”; the firm will “provide flexibility for remote work for most roles for the foreseeable future” and is encouraging all personnel to get vaccinated Weil Gotshal The firm’s New York, Boston, D.C., Miami, Dallas, and Houston offices will be opened at 100 percent capacity beginning in June; the firm “encourage[s] people to return to the office on some basis, as it is part of the return to the new normal”; a full return to the office will be after Labor Day, on Tuesday September 7; the firm expects all employees to be vaccinated, and those unvaccinated will have to undergo COVID-19 testing; firm will offer two remote days to attorneys each week, and partners are expected to have a “significant in office presence” White & Case The firm will formally reopen after Labor Day, after which a “flexible approach to remote working” will be offered through the end of the year, with attorneys in office just two or three days per week Wilson Sonsini The firm will not require its attorneys to return to the office in 2021; from June 1 until September 20, 2021, the firm will start the reopening process (those who want to go into the office will be allowed to do so); on September 20, 2021, the firm will reopen its U.S. offices with full amenities and services, but no one will be required to go Willkie Farr The firm will not require its attorneys to return to the office in 2021

Ninth Circuit Trends In Certifying State Law Questions

The U.S. Court of Appeals for the Ninth Circuit (photo by David Lat).

Ed. note: This article first appeared on The Juris Lab, a forum where “data analytics meets the law.” 

This Term, the U.S. Supreme Court highlighted the importance of federal courts certifying novel, determinative issues of state law in federal appeals to the relevant state supreme court, rather than deciding those issues themselves.

In a per curiam order in Mckesson v. Doe, 592 U.S. __ (2020), the Court granted a petition for certiorari and remanded the case to the Fifth Circuit for the circuit to certify a novel issue of state law, on which the federal constitutional analysis in the case depended, to the Louisiana Supreme Court. 

The case arose from injuries sustained by a police officer during a Black Lives Matter protest. The appellate panel overturned the dismissal of a negligence claim brought against the organizer of the protest. The Circuit deadlocked on a petition for rehearing, parting ways on both the constitutional issue and the panel decision’s interpretation of state law. The question presented to the Supreme Court was whether the theory of personal liability adopted by the Fifth Circuit violated the First Amendment.

The Court determined that “the Fifth Circuit’s interpretation of state law [was] too uncertain a premise on which to address the [constitutional] question presented” in the petition because that issue was “implicated only if Louisiana law permits recovery under these circumstances in the first place.” Order at 3. 

The Court observed that the Louisiana Supreme Court Rules allowed federal courts of appeals to seek guidance on novel issues of state law, and concluded that the Fifth Circuit should have done so in this case for two reasons: (1) “the dispute present[ed] novel issues of state law peculiarly calling for the exercise of judgment by the state courts” and (2) “certification would ensure that any conflict . . . between state law and the First Amendment [was] not purely hypothetical.” Order at 4. The Court ruled that “the Fifth Circuit should not have ventured into so uncertain an area of tort law — one laden with value judgments and fraught with implications for First Amendment rights — without first seeking guidance on potentially controlling Louisiana law from the Louisiana Supreme Court.” Order at 5. 

The Supreme Court’s endorsement of the certification procedure in cases where novel issues of state law (particularly those involving cutting edge moral or policy issues) are at stake further underscores the importance of certification procedures in the federal courts of appeal. 

In the June 4, 2021, Law360 article “When Your Ninth Circuit Case Needs California High Court Input,” we documented the increased use of the certification procedure by the Ninth Circuit with regard to the California Supreme Court. 

For Juris Lab, we have further examined the data underlying our original study, to determine (1) which Ninth Circuit judges have certified more cases to the state supreme court, and whether any meaningful pattern can be discerned from that data and (2) what stage in the proceeding the Ninth Circuit has most often certified an issue, and whether it did so on its own motion or at the request of a party.

As to the members of the court most likely to certify state law issues to the California Supreme Court: Among over 47 certifications in the Ninth Circuit since 2002, the judges whose names most often appeared as members of panels seeking state high court input are Judges Fletcher (8), Gould (7), Ikuta (6), O’Scannlain (6), Paez (5), Graber (5), Callahan (4), and Silverman (4).  

Half of these judges previously served as a state court judge: Paez on the Municipal Court in Los Angeles, California; Callahan on the California Court of Appeal; Graber on the Oregon Supreme Court; Silverman on the Maricopa County, Arizona Superior Court. They therefore may be particularly attuned to allowing state courts to determine novel state law policy issues themselves. 

The most notable finding from our study of Ninth Circuit certifications to the California Supreme Court, however, is that only 11 of the 47 cases had issues certified by party motion; the overwhelming number of certifications were done by the Circuit sua sponte, by members of the panel, and most often after oral argument or even at the rehearing stage.

This suggests that, once the panel members conferenced after oral argument, they all agreed that the state law issues in the case were not clearly resolved by existing law, and would benefit from input by the relevant state supreme court.  This also suggests that, where counsel have a Ninth Circuit appeal involving novel state law issues, they should be prepared for the possibility of certification, and develop a strategy around that. 

With the U.S. Supreme Court highlighting the helpfulness of using state court certification procedures, the number of certified state law issues in the Ninth Circuit is only likely to increase. 

Click here to view the data from this post.

Read more at The Juris Lab … 

M.C. Sungaila is the Appellate Practice Chair at the law firm Buchalter.

Pro Se Litigants Can Make Formidable Opponents

Most people involved in litigation are represented by counsel. Litigation can be very confusing, and untrained individuals usually want to hire someone who has the knowledge and experience needed to properly handle a lawsuit. Every so often, litigants decide to represent themselves, usually either to save money or because a lawyer would not take the case. Sometimes, lawyers do not think much of pro se litigants, since these individuals did not attend law school and may have less experience in the litigation process. However, pro se litigants can make formidable opponents in a variety of situations, and lawyers should take them seriously.

One reason why pro se litigants should be taken seriously is because they generally have more skin in the game than lawyers who are merely representing a client. As such, pro se litigants are likely to research all of the legal issues and procedures involved in a case and harp on deficiencies in the positions of adversaries. Earlier in my career, a new associate at my firm was up against a pro se litigant, and this associate needed to serve a supplemental bill of particulars. However, since the complaint had been verified, the bill of particulars also needed to be verified, meaning that the client stated under oath that the bill of particulars was true.

There are some instances in which a lawyer can verify a bill of particulars, and this lawyer tried to verify the bill of particulars himself. However, the pro se plaintiff rejected the verification because the attorney was not allowed to verify the bill of particulars in his circumstance. A lawyer might have let the lack of verification slide, or not noticed the deficiency in the first place, but this pro se plaintiff was adamant that the rule be followed, and this associate was left scrambling in order to get things right.

Another reason why pro se litigants can be formidable opponents is because they usually only have one or a few lawsuits to which they devote their time. When I was a “street lawyer” handling insurance defense cases and going to court regularly, I had between 25 and 44 cases for which I was responsible. It was sometimes difficult to keep track of all of these cases since my time was spread pretty thin. However, pro se litigants can devote all of their energy to one case, and this can have positive results. Pro se litigants can keep track of all deadlines in a case, press every advantage, and have a higher likelihood of success when litigating a matter.

Moreover, pro se litigants can often be more efficient in how they litigate a case. When a lawyer represents a client, the attorney needs to rely on the client to provide accurate information about a matter. Clients are often less than forthright with information that is relevant to a case, and this can hamstring a lawyer’s efforts to best represent a client. However, a pro se plaintiff has access to all of the information related to a matter. This can help the plaintiff provide accurate discovery responses and take steps in the litigation that are advantageous because of the facts of a case.

In addition, pro se litigants do not need to deal with some of the inefficiencies that lawyers at bigger law firms need to contend with when litigating a case. Pro se litigants do not need to deal with budgets and billable hour caps when representing themselves in litigation. Such considerations can limit lawyers from pressing every advantage in a representation and pro se litigants are not so limited. Moreover, pro se litigants do not need to deal with reporting, billing, and all of the other administrative tasks of a case that might take time away from providing top-rate legal representation.

Pro se litigants can also be formidable opponents since they are more likely to take the steps that are needed to be successful in a litigation. Lawyers often give advice to their clients about how to have the best chance possible at succeeding in a case, such as refraining from talking about matters on social media, preserving all documents related to a matter, and taking other steps. However, the lawyer does not have complete control over a client, and numerous times, a client will act in a way that might be detrimental to the litigation. Nevertheless, pro se litigants are far more likely to take all of the steps that are needed in order to be successful in a matter. I talked about this phenomenon a while back when I discussed how lawyers also make formidable litigants, and people who have more skin in the game are far more likely to refrain from conduct that could be deleterious to the representation.

All told, lawyers sometimes dismiss pro se litigants thinking that pro se litigants should be no match since they lack legal training and experience. However, pro se litigants can make formidable opponents and lawyers should underestimate them at their own peril.


Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.