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Jack Ma is not a fan of regulation. Unfortunately for him, now that he’s out of his time out for saying so, that’s what he’s going to get.

Almost 1,500 lawsuits have been filed by policyholders against insurers, seeking to resolve disputes around insurance coverage for COVID-19-related business losses.

For those unfamiliar with insurance litigation trends, it’s important to put the scale of this into perspective. The average hurricane will result in about 50 to 100 cases being filed in the first year; from April till August 2020 we saw the same quantity of cases being filed each week for COVID-19-related losses.

So far, rulings have been made overwhelming in the favor of insurers, at a rate of approximately 75%. However, there have been some significant rulings in favor of policyholders over the last few months which should cause insurers pause for thought.

An Overview of the Numbers

The University of Pennsylvania Carey Law School has been maintaining a COVID Coverage Litigation Tracker since the beginning of the pandemic, which provides us with a wealth of data to analyze.

Weekly filings peaked from mid-March until late August 2020 and then began to tail off towards the end of the year.

The industries that these cases are emanating from are all industries that have been adversely impacted by government stay-at-home orders, with 38% of all cases being brought by policyholders in the food and drink industry.

The vast majority of plaintiffs are claiming coverage provided within a Business Interruption (BI) policy. And there are principally three sections of cover within a BI policy where plaintiffs are seeking coverage: business income, extra expense, and civil authority.

The Arguments

Given the number of cases filed combined with the fact we’re starting to see some judgments trickle through, there are a number of common arguments emerging among both plaintiffs and defendants.

Policy exclusions for viruses

Some of the plaintiffs’ BI policies contain clear exclusions for viruses. In these instances, insurers are often succeeding by bringing early motions to dismiss.

Out of the 86 cases that have so far had a motion to dismiss granted, 65 of these contained a virus exclusion in the policy.

Prominent cases include Chattanooga Professional Baseball LLC d/b/ Chattanooga Lookouts et al. v. Philadelphia Indemnity Insurance Co., et al. where in November a federal judge in Arizona granted the motion to dismiss, citing the virus exclusion. Meanwhile, also in November, a California superior court judge dismissed the plaintiff’s case in Musso & Frank Grill Co. Inc. v. Mitsui Sumitomo Insurance USA Inc., citing the virus exclusion as a factor in the judgment.

However – the existence of a virus exclusion in a policy hasn’t always resulted in success when an insurer has brought an early motion to dismiss. In Urogynecology Specialist of Fla. LLC v. Sentinel Ins. Co. the judge ruled that the virus exclusion was not unambiguous enough to bar coverage being sought by the plaintiff.

While the policy excluded claims caused by “the presence of fungi, wet rot, dry rot, bacteria or virus.”, the judge ruled that denying coverage for COVID-19 “does not logically align with the other pollutants” that the “policy necessarily anticipated and intended to deny coverage for these kinds of business losses.”

What constitutes a “direct physical loss”?

For policies that do not contain a virus exclusion, the next line of argument is what exactly constitutes a “direct physical loss”, and it is this question that courts are now having to rule on.

Most BI policies require “physical loss of or damage to property” in order for an insured’s loss to be covered. For example, if a hurricane damages a restaurant’s premises to the extent it’s unable to reopen until repairs have been completed, then this constitutes a direct physical loss (structural damage) caused by an insured event (inclement weather).

Insurers are therefore leaning heavily on the definition of the term “physical”, which they are arguing means physical damage or alteration to the property, rather than just economic loss that is unaccompanied by physical damage.

Most rulings in favor of insurers, where policies do not contain virus exclusions, have been based on this definition of “direct physical loss”.

In the very first COVID-19-related insurance case to reach a judge, Gavrilides Management Company, et al. v. Michigan Ins. Co., back in July 2020, the Michigan state court judge ruled in favor of the insurer, rejecting the argument from the policyholder that the loss of use of the property caused by government restrictions constituted a direct physical loss.

Therefore, the judgement concluded that the loss of use or access to a building does not in and of itself, constitute “direct physical loss or damage”.

Policyholders have of course been developing arguments to counter this, which assert that virus particles have caused physical damage to property or that structural alteration to a property is not required in order to sustain a direct physical loss. Significant rulings on these cases are explored below.

Rulings to Date and Significant Cases

So far, most cases have only got to the pre-dismissal stage, where insurers are challenging around 25% of all cases with early motions to dismiss. And insurers are coming out on top here, overwhelming so, with a success rate of almost 75%.

However, of the handful of cases that have had the motion to dismiss denied, we now have a few clear precedents which will undoubtedly have an impact on future litigation strategies.

Studio 417 v. Cincinnati Insurance Co.,

One of the first rulings in favor of a policyholder came in August 2020, when a federal judge in Missouri allowed the suit to proceed. In this case the plaintiffs, a group of hair salons and restaurants, argued that the physical presence of COVID-19 virus particles within their business premises damaged their property and amounted to direct physical loss, pursuant to their policies.

The court decided that “loss” could be defined as “loss of use” as the trigger wording within the policies was “direct physical loss of or damage to” covered property.

However, it should be noted that this ruling merely allowed discovery to continue and it did not decide the coverage issue of whether the plaintiffs argument did in fact constitute direct physical loss.

Optical Services USA/JCI v. Franklin Mutual Insurance,

In this case, heard in September 2020, a group of New Jersey optometrists built a different argument than Studio 417, as they did not allege that there were physical COVID-19 particles on their premises. They instead argued that this was not necessary to establish coverage and that New Jersey case law asserts that structural alteration to a property is not required in order to sustain physical loss.

The plaintiffs cited judgements from two similar cases. In Gregory Packaging Inc. v. Travelers Property Casualty Co. of America, 2014, a federal court in NJ ruled that ammonia gas discharge into a building rendered the property “temporarily unfit for occupancy” and therefore amounted to direct physical loss. And in Wakefern Food Corp. v. Liberty Mut. Fire. Ins. Co., 2009, where a court ruled in favor of a grocery store seeking coverage following an electrical outage caused by a fault in the grid.

The court concluded that based on the case law cited, the insurance policy definition of the term “physical” should be more encompassing than simply “material alteration or damage” to property and determined that the plaintiffs were entitled to issued-oriented discovery.

North State Deli, LLC v. The Cincinnati Insurance Co.,

This case is the most significant to date, as unlike the above, this was a declaratory judgement, rather than a motion to dismiss.

A group of restaurants located in North Carolina brought a declaratory judgement action against The Cincinnati Insurance Company and The Cincinnati Casualty Company, having been denied cover for their COVID-19-related BI claim.

The insurers denied the original claim, arguing that loss of the physical use of and access to the policyholders’ restaurants did not constitute a direct physical loss as pursuant to the insurance policies.

However, the North Carolina state court examined the policies alongside dictionary definitions of “physical” and ruled in favor of the plaintiffs, arguing that “the ordinary meaning of the phrase ‘direct physical loss’ includes the inability to utilize or possess something in the real, material, or bodily world, resulting from a given cause without the intervention of other conditions.”

Conclusion

The decisions in both Optical Services USA/JCI and North State Deli, LLC are significant for two reasons. Firstly, no clams were made by the plaintiffs that the COVID-19 virus was physically present within their business premises. Secondly, and most importantly, the judgements support a broader definition of “direct physical loss”, beyond simply structural alteration to a property.

Both of these judgements will no doubt impact plaintiffs’ strategies as more and more cases make it to court. The success of these strategies, however, remains to be seen.

This blog post is not offered, and should not be relied on, as legal advice. You should consult an attorney for advice in specific situations.

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Gary Markham is the founder of AI-enabled predictive analytics legaltech company LSG, who provide enterprise-level litigation and panel counsel management software to insurers.

Related Content:

1. Understanding Insurance Policies and Potential Insurance Recovery After Covid-19
2. Insurance Coverage for Coronavirus: Mitigating Loss and Protecting the Business
3. Recent Litigation of Force Majeure and Other Contract Defenses During COVID-19

Chad Mizelle was recently the Acting General Counsel of the Department of Homeland Security. But as revolving doors must, he needed to find himself a new place of employment with the Trump administration over and his wife losing her cushy associate salary to become a federal judge over the objections of the ABA and anyone who thought federal judgeships should go to people with, you know, experience. One might have thought a highly placed Trump official attached to a department that managed to lose track of hundreds of immigrant children after collaborating with the DOJ to kidnap them in the first place would struggle to find private sector employment. Ditto the part where DHS started disappearing people off the streets of Portland into unmarked vans.

But that’s only if you don’t know Jones Day.

Entirely unsurprisingly, Mizelle slipped into the firm his wife just vacated with an of counsel title and an opportunity to pretend that every career stain of the last administration never happened. Current Jones Day icon and former White House Counsel Don McGahn said of Mizelle:

“He is a superb lawyer with a proven track record of navigating some of the most complicated legal, policy, national security, and regulatory issues our clients may face. I look forward to his contributions and welcome him to Jones Day.”

Some of the “complicated legal issues” he failed to successfully navigate involved his former bosses Chad Wolf and Ken Cuccinelli, the DHS “officials” that Trump appointed to head the agency despite a clear legal framework that prevented this. Mizelle’s job was to make the case that Trump could staff the agency with anyone he wanted and the GAO kicked the claim to the curb after, you know, researching it. This prompted Mizelle to respond the way any professional attorney would… by throwing a tantrum and personally insulting the GAO lawyers.

“This staffer appears to have limited experience practicing law- having graduated from law school only three years ago. He also previously worked on a Democratic campaign and the partisan Senate Democratic Steering and Outreach Committee,” Mizelle wrote. “Surely, few things could be more significant than the appointment of the head of a cabinet-level agency. It should have been easy to find a more seasoned attorney (whose past political work would not have created even the appearance of impropriety) among the GAO’s 3,000 employees.”

Funny you should mention experience since your wife got a lifetime appointment after clerking the year before. Or, for that matter, maybe Chad and his 2013 J.D. should cool the jets before calling someone inexperienced:

Ultimately, actual judges sided with the GAO lawyer. Perhaps that attorney should be getting the of counsel job?

Once again, there are no permanent consequences. Kirkland & Ellis may draw the line at attempted coups but some other firm will bite eventually just to add a former senior government attorney to the books. And, as always, Jones Day is at the forefront of firms ready and willing to take the heel turn and dare clients to have the pang of conscience necessary to cut ties with a firm ready to memory hole every controversy of the last four years.

Or as we call it here at Above the Law, “what a totally expected look for Jones Day.”

Jones Day Hires Trump’s Acting Homeland Security GC Mizelle

Earlier: Shocking No One, ABA Thinks Biglaw ASSOCIATE Not Ready For Federal Bench
Sorry To Interrupt Your Friday, But Homeland Security Is Disappearing American Citizens Off The Street

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

We will no longer celebrate good intentions or highly unproductive efforts that haven’t and aren’t likely to produce better diverse staffing. It’s the results that we are demanding and will measure going forward.

— Coca-Cola General Counsel Bradley Gayton, in a letter to the company’s outside counsel, where he demanded that law firms staff at least 30% of new matters with diverse attorneys, with at least half of that billable time going to Black lawyers. Within the next two years, Gayton hopes he will be able to increase his diverse billable hour staffing requirement to 50%. In his letter, Gayton notes that noncompliance over two quarterly reviews will result in a “non-refundable 30% reduction in the fees payable” until a law firm complies, and continued failure could result in a firm no longer being considered for legal work with the company.

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

Sure it would be cool to have deputies confirmed at the Justice Department. And new U.S. Attorneys, too, while we’re at it. What would be extremely uncool, though, at least for Senate Democrats, would be if they suddenly lost their majority and had to spend four more years in the wilderness unable to fill any vacancies in the judiciary. That would suck!

And nothing concentrates the mind like your 80-year-old colleague Sen. Patrick Leahy taking a trip to the hospital for a “muscle spasm” just days after your side finally got its hands back on the majority gavel. Particularly when that colleague hails from a state with a Republican governor, even one who has promised to appoint a Democrat if a vacancy arises.

Politico reports:

Senate Democrats are pushing to confirm President Joe Biden’s nominees for top Justice Department posts as soon as possible. But some advocates are urging a different approach, calling on the Judiciary Committee to deal with judicial vacancies before filling out the rest of Biden’s DOJ team.

The intra-party debate reflects the overriding urgency some activists feel to rush Biden-appointed judges through the confirmation gauntlet while Democrats control the Senate. And how the party ends up deciding which to prioritize could end up determining the legacy Biden leaves on the country’s judicial landscape.

Democrats remember well that Mitch McConnell blockaded Obama’s judicial nominees and refused to give Judge Merrick Garland a hearing when he was nominated to fill Justice Antonin Scalia’s seat, only to turn around and blow up the filibuster for the Supreme Court and the blue-slip procedure for circuit court nominees, embarking on a breakneck spree of confirmations to install upwards of 200 (mostly young) conservative judges on the federal bench.

“I think, once we have the leadership at Main Justice, we should potentially turn to judges because some of those vacancies are outstanding,” Judiciary Committee member Richard Blumenthal told Politico.

It’s a sentiment shared by Caroline Fredrickson, a liberal legal advocate and former president of the American Constitution Society. “The judicial nominees cannot be after the deputy assistant secretary of whatever department. … They need to see it as a top priority and move it ahead of the other nominees,” she told Politico. “These are lifetime appointments. … Just front-load them.”

Which sounds great, but see… SENATE. Literally nothing moves fast in that “deliberative” body. As Politico notes, Biden’s incoming White House Counsel Dana Remus asked Senators in December to submit recommendations by January 19 to fill dozens of judicial vacancies. Without the aide of a leftwing Leonard Leo, most didn’t meet the deadline.

Meanwhile, Merrick Garland’s nomination to be Attorney General still hasn’t gotten a vote in Judiciary, so we can’t even talk about filling his seat on the DC Circuit. (Do that one first, please!)

Thankfully, Sen. Leahy is back at work and appears to be doing well. “I had some muscle spasms. And normally I would have said ‘to hell with it, to heck with it,’ but they didn’t stop,” he told reporters grumpily, insisting that he’s just fine, no need to keep asking.

This is no way to run a railroad, but we’ll keep chugging along.

Senate weighs jumping Biden judicial picks ahead of the queue [Politico]
Leahy’s hospitalization shows Dems’ majority hangs by thread [Politico]

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

This morning, as Redditors woke up to contemplate the next anachronistic company from the early-aughts to resuscitate, they were rudely met with the news that they had been locked out of buying key stocks — for instance Gamestop and AMC — by Robinhood, purportedly the broker-dealer for the common person.

It turns out that after watching the “common person” drive hedge funds to the brink, Robinhood woke up, looked over at the scruffy badboy Redditors that it drunkenly hooked up with over the last couple months and decided it really preferred the finance bros that it used to date. Shutting down the upward pressure on the stocks dealt a massive blow to the run on these companies and gave short-sellers an opportunity to cut their losses as Gamestock tumbled from $469 to $126 and AMC lost a bit over half its value. Maybe Chad will take Robinhood back now!

The investors riding a rising tide — the “Big Long” if you will — fueled in large part by the recognition that hedge funds had shorted more shares than actually exist for Gamestop were understandably peeved that the funds got a time out to exit the field before things got too rough. So a lawsuit was inevitable.

And it didn’t take long.

Will this bring justice for the aggrieved traders? NOPE!

Because Robinhood is not run by complete idiots, there’s a mandatory arbitration clause and the Supreme Court has made it abundantly clear that the courts are unavailable if you’re the David on the wrong side of Goliath’s boilerplate language. Robinhood’s in-house team is heavily WilmerHale dependent and whether they maintained good relations with the old firm or not, some Biglaw lawyers are about to draft a slam dunk of a motion to dismiss.

And it is undeniably wrong but here we are. Despite its protests, Robinhood didn’t cut off these stocks to protect their investors, but to stop being bad mouthed in the more reputable boiler rooms on the Street. While the institutional narrative is that these retail investors are flying blind in pumping up these stocks, they did articulate a strategy for making money based on sound research.

In fact, as this thread — armed with a snippet taken from a Matt Levine article on Bloomberg — points out, the Redditors have actually done the job that the stock market is designed to perform.

Someday, we’ll all go back to the movies. AMC’s revenue stream from overcharging us for popcorn will still amount to a sound business model. And these investors may well have saved that company from collapsing.

All Robinhood has done is throw its thumb on the scale to the detriment of its own customers. Can those customers win a class action suit? Probably not with this language. But class actions aren’t always about winning. The suit gets the story out there and feeds a public relations nightmare for a company that claims to be all for retail trading… until retail investors start outperforming the sharps. Not to mention that the attorney who filed this is now seeing his name slapped on every story attaching the complaint and customers know he’s ready and open to work with them whether there’s a class action or a series of arbitrations. That’s not the reason he filed, but it’s certainly an advantage to him and customers lining up to bring claims.

But, yeah, this case will very likely be kicked to the curb very soon. However, Robinhood’s troubles after enraging its customer base are likely just beginning.

(Full complaint on the next page.)

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

A continuing issue for the profession is how to increase diversity and inclusion in law practice. When looking at the so-called pipeline, it’s not usually clogged with a full stream of candidates looking at law as a career. Why? What do you think?

Hard to get into law school, hard to stay in, hard to pass the bar (at least in California but that seems to be changing), hard to get the first job, the second, and so on, hard to figure out how to manage the crushing debt load that accompanies law students, hard to get clients, and hard to keep them, especially if the practice is a “one-off,” like bankruptcy or family law.

And hard to forget the images of lawyers as ambulance chasers, greedy billers, and other unsavory characters. Not to mention the lawyer jokes, yes, the lawyer jokes. No jokes about all the pro bono work, voluntary or involuntary, no talking about good works that lawyers do, almost always without mention. The vast number of our colleagues represent their clients quietly and efficiently. Now, given all those things, why would anyone want to become a lawyer?

That’s the question that the State Bar of California wants to answer in a positive way. “You want to make a difference in the world. Becoming a lawyer is a powerful way to have real impact.” (The State Bar’s language, not mine.) It has published a brochure that seeks to answer the question “How do I become a lawyer?”

Using that title, the brochure explains how that can happen. It starts out by telling readers that there are two ways to become a lawyer here in California: law schools and the law office study program. (Think Kim Kardashian West.) It notes that California has over 50 law schools, from ABA accredited to state accredited to registered unaccredited. Of course, the devil is in the details, and the brochure doesn’t go into the differences (maybe for fear that readers’ eyes will glaze over).

The brochure reaches out to high schoolers, college students and graduates, and those who have no college degrees, offering pathways to all of those who want to become lawyers. For the high school students, the mantra is study (get good grades), explore (debate team and other extracurricular activities), and plan (talk to school counselors about how to fund college education). For the college students and graduates, the mantra is study (get good grades and write, write, write, study for the LSAT — if it’s still around), explore (visit law schools, attend court proceedings, volunteer in a legal setting), and plan for how the law school education is going to be paid for. And if there’s no college degree, all is not hopeless, as there are some law schools in California that will admit those degreeless.

Probably because the State Bar doesn’t want to scare prospects off, the brochure is mum about the cost of that legal education. It does suggest that prospective lawyers research grants, assistance programs, and scholarships. (Any hints there?) If none of those pan out, then it’s heavy debt time. I think the brochure misses the mark by not being transparent about the cost of a legal education, especially when it is piled on top of undergraduate loans. The cost may indeed scare some away, but isn’t it better to be candid up front about the financial commitment? Some newer lawyers might have chosen to do something else, rather than racking up ginormous debt.

TV shows and movies portray the “glitz and glamour” of the profession, but the reality is something quite different. Yes, you can be a trial lawyer in government or private practice, but if the latter, you won’t try many cases, given the expense. Yes, you can be a litigator, but I wonder how many wide-eyed prospects understand that litigating is usually discovery and motion practice and can be incredibly dull and dreary.

The threshold question for prospective lawyers is what they would want to do with the bar license: practice law with its possibilities for social justice or something else? Much of law practice is prosaic work, repetitive to the point where you want to stick a fork in your eyeball for variety, but I’ve always thought that a legal education is worth having, if you can bear the cost.

It can be a rewarding profession, especially when you think you’ve made a positive difference in a client’s life, when a client thanks you for your time and effort, and even pays your fees without complaint (!), but those times can be few and far between. It can also be the profession from hell, when clients refuse to take your advice, think you’re a moron (and that’s the nicest word I will use here) and believe your bill is way too high for the services rendered, and so it’s either heavily discounted or not paid at all.

I would have liked to have seen a warning about how much a legal education will cost. Honesty is still the best policy. Not everyone will get Biglaw jobs or want them, and so prospective lawyers should know, certainly in college, the costs. It’s fine to talk about access to justice, but it’s not just about the representation, but about paying for the education that will provide that representation. Student loans are not difficult to come by, but paying them off is another kettle of fish altogether.

Hopefully, this brochure will encourage prospective lawyers to consider and then embark on legal careers, diversifying what it is still a homogeneous profession (although it’s improving … but way too slowly). It says that if you want to become a lawyer, you can do it. Implicit in the brochure is encouragement for minorities to become lawyers and return to their communities, to provide access to justice. Clients want and need lawyers who look like them. For far too long, that has not been the case.

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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.

Joe Biden is president! The nonstop parade of horrors has ended! Everything is roses and sunshine! Right?

As George Washington famously observed, not yet.

It’s true that Biden has introduced an ambitious immigration bill and signed a slew of immigrant-friendly executive orders. Unfortunately, there are still plenty of Republicans who don’t like immigrants (or see a political upside to demonizing them), and one of them is Texas Attorney General Ken Paxton.

On January 22, while the Bernie inauguration memes were still coming thick and fast, Paxton sued the federal government for putting a 100-day moratorium on deportations. And a Trump-appointed federal judge issued a temporary restraining order against the government, even though this lawsuit rests on the world’s shakiest foundation: A contract purporting to give the state of Texas veto power over federal policy! Signed by illegally appointed DHS official Ken Cuccinelli! On January 8!

Let’s go over these things one by one. This agreement first says that various things the federal government might do on immigration result in concrete injuries to Texas. Then it purports to create a binding obligation for DHS to consult the state of Texas before it makes any decision that could (among other things) “in any way modify immigration enforcement.” That’s right, ladies and gentlemen: the Trump administration, on its way out the door, handed over immigration enforcement power to the state of Texas.

Or at least it tried to. I am not a constitutional scholar, but I see some obvious federalism issues with giving one state power over policy that affects all the states. So does the ACLU, which filed an amicus brief pointing out that the federal government has not waived its sovereign immunity, making the agreement unenforceable. It also pointed out Texas has no standing without the unenforceable agreement, since it can’t demonstrate that not deporting people actually harms it. The complaint has some language about how undocumented people cost Texas money, but you have to actually prove claims like that when you make them in court. And on this topic, the facts have a liberal bias.

The ACLU said they weren’t going to go into the many other reasons the contract is unenforceable, but another problem with this contract is the person who signed it for DHS: Ken “definitely not a racist” Cuccinelli. As I’ve mentioned in this space before, the Trump administration has appointed several people to DHS who were not legally eligible for their positions, which means that none of the actions they took in office have any legal effect. Cuccinelli is one of those people, and the ruling on that came in March of 2020, ten entire months before he signed this purported contract. So not only did he not have the authority to bind DHS to anything, but everybody knew or should have known it.

Despite all of this, Trump-appointed federal Judge Drew Tipton granted Paxton a temporary restraining order on Tuesday. The Washington Post quotes a law professor who called this “baffling.” Another hearing is set for today because, Tipton said, the issues are “of such gravity and constitutional import that they require further development of the record and briefing prior to addressing the merits.” This is quite a lengthy way to say “I am immune to embarrassment.”

Immigration Twitter doesn’t seem overly concerned, presumably because even the 5th Circuit is likely to balk at rubber-stamping something this far off the rails. And even if they don’t (which is possible, given their partisan abandonment of precedent in June Medical Services v. Gee), John Roberts should. But I hope the benchslap comes sooner rather than later, because this is not a trend America needs. If we start letting administrations create this kind of contract on their way out the door, why even have elections?

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Lorelei Laird is a freelance writer specializing in the law, and the only person you know who still has an “I Believe Anita Hill” bumper sticker. Find her at wordofthelaird.com.