Category: News Feeds

While an extensive report by the Guardian on the U.S. food industry has recently raised monopoly concerns, another new agriculture-related stat has largely flown under the radar. 

As noted by VICE, a study published this week in Current Biology reveals that lawyers aren’t the only ones who see an improved work focus after ingesting caffeine. 

Researchers in the study observed bees that were trained to link a strawberry scent with a sugary reward, with some bees given a dose of caffeine in the training and some not given caffeine. 

When the bees were released into a flying area with strawberry-scented flowers and other “distractor flowers,” the bees receiving a dose of caffeine came out ahead — 70% of the caffeinated bees visited the strawberry flowers first, compared with 60% of the non-caffeinated bees. 

Sarah Arnold of the University of Greenwich, who led the study, told VICE that the findings open up “questions about what aspects of bee behavior caffeine (which occurs naturally in some plants’ nectar) and other nectar natural products might influence, and under what circumstances, and how this might be applied more widely in crop pollination.”

A Caffeine Buzz Helps Bumble Bees Do Their Jobs Better, Study Finds [VICE]

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Jeremy Barker is the director of content marketing for Breaking Media. Feel free to email him with questions or comments and to connect on LinkedIn. 

Charlie Munger famously said that, while he’s always been in the top 5 percent of his age cohort at understanding the power of incentives, he realizes every year that he still underestimates them.

I feel the same way about styles in Microsoft Word. They’re perfect for legal documents, and it seems like I rarely talk to lawyers who use them at all. And yet, every time I use them or even think about them, I realize that I should use them more.

For those unfamiliar, styles are a wonderful Word feature where you essentially save and reuse your formatting. The button’s right up at the top of the ribbon these days under the “Home” tab. If your window is not maximized, you’ll likely see a large “Styles” button three from the right, with a nifty logo of a capital “A” and a blue paintbrush superimposed on top. If your window is maximized, you’ll probably see a whole section of the ribbon called “Styles” right in the middle.

Once you get to it, you’ll see a selection of separate styles. The defaults are usually something like “Normal,” “No Spacing,” “Heading 1,” “Heading 2,” and “Title.” If you click or hover over one of those with text highlighted, the highlighted text will change to whatever is set up as that style. The key, however, is that you can just modify those styles to whatever you want. Right-click on the top and select “modify” to set it however you like, or just highlight text and select “Update [STYLE NAME] to Match Selection.” Or, if you’re more of a fan of right-click contextual menus, just select text, right-click, and proceed with the “Styles” contextual menu there in the same way.

The great thing about styles is that the feature is perfectly built for documents that have specific outline and header formats, down to things being lined up, down to the pixel, just like briefs. And they’re especially built for situations where you want to repeat the same format across different documents, also just like briefs. It allows you to get formats just how you like them, without all the time and frustration of other solutions like format copy and pasting, or the old standby of just copying over text and rewriting it.

Styles are better than the other options since they’re not only a bit faster and a bit more efficient. They also reduce errors and make it much easier to keep things consistent across documents without even worrying if they’re off. The flipside is they do take a little more work in setting up, but that pays dividends down the road, making it well worth it.

So, sometime soon, make it your resolution to work on your styles. Get used to the format, set them up in your documents, and get used to using it efficiently. It will be a worthwhile stylistic investment.

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Matthew W. Schmidt has represented and counseled clients at all stages of litigation and in numerous matters including insider trading, fiduciary duty, antitrust law, and civil RICO. He is a partner at the trial and investigations law firm Balestriere Fariello in New York, where he and his colleagues represent domestic and international clients in litigation, arbitration, appeals, and investigations. You can reach him by email at matthew.w.schmidt@balestrierefariello.com.

Disclosure: I was an expert witness for RedBubble in this case (and another case) and submitted some reports regarding this case much earlier in the process, though I did not testify at this trial. I had nothing to do with this trial other than attending it as an interested observer, concerned about litigation involving content moderation. As you can see, however, my opinions on this remain identical to my opinions on content moderation going back basically forever…

There’s been a lot of talk lately about “repealing” or “reforming” Section 230. We’ve explained at great lengthy why this would be a mistake and would lead to a ton of frivolous litigation. Section 230 co-author Senator Ron Wyden has referred to this as creating a situation where website operators would face “death by ten thousand duck-bites.” Professor Eric Goldman has explained the procedural benefits of Section 230 in that it helps get rid of these cases more quickly. And while some (including myself) have pointed out that the 1st Amendment would still protect most claims, without the procedural benefits of Section 230, we’d still see a ridiculous number of nuisance lawsuits in which companies would have to defend each and every content moderation decision. This would be made significantly worse if the law changes in a manner proposed by folks like law professor Danielle Citron, to require websites to show that their content moderation practices are “reasonable,” which would require expensive litigation to determine.

The thing is: we have an area where we can actually see this in practice. There is something of a loophole within Section 230: trademark law. From the beginning, Section 230(e)(2) has excluded intellectual property law. For copyright, that gap was filled (not particularly well) by the notice-and-takedown provisions of the DMCA Section 512. But trademark has no official intermediary protections in US law. Experts like Mark Lemley have long advocated for harmonizing the various intermediary laws so that they’re all consistent. Many people had thought that perhaps the courts had settled the issue with regards to trademark in the infamous Tiffany case against eBay, in which the courts said that eBay shouldn’t be expected to be perfect, and as long as it has some sort of program to deal with counterfeits, then it is no longer liable for counterfeits on its site.

However, last summer, a federal judge in LA effectively re-opened the issue in a case brought by the holding company that controls the “Brandy Melville” clothing brand against print-on-demand website RedBubble. Brandy Melville argued that RedBubble was violating its trademarks (and copyrights) in printing some of its designs, and while the judge did toss out much of the case, he allowed a few parts to move forward to a jury trial. The judge said that the Tiffany v. eBay rule didn’t necessarily apply — since that was a case of users selling physical products, whereas with RedBubble, the company would take designs uploaded by users, and pass them on to various print shops for the actual printing. So the open question, in theory, was whether or not that deeper involvement opened itself up to contributory liability (the judge correctly dismissed the claims about direct infringement). There were a few other oddities about the judge’s ruling as Eric Goldman noted at the time:

However, the Ohio State ruling didn’t address contributory trademark infringement, and this court sends that issue to the jury. Unlike Tiffany v. eBay, which involved legitimate used resales of Tiffany items, the court says “Redbubble is not burdened by the need to parse valid uses of Brandy Melville’s trademarks from invalid ones, as Brandy Melville has made clear to Redbubble that there are no legitimate sales of Brandy Melville products through its site. As such, all uses of Brandy Melville’s marks that appear on Redbubble’s website are presumptively infringing.” I doubt the court means this statement so baldly, as it disregards parodies, nominative uses, and other legitimate activities. Similarly, the plaintiff complained that RedBubble hasn’t disabled internal consumer keyword searches for its trademarks, but that doesn’t seem like a right exclusive to the trademark owner in light of MTM v. Amazon.

In practice, however, pretty much the entire trial revolved around whether or not RedBubble “did enough” in its content moderation. Over and over again, the lawyers for Brandy Melville kept trying to insist that any failures by RedBubble’s content moderation was proof that it did not do enough. Indeed, in the closing arguments, even after it had been pointed out that RedBubble spent millions of dollars per year on its content moderation efforts, and had removed every example that Brandy Melville’s lawyers had sent them within a day or two, the lawyer straight up asked the jury “don’t you think RedBubble could have done more?”

There were a number of other oddities that came out during the trial. The trial was explicitly about just three specific trademark designs that Brandy Melville held — two of which never actually appear on the front of t-shirts or other products (the company said it only used them on clothing hang tags and on store signs), and one that the company registered just weeks before suing. Incredibly, Brandy Melville put on the stand a manager of some of their stores who admitted two incredible things: (1) that she was unable to tell which products on RedBubble were legitimate and which were infringing (so how the hell could they expect RedBubble to just know?!?) and (2) that in many years of working and managing Brandy Melville stores, she could not recall a single time that anyone ever brought in a RedBubble product to “return” it. That latter point really stuck with me because it highlighted the near total lack of confusion, which is a key point in trademark infringement. There needs to be confusion.

Another oddity: Brandy Melville kept focusing on the fact that RedBubble refused to block all tags that included “Brandy Melville” or any search results on “Brandy Melville.” But as Goldman noted above (and the judge seemed to miss), that’s not a right that trademark law gives a trademark holder. RedBubble pointed out that it actually used the tagging system as part of its content moderation efforts — and that letting users tag stuff “Brandy Melville” made it easier for its content moderation team to find and review those items to see if they infringed. Also, while it only came up exceptionally briefly, one of the products that was on RedBubble’s site was a t-shirt that read: “Fuck Brandy Melville,” which is clearly commentary/parody — and not something anyone would assume came from Brandy Melville itself. Brandy Melville cannot abuse trademark law to say any and all use of the term must be blocked. That’s not how trademark law works.

For its part, RedBubble spent plenty of time describing the extreme lengths it goes to try to prevent infringing works on its site, including making use of various technologies, having a large team of human reviewers, and working closely with lots of brands to better understand what is and what is not infringing. But, again, the plaintiff’s focused on “is it enough.”

And, because they kept focusing on a very few examples where Brandy Melville logos or other designs were found on RedBubble, that was proof that, no, the company did not do enough. And… the jury bought it. At the end of the three day trial, the jury said that RedBubble was liable as a contributory infringer, including not just for trademark infringing, but for counterfeiting. This was particularly bizarre because for there to be counterfeiting, there needs to be an actual copying of a product sold by the trademark holder. And, as already noted, two out of the three designs were never actually used on the front of products by Brandy Melville, and as for the third design (the “LA Lightning” mark — which, seems like it may have its own trademark issues, considering it was yanked from an independent professional basketball team), they never seemed to show exact copies of it on any RedBubble products either. Instead, somewhat bizarrely, Brandy Melville focused on very distinct and different variations on the logo that appeared on RedBubble products — including a clear parody one for University of Florida students. And the counterfeiting issue was key to Brandy Melville’s case, because it would allow them to ask for statutory damages, running up into multiple millions of dollars.

And this is a clear issue with litigation around content moderation: the jury was primed over and over again to believe that any mistake makes the company liable. Brandy Melville’s lawyers just kept showing designs that mention Brandy Melville or looked similar to Brandy Melville (frequently for products that Brandy Melville had no trademark over) and then just kept harping on the fact that Brandy Melville didn’t approve any of this, and clearly RedBubble was a “counterfeiting” site. In the end, the jury awarded $520,000 to Brandy Melville ($300k “counterfeiting” for the “Brandy Melville” mark, $200k for “counterfeiting” the LA Lightning mark, and then $20k for trademark infringement.)

At the close of the case, RedBubble immediately sought a judgment as a matter of law to effectively try to take the case out of the jury’s hands (arguing that Brandy Melville failed to present enough evidence and the judge could rule on the matter directly without needing the factual deliberation of the jury). This week the judge did in fact rule that the $300k for contributory counterfeiting on the Brandy Melville mark was improper, bouncing the award down to $220,000.

As the judge noted, the fact that RedBubble’s products were not the same as anything Brandy Melville made regarding those logos, meant that there couldn’t be a legitimate counterfeiting claim for that mark:

Here, Plaintiff failed to present evidence of products that bore a spurious Brandy Melville Heart Mark and were offered for sale on Redbubble.com that were remotely similar to products that Plaintiff offered for sale, let alone “stich-for-stitch copies” of Plaintiff’s products. The Court therefore concludes that the evidence presented at trial permits only one reasonable conclusion–Plaintiff failed to establish that Redbubble is liable for contributory counterfeiting of the Brandy Melville Heart Mark.

The end result is way below the many millions of dollars Brandy Melville was seeking, though even the small amount it got seems ridiculous based on an understanding of what actually happened.

But, there’s a larger point here: this case was an unfortunate alternate reality universe view of what will happen without Section 230 or if we moved to a Citron-style “reasonable” standard. You’d get a ton of litigation in which everyone was just going back and forth arguing over what the “right” level of content moderation is, and arguing that any mistakes were evidence that “not enough” was being done by the companies. That’s a disaster scenario, one in which any simple mistake (even where there’s perhaps strong evidence that no mistake was actually made) is subject to the whims of a jury (or a judge) and an expensive, time-consuming trial. I recognize that law professors might not care that much about all of this wasteful litigation, but in the real world it matters a ton. This kind of thing can, and will, kill off smaller companies, even if they can succeed in court. And that doesn’t help anyone, except possibly some trial lawyers who can threaten and shake down tons of websites.

Last Month In An LA Court I Witnessed The Future Of A World Without Section 230; It Was A Mess

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It’s Time We Talk About Getting Rid Of The Bar Exam. And Here’s Why.

A Texas law, which eliminates prior authorizations in certain cases, has received a mixed welcome in the state’s healthcare community. While providers are heralding the first-of-its-kind law as a long-overdue measure to reduce administrative burdens and increase access to care, payers are warning of the potential patient harm that could follow.

Set to take effect on Sept. 1, the law prohibits health insurers from requiring pre-approval for services if a provider earns “gold card” status. A provider can earn the status if they have a 90% prior authorization approval rate. Health plans that require prior authorization must evaluate whether a provider qualifies for the gold card exemption once every six months.

“A physician or provider is not required to request an exemption,” said Alicia Phillips Pierce, communications director at the Texas Association of Health Plans, in an email. “If prior authorization is requested when an exemption applies, the health plan must promptly provide a notice of the exemption and payment requirements.”

To rescind the gold card status, the insurer must review a random sample of five to 20 claims submitted by the provider during the most recent evaluation period and find that the approval rate was less than 90%, Phillips Pierce said. Payers can revoke the exemption only in January or June of any given year.

The law does not apply to all health plans, only to those that fall under state jurisdiction but are not funded by the state. These include state-regulated commercial HMO plans, preferred provider benefit plans and exclusive provider benefit plans. Medicaid plans are not subject to the law.

For providers, the law offers much-needed relief from back-office burdens.

“I spend 15 hours on the phone every week managing prior authorization, and that’s time that I can’t take care of patients,” said Dr. Debra Patt, an Austin-based cancer specialist and immediate past chair of the Texas Medical Association’s Council on Legislation, in a phone interview. “We’ve tripled our staffing to manage prior authorization.”

Then there is the issue of delaying patient care. Patients often have to wait for insurer approval to come through before they can begin their treatment.

“When I need to provide urgent chemotherapy, I can’t get it authorized in time for patients,” Patt said. “And that can be the difference between life and death.”

Patt believes that the new law will help get patients the care they need quickly. But payers hold the diametrically opposite view.

Pre-authorization is an important tool to protect patients from overtreatment and inappropriate or dangerous care, Texas Association of Health Plans’ Phillips Pierce said.

“Health plans are often the only ones with a 360-degree view of a patient’s treatment, and safety edits can help stop dangerous interactions for care or prescriptions supplied by multiple providers,” she said.

The other criticism about the law from payers relates to the fact that this practice of gold carding is already occurring, and providers and payers are already working together to improve the prior authorization process.

“Gold carding programs may be targeted to specific services, and where used, provider performance can be regularly reviewed to ensure consistently high-quality care and patient safety,” said Kristine Grow, senior vice president of communications at America’s Health Insurance Plans, a national payer association. “[But the new law] distorts this concept by mandating broad provider exemptions with no accountability from providers.”

To Texas Medical Association’s Patt, these fears are unfounded. Providers must practice in accordance with rules set forth by state medical boards. If they are found to be practicing inappropriately, they will be sanctioned by the board, she said.

Meanwhile, the gold carding law set to go into effect in just over a month just scratches the surface of the reforms needed in the healthcare industry.

Similar policies need to be enacted at the federal level to prevent the prior authorization process from restricting care, Patt said.

Photo: Piotrekswat, Getty Images

It’s been forever since your last client, and you are racking your brain on how to bring in the next one.

Payday is fast approaching, and you are wondering how you will meet your monetary obligations without more sales.

It’s the wee hours of the night, and you are lying wide awake contemplating the financial burden of running a small firm.

If you can relate to any of these fears, you may have a sales pipeline problem. A pipeline is an essential tool for a law firm because it significantly affects your bottom line. A sales pipeline helps you picture your sales process and shows you where your leads are in the sales process, including which leads are most profitable and which leads are stuck. By adequately tracking your leads, you can keep an account of future business and achieve your goals in small, trackable steps.

If you aren’t using a sales pipeline, you are probably throwing spaghetti on the wall and hoping that it sticks when it comes to finding new leads. Honestly, I built my business this way, and it can work until it doesn’t. Unless you start to track your leads somehow, you will lack insight into how effective your sales and marketing efforts are and what future deals are coming down your pipeline.

Most entrepreneurial lawyers are unsure of how to manage clients with a sales pipeline. Many sales CRMs provide a robust way to manage your pipeline, but today I am presenting a basic spreadsheet method that anyone can adopt.

Determine Your Revenue Goal And How Many Clients It Will Take To Reach That Goal

Before your start, it is helpful to figure out where you are trying to go. If you have a revenue goal of $40,000 a month and your service costs on average $5,000, you will need eight new clients each month to get to that goal. But beware, you will have to speak to many more than eight clients to reach that number.

Outline Your Sales Pipeline

Your sales pipeline is simply a list of your sales process and may go something like this:

1. Identifying new leads
2. Qualifying leads
3. Showing value
4. Selling service
5. Delivering and asking for referrals

List All Of Your Prospective Clients

You may have to go back and list all the people who have inquired for services but have yet to convert to clients. Go back three to six months and start there. Determine who was a potentially good fit to follow up with, even if they ghosted you in the past or you dropped the ball in the follow-up process.

Make A List Of Professionals To Contact For Networking

This list may include other professionals with complementary practices who could serve as great referral sources for your businesses. For example, an estate planning attorney can contact divorce attorneys or financial planners because they have clients who need estate planning services. You have clients who need prenups, postnups, divorces, and financial planning.

Track Your Leads For Follow-Up, Follow-Up, Follow-Up!

80% of sales require five follow-up calls, but 92% of salespeople give up before that. You will have to get on the phone a heck of a lot more and tracking is the only way to progress through your sales pipeline with any efficiency or structure. Your list can be as easy as identifying the name, source of the lead, nature of the inquiry, date of contact, the value of the deal, notes, next steps, and where they reside in your pipeline. Your tracking sheet can also indicate if your closed the deal or if the deal is dead.

I make it a goal to complete and track five active sales tasks every workday with this system, which takes about 30 minutes. And yes, I pick up the phone and call a prospective client or a professional — not email, which is passive and often less effective than speaking to someone on the phone. Let them hear what you do and how you can serve in your powerful voice. Prospective clients and professionals are far more responsive when you get them on the phone.

If you are nervous or hesitant, I get it. I have been there. Just start with one call and build momentum from there. Your sales are waiting. Are you ready to go prospecting? Reach out to me at iffywrites@ibekwelaw.com and tell me whether or not you found this article actionable and beneficial.

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Iffy Ibekwe is the principal attorney and founder of Ibekwe Law, PLLC. She is an estate planning attorney evangelist for intergenerational wealth transfer with effective wills and trusts. Iffy is writing her first book on culturally competent estate planning, available in 2022 (prayers up!). She graduated from The University of Texas School of Law and has practiced law for over 14 years. Iffy can be reached by email at iffywrites@ibekwelaw.com, on her website, and on Instagram @thejustincaselawyer.

With all his various legal troubles, you’d think Rep. Matt Gaetz would stay as far away from jails as possible. And yet, there he was yesterday with Team Dipshit, demanding to be allowed in to see the Capitol Riot defendants held in a DC Metropolitan Correctional Facility.

Flanked by Reps. Marjorie Taylor Greene, Paul Gosar, and Louie Gohmert — the whole brain trust! — plus a One America News camera crew, Gaetz marched up to the door and asked to speak to the manager about the “political prisoners” being held in the facility.

Okay, Karen.

Here on Planet Earth, you can’t simply show up with a camera crew and demand to be taken on a tour of jail. No, not even if you are a member of congress with oversight over federal prisons, as Rep. Greene reminded the camera, insisting that she wasn’t trespassing at all.

Not to be out-dimwitted, Rep. Gohmert then insisted he had “top secret clearance” which entitled him to tour the facility at will. And Louie Gohmert may be a moron, but he was also a JAG attorney and a state judge back in Texas — so he knows damn well this is not how any of this works.

“The supervisor came down and was standing right here and turned her back on me,” he whined, adding later that “We’re in totalitarian, Marxist territory here. This is the way third-world people get treated.”

That’s a SPI-cy racism!

The Goober Caucus was at the jail to publicize the wingers’ latest attempt to rehabilitate the Capitol Rioters by claiming they’re being abused in jail. (See also: Ashli Babbit, American hero.) Defendant Ronald Sandlin represented to the court that a guard told him “I hate all white people and your honky religion.”

Which just sounds totally believable! Unfortunately, US District Judge Dabney Friedrich failed to be persuaded and denied Sandlin’s motion for bail.

In fact, the Capitol Riot defendants are being held in something approaching solitary confinement, as DC officials conceded months ago, telling US District Judge Royce Lamberth that this was necessary to protect them from possible assaults if housed with the general population. And considering that many of the rioters are associated with racist groups such as the Proud Boys, that’s probably a safe bet.

In the case of Lisa Eisenhart who participated in the riot along with her son Eric “Zip Tie Guy” Munchel, Judge Lamberth noted the high degree of deference accorded to prison officials when he refused the defendant’s plea to be placed in gen-pop. But, he wrote, “in this case, the Department of Corrections would prevail even without deference. Its articulated concern for the safety of the defendant and of other detainees clearly provides a rational basis for the defendant’s placement. Thus, the Court must conclude that the defendant has not raised a cognizable violation of the Due Process Clause.”

Allegations that the January 6 defendants are being abused by jail staff have thus far not been substantiated. But don’t worry, because Team Kraken is on it. And even the squidlets know you can’t just barge into a correctional facility and demand to see people who aren’t your client.

“[T]hese officials compromised safety and security operations at the DOC,” a spokesperson for the jail told The Hill. “Safety and security related to DOC’s facilities, staff and residents is a high priority and for that reason DOC has established procedures and protocols related to visits to its facilities. All visitors, which includes family members of residents, attorneys, and public officials, must adhere to the rules and procedures of the DOC.”

Or, as William and Mary Law’s most honored alum put it, “What is Attorney General Merrick Garland hiding?”

And then all the Goobers rushed back to the office to raise more campaign cash off their little stunt. Third verse, same as the first.

Gaetz, Greene and Gohmert turned away from jail to visit Jan. 6 defendants [The Hill]

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

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.”

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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.

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.

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

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.’”

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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.

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!

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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).