Category Added in a WPeMatico Campaign
Are You Going To Hit Your Hours Requirement? Or have partners taken all your hours.
What’s Going On With The Florida Bar Exam? Who’s to say, really? I mean it’s only happening next week.
From Clerk To Federal Judge In One Year? That seems… deeply problematic.
Birthers Shoot Their Shot At Kamala Harris: Yes, it is a racist attack.
(image via Getty)
Ed. Note: Welcome to our daily feature Trivia Question of the Day!
According to data collected by Law.com for the A-List Law Firms ranking, which top 20 firm has the highest pro bono score?
Hint: The Biglaw firm received an impressive 99.5 (out of 100) score in pro bono, helping the firm take the number 13 spot on the list.
See the answer on the next page.
Florida is set to make effective, in July 2021, a law that will allow college athletes to earn money based on the commercial exploitation of their names, images, and likenesses. Now, Congress is eyeing federal involvement.
Senators Cory Booker and Richard Blumenthal have spearheaded an effort to create a national “College Athletes Bill of Rights,” which includes the creation of a federal right for all college athletes, irrespective of the state in which they perform their services, to market their publicity rights in individual and group licensing deals. However, the College Athletes Bill of Rights goes much further than Florida’s name, image, and likeness law.
Booker and Blumenthal, along with senators Kamala Harris, Bernie Sanders, Chris Murphy, and a few others (none of whom are Republican) also envision a ban on restrictions, with athletes transferring from one school to another, comprehensive health care coverage for sport-related injuries and, the biggest ask, revenue-sharing agreements with the NCAA, conferences, and universities that result in what the senators are referring to as “fair and equitable compensation.”
Whereas allowing college athletes the ability to market their names, images, and likenesses would come at no cost to the universities, conferences and the NCAA, providing those same athletes with a share of revenue and other benefits will likely require major adjustments to the college sports ecosystem. In Florida, a focused proposal concerning name, image, and likeness rights received bipartisan support. It is unlikely that the College Athletes Bill of Rights will be able to accomplish the same on the federal level.
While there are few details regarding the specifics of the College Athletes Bill of Rights, it is fair to assume that the revenue-sharing concept will be applied for athletes in every sport, not just the revenue-generating sport of football and sometimes basketball.
Interestingly, there is somewhat of a revenue-sharing system currently in place; however, the sharing occurs by and among the various sports programs as opposed to the players being a party to the economic relationship. Take Louisiana State University as an example. In 2018, LSU’s football program generated more than $100 million of the $145 million in revenue earned by the athletic department. The basketball and baseball programs added less than $1 million in profit, and literally every other sports program lost money for the university. The athletic department, as a whole, profited to the tune of $8 million, and the athletic programs that lost money were funded by the gains received primarily from the football program.
There is an argument to be made that too much money is being spent on expensive coaching contracts and athletics facilities. However, if athletes across the board were to receive a share of revenue, even in those sports that are economically in the red, then athletic programs are in for a lot of financial trouble irrespective as to whether a couple million dollars are trimmed from coaching contracts, particularly in a world where a virus like COVID-19 has proven to have the capacity to postpone entire football seasons in certain conferences. Furthermore, where will the money come from to pay for the comprehensive health care coverage, which will likely be required for every athlete in every sport, as well as the “commensurate lifetime scholarships” referenced by Booker and Blumenthal, but not yet fleshed out?
The result of turning a bill like the College Athletes Bill of Rights into a law could be the unintended consequence of eradicating the vast majority of college sports and primarily leaving football, basketball and maybe baseball as sanctioned teams. The rest of the current sport programs could turn into club sports, which would unfortunately diminish their standing on campus and be an overall negative consequences for the vast number of college athletes.
Darren Heitner is the founder of Heitner Legal. He is the author of How to Play the Game: What Every Sports Attorney Needs to Know, published by the American Bar Association, and is an adjunct professor at the University of Florida Levin College of Law. You can reach him by email at heitner@gmail.com and follow him on Twitter at @DarrenHeitner.
Virtually all software today has open source components, and open source software has been integrated into practically every sector and industry.
The use of open source software is now so widespread that many companies are unaware of how and where they are using it, and would be unable to identify all their open source code if asked to do so.
While this proliferation is a testament to open source’s success, it also gives rise to unique business and legal challenges, particularly in the area of intellectual property. If a company cannot even find all of its open source code or identify its open source dependencies, how are to ensure that they are remaining compliant with open source licenses and protecting themselves from business or reputational risk?
To address these unique and unprecedented IP challenges, we present a new white paper, A New Wave of IP Risk: How Open Source Software is Changing IP Risk in the Software Supply Chain.
In this paper, brought to you in partnership with our friends at FOSSA, we will examine the most common IP risks that arise from the use of open source software today, including:
Download your free copy here:
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Senator Kamala Harris (Photo by NOAH BERGER/AFP/Getty Images)
We know that Democratic Vice Presidential candidate Kamala Harris has support from Biglaw. An attorney herself, even in the Democratic primaries she commanded hefty support (as defined by contribution money) from the top Biglaw firms. And now that she’s on the ticket, well they’re planning on raising even more money on behalf of the Dems.
Kirkland & Ellis partner Jonathan Henes who served as national finance chair for Harris’s presidential campaign, told Law.com excitement in Biglaw circles is high for the ticket, and he’s even planning to co-chair a fundraising event:
“The excitement is off the charts. I probably received 300-plus texts over the last 12 hours from people asking how they can get involved and how they can help,” Henes said Wednesday. “There is a groundswell of excitement and support for a Biden-Harris ticket.”
….
“Kamala’s supporters are incredibly loyal, and it’s because they—like me—believe in her,” Henes said. “We were going to support Joe regardless, but the excitement of Kamala being selected is going to increase funding, increase other support, because we are just so thrilled that we’re seeing a Biden-Harris ticket.”
Of course, I’m sure it helps that Harris is married to DLA Piper partner Doug Emhoff. Henes got involved in Harris’s campaign through Emhoff, and Henes says Emhoff was instrumental in organizing lawyers’ support of Harris.
But support for Harris may go deeper than a shared profession. Peter Zeughauser, a law firm management consultant at the Zeughauser Group, also said that Biglaw’s support may be tied to her reputation as a regulator:
“Firms are going to step in and provide the usual significant support for the ticket, in part because of her background as a lawyer and a prosecutor, but also as a tough regulator,” he said. “Those are all important considerations for Big Law firms when they think about how they’re going to support.”
Whatever the reason, get ready for the Biglaw Biden/Harris fundraisers to commence.
Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).
[S]tarting salaries have continued to rise. The mean salary for the Class of 2019 rose 2.4% from the previous year, to $100,540, an historic high, eclipsing for the third year in a row the pre-recession high mean salary of $93,000 measured for the Class of 2009. The median salary for the Class of 2019 also rose to an historic high, to $72,500, finally eclipsing the pre-recession high of $72,000 measured for the Class of 2009. Also, for the third year in a row, the mean law firm salary eclipsed the pre-recession high measured in 2009, rising 2.6% to $127,180, another historic high, reflecting the prevalence of the new modal starting salary of $190,000 for many offices of the largest law firms. The median law firm salary rose by 4.2%, to $125,000, but is still shy of the median law firm starting salary of $130,000 measured for the Class of 2009, reflecting the fact that despite a rise in law firm starting salaries since then, there are still fewer jobs at the highest paying firms than there were before the recession.
— James Leipold, executive director of the National Association for Law Placement (NALP), commenting on the historic salary data for the law school class of 2019. Will these salary highs remain for the class of 2020 and beyond? Unfortunately, as Leipold goes on to note, COVID-19 is “likely to change the legal sector … in ways that are hard to foresee or predict with any accuracy.”
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.
There is no one on earth who thinks about water pressure more than President Trump. His campaign speeches routinely feature long monologues about dribbling faucets, flushing the toilet repeatedly, and dishwashers that have to be run a dozen times.
“So, showerheads,” he said on July 16. “You take a shower, the water doesn’t come out. You want to wash your hands, the water doesn’t come out. So, what do you do? You just stand there longer or you take a shower longer? Because my hair — I don’t know about you — but it has to be perfect. Perfect.”
If your hair isn’t “perfect” like Donald Trump’s, it’s probably because the Democrats limited you to 2.5 gallons of water per minute. Tyranny!
“Dishwashers,” he said, warming to his topic. “You didn’t have any water, so you — the people that do the dishes — you press it, and it goes again, and you do it again and again. So, you might as well give them the water because you’ll end up using less water. So, we made it so dishwashers now have a lot more water. And in many places — in most places of the country — water is not a problem. They don’t know what to do with it. It’s called ‘rain.’ They don’t have a problem.”
And then there’s the toilets.
“People are flushing toilets 10 times, 15 times, as opposed to once,” said the man who appears to subsist on a diet of cheeseburgers and burnt steak.
The same way that Trump has convinced himself that normal Americans despise windmills, LED bulbs, and high-mileage vehicles, the president just knows that we’d all rush out and buy energy inefficient dishwashers for “the people that do the dishes” if only we could.
He’s also under the mistaken impression that he waved his magic wand and granted us our wish. Last week at a visit to a Whirlpool factory, Trump boasted, “They put restrictors on [shower heads]. I got rid of that. I signed it out. That’s common sense.”
In normal times, the president’s hallucination would not be an impetus to federal rulemaking. But these are not normal times, so yesterday the Department of Energy proposed to redefine “showerhead” for the purpose of federal law.
DOE’s current definition considers all of the individual showerheads (which DOE has termed variously as sprays, openings, or nozzles) in a product containing multiple showerheads together for purposes of compliance with the water conservation standard established in the Energy Policy and Conservation Act (“EPCA”). DOE proposes instead to define showerhead as that term is defined in the 2018 ASME standard, such that each showerhead in a product containing multiple showerheads would be considered separately for purposes of determining standards compliance, and only one of them would need to be turned on for testing.
Note that this rule does not “get rid of” the “restrictor.” Instead it allows a multi-nozzle shower head to shoot 2.5 gallons per minute out of each nozzle, as opposed 2.5 gallons in toto. This directly repudiates a 2011 Energy Department memo clarifying that “multiple spraying components sold together as a single unit designed to spray water onto a single bather constitutes a single showerhead for purposes of the maximum water use standard.”
This would appear to be a solution in search of a problem, since Americans seem to be managing this whole bathing thing just fine.
“There is absolutely no need to change current showerhead standards,” David Friedman, Vice President of Advocacy at Consumer Reports, and a former acting assistant secretary for the Department of Energy said on the organization’s website. “Thanks to the standards, consumers have access to showerheads that not only score well on CR tests and achieve high levels of customer satisfaction, but also save consumers money by reducing energy and water consumption.”
But now “cutting regulation” — any regulation at all — is a win in and of itself.
“President Trump promised the American people that he would reduce onerous federal regulations on the American consumer, and this proposed rulemaking on showerheads does just that,” Energy spokeswoman Shaylyn Hynes told NBC.
How redefining a “showerhead” for the purpose of federal standards “reduce[s] onerous federal regulation” Ms. Hynes did not say. But Tea Party Senator Mike Lee applauded the move as striking a blow against tyranny.
Because God gave Americans the right to wash their bums with a firehose, and who is the government to tell us otherwise.
FREEEEEEEEEEDOMMMMMMMM!
Trump Boasts of Putting ‘a Lot More Water’ in Dishwashers & Bringing Back ‘Old-Fashioned’ Bulbs [People]
Trump administration wants to let it flow with new rules for showerheads [NBC]
(Photo by Mason Trinca/Getty Images)
As soon as Kamala Harris arrived on the 2020 general election scene she started causing whiplash among conservative critics. Most are coalescing around pitching her as a left-wing cartoon. Trump himself is going with his “nasty” and “phony” schtick. Tucker Carlson can’t even get her name right. Josh Hawley is trying to paint her as a big business enemy of the middle class which seems a lot closer to the message that actually landed Trump in the White House in the first place. But one thing they can all agree on is casually musing that Black and Brown people aren’t really American citizens.
It’s a conspiracy theory that popped up all over the place as soon as Biden’s camp announced that Harris was joining the ticket, but while most of this speculation was relegated to fringe message boards — indeed some of the more intellectually honest conservative media went ahead and debunked it out of the gate — Newsweek went ahead and published a whole essay about it from former Chapman Law School dean John Eastman.
The crux of the essay is that while Harris was born in the United States, if her parents weren’t citizens at the time, an outdated fringe theory of the 14th Amendment would suggest that she isn’t a natural born citizen because while born here she wouldn’t have been “subject to the jurisdiction thereof.” That provision is intended to deal with foreign diplomats, but here we are.
We make fun of U.S. News and World Report turning into U.S. Rankings and More Rankings, but that fall from grace is nothing compared to the trash bin Newsweek’s turned into.
Overnight, an editor’s note popped up seeking to dispel the impression that this foray into racist birtherism was really the foray into racist birtherism that it was:
Editor’s note: Some readers reacted strongly to this essay, seeing it as an attempt to ignite a racist conspiracy theory. That is entirely inaccurate, as this Note explains.
Debating the meaning of these constitutional provisions and, in the particular case of Dr. Eastman’s piece, the meaning of the 14th Amendment’s phrase “subject to the jurisdiction thereof,” is not an attempt to deny facts or to make false claims. No one is questioning Harris’ place of birth or the legitimacy of an obviously valid birth certificate.
You see, this is all about textual interpretation and parsing words carefully. For example, when the editors write the denial, “Eastman’s Newsweek Column Has Nothing to Do With Racist Birtherism” you might accidentally read that as “this is not racist” when they’re really only saying “it’s not about the fact of her birth.”
In fact, though, it is totally racist and also a new flavor of birtherism as it explicitly questions the circumstances, if not the location, of her birth. The editors, Editor-in-chief Nancy Cooper and Opinion Editor (and noted internet troll) Josh Hammer, attempt to deflect the idea that this could be racist by pointing out that John McCain and Ted Cruz also faced questions about their eligibility.
Why, exactly, was Cruz’s eligibility not racist birtherism? Cruz was born in Canada, which is a good cherry on top laugh about an Ivy League guy who tries desperately to wrap himself in Texas, but his mother’s American citizenship made him a citizen from birth. The person who spent the most time questioning Cruz’s eligibility was… Donald Trump who called him an “anchor baby” and wrapped it in with his wingnut theories about Cruz’s father assassinating JFK with Castro. The point is Cruz being a Republican doesn’t give him anti-racism armor and the questions about his eligibility were always about exploiting his “funny name” and immigrant father to undermine his legitimacy.
John McCain’s issue was a bit more explicit since the United States had been taking the position that children of American parents in Panama did not have citizenship — a stance driven by the reluctance to admit, ahem, a lot of kids produced by stationing a bunch of guys down there for years. This was resolved by later statute and then Clinton and Obama joined a resolution declaring McCain eligible anyway to close the issue.
The editor’s note is just one big “hey, we’re just asking QUESTIONS” defense. An adolescent response trying to duck behind the safe haven of academic inquiry. “I’m not saying he rapes goats, I’m just saying people have wondered and I think we should consider it.” Eastman’s essay is “a woman of color with immigrant parents is not American” dressed up to sound like a serious and neutral inquiry. This isn’t an intellectual inquiry, it’s a memorandum of understanding laying out the talking points for a nagging racist hit job. If you’re looking to get on Fox or OANN, start memorizing these out-of-context statutes and cases now! These shall be your new shibboleths.
Were Harris’ parents lawful permanent residents at the time of her birth? If so, then under the actual holding of Wong Kim Ark, she should be deemed a citizen at birth—that is, a natural-born citizen—and hence eligible. Or were they instead, as seems to be the case, merely temporary visitors, perhaps on student visas issued pursuant to Section 101(15)(F) of Title I of the 1952 Immigration Act?
Prepare for four years of people asking for her dad’s long-form Green Card.
None of this really matters of course because she was born in Oakland. The status of her parents mean exactly squat since she doesn’t fall into the long-recognized exceptions to the 14th Amendment (i.e., the aforementioned diplomats, the children of indigenous people who were not citizens at the time, and the children of a hypothetical foreign occupying army who might happen to be on U.S. soil).
It’s the same racist birtherism wrapped in a new bow. It’s moved from “was he born in Hawai’i?” to “was she born the right way in California?” but it’s all the same claptrap. Far from Newsweek’s denial, this article and its tortured reading of the Constitution to get around Harris’s cut-and-dry birth certificate actually underscores exactly how birtherism works.
It’s never been about a birth certificate.
Some Questions for Kamala Harris About Eligibility | Opinion [Newsweek]
Editor’s Note: Eastman’s Newsweek Column Has Nothing to Do With Racist Birtherism [Newsweek]
Earlier: Federal Clerk Attacks His Law School For Celebrating Pro Bono Work
The coronavirus crisis has wreaked havoc upon the legal profession and brought about changes that made working environments chaotic at best. From the the rapid transition from working in offices to working at home to the austerity measures that brought salary cuts, furloughs, and even layoffs to some law firms, associates have been put through the wringer. Now, associates are facing off against the very partners they work for in a battle for billable hours.
It seems that thanks to the pandemic, there’s been a downturn in work, and partners are taking on a lot of the work that associates and paralegals used to do. According to Bill Josten, manager of enterprise content for Thomson Reuters, there’s now a 2.7 percentage point difference between the hours partners and associates are working. “There has consistently been a gap,” he said, “but it got really wide, really quickly in conjunction with the pandemic.” The American Lawyer has some additional details on the new phenomenon that’s making associates cringe:
While hours are down across the board, Josten said the hourly dip for associates in Q2 of 2020 was significantly higher than that of partners. During Q2 of 2018, associates worked an average of 139 hours per month; in Q2 2019, it was 138 hours; and in Q2 2020, that number dropped to 126, a 10% drop from 2018.
Partners also saw a drop in hours, according to Josten. Q2 of 2018 saw partners work 124 hours per month; Q2 of 2019 was at 123; and Q2 of 2020 was 118, a 5% drop from 2018.
Whether this is due to client demand or partners simply hoarding the work that they do have, associates will be the ones who suffer in the long run. Never mind the fact that they’re not getting the professional development through challenging work that they would have in normal times, but when the holiday season comes, many associates won’t have been able to meet their minimum requirements for bonus eligibility.
Some firms are offering bonuses for extraordinary performance during the pandemic based on hours billed, but when there are fewer billable hours to be had overall, how are associates supposed to rise to the occasion (or attempt to do so)? It’s yet another unfair situation that’s been thrust upon associates during these turbulent times.
What’s the hours situation like at your firm? Are you on track to bill your usual number of hours in 2020? Please let us know in the poll below.
Loading …Partners’ Gain Is Associates’ Pain as Hours Move Upstream [American Lawyer]
When Billable Hours Are Scarce, Partners Get to Work First [Big Law Business]
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.
(Image via Getty)
Ed. note: This is the latest installment in a series of posts on motherhood in the legal profession, in partnership with our friends at MothersEsquire. Welcome Heather DePremio to our pages.
All my life, I’ve wanted to be a lawyer. I used to watch Perry Mason movies whenever they came on (way before the time of TiVo, let alone Netflix and Hulu). I love the law. The intricacies, the politics, the arguments. I even have a caricature of me, age 12, being a lawyer. When I went to college, I studied philosophy and pre-law. I never had a doubt that I would be the next great thing.
But as life so often does, it threw me a curve ball. I joined the military in the middle of my sophomore year at school, learning the hard way that in order to pass class, you have to attend class. In the service, I met, and married, my husband, also a service member. Although his commitment time was longer than mine, I was still determined to reach my goal. I went to law school while he was still on active duty (and spent our first few years of marriage apart — like any good military spouse). It was tough, but I muddled through, firm in my resolve to be that lawyer. I wasn’t first in my class, but I did fairly well. Most who knew me figured I’d go on to practice, somewhere. I graduated, took the Ohio bar exam, and became a full-fledged lawyer in the fall of 2006. Then, we moved.
My husband got stationed in Virginia. Lovely place, but not where I was licensed. What’s a girl to do? Take the bar, again, of course. Oh, did I mention I was pregnant with our daughter? Yeah, fun times, y’all. Fun times. After being home with a child for a year, I decided it was high time to use those TWO law licenses, and I went out to find work. But I struggled. HARD. I was from out of state. I didn’t have the pedigree most big firms were looking for. I settled in, working pro bono for legal aid. It at least gave me experience. But my second child’s pregnancy took a toll, and I quit working. After he was born, I started working for a solo practitioner. That lasted for a while, but really wasn’t scratching the “law” itch I knew I wanted. And, of course, we had to move.
By this point, I had been six years out of law school, and in the third state. I was done. I didn’t want to take another bar. I didn’t want to deal with interviewers asking “where’s that school again” and comments like “well, we’ve never hired someone outside of a first-tiered school before” (yes, I really got told that). I had two small children that had a father that was gone often, and they needed a parent home. So I became a stay-at-home mom. Let me say, all of you that stay home with kids, you have my undying loyalty. You are the bomb-diggity. And you deserve a vat of wine. No, a whole vineyard. I love my kids, but staying at home was NOT my cup of tea. Besides, we had to move!
We moved to outside of New Orleans in the summer of 2015. It was HOT. Bugs were everywhere, and I was MISERABLE. My kids were in school full time. I didn’t know anyone. My brain was mush. I needed something to DO. I started looking for work. Any work, but legal work would be preferable. I found an opening at the U.S. Attorney’s Office for a legal assistant. I thought, “I can do this. I did this before law school.” Little did I know that the title does not always coincide with the work you actually do. In the three short years I was at the USAO, I was a legal assistant to five separate assistant United States attorneys, prepared and helped try almost a dozen federal criminal trials, and helped our office settle some of the biggest cases it had ever seen. And I fell in love with my job.
I did everything from copying papers, to processing records in computer databases, to drafting responses to motions, to legal research and writing, to presenting evidence in the courtroom for trial. I loved each and every moment of it. The courtroom is exhausting and exhilarating all at once. But there is SO much prep work involved beforehand. Much of that prep work is being done behind the scenes, much like a stage hand for an actor. I have never had much success on the stage, but oh, I love being behind it.
I’m now a paralegal specialist for the USAO in San Diego (yes, we moved, again). The first thing I tell any attorney I work with is this: “I’m here to make you look good in the courtroom, to make your job easier, and to take care of the things you do not need to.” I love what I do. I’m knee-deep in all my cases, processing records, helping present evidence to the court, reading through caselaw to assist with motions, etc. Because I have a law degree, I can understand the why behind needing certain things done a certain way. I can lend my legal knowledge to the AUSA in arguing a certain position. (I once convinced an attorney to bring up a lack of standing issue to the judge — who then promptly advised we brief on the issue. We won.) And because I am tech savvy, I can put evidence together to more clearly guide the trial team to what they need, when they need it.
The best part, though? When that next move comes (in four short months), I can take a look at all the amazing work I’ve done and skills I’ve learned, and say, “Bring on the next one, I’m ready.” No need to worry about a license. No need to worry about yet another bar exam. I stay in the law, doing what I love, with the ones I love right near me.
Being a military spouse is HARD. Moving is HARD. But being a part of the legal community? Not hard in the slightest.
Heather DePremio is a Paralegal Specialist with the United States Attorney’s Office for the Southern District of California. She received her undergraduate degree from National University in 2000, and her J.D. from Northern Kentucky University Chase College of Law in 2006. Heather has been with the federal government since 2015. She is a Navy veteran, a military spouse, and a mother of two. When she isn’t knee-deep in the law, Heather can be found running half marathons and having exciting family adventures on their many, many moves across country.
