Category: News Feeds

There were basically three tiers of panic about Amy Coney Barrett’s disgracefully abrupt ascension to the Supreme Court. One tier feared that this was all an effort to guarantee Donald Trump could maintain the White House by judicial fiat. This is likely how it was sold to Trump himself, who might have squandered his only chance of staying in office by falling for this ruse. Others dismissed this — the conservatives had a majority as is — and instead focused on the jurist’s explicit animosity toward reproductive freedom and the Republican desire to get the full transition to Gilead locked in before a possible shift in the Senate. Meanwhile, the third tier, and the one that largely drove the official Democratic response to the nomination, worried that the rapid elevation was all about getting some, pun intended, insurance on the upcoming Affordable Care Act challenge.

It turns out that last argument was probably bunk. It’s often folly to rely on oral arguments for divining the eventual opinion, but this morning’s oral argument on the Obamacare challenge seemed to signal a solid majority unwilling to follow the Republican argument. And the theme that resonated from Chief Justice Roberts — and from Brett Kavanaugh, who followed the Chief’s lead — is that severing the individual mandate provision and allowing the rest of the law to stand is the proper solution.

But why it was a bunk concern offers a telling and tragic story about the state of the United States Supreme Court and the profound absence of any sense of legal consistency among its avowed conservatives. At the end of the day, the judicial philosophy of these justices is about the short-term best interests of the Republican Party. Period, full stop.

To be sure, this was a crisis entirely of Chief Justice Roberts’s own making. Had he upheld the ACA as a constitutional exercise of the interstate commerce clause — like everyone knew it was — then this case wouldn’t be here. But his original opinion was one of those “landmine decisions” where the result was less important than the majority’s showing of its work. Roberts upheld the ACA, not as a commerce clause case, but as a “tax.” This technical shift was lost on most straightforward political observers excited by the outcome, but it allowed Roberts to lay the groundwork for future efforts to undermine the commerce clause, the basis of everything from civil rights to environmental regulation. It also meant that when Congress later zeroed out the tax portion of the bill, Republican lawyers saw a chance to dump the whole thing. Ah, the best laid totally disingenuous plans….

So the crux of this case is “can the law survive by just severing the part where they now have a zero dollar tax or must the whole thing be tossed on the grounds that the mandate was central to the whole reasoning behind the law?”

Chief Justice Roberts made it clear that it could just be cut. “Congress left the rest of the law intact when it lowered the penalty to zero.” In other words, Congress signaled that their intention was to keep the ACA when it had an opportunity to kill it. This was most likely done because they had absolutely zero alternative and had noticed that the ACA had grown in popularity enough that Republicans were now campaigning on pledges to maintain guarantees of coverage for those with pre-existing conditions.

But this is the rub. In Shelby County, John Roberts struck down the primary tool of the Voting Rights Act and declared racism solved. In Justice Ginsburg’s dissent, she pointed out that severability was expressly written into the Voting Rights Act, and that, at worst, the majority could determine that Shelby County, Alabama no longer met the constitutional requirements for the edicts of the Act, but could not let that turn into a facial demolition of the whole legal regime.

And yet Roberts did just that.

A key practical element of the Shelby County severability argument was the fact that Congress had just overwhelmingly and on a bi-partisan basis renewed both the pre-clearance provision of the law and the list of jurisdictions requiring DOJ clearance. It was pretty clear evidence that they did not intend any individual challenge to overturn the Act as a whole. But today, when it’s convenient to John Roberts, recent congressional affirmation is ironclad proof of severability.

Certainly there are high-minded academic pretzels that can be made of how this is all somehow consistent — providing this sort of vapid cover is why the Federalist Society exists — but reduced to brass tacks (or “tax” for the sake of this opinion), John Roberts just said “look, Congress had a chance to strike it all down and didn’t proving they intended the law to survive as a whole” despite ignoring the very same logic when it came to aggressively disenfranchising Black voters.

There is no animating judicial philosophy beyond the political expediency of the Republican Party. And if polls didn’t overwhelmingly show that Republicans would get gutted in their Middle America strongholds if they allowed pre-existing condition guarantees to die, you can bet Roberts and Kavanaugh would have spent today quipping from the bench about the abiding necessity of recognizing this law as fundamentally unenforceable without an individual mandate.

But this is what they were put there to do.

---

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.

One day, we won’t have to wade through a bunch of performative junk suits filed solely to appease the ego of a septuagenarian toddler bent on salting the earth before retiring to his Florida golf course. But that day is not today. Today, we’re slogging through a hundred pages of hot mess filed by the Trump campaign in its doomed effort to overturn the will of Pennsylvania voters.

According to the New York Times, the raft of nonsense suits filed by Trump and his minions has caused major internal strife at his go-to firms Jones Day and Porter Wright Morris & Arthur, where one attorney even quit in protest. They’re embarrassed and concerned about the reputational fallout from association with their famous client. And they should be.

The latest excreta landed in the Middle District of Pennsylvania’s punchbowl last night. Donald J. Trump for President, Inc. is suing Kathy Boockvar, the Secretary of Commonwealth, and the Boards of Election in Allegheny, Centre, Chester, Delaware, Montgomery, Northampton and Philadelphia Counties to prevent the state from certifying the results of last week’s election. Or, in the alternative, if the court would just throw out all the absentee ballots from those populous counties where the campaign says poll watchers had to stand too far back, that would be cool, too.

No, that’s not even a joke.

WHEREFORE, in addition to any other affirmative relief that the Court may deem necessary and proper, Plaintiffs ask this Court to enter judgment in their favor and provide the following alternative relief:

i. An order, declaration, and/or injunction that prohibits the Defendant County Boards of Elections and Defendant Secretary Boockvar from certifying the results of the 2020 General Election in Pennsylvania on a Commonwealth-wide basis;

ii. As an alternative to the first request for relief, an order, declaration, and/or injunction that prohibits Defendants from certifying the results of the General Elections which include the tabulation of absentee and mail-in ballots for which Plaintiffs’ watchers were prevented from observing during the pre-canvass and canvass in the County Election Boards;

They’re actually arguing that mail-in ballots themselves violate the Equal Protection clause because in-person voting subjects citizens to greater scrutiny than voting by mail, and thus the 2.6 million mail-in ballots cast in Pennsylvania must be tossed out when allocating the state’s 20 electoral votes.

In the Trump campaign’s telling, any minor deviation in voting procedures between counties amounts to a violation of Equal Protection. So elections officials in “Democratic-heavy counties” who visually inspected sealed ballots and allowed voters who had submitted defective ballots, that is without a signed exterior envelope or an interior “security envelope,” a chance to fix it were actually violating the rights of every other voter in the state.

The Trump campaign insists that county officials who refused to allow voters to cure defective ballots were acting appropriately. But officials who allowed eligible voters to correct errors and cast their ballots — a procedure allowed under Pennsylvania law — were actually violating the Equal Protection rights of residents of other counties by diluting their votes … with legally cast ballots from their fellow Pennsylvanians. And no, the Trump campaign will not be suing the elections officials who failed to allow ballot curing, because letting more people cast ballots is very much not their bag, baby.

The Trump campaign has hung its hopes in Pennsylvania on getting late-arriving absentee ballots tossed out. Attorneys General from several Republican states have joined the suit, including from Kentucky, where ballots mailed by November 3 are accepted for three days after the polls closed. But even if they somehow convinced the Supreme Court to invalidate the late-arrivers, it wouldn’t substantially erode Biden’s 45,000-and-counting margin.

As Bloomberg points out, none of the suits are alleging sufficient error to overturn the apparent results. Republicans are challenging fewer than 200 votes in Maricopa County, as Biden’s margin in Arizona tops 17,000 votes. Even if the Trump campaign’s claims of 3,000 illegal voters in Nevada were true — and they most certainly are not — it’s not going to make up for their candidate’s 36,000-vote deficit.

The Trump campaign can kick up a fuss and pump lies about voter fraud into America’s blood stream, but it won’t change the math. And whatever play they have planned in Pennsylvania to prevent a certification of the count and give the Republican-controlled legislature a chance to nominate its own slate of electors isn’t going to work, either.

In part because of this guy.

And in part because of that pesky math. Losing Pennsylvania’s 20 electoral votes would put Biden at 286. The GOP would have to flip Georgia and Arizona or Nevada. It’s not going to happen.

So batten down the hatches for an ugly, destructive 71 days until the inauguration. But we all know how this story ends.

Complaint

---

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

Putting on a successful virtual conference in the midst of a worldwide pandemic is not easy. But this year’s LF Dealmakers Forum pulled it off with aplomb. How? A combination of things, starting with a steadfast refusal to broach any compromise on the quality of the conference’s content. From the informative introductory interview with Ashley Keller — which highlighted the continued evolution of litigation finance from single-case “lottery ticket” — funding to a sophisticated asset class — to the various panels focusing on all aspects of modern litigation finance, there was a lot to learn. Since I had the good fortune once again to attend in my capacity as a columnist on these pages, I am happy to share what I think are three very germane takeaways relevant to IP lawyers based on what I heard at the conference.

There is much more to say of course, as it is hard to encapsulate eight panels, plus keynotes, in a single column. That said, there were a couple of recurring themes that arose across the different panels, particularly with respect to how litigation finance firms are thriving across a number of fronts, spurred on by the economic challenges facing their investor and customer base in the current pandemic. Flush with funds as institutional investors look to litigation funders as a noncorrelated play, funders are also enjoying an insatiable demand from law firms and claim holders for their attention. Which allows them the freedom to deploy their capital selectively, while also maintaining the favorable pricing terms they need to obtain in order to generate returns commensurate with the level of risk they take on. And even as competition increases among funders, they continue to work together to properly market, self-regulate, and set standards for responsible litigation finance practices.

So times are good on the litigation funding aside, at least in terms of enthusiasm for what the industry promises to provide to investors and customers (law firms/claim holders.) For IP lawyers hoping to make the most of the opportunities presented by litigation finance, however, there is an increased onus to get to work — both in terms of educating themselves on how the industry operates and in developing relationships with funders. The latter brings us to our first takeaway from the conference, namely the importance of developing good relationships with funders.

But time is short on that front, at least in my views, as funders are more pressed for time than ever just dealing with the influx of matters they are presented with for diligence purposes. At a minimum, IP lawyers should be doing what they can in terms of helping funders understand their practices and client base, especially when presenting a case to a funder for potential funding. It can be helpful to think of funders in the same way Biglaw partners are taught to think of in-house counsel they are pitching in a beauty contest for litigation defense work. You want the audience for your presentation to like you personally, at the same time as they learn about your experience, and most importantly, about your approach to the legal matter at hand. Because alignment of interests is so important to a successful funding relationship, it is absolutely critical that a level of trust and comfort develop between the funder and lawyer. Getting a head start on developing that personal relationship, ideally even before submitting a matter for funding, is a worthy goal for IP lawyers hoping to use litigation finance in their practices. Considering that most relationships where funding is committed are contemplated to last for years — as the case or cases being pursued make their way forward — it was not surprising that multiple funder panelists talked up the value of personal relationships between lawyers and funders. IP lawyers should take heed and consider giving funders the same level of attention as they give legal recruiters. Both can be important to one’s future prospects after all.

Next, and in line with the idea that funders are swamped with “opportunities” (especially IP matters) based in part on the economic turmoil engendered by the pandemic, is the importance of managing both client and colleague expectations as to the odds of getting a funding arrangement in place. While the demand for funding may be going up, the standards of funders evaluating cases are (rightfully) not going down. In fact, it is realistic to expect that with the increased investor focus on the funding sector that funders will become even more selective in terms of allocating the capital they have raised. And they are plenty selective already — to the tune of funding less than 5% of the opportunities they are presented. Put another way, you have a 95% chance of getting rejected by any given funder, even with a strong presentation on the merits. Yes, just like Ivy acceptances the most meritorious will “get in somewhere,” but it is important not to oversell the odds of getting funding to existing or prospective clients. Or even to colleagues who may be counting on you to deliver revenue, or at least justify the amount of time you are spending submitting potential matters to funders. This is not meant as discouragement, only a reminder that being honest when conveying prospects of success remains an important obligation for lawyers when dealing with clients and partners.

Third, IP lawyers must remember their obligation to turn the increased competition among funders to their clients’ advantage at every turn. As important as it is to maintain good relationships with funders, it is also just as important to make sure that the client’s interests are paramount. Which means tough negotiation on funding terms for those rare submissions that get to that stage. And intensive consideration and negotiation of every key term in the litigation funding agreement for the client’s benefit. Believe me, the panelists at the conference know they are in a competitive industry and expect to negotiate terms. At the same time, however, funders also expect that the lawyers they deal with are generally familiar with how litigation funding works — including with respect to the types of financial structures and terms funders need to use to give themselves a fighting chance to generate returns for their investors.

In short, realistic and respectful negotiation, built on a framework of mutual knowledge of the needs of the client and funder, is often the path to successful deals. That said, it is hard to see how an IP lawyer can properly represent their client’s (or law firm’s) interests before a funder without making the investment in learning as much as possible about the current realities of funding. Which makes the time at information-packed conferences like LF Dealmakers Forum — even in a virtual setting — well worth it for IP practitioners. While there is much more to convey about the conference, I hope these three takeaways give a flavor of what was on offer. And hopefully inspire everyone to get as educated as possible about this exciting and increasingly important part of the IP litigation space.

Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

---

Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

You know, we give Jones Day A LOT of shit around here. And, listen, there are tons of good reasons for that between being the go-to law firm for the Trump administration and their opaque, black-box associate compensation system, well, there’s a lot of fodder. But the truth is, behind the Biglaw firm are a lot of lawyers and plenty of them don’t fuck with Trump’s politics (though have historically been fine with making money off of defending them), and are pretty annoyed with the compensation nonsense. Now we have some Jones Day lawyers who are finally willing to speak up — well, anonymously.

In a new article in the New York Times, they speak with nine senior attorneys — both partners and associates — at the firm who “are worried that [Jones Day] is advancing arguments that lack evidence and may be helping Mr. Trump and his allies undermine the integrity of American elections.” Well, no shit. Welcome to the party.

We know that the series of lawsuits filed by the Trump campaign are on… challenging legal grounds. And let’s be honest they’re designed to soothe egos and grift money from right wing supporters to cover campaign expenses. Though the chances of the courts coming to save Trump’s presidency are pretty slim, there’s still harm being done.

It’s the faith in American democracy that’s being eroded. And Jones Day’s involvement in the specious Pennsylvania litigation (you remember, they had to segregate the ballots received after November 3rd, which they were already doing, and there aren’t even enough of those ballots to matter anyway) that finally seems to be giving some Jones Day lawyers pause:

Six Jones Day lawyers said that given the small number of late-arriving ballots involved in the litigation, and the fact that they already had been segregated, the main goal of the litigation seemed to be to erode public confidence in the election results.

Jones Day did not respond to a request for comment.

In recent days, two Jones Day lawyers said they had faced heckling from friends and others on social media about working at a firm that is supporting Mr. Trump’s efforts.

A lawyer in Jones Day’s Washington office felt that the firm risked hurting itself by taking on work that undermined the rule of law. “To me, it seems extremely shortsighted,” the lawyer said.

And you know, if you’re a law student or lateral candidate and you have a choice to go… anywhere else, it’s looking increasingly likely the best and brightest will exercise that option.

The Times also details “discomfort” at another Biglaw firm — the Am Law second hundred firm of Porter Wright — and their involvement in election lawsuits.

Chief among their concerns: How could lawyers, whose profession is based on the rule of law, represent someone who they felt had frequently tried to flout it? One lawyer said he was concerned that the firm might be asked to try to delay the election. Another said he quit in response to the decision to represent Mr. Trump in Pennsylvania.

At two meetings, associates at Porter Wright told the firm’s partners that they objected to the work for the Trump campaign, according to the three current and former employees. They were told that the assignment was limited to the election in Pennsylvania. That assurance struck some attendees as hollow, since the state might decide the election.

Robert J. Tannous, the firm’s managing partner, declined to comment in detail on the work for Mr. Trump. He said, “Porter Wright has a long history of representing candidates, political parties, interest groups and individuals at the local, state and federal levels on both sides of the aisle, and as a law firm will continue to do so.”

But as you know, thankfully a slew of other states besides Pennsylvania voted for Joe Biden, and the Trump litigation strategy would have to master the extremely unlikely feat of invalidating the election results in multiple states to change the results of the election.

At least it’s good to see that some attorneys prioritize the sanctity of elections over the value of billable hours.

---

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).

Dear “Liberal” Colleagues:

I’m very pleased that you are happy with the election results. It makes me happy that you are happy. Although I’m not a member of any political football team, I do think things have been a bit sticky lately. However, now that President-Elect Joe Biden is on the scene, and your blood pressure is down, I thought I would inform you of a few things that will likely be going through my mind in the next four years.

You see, many outside and inside of legal academia will use your vote in favor of Biden as evidence that you are a “liberal.” Because, as I’m told, Democrats are “liberal” and Republicans are “conservative.” But I don’t buy labels. I look at action. And those actions might suggest something entirely different.

This goes beyond hypocrisy. Hypocrisy might be something like screaming at the TV and page refreshing your browser while you wait for the states to hurry up vote counts. AND then take two months to grade exams while complaining about students emailing you asking when grades will be posted.  That’s not necessarily a liberal thing. Although I’m sure your students will find it funny. Let’s run through some examples.

When you say that President Donald Trump’s supporters are all racist, I look at your faculty profile page. You see, it’s hard not to convince me of systemic racism regardless of party. I look at the numbers of minority professors in legal academia, and I have to say I’m not thrilled by our “diversity.” To me, it seems a bit like many members of the academy was accusing President Trump of doing overtly what the academy does more or less covertly. Or, as I like to call it, projection. I’m not saying you are to blame for your institution’s lack of diversity (unless you are), I’m saying you shouldn’t be selective as to where you see it.

But let’s not stop there. I’ll also see how you treat minority candidates, particularly those who do not hail from Yale, Harvard, or one of the other two schools from which your school hires. I’ll be watching to see how quick you are to attack their scholarship, torpedo their job talks, and then tout the remarkable scholarship of that white guy from Yale. Do you do this as someone who claims to be a big advocate of diversity, much like Trump claimed in terms of how “MAGA loves the Black people?” Did questions about VP-Elect Harris’ qualifications to be president outrage you all the while you were questioning whether a minority candidate would be a “good fit?”

I will look at your conduct on committees. Will you try to kill a minority faculty candidacy at the committee level like you’re Mitch McConnell and the candidate’s name is Garland?

When you berate Trump’s attack on Critical Race Theory, do you do it while saying excrement like “we can’t sacrifice quality for diversity”? Because that red herring has been in play in academia for a long time (it’s now a staple in diversity trainings) and it isn’t a Trumpian concept. Did you blow off diversity trainings or try to be clever with the trainers so you could dismiss what they were trying to teach you?

When you speak of how Harris has broken a glass ceiling, do you do so while reinforcing those within academia? The ones that relate to citation counts and scholarly impact? The ones that relate to disproportionate committee loads? The ones that make it more difficult for minority women to get tenure than anyone else? Is this a bad time for me to highlight Meera Deo’s book Unequal Profession in which you can read all about those barriers?

When you tell me that Trump treated citizens of blue states as second-class citizens, I look at how you treat nontenure-track faculty and staff. Are legal writing professors and clinical professors your “blue states?” How strongly have you advocated on their behalf? How often do you listen to them? Do you view their scholarship differently than your own?

When you complain that Trump has unfairly claimed minorities are cheats and liars, I ask whether you have disproportionately accused certain law students of violations of your school’s Honor Code? Do you even know your school’s stats? Your own? While we’re at it, did you bravely attack the bar examiners for their draconian measures without a moment of self-reflection about your own?

When you accuse Trump supporters of being a cult of personality, I’ll be watching whether you say things like, “SQUEE! I got cited by Cass!” Do you deify particular political players in the any branch of government, while ignoring all of their shortcomings? None? Not even Supreme Court justices?  Not a single one?

When you attacked Trump about cronyism, did you do so all the while trying to get your bestie a job at your law school? Perhaps you didn’t disclose that and savagely attacked a competing candidate during the hiring meeting? Or maybe had others do it for you?

Did you balk at the lack of diversity in Trump’s cabinet? If so, did you diversify your white manel by having a single white woman? Did you consider your efforts successful when it was a balance of white men and white women?

Sure, we could dismiss these all as just professors eagerly checking the privilege of others while ignoring their own, but I hear that voting Democrat makes you a “liberal.”  Liberals don’t just dismiss these concerns, right?

Just wondering.

---

LawProfBlawg is an anonymous professor at a top 100 law school. You can see more of his musings here. He is way funnier on social media, he claims. Please follow him on Twitter (@lawprofblawg) or Facebook. Email him at lawprofblawg@gmail.com.

While many discuss the coronavirus pandemic as a force that has dramatically reshaped workplaces in 2020, few note the extent to which it has revolutionized how lawyers interact with their colleagues and clients — and the new expectations clients now have when interacting with law firms.

Professionals of all stripes have become focused on efficient remote communications with clients and staff over the past six months, and many clients now expect to talk to their counsel — and even execute legal documents — in a far more streamlined and immediate manner.  

To help lawyers navigate this shifting landscape, the comprehensive case management platform MyCase has recently added 3 new features. The features draw on MyCase’s cloud-based functionality to enable lawyers to have streamlined and organized collaboration in a virtual office environment.

Notably, the new features come at no additional cost to MyCase users. Here, we provide an overview of the new additions. 

Manage Your Contracts With ESignature Templates and CounterSignature

MyCase eSignature templates and CounterSignature have streamlined the document-signing process. These features interact seamlessly with the broader case management system and eliminate the need to use disparate platforms. 

The tools allow you to set up templates that can be sent out on a regular basis without having to re-create the document from scratch. They also allow for multiple signers and countersigners to complete these forms simultaneously — all managed through a simple, user-friendly interface.  

ESignature templates and CounterSignature ease the document execution process for those who can’t have in-person meetings, or those who want a faster, more convenient document signing process. Additionally, when a document needs multiple signatures, it eliminates the need for an extensive procedure that could involve multiple mailings or other logistical difficulties.  

It’s also completely integrated into the rest of the MyCase platform, which users are already utilizing for areas as varied as internal communication, client communication and billing. If users need to review a contract, it’s right next to where they’d be reviewing notes and other documents, easing the management of the overall matter. 

Keep Your Clients Close With 2-Way Text

MyCase also offers 2-Way Text, so firm members can text their clients from their desktop or smartphone. With this feature, there’s no commingling of personal and client communications, or even sharing of personal contact information. 

Firm members just navigate to a specific case and text the client directly, with the message appearing on the client’s personal device as a regular text message.

All messages are organized by the case they are assigned to, and are also available in a general text message inbox. For added convenience, there is one-click access to track time spent texting for billing purposes, so you never miss billable time.

Additionally, when you’re not in the office or at your desktop, this functionality is connected to MyCase’s mobile application as well.

Communicate With Your Team Using Internal Chat

Finally, as chat platforms continue to make inroads in internal communications in a number of industries, MyCase now offers internal chat functionality to law firms.

The platform’s new Internal Chat enables firm members assigned to a case to instantaneously communicate with their colleagues in a manner that’s fully integrated with the rest of the case — eliminating the additional costs and inconveniences of switching between multiple systems.

MyCase users can find Internal Chat at the bottom right of their screen, no matter where they are in the software, so they never miss a message. 

Navigating the Pandemic

These new features, coming at no extra cost, directly address the challenges of today’s remote legal workplace. 

Virtual contract execution is a growing need as requirements for wet ink signatures ease. Texting is taking over as a primary means of instant communication, as response times for email become less certain. And the modern-day “shout down the hallway” often takes place within online chat software. 

If you want to experience MyCase’s virtual office environment, click here to sign up for a free trial (no credit card required). And if you’re already a MyCase customer, consider this a friendly reminder to explore how these new offerings can enhance your practice. 

Trump has lost a sufficient number of electoral votes to have lost the 2020 election.

There is no systemic fraud or grand conspiracy that explains this fact away. And it makes sense, because one candidate has fostered an out-of-control deadly pandemic to ravage the country and spark the greatest financial calamity since the Great Depression while the other… didn’t do those things. When conservative conspiracy-theorists wonder how so many people could have voted for Biden but not downballot Democrats — who had a terrible night — they’re answering their own question: because a sizeable chunk of Democrat-hating Republicans felt compelled to excise Trump from the White House. It’s just not that complicated.

While Trump’s media enablers stoke unsubstantiated claims of fraud — claims so absurd that ERICK FRIGGING ERICKSON is debunking them — his attorneys are filing specious lawsuits and his administration is abusing legal requirements to make the president feel better. At first, most people just pointed at this buffoonery and laughed.

But the Democratic Party is lousy with pearl-clutching worrywarts. The Secretary of Defense has resigned! Bill Barr says the DOJ will look into voter fraud! Maybe the Supreme Court really will decide the election just like Trump says they will! Are we watching a coup?!?!?

No… and yes.

Elie Mystal can walk you through all the reasons that Trump is going to be moving out of the White House in January no matter what. He’s keeping these lawsuits going as much out of a need to raise money to settle campaign debt — 60 percent of contributions to “stop the count!” just go to paying pissed-off vendors — as any genuine belief that he really won. It’s always a grift and as the saying goes, “an OANN viewer and his money are soon parted.”

While Trump will depart for Mar-a-Lago soon enough, the Republican Party itself is very much in long-run coup mode. Because these silly fraud arguments aren’t going to get them anywhere today because judges and the overwhelming weight of evidence will snuff those out. But for Republicans who spent years very expensively trying to prove voter fraud exists, stoking the idea that the election was “stolen” can serve as the next best thing. Creating an article of faith among the base can remove the need for elusive external evidence. It is now a circular argument: “election fraud exists because otherwise Trump would’ve won.” And, by forming such a circle, they’ll know that any new, restrictive voting laws have “improved” the sanctity of elections — as opposed to illegally suppressing democracy — if they produce results where Trumpists win.

Q.E.D.

The people who will be right there to assure them that they have the solution for this vague sense of fraud will be the Republican Party. They’ll propose more restrictive ID laws, require voters with “ethnic” names to re-register every election, close polling locations in known minority areas, and end early and mail-in voting entirely. And the places where they’ll ramp up these efforts first are Georgia and Texas.

The feeding frenzy is actually already underway in Georgia, where the two GOP Senate runoff candidates have attacked the Republican Secretary of State for administering an election where Democrats performed so well. Put another way, Loeffler and Perdue and miffed that the current Secretary failed to suppress the vote as much as his predecessor, current governor Brian Kemp. Despite the allegations of liberal partisans, Kemp didn’t “steal” his gubernatorial election in any overt way — but he did leverage the power of his old office to undermine faith in the process and to set up hurdles for the state’s increasingly Democratic electorate to clear. Those firewalls have been overcome and Republicans are mad. Unfortunately they have the unified government to redouble their efforts to suppress the will of the electorate to push Georgia voters down for a few more years.

Despite some Democratic hopes, Texas remains a Republican stronghold. But, like Georgia, it’s one that’s slipping. The governor already succeeded in applying the comically “fair” rule of having only one ballot dropbox per county regardless of whether of the county has 5 million residents or 1,700. With a slimming majority of voters in hand today, Texas Republicans will likely return to Austin to set up more onerous voting restrictions buoyed by the myth of widespread voter fraud.

So the moral of the story right now is that, no, Trump isn’t going to end up in the White House for four more years by flogging this fake voter fraud story. But that doesn’t mean people shouldn’t take this circus at the Four Seasons (Landscaping) deadly seriously. This is a slow motion assault on basic freedoms.

---

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.

It’s November 10, and Thanksgiving is just two weeks away, which means that bonus season is right around the corner. Wouldn’t it be nice if your law firm gave you a little something extra to be thankful for this year? We sure think it would be!

As a little reminder — as if you really needed one — this is what last year’s Milbank bonuses (yes, Milbank; Cravath later followed along) looked like:

Class of 2019 – $15,000 (pro-rated)
Class of 2018 – $15,000
Class of 2017 – $25,000
Class of 2016 – $50,000
Class of 2015 – $65,000
Class of 2014 – $80,000
Class of 2013 – $90,000
Class of 2012 – $100,000
Class of 2011 – $100,000

These year-end bonuses are, of course, in addition to the appreciation bonuses that some firms handed out earlier this fall to thank their associates for their dedication during the coronavirus crisis. Davis Polk set the standard on those bonuses, which ranged from $7,500 to $40,000. This year, there will truly be different tiers set for compensation if not all firms offer additional bonus dollars to their associates on top of their standard bonuses to truly match the market.

For those of you who are wondering when your bank accounts will be a little more flush, here’s a list of the dates when year-end market bonuses hit Biglaw since 2006, the very first year Above the Law started publishing bonus news. Take a look:

With visions of bonus dollars dancing in your heads, it’s time to check in on how people are doing with their billable hours. There are eight weeks to go in 2020, and even though COVID-19 may have put a damper on your hours, hitting your target is still important. Some firms might make bank-busting payments, but not all associates will hit the hours mark necessary for the top dollar.

Still, with two months to go, there’s plenty of time to get on your hours. Don’t be surprised if attorneys start poking around for an extra discrete assignment or two — after all, some hours here and there could mean a world of difference.

So how are people doing during a pandemic that nearly paralyzed the legal profession? Take our poll, and get a sense of how many hours your peers are on pace to hit in 2020. While you’re at it, let us know when you think this year’s bonuses will drop, and whether they’ll be higher or lower than last year’s bonuses.

Remember everyone, we depend on your tips to stay on top of important bonus updates, so when your firm matches, please text us (646-820-8477) or email us (subject line: “[Firm Name] Matches”). Please include the memo if available. You can take a photo of the memo and send it via text or email if you don’t want to forward the original PDF or Word file.

And if you’d like to sign up for ATL’s Bonus Alerts (which is the alert list we also use for salary announcements), please scroll down and enter your email address in the box below this post. If you previously signed up for the bonus alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each bonus announcement that we publish. Thanks for all of your help!

---

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.

WASHINGTON: President Trump has fired his latest Defense Secretary just days after the presidential election was called for Democratic rival Joe Biden, installing a little-known former White House and Pentagon official to take his place.

Christopher Miller, who has been “performing the duties” of the assistant secretary of Defense for special operations for several months, is now in the top spot, a move that leaves Deputy Defense Secretary David Norquist in the cold. The deputy is normally next in line when the secretary is fired. It is also an extraordinary promotion for Miller. Many officials are senior to him and have more time in their jobs across the Pentagon.

In classic form, the president made the surprise announcement via Twitter this afternoon, saying bluntly “Mark Esper has been terminated.”

Trump’s action drew immediate criticism from a senior Republican defense expert, Kori Schake.

“It’s shockingly irresponsible for the President to disrupt the important work of defending our nation during a presidential transition this way,” Schake, director of foreign and defense policy studies at the American Enterprise Institute says. “Secretary Esper was serving our country ably and well as Defense Secretary.”

Rep. Adam Smith, Chairman of the House Armed Services Committee, said firing Esper “out of spite is not just childish, it’s also reckless. It has long been clear that President Trump cares about loyalty above all else, often at the expense of competence, and during a period of presidential transition competence in government is of the utmost importance.”

Esper has kept a low profile since the summer, when he broke with Trump during protests that were sweeping across the country. Esper publicly said he didn’t support invoking the Insurrection Act which would allow active duty troops to be used to help quell the wave of protests across the country. The president had threatened to use the power to do just that. The break between the two was the most serious of Esper’s tenure, and by all accounts he never fully recovered.

That tension was compounded by the Pentagon’s clear frustration over Esper and Chairman of the Joint Chiefs Gen. Mark Milley being photographed with Trump crossing Lafayette Square just after it was violently cleared of protestors by law enforcement. 

The secretary has spent much of his time since then on the road, visiting allies and US troops at home and abroad, declining to speak on the record with the press. He also stopped what had become semi-regular press conferences at the Pentagon. Esper had made much of his efforts to reinstate those briefings, which have been a regular feature of the US military’s relations with the outside world for decades.

Miller has been at the Pentagon only since January, where he was sworn in as deputy assistant secretary for Special Operations and Combating Terrorism before later sliding over to the SO/LIC job earlier this year to take over after Owen West departed.

I have always been a pretty staunch First Amendment advocate. Everyone should have a right to say or write pretty much anything that can be put into words. And in a free society, citizens should have a right to express themselves in almost unimaginable ways. So long as no one is getting hurt.

As a layperson working in the legal industry for more than two decades, one cannot help but learn about the law. As a fan of our Constitution — and constitutions everywhere — I have learned a few things about fairness, equality, and the general rights of individuals.

Today, I think that no matter where you stand on the social or political spectrum, it is not hard for reasonable people to agree there are some societal issues that are troubling the citizenry. I would not presume to suggest that I have all the answers, but every once in a while a thought enters my mind that I cannot seem to shake.

What if we made it a crime to be racist?

I know, I know, we already have laws designed to deal with racist and discriminatory activities. The Fourteenth Amendment and the statutes legislatures have created, however, do not seem to go far enough. Indeed, we have created so-called immunities to protect violators of the Constitution. It is true that an individual or organization could be charged with violating someone’s civil rights. But how often does that work out?

The sad fact is that it is perfectly legal in the United States for hate groups to exist; to speak, write, and promote hateful ideas and activities. The only limit, according the Supreme Court, is the active promotion of immediate violence.

State and federal legislatures and their administrative agencies have enacted statutes, rules, and regulations designed to prevent or deter racism and other forms of discrimination. We even have circumstances in which prosecutors can designate behavior as a hate crime. But, for the most part, these laws add an aggravating factor to an existing crime. You tell me — have the current laws worked to deter the evil they are intended to eradicate?

What if we declared that it is a violation of the law for any individual, group, or organization to speak, write, or espouse racist views or opinions. What would be the objections to the crime of racism in the first degree?

I suppose the first and most principled objection to such a law would be on First Amendment free speech grounds. But we already place limitations on free speech, don’t we? The classic example is falsely yelling “Fire!” in a crowded movie theater. We also punish false and misleading speech; you cannot steal another person’s words or ideas; we have limits on obscenity; and you cannot threaten the president.

While I am certainly not the arbiter of what may or may not be constitutional, I’ve searched my conscience, my moral compass, and frankly, I am okay with placing additional limits on free speech in an effort to eradicate racism.

Others might object and argue that we already have laws to deal with this problem. But do we? And how has that worked out to date?

Other countries have laws than ban speech and behavior. In Germany, it is a crime to promote Nazi ideology. Some nations have criminalized denying the Holocaust and other genocides. Prominent nations have outlawed certain writings. In the U.K., it appears they have taken an intermediate step of permitting citizens to report to police a racial or discriminatory incident.

I was taught in school that laws generally have a foundation in evolving standards of morality. It has been suggested in more than one brief before the courts of civilized nations that the law needs to evolve with changing public opinion, interests, and policies. Given that there are clearly evolving thoughts on this issue, it is time we upgrade the legislation.

America has been dancing around this issue for hundreds of years. Whatever the cause of the reticence, it may be time we tackle the issue head-on. What have we to lose if we try it?

I honestly don’t know if making racism a crime will have an impact on racism in America or prevent or even reduce the wrongs faced by people of color still today, but maybe it is time that lawmakers take some bold steps to seriously attempt to address the issue.

---

Mike Quartararo is the President of the Association of Certified E-Discovery Specialists (ACEDS), a professional member association providing training and certification in e-discovery. He is also the author of the 2016 book Project Management in Electronic Discovery and a consultant providing e-discovery, project management and legal technology advisory and training services to law firms and Fortune 500 corporations across the globe. You can reach him via email at mquartararo@aceds.org. Follow him on Twitter @mikequartararo.