Category: News Feeds

Ed. note: Welcome to our daily feature, Trivia Question of the Day!

According to data recently released by the U.S. government, which law schools received paycheck protection program (PPP) loans from the Small Business Administration?

Hint: The ABA-accredited, standalone schools in question received between $150,000 and $5 million loans from the government during the coronavirus crisis.

See the answer on the next page.

---

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.

The regulatory bonfire promised at the advent of the Trump administration never really became the out-of-control conflagration out of which the phoenix of 19th century lasseiz-faire capitalism would reemerge. And now, it probably never will: Even if the president manages to find a way to win reelection, he and his hand-picked lieutenants have for three-and-a-half years demonstrated an incompetence and laziness-based inability to focus on anything long enough to really destroy it. And so the administration whose leader came into office promising to “do a big number” on Dodd-Frank has only now gotten around to gutting the central part of that rule, part of a late-breaking realization on the part of his appointed deregulators that time is perhaps not on their side.

Do you sometimes feel like you’re at the center of a technology tornado -– thing constantly changing around you? Or perhaps, for you, it’s more of a desert landscape you’re stuck in -– no sign of change in sight and no clear way out.

To get a sense of other lawyers’ relationship with technology at work, I crowdsourced the following question on LinkedIn: “Which one thing do you think needs to change most in your work environment?” This completely nonscientific poll lead to the following results:

Contracts Are At The Forefront Of Lawyers’ Minds, When We Aren’t Thinking About Cheesecake

Marny Abbott, a senior in-house lawyer, said, “The lawyer answer, of course, is ‘it depends.’ I don’t currently have a lot of contracts, and am a team of one so am flexible, but any of these could change on a dime. Most importantly, everything is better with cheesecake.”

Contracts are a massive opportunity to improve lives (for lawyers and clients alike) and have a real impact. Hayley Leviashvili, CEO and founder of gigLAW explained, “I believe automating contracts is essential in the legal industry and can increase efficiency immensely. Rather than having interns or associates go line-by-line, leaving out specific language, as you know opposing will ask for that and we consider it a ‘giveaway,’ automated contracts will eliminate much of the time that takes.”

Leviashvili explained, “Though that process is central to legal negotiations, I’ve always thought there are more efficient ways to go about drafting and negotiating contracts!”

Collaboration And Flexibility Are On Our Minds, Also, When We Aren’t Thinking About Cheesecake

Collaboration is critical and constantly evolving. Collaboration in the 1950s meant one thing; following the advent of e-mail, another; and with Slack, another. And of course — in times of COVID-19, something entirely different.

We must stay open-minded and ready to experiment. Lisa Lang, general counsel at Kentucky State University, observed, “Increasing internal collaboration is something I make a priority. With everyone socially distancing, it is important to make sure you are very intentional regarding your communication. Communication is key when you are working to create a collaborative environment.

Rachel Coll, a lawyer and certified life coach recalled, “Back when I worked full time for an employer, I couldn’t stand the traditional 9-5, be planted in your desk chair, expectation. Flexibility makes for happy employees who WANT to do the work, rather than employees who muddle through because they feel chained to their desks.”

This is something on everyone’s mind these days — which parts of the way things have always been done can we leave behind in a post-COVID world? How can we maintain flexibility and even increase efficiency?

Tech Creates Fear: Lawyers (Virtually?) Eat Their Feelings

Cheesecake, even when virtual, is a tempting choice. “It was a close call between flexibility and cheesecake. But my slowing metabolism does NOT need more cheesecake,” said Lisa Goldkuhl, a dedicated mother and in-house supervising attorney. Likewise, Annie Little, founder of JD Nation, admitted, “My brain is not yet fully caffeinated, so of course I went with cheesecake. I think that speaks to how difficult change can feel!”

Shari E. Belitz, CEO at Shari Belitz Communications, observed, “I think I collaborate pretty well with myself, I definitely give myself maximum flexibility. I’d love to know a bit more about automating contracts.” She added, “I did select cheesecake. But I know a lot about cheesecake.  Automating contracts, not so much.”

Jamie Szal, Maine state and local tax attorney at Brann & Isaacson, said, “I like to think of myself as fairly tech-adept. Product of growing up the child of a Xerox engineer. But, as I affectionately forewarn my IT guy, I come with tech gremlins. Things just stop working the way they should when I come near.” She added, “That said, I love learning new tech to make my job better.”

There’s no shortage of technology needs in the legal world. Law is a slow-moving profession and lawyers tend to be risk-averse, so inefficiencies are carried much longer than they need to be. As a lawyer in the technology world, half of my mission is to get lawyers thinking about technology and identifying efficiencies. Then, once they do so, we can get to talking about fixes.

But until then — let us eat (cheese)cake.

---

Olga V. Mack is the CEO of Parley Pro, a next-generation contract management company that has pioneered online negotiation technology. Olga embraces legal innovation and had dedicated her career to improving and shaping the future of law. She is convinced that the legal profession will emerge even stronger, more resilient, and more inclusive than before by embracing technology. Olga is also an award-winning general counsel, operations professional, startup advisor, public speaker, adjunct professor, and entrepreneur. She founded the Women Serve on Boards movement that advocates for women to participate on corporate boards of Fortune 500 companies. She authored Get on Board: Earning Your Ticket to a Corporate Board Seat and Fundamentals of Smart Contract Security. You can follow Olga on Twitter @olgavmack.

This morning Texas’s all-Republican Supreme Court rejected the Texas GOP’s last ditch bid to force the city of Houston to use its convention center for the state party convention on Thursday.

Holding that Texas’s election law giving courts jurisdiction to “issue a writ of mandamus to compel the performance of any duty imposed by law in connection with the holding of an election or a political party convention” was not applicable to contracts with the state, the Court refused to grant relief citing lack of jurisdiction.

As Texas’s COVID numbers have surged, Texas Republicans continued to insist they would host an in-person gathering for delegates at the George R. Brown Convention Center. For their own safety, though, Governor Greg Abbott and Lt. Governor Dan Patrick planned to address the gathering via video.

Hey remember when Patrick went on television and said that “lots of grandparents out there in this country like me … want to live smart and see through this, but I don’t want the whole country to be sacrificed?”  Easy to say when you’re calling in to chat with Laura Ingraham from the comfort of your rumpus room, but less so when faced with the prospect of 6,000 of your fellow Texans exhaling in your direction as they breathe in your every word. But luckily for Patrick, Houston’s Democratic Mayor Sylvester Turner announced last week that he was invoking the force majeure clause to cancel the city’s contract with the Gippers.

“These are some very serious times,” Turner said last week, announcing his decision. “Simply put, the public health concerns outweighed anything else.” And indeed they are serious times, with Harris County reporting 45,368 confirmed cases as of this writing, the most of any county in the state. Nonetheless, the Texas GOP demanded to hold the state party convention in Houston as scheduled.

“We are prepared to take all necessary steps to proceed in the peaceable exercise of our constitutionally protected rights,”  State party Chair James Dickey said last week, citing the Black Lives Matters protests, which took place “without any of the safety precautions and measures we have taken” as proof of his party’s right to assemble indoors on city property.

Justice Jeffrey S. Boyd, speaking for a 7-1 majority of the court, did not agree.

“The Party argues it has constitutional rights to hold a convention and engage in electoral activities, and that is unquestionably true,” he wrote. “But those rights do not allow it to simply commandeer use of the Center. Houston First’s only duty to allow the Party use of the Center for its Convention is under the terms of the parties’ Agreement, not a constitution.”

Which would appear to settle the matter, although the party is currently litigating in lower court and has vowed to fight to the bitter end to secure specific performance from the city.

So, welcome to the Deep State, Texas Supreme Court! You can collect your Resistance swag bag in the AOC conference room, before heading to the Elizabeth Warren Dining Hall for a round of Bolshevik workers’ anthems.

(Opinion on the next page…)

IN RE REPUBLICAN PARTY OF TEXAS, RELATOR [Denial of Writ of Mandamus, July 13, 2020]
Houston convention center operator cancels in-person Texas GOP meeting [Texas Tribune]

---

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

If you saw a couple of attorneys in St. Louis emerge from their home with an AR-15 to wave at peaceful protesters and thought, “This is going to end with a comprehensive lesson in all the stuff you forgot from 1L Property class,” then you are graced with more vision than the rest of us.

Mark and Patricia McCloskey came into our hearts just two weeks ago, when they busted out an AR-15 and a handgun to confront a group of protesters who — from all available video evidence — were just walking down their street. When Mark McCloskey appeared on Tucker Carlson, he explained that “I was literally afraid that within seconds they would surmount the wall, come into the house, kill us, burn the house down,” speaking to a pronounced paranoia based on the videos. Whether he intends it or not, this certainly reads as “whenever I see Black people in my neighborhood, I assume they’re going to kill me,” which isn’t a great look.

Most of the hate mail we’ve received for covering this story revolves around the McCloskeys having the “legal right” to defend their home. Certainly I flagged the fact that they stayed on their lawn as an important defense in my original article. But now the police have seized the AR-15 used in the altercation as part of an ongoing investigation so… maybe not.

But the more exciting news from the weekend is the revelation that the McCloskeys are big fans of old school Property law, and we couldn’t be happier. And, in the end, isn’t a grasp of Property a lot more effective as a weapon than an AR-15?

The answer is no, but you get the point.

The St. Louis Post-Dispatch has a deep dive into the couple’s litigious history and it turns out they like to sue people. A LOT! Neighbors, coworkers, family… it doesn’t really matter.

They filed a lawsuit in 1988 to obtain their house, a castle built for Adolphus Busch’s daughter and her husband during St. Louis’ brief run as a world-class city in the early 20th century. At the McCloskeys’ property in Franklin County, they have sued neighbors for making changes to a gravel road and twice in just over two years evicted tenants from a modular home on their property.

Mark McCloskey sued a former employer for wrongful termination and his sister, father and his father’s caretaker for defamation.

There’s a lot to unpack there, but hats off to the St. Louis newspaper for coming right out and saying “St. Louis’ brief run as a world-class city.” Damn. When the local paper is dumping on the home town….

The McCloskeys have filed at least two “quiet title” suits asserting squatter’s rights on land they’ve occupied openly and hostilely — their terms — and claimed as their own.

Sigh. It would have been nice if the Post-Dispatch could have checked with a lawyer before publishing this who could have told them that “hostilely” isn’t something they pulled out of a hat but a necessary element of the claim they tried to bring.

Mark McCloskey’s first taste of ownership may have been on his 20th birthday, in 1976. A card from his parents, Bruce and Lois “Carol” McCloskey, would much later become an exhibit in a lawsuit against his father and his father’s trust.

‘You are now the sole & only owner of 5 acres’

The card said: “You are now the sole & only owner of 5 acres of the Phelps County Farm. Papers to follow. This is on the river — Luck! Happy Birthday! Mom + Dad.”

He also got a small box of earth from the family’s 240-acre property to make it official.

A small box of earth? Livery of seisin, baby! Didn’t expect to see that come up on the exam. McCloskey eventually got burned when the assessor told him that no valid paperwork was ever filed. In the battle over his father’s will, a judge ruled against the claim disregarding the dirt clod, which is a shame because that at least feels like a claim worth considering. It’s the sort of symbol that would clearly signal an intention to convey land, right? Maybe I’m just a sucker for the old school.

Beyond the family acreage, the McCloskey home we’re all familiar with came into their possession through some test-worthy legal moves. The couple originally bid on the house in a deal with a “right of last look” clause. When the tax lawyers tried to sell it to someone else after telling the McCloskeys it would be theirs if they could get the money together in the morning…

“I get to my office at about 4 o’clock in the morning. Pattie and I draft a lawsuit and file it when the courthouse opens, the (temporary restraining order) to prevent the sale. We set up a table at wherever Lewis and Rice was in those days and served every partner on the way in and served the president of Boatmen’s Bank when he went to work the next day.”

The move resulted in his own firm forcing him to resign and a wrongful termination suit against them. All the cases were dismissed, but the McCloskeys ended up with the house so they did manage to effectively deploy the law to get the job done.

A less savory incident in the couple’s history of using Property law came when the McCloskeys got in a tussle with the homeowners’ association over a provision in the community’s agreement limiting ownership to a “single family,” which the McCloskeys maintain was an honest, neutral dispute, but what most neighbors saw as an effort to keep a gay couple out.

But there’s so much more! Another adverse possession suit seeking to claim less than half an acre that was fenced incorrectly, an easement fight over the condition of a gravel road across McCloskey land that turned into a Bleak House litigation, an eviction claim against a single mother, a threat to file a functional trespass claim against a Jewish school project that placed beehives on its own property near to the McCloskey home.

There’s just so much here! Seriously, 10 points to whichever professor out there uses the McCloskey drama as an issue-spotter next year. It’s really got everything you could want to teach a course on this stuff. The McCloskey home may as well be Blackacre!

Or, perhaps, Whitestraightacre.

Portland Place couple who confronted protesters have a long history of not backing down [St. Louis Post-Dispatch]
Police seize gun at home of St. Louis couple who pointed weapons at protesters [CBS News]

Earlier: St. Louis Lawyers Wave AR-15 At Protesters Like Totally Normal, Totally Not Bonkers People
Opening Up The Above The Law Mailbox… Of Hate Mail!

---

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

We have some unfortunate news from New York, where the founding partner of one of the largest law firms in America recently passed away.

Leonard Rivkin, 95, was the founding partner of Rivkin Radler, which recently was ranked at #209 on the 2020 edition of the NLJ 500. After serving in the Army during World War II, Rivkin returned with a Silver Star and two Purple Hearts before he graduated from UVA Law. He founded the firm by himself in 1950, and today, the firm has almost 200 attorneys. The New York Law Journal once referred to the firm as “the largest suburban law firm in the U.S.” The Long Island Business News has an inspirational snippet from Rivkin’s memoir, “May It Please the Court”:

In an excerpt from the book, Len explains how he grew the firm;

“How did I do it?”

“… With a uniquely aggressive and creative approach to business development and litigation strategy.

The essence of that approach; take the initiative.

In other words, do not sit on your hands waiting for something to happen: make it happen.

Do not react to your adversaries; make him react to you…”

Among the first to embrace legal marketing, Rivkin added, “This approach is not just a litigation tactic; it is a sure-fire way to develop and expand a law practice. Clients do not materialize in an attorney’s office out of thin air. They will not find you unless you find them first…”

William Savino, the firm’s former managing partner, said Rivkin “had a remarkable influence and impact on so many people,” and that he was a “truly a unique human being” whose “legacy is palpable in the spirit and character of the Firm he founded.” Evan H. Krinick, the firm’s current managing partner, remembers Rivkin as “charismatic and charming, as well as ambitious and driven.”

We here at Above the Law would like to extend our sincere condolences to Leonard Rivkin’s family, friends, and colleagues during this difficult time.

Leonard Rivkin, founding partner of Rivkin Radler, dies at 95 [Long Island Business News]

---

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.

Today marks the start of the 2020 annual conference of the American Association of Law Libraries, which runs through Friday. As the AALL’s first virtual conference, it is a much different event in a much different time for an organization that is facing a much different future.

Recent years have seen an unprecedented surge in the use of technology and artificial intelligence within the legal profession, and the betting money says the pandemic will only further accelerate that surge. With that comes both opportunities and challenges for law libraries.

New AI products purport to do the work of the legal researcher. At some firms, bots field lawyers’ help-desk questions. Legal research companies have even taken to anthropomorphizing their products with human names such as CARA (from Casetext), EVA (from ROSS Intelligence) and Vincent (from vLex).

As technology and AI push the boundaries of legal research and knowledge management, some may wonder, “Is the future of the law librarian threatened by a robot revolution?”

In fact, just the opposite is true. Technology will not diminish the role of the information professional. Rather, never has the role of the legal-information professional been more essential.

Last year, I contributed a chapter to Law Librarianship in the Age of AI, a book published by the American Library Association. In my chapter, on the future of AI in law libraries, I described what I see as four roles of law librarians that exist already and that will become more essential as technology evolves.

Librarian As Gatekeeper

Already, law librarians’ evolving roles require them to wear a variety of hats. Increasingly, one of those is legal technologist. These days, one can hardly be an information professional without also becoming a technology professional because the two disciplines overlap in almost every way. For that reason, law librarians have begun to fill the role of technology  gatekeeper within their firms and organizations.

I hear this repeatedly from the vendors who sell to firms. Law librarians get it. They understand the importance of technology in advancing the legal profession, and they are more likely than other legal professionals to understand the mechanics of technology, to be able to get under the hood and size up whether a product is what it claims to be.

We see this at law firms, where law librarians are often the screeners for new technology, helping to vet and evaluate products before their firms plunk down precious dollars. We see this at law schools, where law librarians are often at the forefront of pushing for teaching and program initiatives in technology innovation and competence. We see this in court systems and government agencies, where law librarians are often helping to lead the charge for expanding access to justice.

In this way, librarians play an indispensable role in the legal profession. They are the gatekeepers. They are, if you will, the technology police. They have the skill and the savvy to scrutinize vendors’ claims and make sure the reality comports with the marketing. In this way, librarians — maybe more so than any other role in the legal profession — are critical to keeping the industry honest.

Librarian As Guide

While law librarians already play a critical role in evaluating and selecting technologies, their role will extend well beyond selecting systems. They will also be called upon to facilitate the use of AI within their organizations through the training of lawyers and law students and by continuing the evaluation of AI systems and their use.

As librarians Mary Ann Neary and Sherry Xin Chen of Boston College Law School write in their 2017 paper, “Artificial Intelligence: Legal Research and Law Librarians,” law librarians are well suited to this role. “Librarians, aware of what results can optimally be retrieved by a particular search, can gauge the gaps or weaknesses in an AI system by evaluating search results.”

Beyond training others in the use of AI systems, law librarians could also have a direct role in training and refining the machine learning systems in use at an organization, Neary and Chen said. “Law librarians, as information professionals with a unique understanding of users’ search habits, goals, and available data, can help the institution tailor the application and maximize the benefits of the AI system.”

In their 2018 article, “Putting Artificial Intelligence to Work in Law Firms,” Ed Walters, Fastcase CEO, and Morgan Wright, product manager at Fastcase, argued that in addition to training third-party AI systems, law librarians will also have a role — perhaps the lead role — in building systems internally. “Who will be the makers in this new era of read/write artificial intelligence? It would be natural for the law firms’ experts in legal information, law librarians, to have the central role.”

If lawyers do not have the skills or understanding they need to use the ever-widening array of AI-driven services and tools available to them, they cannot practice effectively, now or a decade from now. In the future, the role of law librarian in training lawyers, associates, and law students will be as important as it ever was — maybe more so.

Librarian As Ethicist

Evolving ethical expectations around lawyers’ understanding and use of technology, including AI, pose potential pitfalls for legal professionals. Librarians in the future will serve a valuable role as members of legal teams in helping lawyers navigate new technologies and the ethical requirements surrounding those technologies.

This role is particularly critical in light of ABA Model Rule 1.1, Comment 8, the so-called duty of technology competence, which 38 states have formally adopted. This duty places on obligation on lawyers to evaluate and manage the technologies at issue in the matters they handle.

But for the lawyer who lacks competence in a specific technology, the duty creates a catch-22. One cannot manage what one does not understand. This can be particularly challenging in the case of AI technology, which can be difficult to understand even for the more tech-savvy among us.

Here is where the law librarian is and will continue to be particularly valuable. As professionals trained in both law and systems, librarians will increasingly be essential members of technology-driven legal teams, helping lawyers understand the ethical obligations implicated in certain technologies, and then helping lawyers understand best practices in selecting and deploying those technologies.

Librarians, uniquely among legal professionals, have knowledge and skills that span law, practice, and technology. Likewise, the issues raised by the duty of technology competence span law, practice, and technology. In helping lawyers understand their duties and obligations regarding technology, while also helping them understand the capabilities and limits of the technology itself, librarians increasingly will become essential members of legal teams.

Librarian As Interpreter

Something we too often forget about AI is that it is not actually intelligent. It is the application of mathematical algorithms to data. Who creates algorithms? Humans. And just as humans have flaws and biases, so do algorithms.

But because algorithms are often proprietary, consumers are not privy to the biases within them or even aware of the ways in which those biases might skew results. This is one of the great dangers of AI and the reason that AI needs an interpreter. In the legal profession, no one is better situated to serve that role than the law librarian.

Algorithmic biases can manifest themselves in various ways. In his 2016 article, “The Digital Future of the Oldest Information Profession,” Ray Worthy Campbell, professor of law at Peking University School of Transnational Law, described the potential dangers of hidden biases in products used by corporations offering legal services.

“A product relying on Big Data analysis and statistical correlation might give different advice in response to a criminal charge if race or income were a variable, embedding, unknown to the consumer, historic biases in the information given,” Campbell wrote. “With the algorithm hidden, the bias would be, as a practical matter, undetectable.”

More subtle but also significant are the algorithmic biases attached to different legal research platforms. I’ve written here before about the research in this area done by Susan Nevelow Mart, director of the law library and professor at the University of Colorado Law School.

Mart studied how hidden biases and assumptions affect the results provided by several major legal research providers. The results of her study, which she published in the paper, “The Algorithm as a Human Artifact: Implications for Legal {Re} Search,” found wide variances among in the results returned by the different services. Remarkably, she found that there is hardly any overlap in the cases that appear in the top 10 results returned by each database.

Mart’s research demonstrates why it is important for legal researchers to have at least some understanding of the biases inherent in different systems and not to limit their research to any single system. Beyond that, Mart said she believes we should all challenge legal research companies to be much more transparent about the biases in their algorithms.

Whether in legal research or in legal products more generally, wider adoption of AI will require diligence, scrutiny, and oversight by someone who has the capability to understand the underlying technology and who knows the questions that need to be asked — an interpreter, if you will, of the language of AI. No one in the legal profession is better prepared and trained for this role than the law librarian.

So, no, robots are not coming for law librarians’ jobs. Rather, to see the future of law librarians, we need only look to the essential roles they already serve today. As the pace of technology development and adoption accelerates in the legal profession, the multifaceted role of the law librarian will only accelerate along with it.

---

Robert Ambrogi is a Massachusetts lawyer and journalist who has been covering legal technology and the web for more than 20 years, primarily through his blog LawSites.com. Former editor-in-chief of several legal newspapers, he is a fellow of the College of Law Practice Management and an inaugural Fastcase 50 honoree. He can be reached by email at ambrogi@gmail.com, and you can follow him on Twitter (@BobAmbrogi).

WASHINGTON: Iridium is considering legal action to block the FCC’s controversial approval of Ligado’s 5G mobile wireless network, which much of the federal government says will interfere with GPS.

“From our perspective, the record is clear that the Ligado order adopted this spring is detrimental to satellite communications, users, consumers. We are asking the FCC, Congress and — if needed — the courts to change the outcome, to change or modify,” Robert McDowell, former FCC commissioner under President George W. Bush and Barack Obama and a legal rep for Iridium, told a webinar yesterday sponsored by the Aerospace Industries Association (AIA) and Aviation Week.

Iridium operates a satcom constellation in Low Earth Orbit that provides worldwide voice, data, and navigation services (including in the classified arena) to commercial as well as DoD and Intelligence Community customers. McDowell noted that the firm just last year finished launching 75 new satellites (called Iridium-Next), worth $4 billion and serving 1.4 million subscribers.

The FCC’s April 20 decision will allow Ligado to use L-band radio frequency spectrum usually reserved for satellite operations to instead build a 5G terrestrial communications network. While Iridium uses L-band for its satellite broadcasts, McDowell was quick to assert that the company is not a Ligado competitor.

“So, this isn’t that we’re trying to knock out a potential competitor through counteracting their regulatory arbitrage. This is about harmful interference and legitimate concerns,” he stressed. “The L-band has always been zoned or licensed exclusively for satellite service.”

“It is vital to understand that almost all L-band licensees are private sector companies like Iridium, not government entities. That gets lost in this debate when we hear a lot about the Department of Defense and other federal agencies,” he added.

As Breaking D readers know, DoD, the Department of Commerce (DoC), the Department of Transportation (DoC) and numerous industry groups are fiercely fighting the FCC’s ruling, arguing that Ligado’s network will drown out GPS signals in receivers used by everyone from troops to airline pilots to construction workers.

DoD, DoC and DoT Press FCC 

Indeed, the DoD, DoC and DoT met yet again with FCC Chairman Ajit Pai and several of the FCC commissioners on June 19 and 22, both at the classified and unclassified levels, to press their case against Ligado, according to documents filed by Commerce’s National Telecommunications and Information Administration (NTIA) on June 26.

The meetings included Democratic Commissioner Jessica Rosenworcel, who told an FCC oversight hearing by the Senate Commerce Committee on June 25 that she would support a stay of the Federal Communications Commission’s decision to allow reconsideration, “out of respect” for the committee. They also included GOP Commissioner Michael O’Rielly, who told Commerce Committee during his June 16 confirmation hearing that he was open to hearing both sides of the Ligado dispute.

During the meeting, DoT argued that “millions” of civil GPS users would be impacted, without any recourse but to pay handsomely to replace equipment — that might not even be immediately available.

“DOT serves as the Civil Lead for GPS and is concerned about the millions of receivers that will experience interference,” according to DoT’s slide presentation. “The majority of civil GPS receivers are not U.S. Government devices and will not qualify for repair or replacement paid for by Ligado. FCC should thoroughly assess and account for the economic costs and burdens that will result.”

Leaders of the House and Senate Armed Services Committees also have joined the chorus — with the SASC including anti-Ligado language in the 2021 National Defense Authorization Act (NDAA) and congressional leaders considering further legislation designed to derail the FCC decision.

House Agriculture Committee Weighs In!

In the latest outcry from Capitol Hill, the Chairman of the powerful House Agriculture Committee, Rep. Collin Peterson, and a bipartisan group of committee members wrote the FCC yesterday to  voice their serious concerns about the potential negative affects of Ligado’s technology on the nation’s farmers. The letter was cosponsored by Republicans Glenn Thompson and James Comer.

“GPS has become the single most significant technological advancement for American farm equipment in the past two decades. According to a 2019 RTI International study, since 1998, GPS adoption in agriculture has yielded more than $5.8 billion in economic benefits. The study also found that during planting season, if GPS were interrupted, the economic impact to the agriculture sector could amount to losses of $15 billion due to lower crop yields,” the letter states.

“While the FCC Order acknowledges this interference will impact users in the federal government and requires Ligado to upgrade or replace these devices, the Order fails to require Ligado to accept responsibility for the millions of private devices that will be affected,” the letter adds, echoing DoT’s concerns.

Ligado stated in a May 6 letter to the SASC that, circa 2015-2016, it reached agreements with a number of GPS receiver makers that its planned 9.8 dbW broadcast power level (about 10 watts) would not cause harmful interference to their radios — including farm equipment giant John Deere.

Documents obtained by Breaking D confirm there was a Deere agreement in 2015, and it was presented to the FCC in a March 7, 2016 filing by Deere counsel Catherine Wang, of the Morgan Lewis law firm.

However, Deere now says that while it did sign such an agreement, its views have been misrepresented by the commission’s approval order — and reiterates that it has joined in the numerous petitions to stay the order for reconsideration and modification. (It’s assertions of misrepresentation echo those made by another maker of GPS receivers, Trimble.)

The company explains in a June 1 filing that it believes the FCC used the wrong technical standard to determine whether there would be interference in GPS receivers.

“Deere nonetheless advises that its position with respect to Ligado’s Amended Modification Applications must not be interpreted as acquiescence in or, in any way agreement with, Ligado’s continued efforts to depart from long-accepted practice and establish a new metric for determining potential harm to GPS and other GNSS systems.”

Iridium Raises Procedural Questions

McDowell argued that he believes there is a good legal case to be made that the FCC has failed to follow proper procedures.

“I think an appellate court is going to have big problems with how the FCC did it procedurally, and it’ll end up in a remand back to the FCC,” he said. “So, if you’re a potential investor looking to buy Ligado, well, I think this is very hairy.”

McDowell ticked off a number of problems with the FCC ruling, several of which have been brought up by other opponents. From the standpoint of Iridium, and other satcom operators, perhaps the most relevant was his allegation that the FCC failed to follow its own rules on radio frequency interference — rules, incidentally, that are set by the International Telecommunication Union (ITU) that governs global spectrum usage.

“It violated its own rules, which require a newcomer to the satellite neighborhood, like Ligado, to cure any harmful interference that its terrestrial operations may cause to existing licensees and operators,” he said. “Instead, the FCC asks Ligado to work in good faith to negotiate with Iridium regarding any harmful interference, but it does not require Ligado to make any changes to its planned deployments. If they refuse to work with Iridium, there is no FCC backup plan with any teeth to provide an incentive for Ligado to fix its interference. In short, the FCC puts the burden on the existing licensee Iridium, instead of the new neighbor that is making loud noise, which again, is backwards according to the FCC’s own rule.”

Joel Thayer, a telecommunications lawyer at Phillips Lytle LLP, defended the FCC’s procedure during yesterday’s webinar, arguing along the lines that Pai articulated in a May 26 letter to HASC Chair Adam Smith.

As I reported, Pai argued that the FCC’s 72-page Ligado Order does resolve the concerns of opponents — via Ligado’s latest application modification (made in 2018); the testing data provided to the FCC; and the conditions that the commission imposed on the company in the case interference is discovered, which includes paying for remediation. And in fact, the FCC’s order specifically addressed Iridium’s interference concerns, along with those of DoD and GPS users.

“The FCC is the independent agency and the expert agency, as Rob knows, that allocates spectrum,” Thayer said. “From my perspective, they followed every procedure in the book.”

McDowell also argued, as have a number of other GPS user groups, that the FCC “did not give the affected parties an opportunity to see, that is the private sector parties, let alone comment on its final proposed technical rules, which were very different from what was disclosed in years past.”

Speaking to Breaking D today by phone, Gerry Waldron, legal counsel for Ligado, strongly countered McDowell’s suggestion that the lack of an opportunity to review the draft decision was faulty procedure.

“No party has a right to see draft FCC decisions,” he stressed.

Waldron explained that the FCC order was made as an “adjudication decision” regarding a specific licensee, and that the Administrative Procedures Act does not require such a review. And while Pai has followed the tradition of allowing public comment on rulemakings — those decisions that affect many operators, such as the recent ruling on debris mitigation — even then it is not required.

That said, Waldron asserted that the FCC’s process was highly public, witnessed by the thousands of pages in the Ligado docket available on the FCC’s website. “It was as transparent and open a proceeding as any proceeding FCC does,” he said.

Finally, McDowell echoed DoD’s arguments that “the FCC did not conduct its own interference analysis and only relied heavily on a single technical study sponsored by Ligado.”

Ligado and the FCC have taken issue with this assertion as well. “I’m very confident going forward that we’ve made a decision that is based much more on sound engineering, as opposed to some of the fear mongering that we’ve heard,” Pai told the Commerce Committee oversight hearing.

Despite the threat of legal action, McDowell said that he would like to see the FCC take back its approval order of its own accord, or that Congress would force a change.

“I think there’s some very compelling petitions for reconsideration before the FCC right now, so I’m hoping that they would hit the pause button,” he said. “The FCC needs to rescind its order to propose meaningful and enforceable conditions that protect Iridium from Ligado’s harmful interference, or Congress needs to clean up this mess with legislation.”

If you thought the online and at-home LSAT (LSAT Flex) was a game changer, well, then I’m about to blow your goddamned mind.

The Law School Admission Council (LSAC), the group that administers the LSAT, has announced a new program that will allow prospective law students the opportunity to view their LSAT score BEFORE it becomes a part of the permanent file that goes to law schools. And if these pre-law students don’t like the score they notched, well, then no harm, no foul — they can cancel the score. As LSAC describes:

In response to requests and feedback from test takers, we have created a new score preview option for first-time test takers who wish to see their LSAT score before deciding whether or not to keep it as part of their LSAC transcript and report it to law schools. This feature will be available starting with the August 2020 test administration and all subsequent test administrations, and will be available for purchase starting around August 1.

As a tipster wryly noted:

Imagine if a professor told his students that if they paid him $75, they could see their exam grade before it became final, and retake the exam if they wanted. Those who didn’t or couldn’t pay would be stuck with their exam grade. LSAC is selling off this access starting with the August exam.

But there are some catches — the add-on feature is only available for first-time test takers. And as the tipster noted, it does ramp up the cost of the LSAT:

Score Preview will cost $45 for candidates who sign up prior to the first day of testing for a given test administration, or $75 for those who sign up during a specified period after their given test administration. (Please note: First-time test takers who have an approved LSAT fee waiver will receive Score Preview free of charge.)

Jeff Thomas, executive director of legal programs at Kaplan, notes that there is a clear upside for test takers — the pressure is off… or at least reduced:

“The new LSAT Score Preview is one of those win-win situations for both pre-law students and the test maker. For first time test takers, it reduces a bit of pressure since it allows them to cancel their score after seeing it, even allowing them nearly a week to decide if they want it on their permanent transcript or not. Remember that you only get one shot at Score Preview. If you’ve already tested, you’re ineligible. So, our advice to students remains the same: don’t test until you’re ready, and use Score Preview as an ‘insurance policy’ rather than simply a free shot to ‘see how it goes.’ For the test maker, in the short term it’s extra revenue at a time when some pre-law students are reevaluating their career options and law school enrollment timeline, amid the pandemic.”

Listen, the LSAT is under a lot of pressure from the GRE as that test is increasingly encroaching on the law school admissions game. But one of the marketing points of the LSAT has always been that it’s tougher. But putting aside the relative strengths or difficulty of the two exams, this feels like a 180 on that selling point. (Besides, letting students pay for a redo seems, well, like a cash grab.) Whether you agree with it or not, there is a reason why five years worth of LSAT scores get reported to law schools when you apply — not just your highest score. Now that core feature can be done away with, provided you’re willing to pay the money.

---

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).