Category: News Feeds

News is moving far too fast for this show. We discuss the elevation of Amy Coney Barrett and it immediately seems like old news. Meanwhile, Brett Kavanaugh’s clerks apparently failed to closely edit and cite check his opinion, leaving the beer-soaked jurist with egg on his face in a critical opinion. Finally, we talk about the best — if ill-advised — way to get out of your criminal charges.

Who will win the election? Will Joe Biden move from VP to President? Will Donald Trump join the two-term club? Will all the votes be counted? Will we receive a final result tonight? Tomorrow? Next week? Next month? Will this election be heading to the Supreme Court? Will there be a peaceful transition of power, should the Trump lose? There are so many troubling questions, but almost no clear answers.

While we’re sitting on pins and needles waiting on the likely-to-be contested results of the most consequential election of our time, there are action items lawyers can focus on that are happening tomorrow to take their minds off the stress of today.

Lawyers for Good Government, an organization whose mission is to fight for democracy, justice, and the future of our nation, will be hosting an event on the state of the election and the Constitution with Dean Erwin Chemerinsky of UC Berkeley Law on November 4 at 3 p.m. EST / 12 p.m. PST.

Chemerinsky — whose name you may remember from your Constitutional Law textbook — is one of the nation’s leading experts on constitutional law, and he will be speaking about the election results (if there are any) and the next steps lawyers can take to keep our republic on the right track. Click here to register for the event.

We hope to see you there, but in the meantime, please vote if you haven’t already done so. Make your voice heard. Doing your civic duty is now more important than ever.

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

This is obviously a big week for the United States. In addition to the election — the importance of which cannot be stressed enough — oral arguments will take place this Wednesday in Fulton v. City of Philadelphia, a monumental First Amendment free exercise clause case. One reason Fulton is so consequential is because the Supreme Court is using the facts of the case to decide whether to overturn nearly three decades of precedent going back to Employment Division v. Smith. And because overturning Smith has been a dream scenario for religious conservatives, this new super-conservative religious court looks poised to do it. But the Fulton case is also unique for its extraordinary difficult-to-ascertain facts.

Here are the facts as best as everyone I have seen can make them out. The City of Philadelphia operates a government foster care program whereby the city contracts out with private foster agencies. These private agencies then do the work of selecting a qualified foster family. What is still unclear is whether the choice of foster family made by the private agency is subject to a potential veto by the city’s Human Services officials. Determining whether the private agency or the city gets to ultimately choose the foster home that any given child will go to is vitally important to understand. For example, if the private agencies are choosing the foster family it would mean that the foster children are in what’s called a captive market. Generally, a foster child cannot legally avoid being put up for foster care to a private agency the government contracts out with. As Ilya Somin puts it in Reason: “Unlike people in search of a baker or a photographer, children in the foster-care system generally don’t have the option of simply taking their ‘business’ elsewhere.”

The foster children being in a captive market matters because the issue in Fulton involves a religious organization that wants to operate within the city’s foster program but is refusing to place any child with a qualifying same-sex couple. No matter how suitable a same-sex couple is to the needs of the foster child, this religious organization will refuse them, because of bigotry. Of course, the religious organization will say such refusals are out of “love.” I personally find this reasoning to be a particularly revolting form of casuistry, more so because those who think this way are not simply content to keep their views to themselves but instead seek to force others to live by their beliefs. Take this case, even if the city ultimately decides (which is not clear), the refusal to place or consider placing foster children with qualified same-sex couples amounts to nothing less than gratuitous interference in that foster child’s life. As I have discussed before, foster children derive obvious and substantial benefits both economically and psychologically from being placed with qualified same-sex couples. Gratuitous interference with these benefits is bigotry, the fact that it is religiously motivated does not make it any less so. But I digress.

This Fulton case is not an easy one, but only because of the personal bias and the political makeup of the court which is sympathetic to granting religion, and to the exclusion of nonbelievers, extraordinary favor under the law. Indeed, it can only be explained by bias and bigotry that we have a federal standard where nonbelievers can be disenfranchised from being able to address their own legislatures or marry couples in private ceremonies, and forced to financially support religious monuments and speech. All while religion is being granted greater privilege under the First Amendment than political speech. For any who are not aware, political speech has, since the founding of this country, been considered to be at the core of First Amendment protection. So, if religion can be used to interfere with a foster child’s access to the best available caregivers, or is considered to be above your political speech, then there is not much else this court will not let religious bigots take from you.

To be clear, I have no quarrel with, and have in fact advocated for, religious organizations being able to enforce their beliefs, despite general applicable law, within their own organizations. But the important distinction in the Fulton case is that the Supreme Court seems poised to abandon viewpoint neutrality which has dominated religious liberty cases for decades and declare that religion enjoys a privileged status, outside of its own organizations, and above all other social and political perspectives. But with a court that was already on track to make religion, in effect, a country unto itself even before Amy Coney Barrett’s ascension, the only way to stop or reverse this likely course is to add members to the court and eliminate the influence of those who wish to allow the religious beliefs of others to strip you of benefits under the law and your ability to dissent.

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Tyler Broker is a practicing attorney whose work has been published in the Gonzaga Law Review, the Albany Law Review, and the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.

When settling into the saddle at the Supreme Court, justices generally don’t want law clerks for whom this would be their first time at the rodeo. This is why new Supreme Court justices often hire clerks who have already clerked for SCOTUS, bringing them back to One First Street for a return engagement.

Many new justices also want clerks whom they know and trust for that first Term on the Court. This is why justices typically hire clerks who have clerked for them before on their prior court (or whom they otherwise know better than a typical clerkship hire).

For his first Term on the Court, Justice Neil Gorsuch hired four clerks who had all clerked for him before on the Tenth Circuit. And two of those clerks also had SCOTUS experience (not surprising, since Gorsuch was a big-time feeder judge before his elevation): Jane Kucera Nitze had clerked for Justice Sonia Sotomayor, and Matt Owen had clerked for Justice Antonin Scalia.

For her first Term on the Court, Justice Elena Kagan hired four clerks, three of whom had previously clerked for the Court: Andrew Crespo for Justice Stephen Breyer, Allon Kedem for Justice Anthony Kennedy, and Elizabeth Prelogar for Justice Ruth Bader Ginsburg. (Justice Kagan came to the Court after serving as Solicitor General, so she had no former clerks of her own to hire.)

Of the most recent Justices, only Justice Brett Kavanaugh took a different path. Of his first four clerks — the first all-female class of clerks at the Court, as some of you might recall — none had previously clerked for the Court. But he did hire clerks he knew well: Kim Jackson had previously clerked for him on the D.C. Circuit, Sara Nommensen was a student of his at Harvard Law School, and Megan Lacy worked on his confirmation.

The newest member of the Court, Justice Amy Coney Barrett, is following precedent, by hiring clerks with either prior SCOTUS clerkship experience or prior clerkship experience with her. Here are Justice Barrett’s first four clerks (as previously reported by Kimberly Robinson of Bloomberg Law and Marcia Coyle of the National Law Journal):

1. Brendan Duffy (Northwestern 2017 / P. Kelly / Barrett)
2. Nick Harper (Chicago 2015 / Kavanaugh / A. Kennedy)
3. Whitney Hermandorfer (GW Law 2015 / Kavanaugh / Leon (D.D.C.) / Alito)
4. Madeline Lansky (Chicago 2016 / Pryor / Thomas)

So three of the four new Barrett clerks previously clerked at the Court — all for conservative (or at least Republican-appointed) justices — and the only one who didn’t, Brendan Duffy, previously clerked for Barrett at the Seventh Circuit (as well as Judge Paul Kelly of the Tenth Circuit). Two of them clerked for then-Judge Brett Kavanaugh, meaning that Kavanaugh continues to feed clerks to the Court even while he now sits on it. With these four additional clerks, who join the 38 already there, this Term will now boast a whopping 42 clerks.

As noted by Kimberly Robinson, Barrett “looked beyond Harvard and Yale for new clerks” — perhaps not surprising, from the only Supreme Court justice not to graduate from Harvard or Yale Law — by hiring two Chicago grads, one Northwestern grad, and one GW Law grad. As one might expect from a graduate and former professor of Notre Dame Law, Barrett went for “midwestern elite” — Chicago and Northwestern, two out of the three top-14 schools not on the East or West Coasts (the third being Michigan). Expect her to hire from her alma mater as well in future Terms, increasing diversity among the ranks of SCOTUS clerks, at least in terms of schools.

As I predicted, Justice Barrett didn’t pick up any of the former clerks to the late Justice Ruth Bader Ginsburg. Two of them are now with Justice Sotomayor, and we should soon learn where the other three went.

And what about Barrett’s own “orphaned” clerks from the Seventh Circuit — the clerks who were working for her at the time of her elevation, as well as any she presumably hired for the future? My guess is that she will bring them up to clerk for her at SCOTUS eventually, after they find and complete clerkships for other circuit judges, which is not uncommon (and what Justice Kavanaugh did with his own displaced D.C. Circuit clerks).

Congratulations to Justice Barrett’s four Supreme Court law clerks — and congratulations to Justice Barrett on joining the Supreme Court.

Earlier:

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David Lat, the founding editor of Above the Law, is a writer, speaker, and legal recruiter at Lateral Link, where he is a managing director in the New York office. David’s book, Supreme Ambitions: A Novel (2014), was described by the New York Times as “the most buzzed-about novel of the year” among legal elites. David previously worked as a federal prosecutor, a litigation associate at Wachtell Lipton, and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@laterallink.com.

While the focus of Election Day 2020 will be on whether President Donald Trump remains in the White House for four more years or challenger Joseph Biden wins the race, there are many state and local elections that will play a major role in the future of America. In three jurisdictions, a sports law measure is on the ballot, which could alter offerings for consumers and play a role in the projections for certain publicly traded companies.

Maryland, Nebraska, and South Dakota constituents are not only voting for candidates but also whether sports gambling should become legalized within their respective borders. As mentioned above, a vote in favor of changing the current landscape could open the door for the likes of FanDuel, DraftKings, MGM, and others to begin competing in those jurisdictions, which is part of the roadmap that they have all been discussing with their shareholders for quite some time.

As of now, 22 states and the District of Columbia allow individuals to place wagers on sporting contests. Those jurisdictions currently make up just less than half of the adult U.S. population. Maryland’s roughly 6 million constituents comprise more than double of those in Nebraska and South Dakota combined and is thus the most important state for sports betting operators in this election.

Maryland’s 2020 ballot contains Question 2, which is described as the Sports Betting Expansion Measure. A vote of “yes” supports authorizing sports and events wagering at certain licensed facilities with state revenue intended to fund public education. Maryland Governor Larry Hogan supports the measure as do FanDuel and DraftKings, which contributed $1.5 million and $250,000 respectively to the effort in having it passed.

Question 2 has received support from the Washington Post editorial board as well. It notes that sports betting has already been legalized by all states bordering Maryland (as well as the District of Columbia) and says that annual tax revenue is estimated to be between $20 million and $40 million, which it says would be a useful bump at a time when the coronavirus pandemic has depleted taxes from casino gambling.

A total of $920 million in revenue was generated by the U.S. sports betting industry in 2019, per a report from industry watchdog Eilers & Krejcik Gaming. That number is expected to shoot up to $19 billion if all 50 states begin to allow for sports wagering. For the industry to get anywhere near that number, it needs states big and small, including Nebraska, South Dakota, and Maryland to adopt new laws and rules that permit sports betting within their borders. On Election Day 2020, voters in those states have the power to begin bringing about change.

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Darren Heitner is the founder of Heitner Legal. He is the author of How to Play the Game: What Every Sports Attorney Needs to Know, published by the American Bar Association, and is an adjunct professor at the University of Florida Levin College of Law. You can reach him by email at heitner@gmail.com and follow him on Twitter at @DarrenHeitner.

From doing away with their COVID-19 austerity measures to offering up appreciation bonuses to associates during the pandemic, Biglaw’s leaders have been doing a lot with their wallets lately — and now they’re voting with them, too.

We already knew that some firms “despise” President Donald Trump — even the one that takes most of his money in legal fees. But now we know that despite his plan to tax their hefty profits, managing partners and chairs from some of Biglaw’s most prestigious firms are showing their six-figure support to Democratic presidential nominee Joe Biden.

Which Biglaw leaders have contributed at least $100K to Biden’s campaign?

The American Lawyer has the details on this extravagant giving during Election 2020:

Paul Weiss chair Brad Karp, Cravath presiding partner Faiza Saeed, DLA co-managing partner Richard Chesley and O’Melveny chair Brad Butwin join a slew of other names from the Am Law 200, the plaintiffs bar and the legal departments of A-list companies in each bundling at least $100,000 for the Democratic nominee.

Other leaders from Big Law include Buckley managing partner Ben Klubes, Wiley Rein managing partner Peter Shields and Cozen O’Connor chairman Steve Cozen.

But that’s not all. Some very prominent partners donated six-figure sums to the former Veep as well, like Sally Yates, the former U.S. deputy attorney general, who’s now a King & Spalding partner (although the firm seems to be working against her when it comes to doing Trump’s election bidding), and Leo Strine Jr., the former Delaware Supreme Court Chief Justice, who now serves as of counsel at Wachtell.

Some in-house leaders also made the $100K list, with Amazon GC David Zapolsky and Uber CLO Tony West donating top dollars to Biden, too.

We know who the country’s foremost legal minds stand with, but will the rest of America agree? Stay tuned as we wait for the winner of the 2020 election.

Biden Taps Big Law for Fundraising Haul [American Lawyer]

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

The Biglaw firm of Katten Muchin really went with the good news/bad news approach to their COVID-19 austerity measures.

In April, Katten Muchin put all of its employees’ salaries on the chopping block while furloughing others, including business administration professionals and staff attorneys. Then in June, some of those furloughs became permanent, but — at the time — attorneys were left unscathed. Spoiler alert: attorneys have now been laid off.

According to the firm, they “made the difficult decision to separate from a limited number of our attorneys and from some business professionals who have been on furlough,” though the exact number of impacted attorneys and other professionals is unknown.

In a statement to Law.com, the firm said the layoffs were necessary to ensure the firm’s continued success:

“We do not take lightly the difficult decisions we have made,” the firm said in a statement. “We will be parting ways with wonderful colleagues whom we will miss. To position Katten for continued success, however, we must be vigilant to align our business with the challenges and opportunities presented by the current and future environments.”

Biglaw truly is a dog-eat-dog world.

But, for those still lucky enough to have work at the firm, there’s even more good news. The salary cuts will end as of December 1st, and attorneys will receive back pay as well.

If your firm or organization is slashing salaries, closing its doors, or reducing the ranks of its lawyers or staff, whether through open layoffs, stealth layoffs, or voluntary buyouts, please don’t hesitate to let us know. Our vast network of tipsters is part of what makes Above the Law thrive. You can email us or text us (646-820-8477).

If you’d like to sign up for ATL’s Layoff Alerts, please scroll down and enter your email address in the box below this post. If you previously signed up for the layoff alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each layoff, salary cut, or furlough announcement that we publish.

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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).

When the SEC last week abandoned its plan to sharply reduce the number of six-week-old hedge fund portfolio reports available to the investing public, it seemed a victim of overwhelming opposition: Not only did negative comment letters outnumber the two dozen positive ones by 100-to-one, but the very people Jay Clayton thought he was helping by increasing the 13F threshold to $3.5 billion in assets under management—the very people he’s hoping will be clients when his miserable four years by the Potomac at last come to an end—the hedge funds themselves weren’t especially keen, either.

* The Supreme Court is allowing an antitrust case against the NFL to move forward. The XFL is still around to compete with the NFL…right? [Chicago Sun Tribune]

* A Texas lawyer has been disciplined for stealing LegalZoom referrals from the firm that employed her. [Texas Lawyer]

* The Attorney General of South Dakota was reportedly distracted before allegedly striking a pedestrian earlier this year. [Hill]

* The Surgeon General of the United States has pleaded not guilty to allegedly being in a park that was closed to slow the spread of COVID-19. [AP]

* A lawsuit alleging that Amazon did not do enough to protect its workers from COVID-19 has been dismissed. [CNN]

* A lot of billable hours may be recorded in the legal battles that may arise after the presidential election. [Fox News]

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Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.