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At first, the idea of meaningful judicial reform, particularly Supreme Court reform, seemed far-fetched. Despite the Constitution saying remarkably little about how the Supreme Court is composed or intended to operate, the “nine justices reigning for life” model has calcified in the imaginations of most Americans. Few even know that the Supreme Court hasn’t always had nine justices, or that the current number was only chosen to reflect the number of appellate circuits at the time… which now number 13. Hmmm…

But the last few weeks have changed all that. A 5-4 conservative majority off the back of sniping Merrick Garland’s seat was not enough for Republicans staring into what’s shaping up to be a brutal shellacking at the polls, and they reversed course on their own deeply held principles^TM from 2016 and rushed Amy Coney Barrett onto the Supreme Court without letting any minor issue like “nearly killing the president” slow them down. Now, court expansion proposals are now running rampant throughout the legal commentariat.

Two more justices, four more justices, 20 more justices… everyone’s got a theory. Except Joe Biden, of course, but he’s willing to pawn this off on a “committee” which is usually where reform goes to die, but at this point reform is becoming so mainstream that even the committee looks poised to pitch something meaningful. Court expansion may not be everyone’s cup of tea, but it’s certainly pushed the Overton Window.

Mitch McConnell is unfazed by the threat of court expansion — which should terrify its advocates. Liberals paint McConnell as a serial power-grabber, but in reality he’s a vampire who must be invited in first. His well-worn playbook is to frustrate liberals into some measured retaliation and then use that as justification for a more extensive breach down the road. Midterm elections are always a nightmare for the White House party and 2024 will, in theory, bring a ticket that’s mostly succeeding on the basis of being “not Trump” into a race bogged down by the ongoing economic and public health fallout Trump caused. Republicans returning to full control in January 2025 isn’t necessarily likely, but it’s not an unreasonable assumption for McConnell. That said, one of the more compelling arguments for liberals taking the risk is that this past week underscores that Republicans may not be able to ever win another election without courts engaging in direct voter suppression efforts. One could argue that expanding the Court once is all it would take. That seems overly confident and reminiscent of when liberal court watchers scoffed when I suggested not banking everything on Hillary winning in 2016, but the logic is decent.

But what might be good for Mitch is not necessarily what’s good for the institution of the Supreme Court. That’s why John Roberts needs to channel his Charles Evans Hughes and starting thinking about what he wants the Court to look like going forward. Because change is coming and like the headline says, “we can do this the easy way or the hard way.”

The easy way, and the way that would be best for the country, would be a term limit system that cycled justices off of the “Supreme Court” after 18 years. This is the bill proposed by Reps. Ro Khanna, Don Beyer, and Joe Kennedy III which would give every presidential term two justice appointments that cannot be ignored by the Senate. This would end the macabre practice of basing the Republic on the lifespan of an elderly woman, ensure that the Court remains a lagging reflection of the will of the country, and allow more talented jurists to serve on the nation’s top court by increasing routine turnover. For Democrats, it could actually encourage their voters to regularly care about the judiciary by guaranteeing that each election carries two prospective justices with it.

This is also a provision that cannot be turned around the next time the political winds shift. Tit-for-tat is an easier sell than putting the toothpaste back in the tube. Adding four liberals just turns into adding six conservatives. But by the earliest opportunity for the GOP to do anything about term limits, the proposal (that’s already broadly popular!) will have already put two justices on the Court. It will already be a routine.

The problem is, there are constitutional questions about a term limit proposal. The Constitution says that justices shall “shall hold their offices during good behaviour” which common law interprets as “for life.” A term limit for active duty service is not the same as firing a justice, who would still remain in the judiciary and could be called upon to hear active panel matters in the event of vacancy or recusal, but the Supreme Court could say this bill is unconstitutional. Though in theory it could be passed with a proviso that it is excluded from the Court’s jurisdiction, which is explicitly constitutional.

And that’s where Roberts has a choice. A term limits bill passed in the first days of 2021 would send someone to measure drapes in Clarence Thomas’s office by April 2021. The Court would have to make a ruling immediately on whether or not this regime passes muster because they need to know who actually has the job. Court expansion can be held in reserve and put the screws to Roberts and his innate institutionalism (Thomas would obviously be unable to take part in a case that he’d have brought himself as the only person who would have standing). Bless term limits or watch the Court become a pinball machine for the next 50 years — by the end of which it could have 20-30 members and be a joke like the Swiss Supreme Court and its 38 judges.

It wouldn’t immediately reverse the conservative majority on the Supreme Court, though it would return it to the 5-4 lead that it would be if the Senate maintained internal consistency and either put Garland/Barrett on or installed Gorsuch and left this seat open. It would make the 2024 election a direct referendum on the future of the Court with Roberts and Alito to be replaced by the winner of that election. And it has the advantage of ending an aristocratic stain on America’s ostensible democracy.

So what’s it going to be, John?

Earlier: Liberal Calls For Court Packing Gain Steam, And Mitch McConnell Couldn’t Be Happier
Congress Introduces First Supreme Court Term Limits Bill!

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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.

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It’s a sad reality that just being out and about in your neighborhood can be a death sentence for Black people. And it was the deaths of Ahmaud Arbery and Trayvon Martin that went through the mind of attorney Josiah Graham when he says he was profiled by a security guard in his neighborhood.

Graham, who also appeared on season 13 of the Bachelorette, recently moved to a gated community in Parkland, Florida, with his fiancee. He says he was on a late night jog when a private security SUV made a u-turn to follow him. Graham says he was approached by a security guard, who was also Black. He posted a video of the encounter on his Instagram stories, with the caption, “It be your own people” and some facepalm emojis.

Graham tells Local 10:

“It’s a weird feeling to think that someone assumes you don’t belong,” Graham says. “People who have — who suffer from preconceived notions, or certain biases and prejudices — that’s not unique to the white community. Sometimes, the black community subscribes to those same notions.”

And he says, while he understands why there is security, how they do that job is important:

“I get the importance of having someone who does their job the right way,” Graham says. “However, that should not mean that other people are targeted, or approached or stopped unnecessarily based on how they look.”

And, of course Graham has already written to the security company, Allied Universal, “wanting to know what actions, if any, would be taken regarding the incident.” And requesting information about bias training to ensure similar incidents don’t happen in the future. Allied Universal has not made a statement about the interaction.

Graham says the experience has encouraged him to get involved with the homeowner’s association.

You can see Graham’s video of the incident below.

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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).

As the days grow shorter and we get closer to the most exciting day of the year — when we switch off of daylight saving time and get to quietly judge anyone who calls it “daylight savings time”– first we must cross the threshold of Halloween, the spookiest of days. Halloween is a holiday that encourages mask wearing, relevant to our current times, in the spirit not of avoiding COVID-19 or other diseases, but rather an elaborate plot so ghosts don’t recognize and kill us.

But even in our modern times, the Halloween ritual remains relevant even for its traditional purpose. While, hopefully, ghosts won’t randomly attack any of us on the street — although we can never be sure — the symbolic purpose, of guarding oneself against fear, is relevant in any human society. Fear serves, as always, its evolutionary purpose of encouraging us to instinctively be ready to fight off honey badgers, wildebeests, saber-toothed tigers, overly aggressive woolly mammoths, or whatever other nightmarish megafauna our ancestors had to face down on a daily basis.

In our times, there are, thankfully, not as many violent woolly mammoths and blood-crazed saber-toothed tigers as there once were. Evolution, however, moves slowly — on a geological scale for meaningful change — leaving us still with our ancient and ancestral fight-or-flight instincts. Those instincts, however, are often ill suited to our current age. But still those instincts endure, and likely will for at least a few more millennia, so we must cope.

Thus, it’s important to always remember to center yourself and put whatever is approaching you into perspective. There are always times, and especially when you are starting out in law, when the collective instincts are triggered by any threat, making your ancient reptilian hind-brain kick in, and you respond in the same way that our ancestral cavemen 10,000 years ago would respond to a 400-pound Shasta ground sloth careening toward them at whatever the top land speed of a 400-pound ground sloth happens to be. But, thankfully, they are long extinct — no matter how much you are being yelled at by a judge for messing up in whatever spectacular manner you messed up, the judge will almost certainly not (nothing is ever guaranteed) turn into a 400-pound sloth determined to eat you. Everything will, in the end, be okay.

So, this Halloween and always, keep things in perspective. Take a deep breath, hang in there, and everything will be fine.

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

Few people in our industry have the experience, knowledge, and stone-cold math skills to weigh in on legal technology and the industry generally the way Karl Harris can. He’s current CEO and former CTO of Lex Machina, a hardcore legal analytics platform acquired by LexisNexis in 2017. Before getting his J.D. at Stanford, Harris hacked his way through bachelor’s and master’s degrees in computer science, developing submarine sonar systems and other complex software projects before diving into the legal world. When Harris weighs in on legal tech and the factors that will allow law firms to succeed in the new legal world, as he did with me in an interview earlier this week, it’s worth listening.

In both his role as CEO and as a general observer of the legal industry, Harris sees law firms as on the cusp of a fundamental revolution in how they deliver their services, but the revolution isn’t coming from within: “The stakeholder that’s going to be driving the change is clients.”

Die, Billable, Die

Harris sees part of this revolution to include a continuing shift away from the traditional billable hour model. “The billable hour, it’s just got to go away right? Nobody likes it. Clients don’t like it, the associate that’s got the little timer on their screen doesn’t like it, nobody likes it.” Under the billable hour, “there can often be an adversarial relationship with a client and its outside counsel, as you’re kind of wondering, ‘Are we really in alignment? Are our incentives aligned? Are they doing the right thing?’ ” To Harris, the firms that succeed are the ones that pivot out of that adversarial relationship into one where the firm is seen as an active partner in promoting their client’s business goals, rather than a necessary evil or just a line on an expense sheet.

Harris has seen firms experiment more with either fixed-fee arrangements or outcome-based fees, in a bleed-6over from the business-consulting world. “The McKinseys, the Bains, the BCGs, they’ve been doing this for a long time. There’s an engagement fee, and then if there are certain metrics of success met, then there’s more money to change hands, or if there’s less metrics of success, you know, there’s less money to change hands.” By sharing risk and aligning a law firm’s success with that of its customer, Harris believes firms will become more efficient with their own resources and develop a customer-centric approach to the services they provide.

Harris was quick to point out that being efficient and moving to fixed-fee work doesn’t mean necessarily taking a haircut on firm revenues. “It’s okay if a fixed-fee arrangement actually results in a higher fee than what a billable arrangement would, because what the client is paying for is reduced risk, and people are willing to pay to reduce risk.”

Who’s Running The Shop?

“The question, then,” Harris told me, “is which law firms are going to be able to meet that change… . When I talk to law firm leaders and partners, the number one question on their minds is are we, as a firm, agile enough to meet the changing and evolving needs of our clients? In a lot of firms, the answer is no.”

Harris said he sees this as a deeply untenable state of affairs, especially for law firms that employ a traditional fiscal system. “There’s a lot of risk, year to year, in the law firm model. At the end of the year, you pay out all the profits to partners and you start with zero. You finance the firm for three quarters of the year with loans from a bank. You’re not even in the black until the last few months of the year, and then you make all your profits. Like, if you make one mistake, it can bring down an entire firm.”

To Harris, one of the most important questions a firm can be asking itself is about its leadership team. “What’s the profile of the ultimate decision-makers at these large law firms? Are they nimble, technology-savvy? Where are they at in generational turnover, and what’s their willingness to take risk and make changes?” Harris only sees competition growing stronger and more sharp-elbowed, and firms that aren’t ready to pivot quickly as circumstances merit could find themselves pushed right out of business.

Leveling The Field

Part of the reason Harris sees competition continuing to increase is the company he leads. Harris sees Lex Machina and other tools like it as a great equalizer in the legal field, one that allows small and midsized firms to punch above their weight and handle litigation that was previously the domain of highly leveraged Biglaw outfits. As more attorneys have the tools to service these clients, the level of competition and customer service goes up, and our industry begins catching up on the ground it’s lost to the broader business world.

Lex Machina works by pooling a massive archive of litigation data points that its users can pull from, analyze, and use to make data-driven decisions about litigation strategy. Harris gave the example of trying to decide whether to file a motion for summary judgment in a major case. The traditional method of making that decision might be to email blast the firm for insights on the judge or opposing counsel, and then trying to use whatever anecdotes arrive to supplement the attorney’s legal reasoning and judgment.

With Lex Machina, however, an attorney can click a few buttons to pull statistics on their judge, profile their opposing counsel, generate expected returns on cases of specific types in their jurisdiction, or gather evidence to support decision-making on any number of other issues. Software can quickly pull in seconds the 10 most recent successful and unsuccessful MSJs a given judge has ruled on, or calculate what percentage of cases of a certain type succeed or fail in a given jury pool. And software does it faster, and for pennies on the dollar compared to what it would cost an associate or partner to generate the same data. That data helps attorneys make better litigation decisions and helps them communicate more effectively to their clients on why a given recommendation is the right one.

Harris was careful to point out that he doesn’t see AI like Lex Machina as coming to take attorneys’ jobs. “What AI is doing right now is massive pattern matching at scale. That’s what machine learning, natural language processing does: it makes sense of patterns that may be too hard for the human to hold all the data in their mind … . It’s great at processing lots of data at scale, but it’s just matching patterns. There is no intelligence that’s replacing your judgment, so don’t be afraid of AI. Embrace it. Leverage it to your advantage.”

Picking Winners And Losers

“Law firms are going to need to change, and there will be winners and losers,” Harris noted. What’s the one factor that, above all, will determine which firms succeed and which do not? “Law firm leaders need to make sure they’ve got that customer-centric product management approach. At the end of the day, the firm is your product. Be listening to your clients. Watch what they’re doing. Be aware of the data. Look how they’re evaluating your performance, and don’t fight that. Embrace it, because you’ve got to be in line with your customers.”

For as strange as the law can be, it’s just like every other business in that success or failure will always come down to how well we serve our customers. Leaders like Karl Harris are giving us the tools to do that better. Whether we use those tools is up to us.

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James Goodnow is the CEO and managing partner of NLJ 250 firm Fennemore Craig. At age 36, he became the youngest known chief executive of a large law firm in the U.S. He holds his JD from Harvard Law School and dual business management certificates from MIT. He’s currently attending the Cambridge University Judge Business School (U.K.), where he’s working toward a master’s degree in entrepreneurship. James is the co-author of Motivating Millennials, which hit number one on Amazon in the business management new release category. As a practitioner, he and his colleagues created and run a tech-based plaintiffs’ practice and business model. You can connect with James on Twitter (@JamesGoodnow) or by emailing him at James@JamesGoodnow.com.

Ken Griffin certainly appears to be rather virulently opposed to higher taxes. In fact, his position is a good deal more nuanced: He’s simply opposed to higher taxes on himself. This explains why he’s fighting so bitterly against Illinois Gov. Jay Pritzker’s effort to drag that state’s income tax system into the 19^th century, as Illinois currently has a constitutionally-mandated flat income tax: Ken Griffin, the richest man in Illinois, whose wealth increased by $2.3 billion last year, pays exactly the same proportion of his income as a plumber in Moline or a farmer outside Mattoon. It explains why he’s laying the groundwork to make like Carl Icahn and move to state income tax-less Florida. And it explains why he’s so strongly opposed to having the money his money makes be taxed at anything like the rate money that is made by actual work is taxed.

* GrubHub may be facing a class action lawsuit for adding restaurants to the service without permission. Sounds like GrubHub was “hungry” for more listings… [Fox News]

* A disgraced and disbarred lawyer is set to enter a guilty plea for stealing from 9/11 victims. [New York Daily News]

* A pastor is facing a $2 million lawsuit for allegedly peeing on a fellow passenger during a flight. [Fox News]

* A Colorado attorney, who was formerly affiliated with Kasowitz Benson Torres LLP, has pleaded guilty to sending obscene and harassing texts. [Aspen Daily News]

* The former U.S. Attorney for the Western District of Texas, who resigned from that office earlier this month, will be joining Quinn Emanuel. Seems like he landed on his feet… [Texas Lawyer]

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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.

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

According to Vault’s 2021 practice area rankings, which Biglaw firm tops the tax list?

Hint: This firm was also the first ever to report a billion dollars in revenue.

See the answer on the next page.

Jerry Falwell, Jr. has been defamed! His former employers accused him of “lack of spiritual stewardship” which is surely defamatory per se, per quod, by gist, and in the eyes of God. It’s all part of a dastardly plot by The Lincoln Project to destroy President Trump!

“Vengeance is mine,” saith the Lord. And also Jerry Falwell, Jr., who is suing Liberty University for defamation and breach of contract in the Circuit Court for the City of Lynchburg.

The trouble started back in 2012 when the Jerry and Becki Falwell were on vacation at a fancy resort in Florida. They befriended a handsome, 20-year-old pool attendant named Giancarlo Granda, and then Mrs. Falwell befriended him some more. Whether Mr. Falwell was in the room watching when his wife and Mr. Granda were getting friendly is a matter of dispute. But Mr. Granda has produced a 2018 recording of himself engaging in friendly banter with Mrs. Falwell over Facetime while Mr. Falwell looked on, in addition to multiple text messages.

The Falwells claim they were extorted by Mr. Granda and that they remained cordial with him after he and Mrs. Falwell stopped being quite so friendly because they feared that he would harm them by disseminating pictures of Mrs. Falwell being, umm, super friendly.

But then Mr. Granda fell into the nefarious clutches of The Lincoln Project, an anti-Trump PAC of disaffected Republicans dedicated to defeating Donald Trump.

“On information and belief, [senior advisor, Kurt] Bardella and The Lincoln project have been advising Granda in an attempt to use his defamatory statements to harm President Trump’s chances at reelection,” intones the complaint.

And how do they know that publicizing Granda’s allegations is an attempt to affect the election? Well, “Granda has been observed paying for expenses with a credit card that was not his own. On information and belief, this card belongs to [Aaron] Resnick,” his attorney who introduced him to The Lincoln Project guys. (It’s an interesting position for people who themselves financially subsidized Mr. Granda for years in exchange for his friendly services.)

Plus the sub-heading on the Reuters article “The Falwell Affair” reads “[Granda] says he had sex with Becki Falwell while Jerry Falwell Jr, head of Liberty University and a staunch supporter of President Trump, looked on.” From which, the complaint insists, we must infer deliberate intent to harm President Trump at the behest of The Lincoln Project.

But what does this have to do with the university’s board of trustees?

See, after the story broke, the board believed Mr. Granda’s “lies,” so they told Mr. Falwell to tender his resignation. And the next day, the David Nasser, Senior Vice President for Spiritual Development, addressed Mr. Falwell’s resignation in an address to the student body, in which he said:

[W]e open the semester with a series of revelations about Jerry Falwell that can only be described as shameful. That’s OK, by the way, to say it. It’s OK to call sin, sin. Paul says in Ephesians. [sic] Have nothing to do with the fruitless deeds of darkness but rather, expose them. It is shameful to even mention what a disobedient do in secret. But everything exposed by the light becomes visible.

Which is just the same as repeating Mr. Granda’s defamatory allegations, and also violates the non-disparagement clause of Mr. Falwell’s employment contract. An article published by the University accusing Mr. Falwell of a “lack of spiritual stewardship” and of having “broken trust for most in Liberty University, and [causing] some question Liberty’s commitment to its nearly 50-year mission of Training Champions for Christ” is similarly slanderous, according to this complaint.

And, oh, by the way, Mr. Falwell knows a thing or two about those hypocritical board members and the skeletons in their closets.

Upon information and belief, certain key individuals directly involved in the decisions and actions to force Mr. Falwell’s resignation and then defame him were fulfilling a long-held goal to end Mr. Falwell’s fruitful thirty-two-year relationship with the University. Reportedly acting in the University’s interest to dissociate the University from Mr. Falwell’s alleged indiscretions, these individuals had engaged, or were engaged, and various illegal, unlawful, and immoral or otherwise dubious acts in their stewardship of other institutions and otherwise which, if known to the public generally, would unquestionably tarnish the reputation of Liberty University by association. It is therefore hypocritical in the extreme for these key individuals to cast any action of Mr. Falwell as disqualifying Mr. Falwell from leading Liberty, as he has done successfully for many years.

UH HUH.

Well, good luck with that one!

Apropos of nothing, please enjoy this video which Mr. Falwell, about whom there has never been a whiff of scandal or impropriety, posted in August to his own social media account, before quickly deleting it.

And this photo of him drinking “black water” as befits the president of a university which has a strict prohibition on alcohol consumption.

Oh, you want a Soundcloud of him slurrily describing the event, too? Can do.

Discovery is gonna be LIT.

Jerry Falwell, Jr. v. Liberty University [via Courthouse News]

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