We Don’t Need Old Monuments To Great Killers, Would Be Better Off With Statues Of Great Visionaries

(Image via Getty)

This is a very different place than it was in the time of our founders. The first federal census, in 1790, showed an average household size of 5.79 persons, the highest ever recorded in America. But early Americans needed a lot of household members because many of them were going to die young: life expectancy for a white male was about 38 years. All other demographics likely enjoyed even lower average lifespans than that, although it’s impossible to know for sure because no one thought it was all that important to measure life expectancy for anyone else. The biggest city in the country, Philadelphia, had a population of about 50,000. Of the 700,000 or so black people in America at the time, around 90 percent were slaves.

The America of the late 1700s would have been unrecognizable to modern Americans. A lot of people died turning that tiny, rural backwater into the occasionally forward-thinking world power we know and love today.

Some of the people who died in the construction of this nation were those aforementioned slaves. Others were the native peoples of America, first ravaged by European diseases, then swept away by the sword. There were, of course, many who died over the centuries fighting off would-be invaders, Confederate traitors, and looming foreign threats.

The sacrifices of these countless individuals are meaningful. No one should discount them. But what sets America apart from other nations was never that its spirit of wartime conquest was somehow bigger or better than that of dozens of previous societies. There are plenty of countries throughout history that were more warlike than the United States ever was, and almost all displayed the easy, shallow patriotism of cheering on their own viciousness. From the ancient Spartans to the Mongol invasions all the way up to the sun never setting on the British Empire, warrior societies have repeatedly conquered other peoples, only to eventually crumble into the dustbin of history. Even in more modern wars, it’s hard to say that the United States made greater sacrifices than others when considering that we lost about 418,500 of our citizens beating back the Axis powers in World War II compared to the 24 million deaths suffered by our then-ally the Soviet Union.

What makes America unique is its ideals. The concept that a person like Andrew Carnegie — an immigrant, an economic refugee — can come here with nothing, and through hard work and keen shrewdness build an industrial empire that made him the richest man in the work at the time (and eventually the world’s greatest philanthropist): that is what sets America apart. Carnegie’s success would not have been possible anywhere else in the world. That spirit of allowing anyone, from anywhere, to thrive based on talent and drive rather than status or social class is what actually makes America great, then and now.

It says in the first sentence of the Constitution that what we’re trying to do here is “to form a more perfect union,” not that we’re already there. But despite all the setbacks and the obvious unfairness still imposed on vast segments of our population because of race, national origin, and other meaningless distinctions the bigoted draw between their fellow citizens, there’s still a reason why America is where SpaceX, Amazon, Apple, and a thousand other innovative companies of the 21st century have arisen. That reason is not that we’re the best at killing people. It’s because we’re the best at giving talented, ambitious people room to explore their ideas.

As we’re seeing old monuments topple while citizens reconsider our tastes in statuary, it’s important to recognize the racist past being depicted as the reason for this aesthetic reckoning. But if you’re among those upset as some of these statues fall, take a moment to consider whether many of them should ever have been erected in the first place. The United States has had many great military victories that allowed its core ideals to survive and flourish. But it was never the great killers of our history at the center of our uniqueness as a nation. What really makes us great has always been more Richard P. Feynman than Robert E. Lee.


Jonathan Wolf is a litigation associate at a midsize, full-service Minnesota firm. He also teaches as an adjunct writing professor at Mitchell Hamline School of Law, has written for a wide variety of publications, and makes it both his business and his pleasure to be financially and scientifically literate. Any views he expresses are probably pure gold, but are nonetheless solely his own and should not be attributed to any organization with which he is affiliated. He wouldn’t want to share the credit anyway. He can be reached at jon_wolf@hotmail.com.

As COVID Surges, States Still Planning On Superspreader Bar Exams This Month

Some states have finally figured out that an in-person bar exam — at least one that includes everyone hoping to get licensed — is a bad idea. Utah, Washington, and Oregon have jumped on the emergency diploma privilege train. Others have postponed exams, staggered attendance, or opted for online exams. All the while, the well-compensated folks at NCBE — who have diploma privilege licenses by the way — are expending all their resources trying to intimidate states out of doing anything but running a superspreader event and feeding their monopolistic coffers.

Minnesota law school grads petitioned the state supreme court to consider diploma privilege… and it agreed. Arizona is trying to do the same and looking for folks to submit impact statements. Missouri is too.

Mississippi started by asking applicants to waive their rights if they, you know, died taking the exam. While pointing and laughing was the appropriate response, most jurisdictions instead drew up waivers of their own. We’re getting reports that bar exams are summarily denying ADA requests using their own people to declare — over the opinions of experts — that folks are perfectly fine to take the exam.

Texas claims to be having a bar exam this month but rumors are swirling that NRG Stadium and the Palmer Events Center have already been canceled. In that case, an exam is functionally impossible. Texas hasn’t confirmed this yet, which we assume has NOTHING to do with the deadline for deposits not having passed.

Is there any plan for the California “Baby Bar”?

Let’s just call the bar exam what it is: a death drive. There’s scant evidence that the exam is necessary to protect the public and overwhelming evidence that it’s injurious to the profession and the public and yet we still have it because… TRADITION! And now the obsession with this professional hazing ritual is going to get people sick and possibly killed.

There are other ways to license attorneys, you just have to step outside your own experience and realize that just because you took a grueling exam to prove you really earned the degree you earned two months earlier doesn’t mean everyone has to. “Diploma privilege plus” works. States can create reciprocity without the NCBE’s say so. Public health is more important than your rite of passage.


HeadshotJoe 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.

States Should Permanently Change Legal Practice Rules Due To COVID-19

This website has already discussed how COVID-19 has had a lasting impact on how many attorneys and law firms do business. Indeed, attorneys have had to get used to working from home, remote conferences, and other methods of practicing law because of the pandemic. States have also had to change some of their legal practice requirements because of COVID-19. Moreover, the ongoing pandemic has demonstrated that the profession should not be tethered to traditional notions about practicing law. All told, based on the experience of contending with COVID-19, states should permanently change several legal practice requirements.

Live CLE Courses

Most attorneys need to take continuing legal education courses in order to maintain their law licenses. Although states have different rules about how lawyers can earn CLE credits, some states, such as New Jersey (where I practice), require that lawyers attend a certain number of CLE courses in person. It makes sense that states want lawyers to meet up with other attorneys in order to satisfy their CLE credits. Indeed, many lawyers take live CLE credits at conferences, events, and other in-person occasions that they may not otherwise attend if CLE credits were not offered. Further, attending CLE courses in person may ensure that lawyers pay more attention to the instructors and meet other members of the bar.

However, the ongoing COVID-19 pandemic is preventing many attorneys from attending in-person events. As a result, many states have relaxed their in-person CLE requirements and are allowing lawyers to fulfill their CLE requirements virtually. Even after the pandemic subsides, states should consider permanently eliminating in-person CLE requirements. If attorneys wish to attend in-person events, they should be able to do so without the incentive of live CLE credits, and online CLE courses are often cheaper and easier to take. Although some industries rely on in-person CLE credits, states should permanently relax CLE requirements so that all credits can be earned through virtual means.

Bona Fide Office Requirements

Many states still have a requirement that attorneys maintain a physical office in the state in which they practice law. The theory behind this requirement is that counsel should have a place at which lawyers can be served with papers for cases with which they are involved. In addition, states may require attorneys to have an office so that there is a place where clients can meet their counsel, where files are maintained, and where phones are answered. Some states, such as New Jersey, have relaxed their bona fide office requirements in recent years, but other states, such as New York, still require that out-of-state lawyers maintain a bona fide office within the state.

However, having a physical office is so twentieth century! Many lawyers may wish to simply maintain a virtual office, where they can pick up mail and meet clients at a fraction of the cost of a traditional office. Furthermore, the COVID-19 pandemic has shown us all that a physical office is not needed to practice law. Indeed, many attorneys have not visited their offices in months, and many firms have been able to maintain operations remotely with very few interruptions. Now that nearly all lawyers are comfortable with remote conferencing apps, cloud-based firm management applications, and the experience of practicing law during the COVID-19 pandemic, states should seriously consider eliminating bona fide office requirements.

Electronic Filings And Registrations

As many attorneys know from firsthand experience, courts and state bar authorities have been somewhat slow to adopt online filing and registration systems. For instance, New York requires that lawyers file retainer and closing statements for certain types of contingency cases, and up until last month, attorneys needed to file such statements in person or through the mail. If attorneys filed the statements through the mail, they needed to include a self-addressed postcard so that it could be stamped and returned to the lawyer as proof that the statement had been filed. This was a very old-school way of doing business! In addition, some states still require that bar candidates complete bar applications and submit supporting materials through the mail.

Over the past several months, states have begun to adopt electronic filing and registration platforms even though these applications did not exist several months ago. For instance, lawyers in New York can now file retainer and closing statements electronically, which lets them save the hassle of providing a self-addressed and stamped envelope for proof of filing. In addition, many states have expanded online registration opportunities for bar candidates. Furthermore, states have launched e-filing systems for courts that required paper filings just several months ago. Hopefully, states will keep all of these electronic filing and registration systems after the COVID-19 pandemic is over, since these applications are often more efficient and cost-effective for attorneys and government authorities.

In the end, there are still some legal practice requirements that states have been slow to change and are unnecessary burdens for lawyers. The ongoing COVID-19 pandemic has demonstrated that some parts of the legal profession can change to promote efficiency and remote operations. Hopefully, the ongoing pandemic incentivizes the legal profession to permanently forgo traditional practices in favor of more efficient and cost-effective methods of practicing law.


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.

Supreme Court Orders Joe Biden To Fire CFPB Director On Jan. 20

Morning Docket: 07.01.20

* Attorneys in DC can now accept cryptocurrency as a form of payment. As detailed in yesterday’s morning docket, accepting cocaine as a form of payment is still off limits… [Bloomberg Law]

* Florida’s governor recently signed a new law requiring parental consent for abortions. [New York Daily News]

* OAN has lost a defamation lawsuit against Rachel Maddow, and now they may have to pay the legal fees for her high-priced Biglaw attorneys. [San Diego Times]

* A Baltimore family is suing a local restaurant for refusing service to them based on how they were dressed. [TMZ]

* A judge has dismissed a New York lawyer’s defamation lawsuit against someone who called him an “ambulance chaser” online. This attorney should brush up on his First Amendment law… [Westfair Communications]


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.

‘The Supreme Court Has Roundly Rejected Prior Restraint’ — See Also

Flatten the Research Curve

Flatten the Research Curve

Navigate the latest changes to federal and state laws, regulations, and executive orders; ranging from Banking & Finance to Tax, Securities, Labor & Employment / HR & Benefits, and more.

Navigate the latest changes to federal and state laws, regulations, and executive orders; ranging from Banking & Finance to Tax, Securities, Labor & Employment / HR & Benefits, and more.

Addressing Law School Racism & Neomi Rao’s School Of Legal Writing Don’ts

Neomi Rao (Photo by Alex Wong/Getty Images)

A new account compiles the acts of racism that compound at Harvard Law School, but they could emanate from almost any law school. We take a look at this account and the response of law schools around the country to recent events, including one law school that’s taking an aggressive anti-racism stance. Also, we discuss Neomi Rao’s Michael Flynn opinion which left a lot to be desired as a work of professional legal writing.

Peekaboo, I See You II: Why Facial Recognition Technology Needs Humans As Much As AI

Over the past few years, facial recognition technology has progressed significantly — so much so that it is becoming more and more prevalent in our everyday lives. As I have previously written on this topic, however, this progress has not come without significant concerns over personal privacy and other rights — having your photo as part of a database for servicing of tailored advertising to you is one thing, but being part of a surveillance platform is quite another. Unfortunately, one of my big concerns has come to pass, and it only highlights the deep divisions and concerns over this technology, proving that there is far more to this technology than meets the digital AI.

The incident I refer to occurred back in January of this year and involved a gentleman who seems to have found himself on the wrong side of an algorithm (as opposed to the law).  Robert Julian-Borchak Williams, who is African-American, was apparently working at his job at an automotive supply store when he was contacted by the Detroit Police to turn himself in for shoplifting. Believing this call to be a prank (as he did not commit any such crime), he ignored it. Upon his return home from work (apparently merely an hour later), he was boxed in by Detroit police cars as he pulled into his driveway and placed under arrest. Why did this happen to him? You guessed it — the Detroit Police placed surveillance video in front of him claiming it showed him shoplifting at a Shinola store in the trendy Midtown area of Detroit. The problem? It wasn’t Williams. There appears to have been a flawed match of Williams’ face with the surveillance video obtained by the Detroit Police. I don’t know about you, but in this case, “oops” just doesn’t seem to cut it.

When it comes to facial recognition technology, your face may simply not be “yours” anymore. In a report from Georgetown Law’s Center on Privacy and Technology, the Center found more than 117 million adults are part of a “virtual, perpetual lineup,” accessible to law enforcement nationwide. Just think about that for a minute — even though you may not have ever gotten anything more than a speeding ticket, your photo may be part of digital lineup of more than 3 billion faces. Even worse, there are significant concerns about the technology being “biased” — for example, research by the Gender Project in the MIT Media Lab uncovered that the algorithms powering the facial recognition technology are less accurate when it comes to delineating gender, skin type (lighter versus darker skin tones), age, and other attributes (such as ethnicity). In other words, different facial recognition engines seemed to demonstrate what amounts to a racial bias. This should be unacceptable on its face (no pun intended), but in the context of law enforcement use, it is downright dangerous.

Although some of the software referenced in the Gender Project study has progressed to correct such deficiencies, the point here is that it appears undue deference is being given to facial recognition technology output without the necessary checks and balances that should be part of the use of such technology in law enforcement. First and foremost, this technology is evolving — there is absolutely no basis for treating the output from this technology as gospel. Moreover, such technology use by law enforcement can never, ever, replace the need for human intervention and quality detective work. From the facts I have been able to gather, the fuzzy photograph of Williams did not provide an absolute match and, in fact, was easily distinguishable from Williams upon closer inspection. Worse, it’s not like the Detroit Police Department did not voice concerns about facial recognition technology — during a public hearing discussing facial recognition technology use in Detroit, an assistant police chief (who is also African-American) stated that with respect to false positives, it “is absolutely factual, and it’s well-documented.” No matter how cutting-edge the technology, nothing excuses a lack of quality law enforcement follow-up.

Thankfully, this incident has not gone unnoticed — the ACLU filed a formal complaint on behalf of Williams regarding the false arrest. Williams has also provided his own account of his arrest in a Washington Post op-ed, and it should prove a wake-up call to every reasonable American concerning this technology and how it is being used. As a technology lawyer, I have come to appreciate the innovation and vision behind cutting-edge (and especially “disruptive”) technologies. That said, with such innovation comes the responsibility for ensuring not only accuracy in execution but also in its application. This type of technology can prove a useful tool to the law enforcement arsenal, but it should only be regarded as a tool — it is not infallible and it most certainly is not a replacement for good old-fashioned police work. States are also taking notice — for example, this year Washington implemented legislation restricting the use of facial recognition technology in law enforcement. Make no mistake, more legislation and regulation of this technology is on the horizon.

It appears that this incident may be “the first known account of an American being wrongfully arrested based on a flawed match from a facial recognition algorithm.” Whether it is, however, is not the main point. The bigger issue is how such facial recognition platforms are trained and whether questionable images (such as low-resolution and blurry photos and videos) should even be used with such systems. It also raises the significant additional question: How on earth did the Detroit Police meet the requisite level of probable cause for a warrant to issue for Williams’ arrest given the nature of the photographs and error in facial recognition? I don’t know if I really want an answer to that question, as the answer may be more problematic than I am prepared to accept. The question we all need to ask, however, is whether facial recognition technology should be used in law enforcement without proper checks and balances in discerning its results. Personally, I think it is high time that states take additional legislative action to ensure that facial recognition technology is used properly before more damage is done to our rights. But don’t take my word for it – just ask Robert Julian-Borchak Williams.


Tom Kulik is an Intellectual Property & Information Technology Partner at the Dallas-based law firm of Scheef & Stone, LLP. In private practice for over 20 years, Tom is a sought-after technology lawyer who uses his industry experience as a former computer systems engineer to creatively counsel and help his clients navigate the complexities of law and technology in their business. News outlets reach out to Tom for his insight, and he has been quoted by national media organizations. Get in touch with Tom on Twitter (@LegalIntangibls) or Facebook (www.facebook.com/technologylawyer), or contact him directly at tom.kulik@solidcounsel.com.

Patchwork Of Judicial Decisions Exacerbates Confusion On Legality Of CBD Products

In the past few months, the cannabidiol (CBD) industry has seen an uptick in consumer class actions lawsuits.

In virtually all of those cases, the complaints were filed shortly after new rounds of warning letters were issued by the FDA. The complaints, which were filed by the same plaintiff’s law firms, make nearly identical legal claims: (1) the CBD products are illegal drugs, foods, or dietary supplements that violate the FDA guidelines; (2) the CBD products make impermissible health claims; and/or (3) the CBD products are mislabeled in terms of their CBD content.

As a result, CBD companies have raised similar legal defenses, resulting in U.S. courts having to rule on similar legal issues that will most certainly shape the future of the CBD industry.

Although these cases address similar legal issues, courts that have already ruled on these issues have ruled differently, causing additional confusion on the legality of CBD products.

For example, in January, Judge Ursula Ungaro from the U.S. District Court for the Southern District of Florida stayed a CBD class action relating to the marketing and sale of CBD products — Snyder v. Green Roads of Florida, 430 F. Supp. 3d 1297 (S.D. Fla. 2020) — until the FDA forges a legal path for the manufacture, sale, and marketing of the products. Ungaro placed this case on hold, invoking the “primary jurisdiction doctrine.”

The primary jurisdiction doctrine generally applies in cases where a plaintiff’s claim implicates the special competence of an administrative agency. This doctrine is a prudential doctrine that is reserved for a limited set of circumstances that require resolution of an issue of first impression or of a particularly complex issue that Congress has assigned to an administrative agency.

As you already know if you read this column and keep a pulse on the hemp and CBD industry, the Agriculture Improvement Act of 2018, better known as the 2018 Farm Bill, expressly recognizes the FDA’s authority to regulate products containing hemp-derived products, including hemp-derived CBD. Moreover, Congress has repeatedly urged the FDA to complete the rulemaking process to solve the proliferation of CBD products, particularly foods and dietary supplements, in violation of the Food, Drug & Cosmetic Act (FDCA). Yet, nearly two years following the passage of the 2018 Farm Bill, the FDA has yet to adopt formal regulations.

In light of this, Ungaro concluded that “FDA regulations currently provide little guidance with respect to whether CBD ingestibles, in all their variations are food, supplements, nutrients or additives and what labeling standards are applicable to each iteration,” and thus, deemed the existing regulatory framework inadequate to resolve these issues.

Other U.S. courts, which recently considered whether CBD companies labeled their CBD products in violation of federal law, found Ungaro’s opinion persuasive. These courts, including one in the Central District of California — Colette v. CV Sciences, Inc., No. 2:19-cv-10228-VAP-JEM(x) (“Colette”) — and another in the Eastern District of California — Glass v. Global Widget, LLC, No. 2:19-cv-01906-MCE-KJN (“Glass”), explained that although the FDA expressed its position about CBD products in its warning letters, these letters do not amount to final agency action and that the FDA has yet to formally express its position on the regulation of these products. The Colette Court also wrote that “the number of CBD class actions currently pending in the federal district courts makes clear the danger of inconsistent adjudications.” Accordingly, the Collette Court, and the Glass Court, which closely followed the Snyder and Colette analyses, concluded that they would benefit greatly from the FDA’s pending rulemaking efforts, and thus, granted the motions to stay while the FDA adopts final rules.

These orders suggest that federal courts might be inclined to give deference to the FDA’s primary jurisdiction over CBD products, which would likely delay other CBD-related lawsuits until the FDA forges a legal pathway for these products.

However, in the months between the Snyder order and those issued in May by the California U.S. District Courts, other federal courts have rejected the primary jurisdiction doctrine defense and have reached a different conclusion from that made by the Snyder, Colette and Glass courts.

In Potter v. Potnetwork Holdings, Inc., et al., No. 19-24017-Civ-Scola, for instance, Judge Robert Scola for the Southern District of Florida — the same district as Ungaro’s — denied putting this case on hold based on the primary jurisdiction doctrine. Although Scola began his analysis much the same way as Ungaro did in Snyder, Scola ultimately agreed with the plaintiff’s argument that despite the adoption of formal CBD regulations, the FDA would not modify disclosure requirements regarding the accurate content of a product, and thus, would not allow manufacturers to lie about the exact amount of CBD contained in their product in its formal rules.

These inconsistent rulings by federal courts — including courts in the same district — show that the lack of FDA regulations is causing growing confusion regarding the legal status of these products and emphasize the need for the agency to develop a comprehensive, uniform regulatory framework.

So until the FDA starts to serve its role of regulator, CBD companies, especially deep-pocketed ones, should obtain sound legal advice regarding the federal and state regulations of these products and should ensure strict compliance with the FDCA’s manufacturing and labeling requirements — these requirements apply to any category of products regulated by the FDA — to mitigate the risks of litigation.


Nathalie Bougenies practices in the Portland office of Harris Bricken and was named a “2019 Rising Star” by Super Lawyers Magazine, an honor bestowed on only 2.5% of eligible Oregon attorneys. Nathalie’s practice focuses on the regulatory framework of hemp-derived CBD (“hemp CBD”) products. She is an authority on FDA enforcement, Food, Drug & Cosmetic Act and other laws and regulations surrounding hemp and hemp CBD products. She also advises domestic and international clients on the sale, distribution, marketing, labeling, importation and exportation of these products. Nathalie frequently speaks on these issues and has made national media appearances, including on NPR’s Marketplace. Nathalie is also a regular contributor to her firm’s Canna Law Blog.