Category: News Feeds

I think more representation needs to be out there, and this is a time where I am actually hopeful that representation will be meaningful. I don’t know of any other nonbinary attorneys in Biglaw. I’m aware of nonbinary attorneys at smaller firms and shops. So I think it’s a really big deal that we can break that barrier. Being gender-nonconforming as a litigator is not uncomplicated: litigation is about sharing narratives and stories and presenting the more believable version of the truth by having a story fit together and work.

Part of that story is the lawyer: they’re the narrator putting together a picture of themselves that should support the truth they’re telling. As it stands, being nonbinary has the possibility of distracting from that story, and I’m trying to leverage my position in Biglaw and make it less likely that this will be something a judge may find distracting.

— Rafael Langer-Osuna, a litigation partner in the San Francisco office of Squire Patton Boggs, commenting on their decision to come out as one of Biglaw’s first openly nonbinary attorneys. Langer-Osuna uses they/them pronouns, and says of their coming out at the firm, “After recognizing that this is a lifelong journey that I’m working through that is not shared by the majority of people around me, I came to the conclusion that I wanted to be who I am, fully, with people I work with.”

---

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.

It’s amazing what legislators can do when they put their minds to it! Mississippi’s political representatives have insisted since the flag was adopted in 1894 that the prominent stars and bars in the corner honored the state’s history. Heritage not hate, doncha know!

Why the state would choose to honor only the four years it fought a war to maintain the enslavement of Black people, out of its entire 203 year-long history, is a mystery. (No, it really isn’t). But the flag will be removed from all government buildings within the next two weeks after the legislature convened an emergency session to replace it and Governor Tate Reeves promised to sign the bill.

And while it’s probably an oversimplification to say that Mississippi State running back Kylin Hill forced the legislature to ditch the flag, he certainly gave it the final push.

The protests gripping the country since George Floyd’s death at the hands of Minneapolis police on May 25 kicked something loose, and the argument for maintaining racist symbols became increasingly untenable. The SEC and NCAA had already warned Mississippi that it would be barred from hosting championship games the week before the star player threatened to sit out the season if the flag didn’t come down.

Bulldogs’ coach Mike Leach supported Hill, then Ole Miss coach Lane Kiffin followed suit. By Thursday, fifty Mississippi coaches had descended on the capital to testify in support of removing the Confederate symbol from the state’s flag. And suddenly the impossible became inevitable.

On Saturday, the Mississippi House of Representatives voted 91-23 for replacement, and on Sunday the Senate adopted the removal resolution 37-14 after a rigorous debate.

“When we remove our history or set our history aside, then we lose the opportunity to educate and inform and to have a conversation about what the true meaning of things are,” argued GOP Senator Melanie Sojourner, adding that “if we remove things, we don’t have the opportunity to have the conversations.”

But apparently there were a lot of conversations going on behind the scenes, and the bill picked up Republican support between Saturday and Sunday, when it became clear that the Overton window for “Positions You Can Credibly Claim to Hold Without Being a Racist” had narrowed significantly.

Even Jefferson Davis’s great-great grandson Bertram Hayes-Davis weighed in on making history into history, and not allowing it to define the present.

“It is historic and heritage-related, there are a lot of people who look at it that way, and God bless them for that heritage,” Hayes-Davis told CNN. “So put it in a museum and honor it there, or put it in your house, but the flag of Mississippi should represent the entire population, and I am thrilled that we’re finally going to make that change.”

A committee will convene to envision a new flag featuring the words “In God we trust,” to be submitted to voters for approval in November. Which has more than a whiff of government establishment of a religion, but it’s not overtly racist so … let’s call that a win!

Paul Finebaum credits Kylin Hill for Mississippi flag change [247sports]
Mississippi House and Senate vote to remove Confederate icon from state flag [WaPo]

---

Elizabeth Dye (@5DollarFeminist) lives in Baltimore where she writes about law and politics.

How did COVID-19 disrupt the legal industry?  In short, it ushered in a new way of doing business.

Join us on July 17th at 1 p.m. ET / 10 a.m. PT and see how the legal profession rapidly evolved in response to the coronavirus pandemic, from client acquistion and new service offerings to mobilizing an entire firm to work remotely.

The landscape has changed quickly, addressing how firms engage virtually with clients and leverage new digital solutions to analyze the business and offer new types of services, while ensuring safeguards to data security and adhering to compliance best practices.

As a result, COVID-19 has brought digital transformation to the forefront of the legal industry, requiring law firms to optimize their business in a digital age, and deliver client services free of traditional brick-and-mortar office visits and paper files.

Key Objectives:

• Ways your law firm can achieve operational efficiency while remaining productive in a work from home environment.
• How to deliver a better client experience with virtual collaboration solutions
• How to differentiate and automate your firm when your practice management software, IT infrastructure, and support arrive in a single solution.

By filling out the form you’re you are opting in to receive communication from Above the Law and its Partners.

Current and former law students at George Mason University have shared with Above the Law their personal stories of mistreatment and discrimination at the school. Some of these tipsters asked not to have their stories published — they just wanted someone to tell and to provide background. But taking in all these stories what becomes immediately clear is that when a faculty that excitedly changes the name of the school to honor a man who used his seat to question if Black people were worthy of higher education, they might have some serious diversity problems of their own.

That’s what happens when you name your school ASSLaw!

The word “toxic” came up more than once and not in the context of “dumping sludge in the river” like the faculty supports. An informal survey taken in October revealed a widespread problem. As Emily Kvalheim laid out last week, students spoke of minority students being targeted for random ID checks and LGBTQ students that feel “this school forced me to go back into the closet on my sexuality.” Remember: THIS IS A PUBLIC SCHOOL. One comical tip we received involved a Black student — not at the law school — ending up in promotional materials because the school couldn’t be bothered to find diversity within their own enrollment. While that story was good for a chuckle, it underscores a broken institution replete with daily, intimate acts of discrimination and harassment.

It’s almost as if when libertarians say, “I’m not racist, I just care about constitutional principles,” they mean to say, “I am racist but I prefer to hide my biases behind cherry picking constitutional principles.” It may seem like a fine distinction but they mean the same thing when you consider the original public meaning.

A number of student groups have now come together to demand the school take this matter seriously. The full collective statement, available here, makes a number of straightforward and fairly non-controversial demands. Among other things, it asks for the involvement of diverse law students in recruiting efforts, a concerted effort to correct the school’s woeful Black student underrepresentation, basic diversity training, and the appointment of Director of Diversity Services to be responsible for all of this.

Most student groups at ASSLaw signed onto this statement. Can you guess who didn’t? Because it’s the biggest group on campus!

Yes, the Federalist Society is notably absent in this call for the institution to take basic steps toward creating an inclusive environment. In case you’re wondering what the mood inside the FedSoc is right now, a current conservative law student took to Legal Insurrection to vent about how uncomfortable he is that students who aren’t him are talking about problems he doesn’t personally deal with.

This week, Scalia Law’s Student Bar Association (SBA), in contravention of its supposed non-partisanship, issued a letter to the school’s administration, copying the entire student body, which contained a set of radical, Black Lives Matter-esque demands. The letter demanded, among other things, full tuition scholarships for all black students, affirmative action programs, special funding for “diverse” clubs to bring speakers of “intersectional identities”, and mandatory “race equity” trainings for all faculty, staff, and students.

“Non-partisanship” carries a lot of baggage in that paragraph, saying that the school should, “create and publish specific procedures within its own administration for responding to reports of discrimination, harassment, and misconduct” is thus, by implication, a “partisan” demand. And, in case you were wondering, he will absolutely quote Martin Luther King to explain why affirmative action is bad in the very next paragraph because Legal Insurrection articles are just Mad Libs for white grievances.

The student does claim that the Federalist Society simply had no idea that this letter was coming — which others dispute — but then blows any political capital this exclusion might have carried when he doesn’t suggest that the group would’ve signed on if given an opportunity. Rather, he bemoans that FedSoc wasn’t given an opportunity to gut the letter to the point of meaninglessness, which is certainly a kind of cooperative effort. But this gripe gets to the heart of the whole conservative complaint about race and diversity. If white people aren’t at the center of everything, the snowflake alarms go off at FedSoc headquarters. It’s discriminating based on race to recruit students for not being white, while it’s not discriminating when Black students get harassed at the library… for not being white. Here, students are allowed to have opinions… as long as the white people get to edit them for content.

Unfortunately, the faculty has displayed a steadfast refusal to consider its dumpster fire of a record on this issue, instead offering weak excuses and relying on the transient nature of the JD lifecycle to kick the can down the road. I’ve said it before: this is a public school and someone from the state government needs to get involved before things get better.

Hopefully I’m wrong about that and this effort will yield tangible results, but I doubt it.

Earlier: Shockingly, Law School Named For Affirmative Action Opponent Bad At Race And Diversity

---

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.

A federal judge claims he didn’t know what he was doing when he blew that dog whistle, but is apparently really sorry about it.

This racial controversy comes to us from the Central District of California, where Judge Cormac J. Carney began his term as the court’s chief judge on June 1. Shortly after that, during a webinar sponsored by the local chapter of the Federal Bar Association Judge Carney, well, he stepped in it.

As reported by the Los Angeles Times, in describing his acclimation adjusting to his new position on the court, he described working with Kiry Gray, the first Black woman to serve as the court’s executive and clerk of the court:

“Fortunately for me, we have just a fabulous clerk of the court in Kiry Gray. She’s so street-smart and really knows her job,” Carney said.

Folks were understandably upset with the racial connotations of calling this court professional “street-smart” as opposed to any number of terms denoting competence. As Carney himself describes, in a later conversation with Gray, Carney learned people were upset over his comment and sought to have him step down from his role as chief judge. And that’s when he compounded the problem:

“In a moment of anger and frustration, I said to Ms. Gray that the people criticizing me were equating my well-intended use of the term ‘street-smart’ with the reprehensible conduct of a police officer putting his knee on a person’s neck,” Carney said.

Carney did not include the exact quote, but he apologized: “My statement was wrong. It was directed at my critics, not Ms. Gray, and I said it with no ill will or disrespect towards people of color. My statement was an insensitive and graphic overreaction to the criticism that was leveled against me. I never should have made the comparison.”

Judge Carney tried to explain his initial use of “street-smart” (“To me, the term means a person of great common sense, initiative, and ability to work with people and get things done. It saddened me greatly to learn that some people view the term to be demeaning to people of color. I never knew that there was a different definition of the term.”) in an email to all court employees sent June 26th. In that email, Carney also announced he was stepping down from his role as chief judge:

“I have apologized to Ms. Gray, but I have concluded that a simple apology will not put this matter to rest. There will be division in the Court, unnecessary, negative and hurtful publicity, and a diversion from the Court’s essential mission of administering justice if I were to continue serving as the Chief District Judge,” Carney wrote in the email, which The Times reviewed. “I cannot allow the Court to become politicized and embroiled in controversy.”

He will keep that lifetime appointment though. Judge Philip S. Gutierrez, appointed by George W. Bush as Carney was, will take over the role of chief.

---

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).

Just a few short years ago, we lamented the fact that a portion of the population had “never heard of” the Supreme Court, and that nearly two-thirds of Americans couldn’t name a single Supreme Court justice. These days, people are much more aware of the high court’s existence, if only for political reasons, and they’re much more knowledgable about the identities of certain justices thanks to their controversial confirmation hearings, highly acclaimed biopics, documentaries, and pop-culture celebrity, and a president who gripes about some of them on Twitter.

That’s why the results of the latest Economist/YouGov survey, where respondents were asked to rate all of the Supreme Court justices, were a bit unsurprising.

Let’s start out with the basics before we get to the justices’ favorability ratings. According to the survey, 48 percent of Americans approve of the current Supreme Court, while 26 percent disapprove. Can you believe that back in the day (between 1987 and 2010), the high court’s approval rating never fell below 57 percent, and was oftentimes higher than 70 percent? Those were simpler times.

Now, before we start discussing the names of the judges who ranked the highest in the favorability poll, we’ll break down the Economist/YouGov survey’s methodology for you. From June 21 to June 23, 1,500 American adults were asked whether they found each Supreme Court justice “very favorable,” “somewhat favorable,” “somewhat unfavorable,” “very unfavorable,” and “not sure” (a rating which we’re guessing amounts to a polite “uh, who?”).

How do SCOTUS justices stack up against one another when it comes to favorability?

Justice Ruth Bader Ginsburg took home the top prize, with 42 percent rating her “very” or “somewhat” favorable,” while 26 percent rated her “very” or “somewhat” unfavorable. Thirty-three percent of respondents were “not sure” about her.

President Trump’s Supreme Court appointments, Justices Neil Gorsuch and Brett Kavanaugh, both fared worse than Ginsburg in the eyes of the public. Kavanaugh broke even with 33 percent rating him “very” or “somewhat” favorable, while 33 percent rated him “very” or “somewhat” unfavorable. Thirty-four percent were “not sure” about him. As for Gorsuch, 27 percent rated him “very” or “somewhat” favorable, 23 percent rated him “very” or “somewhat” unfavorable, and 50 percent weren’t sure about him at all.

Mediaite has the details on the rest of the justices’ favorability ratings:

Justice Sonia Sotomayor notched 27 percent total favorable versus 21 percent unfavorable, and 42 percent “not sure.”

Justice Elena Kagan scored 27 percent total favorable, 18 percent total unfavorable, and 54 percent “not sure.”

Justice Samuel Alito got 27 percent total favorable, 20 percent total unfavorable, and 54 percent “not sure.”

Chief Justice John Roberts was at 31 percent total favorable, 24 percent total unfavorable, and 44 percent “not sure.”

Justice Stephen Breyer tallied 25 percent total favorable, 15 percent total unfavorable, and 59 percent “not sure.”

And Justice Clarence Thomas scored 33 percent total favorable, 28 percent total unfavorable, and 38 percent “not sure.”

It’s worth noting that Kavanaugh was the only justice who failed to achieve positive net favorability in this survey. At least he still has his beer.

Supreme Court Justice Ruth Bader Ginsburg CRUSHES Trump Picks Kavanaugh and Gorsuch in Favorability Poll [Mediaite]

---

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.

Wear the mask. Not only because it’s better to be safe than sorry, but because, yes, your state has the right to require you to wear a mask during a pandemic. The states’ power to establish and enforce laws to protect the public welfare, safety, and health, commonly known as the police power, is supported by the Tenth Amendment. While the Constitution has been amended in countless ways since its execution, the police power as it relates to public health has been largely untouched by later construction.

From the Constitution’s early days, the courts have contemplated the government’s ability to protect the “public health,” or society’s interest in assuring healthy living conditions, by regulating society in times of widespread disease. Chief Justice John Marshall defended the police powers in Gibbons v. Ogden, including “inspection laws, quarantine laws, [and] health laws of every description.” Gibbons v. Ogden, 22 US 1, 78 (1824).

Throughout the early 19th century, the whole country had been “roused” by the “havoc” wrought by yellow fever for years. Smith v. Turner, 48 U.S. 283, 341 (1849). It was not long after yellow fever ran rampant through the colonies, and then the states, that the issue of mandatory smallpox vaccination arose before the Supreme Court in Jacobson v. Massachusetts. The Court found that the states had the right to impose upon an individual’s body by requiring that they submit to vaccination for smallpox, and that the individual must give up certain freedoms for the benefit of living in a civilized society. “[T]he liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly free from restraint.” Jacobson v. Massachusetts, 197 U.S. 11, 29 (1905). The Court determined this, in part, on the grounds that, as Edward Richards and Katharine Rathbun so aptly noted, “this is the bargain that makes public health possible.”

Mask requirements, while perhaps irritating, are certainly less of an imposition than a vaccine. They are also legally sound. Justice John Marshall Harlan in Jacobson emphasized necessity — a demonstrable and nonarbitrary threat to public health; reasonability — the “real or substantial relation” of the requirement to protecting public health; proportionality — the interference with individual autonomy ought to be proportional to the expected benefit; and harm avoidance — those posing a risk to society can be required to submit to certain measures for the public good, or, if a person can demonstrate they would be harmed by those measures, quarantine. Similar balancing tests are still applied today, and requiring a mask certainly passes those tests. Richards and Rathbun’s aforementioned article further notes that, for a disease-control program that imposes restrictions on individual liberties to survive a constitutional challenge, the program must meet five standards. The public health requirement must (1) address an actual problem that poses a direct threat to third parties; (2) develop a science-backed control strategy; (3) implement that strategy in the most effective way while minimizing restrictions on individuals, considering the resources available; (4) periodically evaluate the restrictions to show efficacy; and (5) phase out the restrictions when they are no longer epidemiologically warranted. The mask requirement in the face of a confirmed and still rising (in the U.S.) health crisis certainly satisfies those standards. This may be perceived as, perhaps, a low bar for state imposition on individual liberty. But being required to wear a mask to protect the health of oneself and others is a bargain.

---

Megan E. McKenzie, a recent graduate of Georgetown University Law Center, works at Balestriere Fariello while her admission to the bar is pending. She works with her colleagues on all aspects of domestic and international complex litigation, arbitration, appeals, and investigations. You can reach her by email at megan.e.mckenzie@balestrierefariello.com

The bar exam. Few things invoke a stronger reaction in law students, and not in a good way. There’s no getting around the fact that sufficiently preparing to pass the bar is an intense, time-consuming process. But thanks to Crushendo, founded by BYU Law grad Adam Balinski, it no longer has to be a boring one.

For decades, bar prep services have relied on primarily two main methods for delivering the information they think you need to know to pass the exam: long, talking-head lectures and outlines so voluminous they could serve as doorstops. Even as law students have seen more bar prep options enter the market, they haven’t seen much change in the way study materials are structured.

Until now. Crushendo is changing the bar prep game with audio and visual outlines that are accessible and engaging. Combine that with online flashcards, practice questions, and prices that won’t break the bank, and Crushendo is turning the bar prep industry on its head.

A New Approach to the Traditional Outline

Crushendo’s whole approach to bar prep is to help you memorize crucial information faster. This starts with informative, visually appealing outlines that are easy to digest and accompanied by audio.

The outlines provide convenient breakdowns of how often certain topics tend to be tested on the bar exam. From there, each topic is presented in discrete, logical chunks through the help of hundreds of proprietary mnemonics, color-coding, and illustrations. The idea here is to instill visual images that are easy to recall come testing time.

There are mnemonics for almost everything, and they have a handy color-coding system to aid with memorization. Mnemonics presented in green (or avocado) imply “and” logic, meaning all elements are required (“avocado” = “a” = “and”). Those in orange involve “or” logic (“orange” = “o” = “or”). If a mnemonic is simply a list without relational logic, it appears in black.

The outlines also include handy blue hyperlinks that will take you to many of the underlying cases or statutes.

As cool and engaging as these outlines are, they’re just the beginning. The real game changer is when the audio comes in. Crushendo intends for their outlines to be read in full as a first step, but you have options for how you do this, depending on your personal preferences.

If you’re a studier who can’t stand noise, you should read your outline for the first time in complete silence at your own pace. For those who can tolerate, or even prefer, background music, you’ve got two options – you can read along as the written outline is paired with an audio outline, or you can also add classical background music to the mix (each subject has its own optional background song). The key is finding the right level of audio engagement that works best for you.

After you’ve digested the whole outline once, your Crushendo bar prep experience allows you to listen to each section of each outline as an audio file any time, anywhere. Throw on a torts track while hitting the weights at the gym. Listen to the civil procedure course while you’re grocery shopping. Or if you’re like this Google reviewer, you can even use Crushendo to increase your quality time with your pets: 

“I became instantly hooked by Crushendo’s use of mnemonics, concise outlines, and their tips and tricks from ONE YouTube video, that I had to get their MPRE package. It was the best decision ever. Although I had already purchased an MPRE outline from a popular bar company, it was simply not helping me memorize rule statements. Now, with Crushendo, I am able to go on my hour-long walks with my husky and be repeating the audio outlines, with awesomely vivid mnemonics, and feel like the rule statements are sticking! I have already recommended Crushendo to several classmates and can’t wait to buy their UBE package. Thank you, Crushendo!!”

The idea is to listen to each and every track 7-10 times so you eventually memorize all the concepts in convenient chunks. The combination of the information and music, especially when paired with mindless, enjoyable activities (stress relief, anyone?), is the best way to cement your knowledge of the concepts that will help you to pass the big exam.

Most bar prep products are designed to be used exclusively for that – studying come bar time. That’s why you get sold on expensive courses (more on that in a bit) and don’t see any materials till much later. Crushendo is different.

You get the materials right away, and you can use them throughout your law school experience to gain a deeper understanding of black letter law that will help you through your courses and finals, not just the bar exam itself. Take it from one successful Facebook user:

“I used Crushendo’s Civil Procedure outline during 1L and received my best grade in law school in Civil Procedure. I now listen to Evidence and Criminal Procedure during my daily commute and the repetition and the mnemonics are real game changers. If you commute and want to make that time more productive, you NEED Crushendo!”

Praise doesn’t get much better than that. (And speaking of Facebook, Crushendo gets an impressive 5 out of 5 stars).

Beyond Outlines (Stop! CrammerTime)

The Crushendo experience doesn’t end with the audio outlines and visual outlines. You also get compelling audio flashcards and online visual flashcards to help you further visualize and cement key concepts, as well as loads of official practice questions to prepare for the big day.

Flashcards are a great way to drill down those mnemonics and help with chunking – putting the right concepts in the right buckets so you’ll better remember them. With Crushendo, you get your flashcards in audio format, dubbed “CrammerTime,” accompanied (or not) by classical music tracks, according to your preference.

The final piece of any bar prep puzzle is practice questions, and Crushendo has you covered. Crushendo provides over 2000 practice questions, which they get directly from the NCBE itself – the folks who produce the Uniform Bar Exam – so you know they’re more reliable than many of the things you’ll randomly find on the internet. Even better, the essays and MPTs come with the actual bar grader reference point sheets, so you’re getting the best possible feedback instantly on your practice answers.

And since convenience is everything, all your Crushendo materials are available on both your computer and mobile devices. There’s even a blog and creative videos for more tips and tricks for surviving the bar. It’s hard to imagine how Crushendo could make bar prep any easier.

The Most Enjoyable Way to Crush Bar Prep

Crushendo is different than any other bar prep course you’ll come across, and that’s a great thing. The bar exam may be a rite of passage that will stand the test of time, but study materials have long needed to catch up with the modern age.  That’s exactly what Crushendo has done.

Whether you’re preparing for law school finals, the UBE (or any its subparts – MBE, MEE, or MPT), your state bar exam, or the MPRE, Crushendo is the flexible study system that gives you the freedom to study and cram when and where you want. You get lifetime access to your materials for a fraction of the cost of any other equally comprehensive study program, and there’s even financing available if you need it. There’s also a 30-day, no-questions-asked, money-back trial period for you to test it out (though if you’re like 98% of their users, you won’t change your mind).

Let’s face it. The bar exam will always be hard and prepping for it will always be a ton of work. But it doesn’t have to be miserable. Break free from the lectures and outlines, and let Crushendo guide you to a more flexible, engaging, and effective study experience.

Yesterday, a march in St. Louis called upon the mayor to resign. As the march passed by a recently restored palazzo, they were greeted by the homeowners who responded entirely rationally by waving an AR-15 at the crowd.

And, obviously, they are both lawyers.

Mark and Patricia McCloskey of the McCloskey Law Center came out of the house brandishing firearms and cut figures that were a lot less “Rambo” and a lot more “Jimmy Buffett survivalist chic.”

Is that gun… bigger than he is? And while AR-15s are more prone to capture our attention because their only practical application is a mass shooting, we would be remiss if we didn’t highlight Patricia waving a handgun around breezily as if to say, “I don’t care what you say, Gilligan, Mr. Howell and I are getting off this motherf**king island, now!”

In their defense, the Daily Mail reports that protesters had broken through the entrance to the gated community and they handled the matter themselves and apparently didn’t bring in the police and escalate the altercation. And with the police brutality we’ve seen against peaceful protesters over the past few weeks, telling the protesters to “keep moving” rather than sitting back and waiting for the Chicago Democratic Convention to break out on their front lawn is a start.

However, there are several steps between “some people are outside” and “let’s get the assault rifle.” One of which might be just engaging the group and telling them that this wasn’t the mayor’s house.

But the Missouri legal community has some thoughts on the idea of their fellow attorneys casting themselves in a Mark Wahlberg movie:

Given that they stayed on their property and the protesters were on a private road, I’m not sure how the assault claim would play out, but the gatekeepers of the profession may have a few things to say about lawyers whose first instinct is to take the law into their own well-manicured hands.

---

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.

Under Armour has decided to discontinue its partnership with UCLA and break a 15-year contract that required the apparel company to pay the university a total of $280 million. It is justifying an early termination of the agreement entered into by the parties in May 2016 based on allegedly not receiving marketing benefits for an extended time.

“The agreement allows us to terminate in such an event and we are exercising that right,” Under Armour said in a statement. UCLA has indicated that it is exploring all of its options to “resist Under Armour’s actions.”

The 37-page Athletic Product and Sponsorship Agreement between The Regents of the University of California and Under Armour, Inc. includes a controlling law section that indicates the agreement shall be construed under the laws of California, but it does not have a jurisdiction clause. It is assumed that if UCLA chooses the option of litigation, it will bring such a case on its home turf, in Los Angeles, and that Under Armour will have a tough time dismissing or removing the action for lack of jurisdiction.

Ultimately, a legal action will be focused on the language that begins on the bottom of page 26 of the terminated (according to Under Armour) agreement. The agreement provides permission for Under Armour to terminate early if UCLA breaches any material term of the agreement or any one of seven circumstances (laid out in the agreement) occur and UCLA does not cure the breach or circumstance within 30 days of receiving written notice from Under Armour specifying the breach or concern. The only circumstance that seems to be even remotely relevant is the one that centers on UCLA not fielding an NCAA Division I Core Team or that one of those teams does not participate for any reason (other than for a force majeure event) in a complete regular season, missing at least 50% of the scheduled games during the regular season.

Core teams are defined as UCLA’s football, baseball, men’s basketball and women’s basketball teams.

What provision of the agreement Under Armour is resting on to cause an early termination is not clear. The company’s public statement merely said that it has been paying for marketing benefits that it has not received, and says that the lack of deliverables has been an issue for “an extended time period.” That statement makes it seem as though the issue goes beyond any claim that Under Armour may have concerning a lack of play by any core team due to coronavirus. Instead, it appears to imply that UCLA has failed to perform on its obligations, which begin to be laid out on page 14 of the agreement and includes many requirements concerning signage, advertising, and appearances by UCLA coaches and administrators.

Further, it is not clear that Under Armour properly provided UCLA with an advanced notice of any breach nor an opportunity to cure any alleged failure by UCLA to comply with the terms of the agreement.

However, if Under Armour is actually going to rest on the failure of any UCLA core teams to participate in at least 50% of the scheduled games during a regular season as a way to cause an early termination, then the force majeure event definition will need to be inspected. It is defined as any cause or event that is beyond the reasonable control of UCLA and renders the performance of the agreement by the affected party either impossible or impracticable. While the definition does not specifically include epidemics nor pandemics (and it should be assumed that these types of contracts will in the future), a persuasive argument can be made that COVID-19 made it, at a minimum, impracticable for UCLA to perform. As such, it would make it incredibly difficult for Under Armour to cite to a lack of participation by a core team as grounds to terminate with cause and without penalty.

Expect UCLA to challenge Under Armour’s early termination by initiating litigation against the brand and for UCLA to have strong claims that Under Armour had no solid grounds to terminate with cause.

---

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.