Amy Coney Barrett’s Dubious Place In Supreme Court History

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

Amy Covid Barrett earned the ignominious distinction of being confirmed to the Supreme Court without a single — not even Joe Manchin! — vote to confirm from a Democrat. When was the last time a Supreme Court nominee was confirmed without any bipartisan support?

Hint: Though he was confirmed along strict party lines, he never heard a case on the Court, as he died only a few days after being confirmed.

See the answer on the next page.

Accused Sexual Assaulter Thinks Maybe It’s Not A Great Idea To Have An Accused Sexual Assaulter’s Name On A Hedge Fund

Joe Biden Urges People To Vote After Amy Coney Barrett’s ‘Rushed’ Confirmation To Supreme Court

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The rushed and unprecedented confirmation of Amy Coney Barrett as Associate Justice to the Supreme Court, in the middle of an ongoing election, should be a stark reminder to every American that your vote matters. …

[V]ote for the legacy of the late Justice Ruth Bader Ginsburg. She was proof that courage, conviction, and moral clarity can change not just the law, but also the world. Let us continue to be voices for justice in her name.

Vote.

— Democratic presidential nominee Joe Biden, in a message imploring people to vote in the 2020 election in the wake of the partisan confirmation of Justice Amy Coney Barrett to the Supreme Court. Barrett is the first justice in modern history to be confirmed without bipartisan support.


Staci ZaretskyStaci 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.

Law Firm Partner Surprised To Find That Dressing Like The KKK And Groping A Secretary Is Inappropriate

Samuel Charkham, 68, is a partner at the British law firm of Simkins LLP. Well. He was. At the time of the allegations, Charkham was a partner at the firm; now, he’s been fined £30,000 and ordered to pay costs of £21,000 by the Solicitors Disciplinary Tribunal. According to reports, the tribunal found Charkham made racially insensitive “jokes” and repeatedly touched the rear end of a secretary.

As RollOnFriday notes, the charges against Charkham include play dressing as a member of the Ku Klux Klan:

In one of the charges brought by the SRA, Charkham “joked” that he had joined the Ku Klux Klan to Person A (who is black), while wearing a white A4 envelope as a hat. Person A, a secretary at the time, said she was shocked by Charkham’s behaviour and wanted to quickly finish the task she was working on, so she could go outside and get herself together.

A former colleague who had witnessed the incident told Charkham that it wasn’t funny, to which he responded it was only a joke, the tribunal heard.

That’s right, Charkham trotted out the ol’ joke excuse “I was being playful,” saying, “I know it sounds ridiculous in retrospect.” Indeed. He also said he didn’t really know what the KKK represented at the time (though apparently he knew enough to think simulating a white hood was “funny”), adding, “I wish I had known what it represented at that time.”

Charkham also blamed his “old fashioned” sense of humor for a separate incident:

In another incident, Person A, was at the firm’s Christmas dinner when the partner make a racist joke in her vicinity. The secretary said she caught the “odd word” including “c*on.” She said the joke caused her colleagues to gasp and turn to look at her.

A colleague at the time told the tribunal that the joke by Charkham was a play on the word “tycoon.” Another former Simkins employee and witness said the punchline was “the kind of joke I have not heard for 25 years.”

But the tribunal rejected this excuse, saying, “We do not accept for one moment these were jokes.” Adding that describing the incidents as “banter” would be “a grotesque misnomer and should be rejected in the strongest possible terms.”

At least Charkham seems to recognize now that this behavior is inappropriate:

“I have told racist jokes in the past in a very different political climate than we are now, and I would never dream to do the same thing again.” He said, “the Black Lives Matter movement did not exist four years ago”.

That recognition is in contrast to the allegations of touching a secretary’s bottom, which he denies. However, the tribunal found he inappropriately touched a secretary at least 18 times:

The tribunal also found allegations of misconduct against Charkham proven that he had inappropriately touched the secretary’s bottom at least 18 times on various occasions in the office or at work events, over a period of four years. However, Charkham denied touching Person A, and told the tribunal that the allegations were false.

The tribunal also found that Charkham touched another female colleague’s bottom, although Charkham said in his defence that it was a “playful kick”.

After leaving Simkins LLP, Charkham joined Portner Law. However, that firm says “we removed Sam as a consultant as soon as we were aware of the allegations of his conduct prior to joining us.”


headshotKathryn 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).

Court Rules Defaming Women Is Not Actually The President’s Job

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Turns out saying a woman is too ugly to assault and calling her a liar is not within the scope of employment of the president of the United States. Even if Donald were an “employee” of the federal government. Which he is not.

Thus held U.S. District Judge Lewis A. Kaplan in the ongoing saga of author E. Jean Carroll, who accused the president of raping her in a Bergdorf Goodman’s dressing room 25 years ago. Trump went beyond denying the allegations, describing her as a serial fabricator and telling reporters on June 24, 2019. “I’ll say it with great respect: Number one, she’s not my type. Number two, it never happened. It never happened.”

Carroll sued for defamation in New York state court, and the president has been bobbing and weaving to avoid discovery for a year now. He tried ducking the process server; he argued the state of New York had no personal jurisdiction over him; he blustered out nonsense about “absolute presidential immunity” to civil process; and when all that failed, Bill Barr swooped in to save the day by asserting that actually the government is the real defendant here under the Federal Tort Claims and Westfall Acts.

And the cool part about that is, since the federal government hasn’t waived sovereign immunity for defamation, the case will magically disappear when it gets recaptioned as Carroll v. United States. Neat, huh?

All the Justice Department had to do was convince a U.S. District judge — since FTCA cases are automatically removed to federal court — that Donald Trump is a government employee acting within the scope of his employment when he says a woman is lying about sexual assault. Which … proved to be a problem.

“While the president possesses all of the executive power of the United States, he is not an ’employee’ within the meaning of the FTCA. The FTCA’s definition of that term does not include presidents,” Judge Kaplan wrote. “And even if the president were an employee under that statute, his statements concerning Ms. Carroll were not within the scope of his employment under the law of the relevant jurisdiction, which for reasons explained below is Washington, D.C.”

Womp womp.

After an extensive discussion of the legislative history of the FTCA and Westfall Acts, the court concludes that there is no employer-employee relationship under federal law. And D.C. law is no more helpful to the president’s case.

D.C. courts consider five factors in determining whether a master-servant relationship exists: “(1) the selection and engagement of the servant, (2) the payment of wages, (3) the power to discharge, (4) the power to control the servant’s conduct, (5) and whether the work is part of the regular business of the employer.”

The “decisive” factor, however, is the fourth and most important: control. The president is the chief executive of the United States government. No one, inside or outside of the executive branch, has “the power to control the [president’s] conduct.”

Moreover, the court could not help but notice that respondeat superior doesn’t exactly jive with the administration’s lodestar theory of the omnipotent God King unitary executive. In plain English, if the president has the right to control every branch of government, pardon his friends and demand investigations of his enemies, withhold congressional allocations at will and bust the budget by shouting “It’s an emergency!” and re-routing money to his border wall, then he’s not an employee.

That conclusion is found in the first sentence of the president’s job description. Under Article II of the Constitution, “[t]he executive Power shall be vested in a President of the United States of America.” As Justice Scalia explained in his famous dissent in Morrison v. Olson,  “this does not mean some of the executive power, but all of the executive power.”

“The entire ‘executive Power’ belongs to the President alone.”

Not only does the president’s sole possession of the executive power place him atop the chain of command of the executive branch. “Article II confers on the President ‘the general administrative control of those executing the laws.’”

“The buck stops with the President, in Harry Truman’s famous phrase.”

Justice Scalia in Morrison v. Olson? Subtle!

Hey, check out this fun compilation from the Washington Post of Donald Trump bragging that “I have an Article II, where I have to the right to do whatever I want as president.”

And speaking of subtle, in batting away the DOJ’s argument that all personal comments pertain to the president’s fitness for office and are (ipso facto hocus pocus) within the scope of employment, Judge Kaplan cites Clinton v. Jones, where the Supreme Court held that an accuser is entitled to sue the sitting president for defamation regarding a sexual assault that allegedly occurred before he took office.

As of this writing, the government hasn’t yet declared its intention to appeal. But considering the conduct of our esteemed Attorney General in the past two years, let’s just assume that the American taxpayer will be subsidizing Donald Trump’s legal bills in this case for as long as he’s king of the Justice Department.

So let’s give Carroll herself the last word here.

When I spoke out about what Donald Trump did to me in a department store dressing room, I was speaking out against an individual. When Donald Trump called me a liar and denied that he had ever met me, he was not speaking on behalf of the United States. I am happy that Judge Kaplan recognized these basic truths. As the Judge recognized today, the question whether President Trump raped me twenty years ago in a department store is at “the heart” of this lawsuit. We can finally return to answering that question, and getting the truth out.

Time’s (almost) up.

Opinion [E. Jean Carroll v. Donald J. Trump, in his personal capacity, No 1:20-cv-07311-LAK (S.D.N.Y. October 27, 2020)]


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

Calling To ‘Open The Economy’ Doesn’t Help Small Business, It’s An Attempt To Screw Small Business

We’ve seen far too many small business fail in the economic upheaval brought on by COVID and the subsequent mismanagement. It’s not fair that people who did nothing wrong are seeing their livelihoods go up in smoke because they can only serve a fraction of patrons. Superficially, the calls from politicians to “reopen the economy” and get rid of public health restrictions sound like a lifeline to help those businesses survive the onslaught that’s already put too many out of business.

But it’s not a lifeline. For those of us who’ve been around the legal profession long enough, it’s recognizable as a targeted effort to screw over small businesses for the sake of entrenched interests with far deeper pockets. And the fact that it’s managing to build steam on social media is a sign of how broken everything is right now.

The problem is, “reopening” is a largely symbolic act. Economic activity is clipped even without restrictions — people who lost their jobs don’t have money, government stimulus has been lackluster, and most people remain rightly concerned about the virus. That all adds up to severely curtailed economic activity. Even areas without restrictions at all have seen noticeable dips in revenue. Small businesses aren’t known for operating with a whole lot of extra financial padding so “opening” while the economy continues to struggle isn’t likely to save these businesses even if it eases the pain.

So what’s the point of aggressive calls from Republican candidates to “reopen” the economy? It’s all about clipping the tether to small businesses and leaving them at the mercy of the economic tides. It’s about robbing small businesses of the argument “we’re short on our bills because of an official lockdown” and opening the gates so the banks can start foreclosing and business interruption insurance to start saying “look, it’s not our fault you weren’t packing them in.” It’s about artificially alleviating the pressure to consider another bailout or unemployment boost. Or to disrupt the overwhelming bias toward protecting landlords over tenant businesses — to the extent that it’s often a better deal to leave a storefront vacant than to have a tenant producing at reduced capacity.

No one seriously monitoring economic activity thinks that dropping public health restrictions will pull these businesses back to profitability. And that’s before you start considering that opening up just lands localities back in nightmare COVID scenarios — like El Paso that’s now reached 100 percent ICU capacity after Texas defiantly refused to take precautions — and triggers another round of restrictions that drag this out further.

Look, the United States shouldn’t have had to lockdown ever. The South Korean experience with COVID-19 demonstrate that a prepared public health apparatus can contain viral outbreaks with minimal interruption if they’re willing to seriously invest in testing, contact tracing, and infusing the economy with heavy and consistent stimulus. But that ship has sailed. Once the U.S. decided it wasn’t going to seriously try and contain the virus — and, no, closing the border with China weeks after it was already pouring in from Europe was not a serious proposal at all — lockdowns became a matter of necessity.

So the next time someone tells you about helping a small business by reopening, demand another round of stimulus instead. Demand legislation clarifying that force majeure carve outs excluding COVID business interruption are against the public interest. Demand an extension of eviction moratoriums or strip landlords of financial benefits for leaving storefronts vacant. Basically ask for anything but telling small businesses to go fend for themselves right now. Because that’s the one request that isn’t going to be enough.


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.

ATL’s 11th Annual Legally Themed Halloween Costume Contest: Pandemic Edition

Thanks to the novel coronavirus, it sure seems like 2020 has been all trick and no treat. But it’s the great pandemic, Charlie Brown, and Halloween is this weekend. You know what that means: members of the legal community — especially law students — will be donning their favorite witty costumes in socially distanced small gatherings or via Zoom to have some fun.

For the eleventh year in a row, we here at Above the Law are soliciting legally themed costumes for our annual Halloween contest. We’re continually impressed with how creative lawyers and law students can be when they take their noses out of their books. This year, they’ll have to get even more creative because of COVID-19, so we’re giving out bonus points for the best masks.

Here are the winning looks from the past few years of the contest: Nefarious RBG (2015), the Donald J. Trump College of Law (2016), The Bluebook (2017), Brett Kavanaugh’s calendar and his beer (2018), and 1Ls dressed as their Con Law professor in his “school uniform” (2019). Take a look if you need some inspiration.

Vampire RBG Halloween

Please email us or text us (646-820-8477) your pictures and then we’ll vote on the winner of our annual competition. Stay home, but if you must go out, then stay safe, wear a mask, and wash your hands! We’re all looking forward to judging you!


Staci ZaretskyStaci 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.

Your Clients Now Want To Chat On Slack 

The prospect of advances like AI-powered robot lawyers may grab the headlines, but today’s legal pros would also be well-served by refining their use of the tech of the early 2010s.

This is particularly so when it comes to pandemic-era communications, according to several “ask the expert” speakers at the recent Legal Geek technology conference, a live online event focused on innovation in the industry that also featured new product pitches and other offerings over the course of two days.

John Hand, a London-based legal counsel at the Mercedes-AMG Petronas Formula One team, for example, said he would “definitely” be interested in collaborating with law firms over chat-based tools like Slack during the course of a full project — particularly when a lack of ongoing communication can sometimes lead to law firm work products that don’t align with client needs. 

At his organization, Hand said, chat-based tools were virtually absent back in February, but now they’re commonly used.

“It just shows the change in working styles that’s happened over the past six months or so,” he said, “and it’s brilliant that that means that others who were otherwise reluctant are now very much on board with that as a concept.” 

Hand later added that he also “would very much welcome” client portals that allow access to law firm information without needing to make calls or send emails to outside counsel to ask for an update.

Similar observations about the growing need for refined, consistent communications were common on the main stage of the virtual event. Here, we present a few takeaways from the featured speakers. 

Building the Ferrari

At a macro level, multiple speakers advised those implementing new legal technology to consider starting small.

Unilever’s general counsel, Wei Ling Lim, and head of legal operations, Helen Loots, described their process for embarking on tech projects as winning hearts and minds by demonstrating utility across departments, while applying an agile approach to project rollouts that enables responsiveness to any changes that may arise. 

“The analogy I recently heard from one of our colleagues is that you can’t really jump into building a Ferrari,” Loots said. “You start small with the agile approach. From a bike, move into more sophistication, and keep the end goal in mind of where you want to get to and keep that vision as well.” 

A similar phenomenon applies to the world of legal tech startups, according to Srin Madipalli, a former Herbert Smith Freehills solicitor who founded a technology company that was ultimately acquired by Airbnb. 

While many legal tech startups are focused on trying to sell their products to the world’s largest law firms, he said, the goal of building scale may be better achieved by first targeting smaller firms, which can have faster decision-making cycles and lower barriers to implementation. 

“If you’re trying to get your software into a big firm, I imagine that it’s a long, old slog,” he said.  

Walking the Virtual Halls

Has your organization hired a “head of remote”? Are you starting your Zoom meetings with a “warmup” or “icebreaker”? Are workers still expected to keep set hours? 

Speakers at the conference described a variety of approaches to managing a remote workforce — a task that often dovetails with technology needs. 

Philip Merrills-Dearn, Twitter’s head of legal for Europe, the Middle East, and Africa, noted that his company was one of the first to go to a fully remote workforce in 2020. From the outset, it polled its workers to determine the kinds of challenges individuals were facing and how the company could help.

The organization aimed to take an “empathetic” approach to this new set-up, Merrills-Dearn said, implementing measures to support its workforce that include compulsory days off in which everyone took the same day so emails would not pile up in their absence.

While the nature of legal work leaves law firms similarly well-positioned in the ability to conduct business remotely, a virtual workforce can present different challenges in an industry that has long prized in-person meetings and collaboration.

Susan Bright, the UK managing partner for Hogan Lovells, praised the collaboration possibilities provided by the physical space at the firm — for instance, its former library, which has been converted into a lounge where clients and lawyers could work together.

To adjust to the remote environment, many of Bright’s colleagues have “reinvented the hour,” she said, shortening it to 50 minutes to prevent Zoom fatigue. Additionally, like many of her peers at other firms, Bright is seeking to find the future’s “new equilibrium,” in which lawyers can collaborate and work together in person while also having more flexibility to work in different ways. 

“I’ve realized how much information I imparted and I received by walking the corridors and sticking my head around somebody’s door, and the coffee machine chat,” she said. “And I haven’t found the app for that.”

While there may not be an app just yet, some new technologies — and even new career paths — are specifically aimed at addressing this need, which was expressed by several speakers.  

Laila von Alvensleben is the head of culture and collaboration at Mural, an online workspace that allows for visual collaboration.

Like Bright, she noted that remote work presents major challenges to maintaining workplace culture, as individuals no longer bump into their colleagues in the hallway.

“I think we need to be more intentional about it as companies,” she said, adding that there are ways to build culture remotely.

These can include running workshops internally and for external clients, starting meetings with check-in questions dubbed “warmups” or “energizers,” holding virtual retreats, or even hiring a professional who focuses on strengthening remote teams.  

But while companies ought to be deliberate about maintaining connections among employees, micromanaging workflow isn’t the path to productivity. 

“What I’ve seen in distributed teams is that usually the best, most efficient teams focus on outcome rather than time, so it’s not so much about how much time you spent, but really on whether you’re getting the job done,” von Alvensleben said. 

“All of that, at the end of the day boils down to having trust within your company culture.”

Learning to Code

Amid today’s historic uncertainty, ensuring you are operating at the cutting edge of tech innovation is likely a wise career move, even for experienced lawyers. 

Susan Hackett, the former general counsel of the Association of Corporate Counsel and current CEO of the consulting practice Legal Executive Leadership, noted that when lawyers graduate from law school, they have a broad focus, but over time this gets funneled into a more and more narrow expertise. Now, she said, the challenge for senior lawyers is to move it the other way: becoming more agile and expansive in broadening a skillset. 

“No one is suggesting that by learning ‘new law’ we’re asking lawyers to suddenly become carpenters, right?” she said. “We’re asking you to stay in your professional lane, but become more agile.”

And there are the non-legal careers in which a J.D. may provide an advantage as well. 

In discussing the role of a legal background in entrepreneurship, Madipalli, the tech startup founder and former solicitor, may have added a new one to this list.

“A page of code is often similar in mindset and sort of underpinnings to a page of a contract,” he said, “in that it’s a set of instructions that are broken down to a really granular level.” 

“I actually think lawyers can make really good coders.”


Jeremy Barker is the director of content marketing for Breaking Media. Feel free to email him with questions or comments and to connect on LinkedIn.

Crushing Law School Debt Is Destroying Lawyers’ Mental Health

One of the harsh realities of law school that we don’t speak about quite often enough is student loans. The average law student is shouldered with six figures of debt upon graduation, and these heavy debt loads act as huge setbacks for new attorneys. Lawyers in the early stages of their careers are delaying marriages, putting off home-buying, and postponing or forgoing having children because of student loans. And, of course, law school debt is taking a horrific toll on their mental health.

According to a new report put together by the American Bar Association’s Young Lawyers Division and the AccessLex Institute, student loans are weighing heavily on the minds of recent law school graduates. More than 1,000 lawyers in their first decade of practice participated in a YLD survey meant to gauge the impact debt played in their lives, and a negative impact on mental health became a common, unprompted theme among their responses.

Here are just a few responses to the open-ended question “Which of these ways, if any, has your total student loan debt affected your life?” that the study’s authors categorize as “difficult to read”:

After student loans and caring for my sickly parents, I have very little to have of my own. This means I am forever beholden to law firm work and feel like I will never be able to afford a home or have a family of my own. It’s too expensive. Additionally, there is anxiety that comes with the financial stress. For first-generation immigrants like myself, caring for extended family in a multigenerational household is challenging.

Constant financial stress. Inability to save. No safety net.

I have had immense life stress because my loans make it I [sic] almost impossible to enjoy my career. It wasn’t worth it even though I’m great at what I do and love the law.

I lie awake at night worried about whether I will be able to give my children the life my parents gave me, and whether I will ever know the feeling of true financial stability, which is what I was seeking when I went to law school.

It turns out I hate being a lawyer but I can’t afford to do anything else. My mental health has aged me prematurely. I can’t afford to stay working in my area due to increased cost of living.

My mental health suffered due to the pressures of my loans.

Student loans made me hate the profession.

While some responses simply focus on anxiety, and depression, and stress (e.g., “massive depression”; “level of stress is unidentifiable”; “constant anxiety and stress about repayment”), this one sums up just how poorly some are doing:

I gave up on life.

“This report is a call to action,” the study reads. “It is time to reevaluate our approach to student loan advocacy, come to understand the student loan problem is widespread among our newer attorneys, and take action. This is not just about numbers; it is about real people who are impacted by large sums of debt in often profound ways.”

So what can we do about a problem as huge as the collective debt that law school graduates are carrying? One suggestion is that the ABA help reduce the cost of legal education. While we’d love to see that plan come to fruition, we have a feeling it’ll happen just as soon as many of us are able to pay off our six-figure debts: never.

2020 Law School Student Loan Debt Survey Report [ABA Young Lawyers Division]
‘I Lie Awake at Night’—New Study Highlights the Mental Toll of Law School Debt [Law.com]


Staci ZaretskyStaci 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.

ATL Special Report Podcast: Tactical Use Cases And Machine Learning With Lexis+

Welcome back listeners to this exclusive Above the Law Lexis+ Special Report Podcast: Introducing a New Era in Legal Research, brought to you by LexisNexis. This is the second episode in our special series.

Join us once again as LexisNexis Chief Product Officer for North America Jeff Pfeifer (@JeffPfeifer) and Evolve the Law Contributing Editor Ian Connett (@QuantumJurist) dive deeper into Lexis+, sharing tactical use cases, new tools like brief analysis and Ravel view utilizing data visualization, and how Jeff’s engineering team at Lexis Labs took Google machine learning technology to law school to provide Lexis+ users with the ultimate legal research experience.

This is the second episode of our special four part series. You can listen to our first episode with Jeff Pfeifer here for more on Lexis+.  We hope you enjoy this special report featuring Jeff Pfeifer and will stay tuned for the next episodes in the series.


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