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Now that Washington has authorized a diploma privilege admissions regime for the current class of bar applicants, it doesn’t make a lot of sense for its closest neighbor to buck the trend.

Oregon is still presently locked into a bar exam, with the Oregon Board of Board Examiners determining last month that it lacked the independent authority to nix the exam. But the Oregon Supreme Court possesses the inherent authority to regulate the profession that could be invoked to set up a diploma privilege process for admissions.

Marcilynn Burke, Brian Gallini, and Jennifer Johnson, the deans of Oregon’s three law schools, sent a letter to the Supreme Court on Monday requesting the change to allow those looking to practice in the state to move forward with their careers while freeing up more space for the eventual administration of the UBE exam for those who need portability.

The letter also takes aim at one of the least useful half-measures that states have floated to address COVID concerns:

Importantly, allowing our graduates to engage in limited supervised practice is an insufficient substitute. In addition to delaying the exam, many of our graduates will be unable to secure work until licensed. Even those who could secure work would be tasked with studying for a postponed examination while actively representing clients.

It still confuses me how supervised practice ever rose to the level of credible substitute. Graduates with employers could already perform most legal tasks under attorney supervision and attorneys without employers weren’t going to magically find them during an economic collapse. It amounts to a flimsy repacking of the status quo with a “Mission Accomplished” banner.

While the deans made their argument, a letter signed by a growing number of bar applicants outlined the real struggle of preparing for an exam amidst all of this:

At this point, applicants are nearly halfway through traditional bar prep programs and still have limited assurance that a July or alternative fall bar exam is even feasible. We have been unable to use many university facilities and resources in preparation for the bar examination; and have been continually forced to adjust working conditions to accommodate the growing changes associated with the COVID-19 pandemic, including children at home, lost financial resources, and caring for the health of ourselves and our family members. The last thing we want is to risk our lives or the health of our families in an effort to acquire admission to the livelihood we have worked so hard to attain. We should not have to choose between sitting for the bar exam or caring for our families and communities during an unprecedented public health crisis.

Either law schools are held to a high enough standard to be trusted to graduate students with subject-matter competency or they aren’t. It’s a busted model to take hundreds of thousands of dollars from students and then ask them to take another test because their degree wasn’t good enough. But even if there’s no appetite for long-term change, we should all be able to agree that this class of applicants is being asked to do the impossible to study for a test that bar examiners are finding near-impossible to administer.

Just grant the diploma privilege.

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

In the nine months since he got ignominiously fired from his job as National Security Advisor, John Bolton has made a series of spectacularly bad bets.

He bet that if he forced House Democrats to sue him to testify in the impeachment hearings, he could play the reluctant witness and preserve his standing with the Republican party. Except the Democrats dropped the suit and moved on without him. Whoopsie! Bolton bet that if he agreed to testify under subpoena, Republicans would call him to give evidence in the Senate impeachment trial. Wrong again.

Then Bolton bet that he could force the Trump White House to expeditiously sign off on his 592-page tome trashing the administration; that the president and his henchmen, whom Bolton describes as guilty of “Ukraine-like transgressions … across the full range of his foreign policy,” and never doing anything “that wasn’t driven by reelection calculations” would scrupulously refrain from abusing the classification process to bury his hit piece until after November. ROFLMAO!

And now Bolton is betting that the DOJ won’t try to throw him in jail and bleed him for every penny he’s got as retribution for going to press without getting the National Security Council to vouch that his book contains no classified information. Which seems rather unwise.

If John Bolton gives you a stock tip, maybe don’t bet the mortgage money on it?

Because yesterday Bill Barr followed through on Donald Trump’s threat to unleash the hounds of justice on his former NSA. Well, sort of.

“That’s criminal liability, by the way. you’re talking about. You’re not talking about, like, he’s got to return three dollars that he made on a book,” the president ranted to the press on Tuesday. “That’s called criminal liability. That’s a big thing. You know, Hillary Clinton, she deleted 33,000 emails. And if we ever found out what those emails say, she would’ve had a liability.”

The DOJ hasn’t charged Bolton criminally, YET. But it did sue him alleging breach of contract and fiduciary duty for failure to abide by the strictures of his non-disclosure agreement and get the government to sign-off that the manuscript contains no classified material. Which is not the same as seeking an injunction against the publisher seeking to prevent publication of the book — Heaven forbid! — because this White House is deeply committed to the First Amendment and protecting free speech.

“The United States is not seeking to censor any legitimate aspect of Defendant’s manuscript;” the complaint assures us. “It merely seeks an order requiring Defendant to complete the prepublication review process and to take all steps necessary to ensure that only a manuscript that has been officially authorized through that process—and is thus free of classified information—is disseminated publicly.”

The DOJ doesn’t want the court to order Simon & Schuster to pulp the book. It wants the court to order John Bolton to order Simon & Schuster to pulp the book. And that’s completely different.

But the DOJ knows that argument is going nowhere, which is why it didn’t even bother to sue S & S other than mumbling something about the court binding “Defendant’s agents and other persons who are in active concert or participation with Defendant or his agents, if they receive actual notice of the order, including Simon & Schuster, Inc. and other such persons in the commercial distribution chain of Defendant’s book.” Unless Bill Barr has busted out an application for a TRO or preliminary injunction in the past ten minutes, Bolton has 21 days to respond to the complaint, by which time the point will be moot, since the book is due to come out on Tuesday, June 23.

The Department can barely be bothered with this nonsense, making only a halfhearted gesture toward asking the court to “Enter an Order directing Defendant to notify his publisher that he was not authorized to disclose The Room Where It Happened” and “take any and all available steps to retrieve and dispose of any copies of The Room Where it Happened that may be in the possession of any third party.”

Because this case is really about the money. The Trump administration wants to make it as expensive as possible for Bolton to go through with publication, in hopes that if they squeeze him hard enough, he’ll tap out and pull the book himself.

What they really want is for the court to “impose a constructive trust for the benefit of the United States over, and require an accounting of, all monies, gains, profits, royalties, and other advantages that Defendant and his agents, assignees, or others acting on his behalf have derived, or will derive, from the publication, sale, serialization, or republication in any form, including any movie rights or other reproduction rights, of The Room Where it Happened.” Because if Bolton has to disgorge his $2 million advance and all the royalties from this book, on top of the hundreds of thousands of dollars he’ll have to pay Chuck Cooper to litigate the case, he might just back down and let the White House sit on that book forever. Or at least until after the election.

And if the money isn’t inducement enough, there’s always the implicit threat of criminal prosecution. You know, in case Donald Trump’s threat to LOCK HIM UP wasn’t clear enough.

NSC has determined that the manuscript in its present form contains certain passages—some up to several paragraphs in length—that contain classified national security information. In fact, the NSC has determined that information in the manuscript is classified at the Confidential, Secret, and Top Secret levels. Accordingly, the publication and release of The Room Where it Happened would cause irreparable harm, because the disclosure of instances of classified information in the manuscript reasonably could be expected to cause serious damage, or exceptionally grave damage, to the national security of the United States.

Very subtle! Almost as subtle as redacting the defendant’s email but not his address, lest anyone think that the omission was unintentional.

So far, it doesn’t look like Bolton and his publisher are blinking. Cooper promises that his client “will respond in due course,” and Simon & Schuster issued a statement calling the lawsuit “nothing more than the latest in a long-running series of efforts by the administration to quash publication of a book it deems unflattering to the president.”

NatSec lawyers Mark Zaid and Brad Moss are confident that the government will get its pound of flesh.

But ACHTUNG, BREAKING this case has just been assigned to U.S. District Judge Royce Lamberth, who has been harshly critical of government overreach and has said that courts are too deferential when the government slaps a “classified” label on information to keep it out of public view. So … this will get interesting.

Get your popcorn ready, kids, this one should be good!

Complaint [U.S. v. Bolton, No. 120-CV-01581-RCL (D.D.C. June 17, 2020)]

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

How do you define “shortlisted?” One definition is “qualified for a position from a list that creates the appearance of diversity but preserves the status quo.” That’s the definition that the authors, law professors Renee Knake Jefferson and Hannah Brenner Johnson, have crafted in their book Shortlisted, Women in the Shadows of the Supreme Court. In this book, the authors highlight women who have been considered for the United States Supreme Court as far back as almost a hundred years ago but never made it to the Mount Olympus of the legal profession. It took President Ronald Reagan to nominate Arizona judge Sandra Day O’Connor to the Court in 1981, a promise that Reagan had made during the 1980 presidential election campaign to appoint a woman to the Court.

For most of the ATL readership that wasn’t even born when O’Connor was nominated, this book is a fascinating glimpse into the human and political considerations that were made in deciding whether a woman would be nominated. To no surprise, especially not to this “second wave” feminist, one who came of age in the 1970s (per Wikipedia, “second-wave feminism broadened the debate to include a wider range of issues: sexuality, family, the workplace, reproductive rights, de facto inequalities, and official legal inequalities”), the struggle to have a woman nominated was an essential part of the political “push me, pull you.”

While the overt bias against women as lawyers and as judges still exists today, it is more subtle than when several justices nixed the idea of a woman colleague, complaining that the presence of a woman colleague would disrupt the all-male collegiality of the Brethren (and if you have never read the book it’s a must. ) It wasn’t until Chief Justice Warren Burger suggested O’Connor to Reagan’s attorney general, William French Smith, that the nomination happened. Yes, the very same Chief Justice who had previously told President Richard Nixon that he would resign if a woman were nominated.

A number of very accomplished women were on the shortlist during various presidential administrations before Reagan. At least five were from California: 9th Circuit judges the late Cynthia Holcomb Hall and the late Pamela Rymer, two from the state appellate court: Joan Dempsey Klein and Mildred Lillie, and HUD Secretary Carla Hills. Others included Florence Allen of the 6th Circuit; Susie Sharp, the Chief Justice of the North Carolina Supreme Court; Amalya Kearse, a federal appellate judge on the Sixth Circuit, who was the black female seen as a potential Supreme Court nominee; Judge Edith Jones, appointed by Reagan to the Fifth Circuit; and Cornelia Kennedy, nominated by President Jimmy Carter in 1979 to the 6th Circuit, where she remained until her death in 2014. There were others as well.

The authors tell the backstories of each of these amazingly accomplished women, even if they didn’t make it on to the nation’s highest court. and yes, sexism (no surprise there) is a large part of their stories and how they fought to overcome the female stereotypes that existed then and still today.

A few examples, and they would be almost laughable, but not quite: no articles about men shortlisted for the Court described their physical attributes. A New York Times article in 1971, when Lillie was considered as a potential Supreme Court nominee, reported that “fortunately” she had no children and that she had maintained her “bathing beauty figure” into her 50s. Do tell.

What men considered for a seat have been described by their physical appearances? None. Recent appointees Sonia Sotomayor and Elena Kagan, both childless and unmarried, were criticized for their weight, as if that had anything to do with the jobs at hand. Antonin Scalia was not exactly svelte, but it was never an issue the media discussed. Was there any criticism of David Souter’s singlehood? Double standard anyone? In the 40-year period that the authors analyzed from 1970 to 2010, not one male nominee’s domestic skills, such as cooking, was the subject of any attention, but the fact that Ruth Bader Ginsburg, a self-admitted lousy cook, left cooking to her husband merited attention.

Florence Allen, the first woman shortlisted for a seat on the Court, was considered by several presidents. including Herbert Hoover, FDR, and Harry Truman. However, her sex did not keep her from being nominated to the 6th Circuit by FDR in the mid-1930s, where she served on that bench for years. Similarly, other women made it to the federal appellate courts, but no higher.

Disqualifications for various women on the shortlist in the 20th century included personal and professional relationships, views on feminism and racism, motherhood, and age. However, age never seemed to be a disqualifying factor for men. Men mature, while women become invisible after a certain age, and the irony is that it’s exactly when women come into their full power and influence that society thinks they’re done. Don’t get me started.)

Not all the Shortlisted women held views that were consistent with women’s rights, even human rights. Several of them held openly racist views; others felt that passage of the Equal Rights Amendment would be harmful to gains women had already made.

I was not familiar with the term “self-shortlisting” until I read this book. What is it? It’s declining a leadership role even if offered. There can be very good reasons for self-shortlisting, including concern about the “glass cliff,” that is, accepting a leadership position that is risky and where failure is foreseeable and even inevitable. Self-shortlisting is not necessarily shortsighted; it’s a careful evaluation of risk, and oftentimes women who take that risk go down with the ship.

The authors’ mission, at least partially, in writing the book is to have more women go from shortlisted to selected, and they offer a number of suggestions for overcoming the shortlist — collaboration, availability of early child care, and creating meaningful opportunities, just to name a few. While they are useful to law students and those just starting out, those of us who have been around for a while have heard them all before.

The most interesting parts of the books were the “herstories,” how these various women lawyers and judges survived and thrived (even if not nominated to the Supreme Court), withstanding the various slings and arrows, insults, and exclusions in what was then and still is a male-dominated profession.

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Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.

The COVID-19 pandemic brought a ton of changes to legal academia. One of the most notable has been the widespread adoption of pass/fail grading. And it makes a ton of sense; moving the spring 2020 semester online was hastily done — amid a pandemic, no less — and reducing the stress of grades made a lot of sense even as those decisions were often surrounded in controversy.

Now Kaplan Test Prep has released the results of a survey of nearly 200 recent law school graduates — the Class of 2020 — to see what those directly impacted by the grading changes think about it. The survey reveals decidedly split opinions: 48 percent say they support the change, while 41 percent say they oppose it, with the balance unsure.

As Tammi Rice, vice president of Kaplan’s bar prep programs, noted, given the emerging health crisis, the change in grading policies made sense:

“These are unparalleled times for everyone and legal education certainly isn’t immune from changes that were once unthinkable just six months ago. It’s quite understandable that law schools have moved to pass/fail grading on a temporary basis since students are already stressed out enough thinking about how to stay healthy, securing a job, and prepare for the bar exam. Combining that with the naturally hyper competitive nature of law school could add to that stress, adversely affecting students’ mental health. Students’ physical and emotional well-being must always take priority, perhaps now more than ever.”

But that doesn’t mean future law students should expect pass/fail to be the new normal in law school. The survey also found clear disapproval for pass/fail as a permanent measure. A mere 25 percent support pass/fail grading at law schools to be permanent, and 63 percent are firmly against it.

And Rice says it’s law students’ inherently competitive nature that makes them hesitant to go all in on pass/fail:

“It’s highly unlikely pass/fail grading will be maintained once the pandemic subsides. Students who are looking to work for top law firms or secure prestigious internships know that high grades help differentiate them from others vying for those same positions and most are loath to give that up. It’s important to note that the pandemic is still a long way from being over and more significant changes to legal education, which already includes online learning, are likely on the way. Students should continue to make their voices heard and also adapt.”

So once this pandemic ends, expect law school grading to go back to normal.

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Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

American Bar Association Model Rule 6.1, Voluntary Pro Bono Publico Service, says in part:

Every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least (50) hours of pro bono publico legal services per year.

While the Model Rules are not binding, every state has its own set of enforceable legal ethics rules, and the states have more or less the same aspirational public service requirements for their attorneys.

A little background, for the nonlawyers: those of us with a formal legal education have a state-sanctioned monopoly on the provision of legal services. Part of the bargain for making it a crime for nonlawyers to engage in the unauthorized practice of law is that those of use who are licensed are supposed to provide some work free of charge to people who are unable to afford the exorbitant hourly rates we charge for our time.

A little more context: a 40-hour-per-week nine-to-fiver will put in 2080 hours in a year without overtime. Billable hours in the legal profession are a bit different. We’re paid based on an annual salary, and/or an eat-what-you-kill model that rewards bringing in business. An eight-hour day for an attorney does not result in eight hours of billable time. We are not supposed to bill clients for going to the bathroom or for getting a cup of coffee. So, given that you can’t bill for every moment you are actually at work, something along the lines of a 1,600 billable hour requirement is close to spending the same amount of time at work as the average full-time 40-hour workweek office drone. In the legal profession, at least when you’re new, a 1,600 billable hour requirement per year is definitely on the light end. Many firms start out new associates at more like 1,800, or even 2,000, billable hours per year, and some start even higher than that.

Still, even at 1,600 billable hours annually, the lower end of the spectrum, if you do your ethically required public service, you’re only committing to one hour of pubic service for every 32 hours you spend on paying clients. That should be very manageable for people who have an average annual salary of $144,230.

But almost no one is actually doing it. In my home jurisdiction, we have this thing called the North Star Lawyers list. All you have to do to get on this list is voluntarily go to a webpage and certify that you performed at least 50 hours of pro bono work in the previous year. It is super easy, and takes about 12 seconds. I know this because I’ve done it myself every year for a number of years. There is no reason not to do it if you actually performed the pro bono work; worst-case scenario, you get a tiny bit of recognition for your volunteer work. For 2019, 884 people certified themselves as North Star Lawyers. As of 2019, there were 25,823 resident active attorneys in Minnesota, meaning that only about 3.4 percent of Minnesota’s lawyers were willing to certify that they did 50 hours of pro bono work in 2019.

Now, there are nine states which actually require their lawyers to report their pro bono hours (but with no real penalties or strong enforcement mechanisms). Not surprisingly, the rate of lawyers doing pro bono work in these states is generally reported as being higher, although it’s still not overwhelming. In Illinois, for instance, about one-third of the lawyers report doing pro bono work.

But I don’t buy it. I’ve written before about how most liars don’t actually think they’re liars. Human beings generally have bad, self-serving memories. I sincerely doubt that in reality four percent of attorneys in one Midwestern state are doing legitimate pro bono work compared to one-third in another, the only difference being it’s required to report on whether you did pro bono work in the latter state. At any rate, even a third of lawyers doing what they’re supposed to for the common good is pretty paltry.

Our profession has a lot of improvements to make. And nobody’s perfect. But maybe until we’re at something more like 90 percent of lawyers doing the bare minimum public service that we’re already supposed to be doing, we should all take our egos down a peg or two.

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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.

Aunt Jemima is the best-selling syrup brand in the United States and it’s not even close. Changing the branding of a successful product is a dicey business move even if it’s a pretty straightforward moral one. Now, roughly a bazillion years too late, the Aunt Jemima brand will be ditched.

Few law firms occupy the rarified air of Davis Polk & Wardwell. It boasts a top 20 Am Law ranking and sits as one of the handful of firms that every major institution considers for high-stakes legal representation across all practices. But as we enter the long overdue era of ending the memorialization of long-dead Confederates and their fellow travelers, Davis Polk should have a serious discussion about rebranding.

John W. Davis, was one of the most prolific Supreme Court advocates in history, arguing more cases at the high court than almost anyone. That certainly makes for an impressive sentence before you start asking about the big cases he was arguing. He secured the legality of “grandfather clauses” to ensure that literacy tests only suppressed the rights of black voters and represented South Carolina in the companion case to Brown v. Board. Building a book of business around being “the go-to lawyer for Jim Crow” is certainly one strategy.

Lawyers can, of course, argue cases they don’t believe in and shouldn’t necessarily be vilified for doing their job. But lawyering is also a business and at a certain level, attorneys get the work they’re seeking out. It’s not an accident that Davis kept getting tapped by segregationists in their constitutional fights. Davis had argued for black voting rights while serving as Solicitor General, but when he returned to private practice he showed little hesitation in jumping the aisle. In Briggs, the Brown companion case, there’s even a historical dispute over whether or not Davis accepted no payment for his work because he lost or if he took on the matter pro bono from the start. You know, when “for the public good” was somehow interpreted as “segregating schools.” No matter how one cuts it, those aren’t the actions of a dispassionate advocate just doing their job — that’s someone with skin in the game. White skin, as it so happens.

Davis Polk isn’t alone in sporting a troubling name. Holland & Knight is named after Spessard Holland, a Florida politician from the era when the state was a lot more Baja Alabama than South Beach. He signed the “Southern Manifesto” condemning Brown v. Board and attempted to defeat the 1964 Civil Rights Act by filibuster. Holland served in either the House or the Senate for 30 years and grounded his political fortunes in defending Jim Crow laws.

Most people never think about Biglaw namesakes (though we’ve been pointing these guys out for years). It’s doubtful if anyone even considers the men behind these names when they glance at the letterhead. But that doesn’t mean there isn’t some ugliness lurking there.

There are problematic people throughout history. For all I know, John Lambert Cadwalader clubbed baby seals. But when it comes to people like Davis and Holland, we’re not talking about people we can honor in spite of their racial politics because their racial politics were integral to their legal legacies. Davis used his practice to further the bloated corpus of racist constitutional law and Holland was a segregationist politician. There’s not much to Holland’s career beyond politics — he was barely even a practicing attorney, having only worked at the firm that bears his name for about three years. These firm names are memorials to icons of a racist past that deserve to be junked.

Obviously these are global brands. Am Law 50 firms with decades’ worth of reputation built on their names. But so was Aunt Jemima syrup. If anything, their success should afford the firms more freedom to rebrand, not less. Whatever name DPW could come up with would still command respect around the world — the sophisticated clientele that hire Davis Polk attorneys aren’t going to be confused. Legal circles almost never used the words “Berkeley Law.” Berkeley WAS Boalt Hall… until it wasn’t. It’s unusual to point positively to something Dewey Ballantine did, but that might be a good template to follow — hire a household name like Thomas Dewey was at the time and reorient the name around that person. Go be Obama Polk & Wardwell.

And for Holland & Knight… well, being the Knight firm just sounds cooler.

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

No doubt many of you have seen the widespread praise over the Supreme Court’s decision in Bostock v. Clayton County, Georgia, prohibiting discrimination against gays, lesbians, and transgendered people. Repeatedly included in such praise, however, is the expressed concern that Justice Neil Gorsuch’s textualist approach in authoring the decision “is going to work against a robust protection of rights more than it works to promote them.”

In many ways this concern is completely justifiable. I would argue no Justice on the Court is as wildly inconsistent or willing to completely abandon prior principles so as to reach a politically desired result as Gorsuch. Here is a man who, before he joined the Supreme Court, had basically made a judicial career out of criticizing the power of unelected bureaucrats. Yet, since joining the Supreme Court, Gorsuch has time and again opposed the application of judicial review over the unelected bureaucrat. Even in instances when said bureaucrat is caught lying about why a particular regulation was being implemented and for explicitly racist reasons.

Nevertheless, I find myself daring to believe that Gorsuch’s textualist approach in Bostock is not only not a trap but a clear signal that a majority of this Court is more interested in a robust expansion of rights.

Why do I believe this? Well, for one thing, although Gorsuch might be wildly inconsistent, the rest of the Justices who joined the opinion are not. And if you were to apply the textualist approach in the Bostock opinion faithfully (which I expect the five Justices who are not Gorsuch to do so in the future), then the expansion of rights, particularly the Bill of Rights, becomes inevitable.

Again, you might be asking how I can say this. It comes down to the fact that the things most people are worried about when it comes to textualism/originalism constriction of rights are expressly what the Bostock opinion rejects. For example, one of the most common critiques of textualism/originalism is that it subverts modern — dare I say more-expanded — concepts of morality for the morality of those in the past who supported slavery and bigotry.

Yet, throughout the Court’s Bostock opinion is the rejection of the argument that just because many at the time did not anticipate Title VII of the Civil Rights Act of 1964 to be applied to gays, lesbians, and transgendered people that is not applicable to these classes of individuals. As someone who follows the originalism debate closely, I cannot stress enough how satisfying and explosive this rejection is and the possibly enormous implications it has for the future.

Think about it, the late Justice Antonin Scalia argued that the “cruel and unusual” clause within the Eight Amendment does not apply to anything (including capital punishment), that was practiced at the time the amendment was adopted. As others before me have pointed out, however, Scalia’s argument “assumes that what those who proposed and ratified the Eighth Amendment intended was something such as: ‘The government cannot utilize punishments considered cruel and unusual at the time of the enactment of this amendment.’ Where is the justification for this interpretation? There isn’t any. There is certainly no justification in the text itself because the Founders did not include the language I italicized — although it would have been easy to do so. The Constitution does not have a word limit.”

The framework in Bostock, in my opinion soundly rejects Scalia’s flawed argument that every provision — even open-ended provisions such “cruel and unusual,” “due process,” or “unreasonable” search and seizures — must be interpreted only to the extent that those who passed them understood them to mean. By rejecting this argument, many of the open-ended provisions in our Constitution can rightfully begin to be applied with broader, modern interpretations. Wherever this has been done, such as with the free speech clause, the right has only been expanded ever increasingly.

Of course, time could very well prove me wrong about all this and Joe Patrice right. But given the amount of broad, open-ended rights that are contained within our Constitution and given that six members of the court agreed in a case with monumental political proportions, that laws are not confined to the eras in which they were passed. I find myself daring to believe that for perhaps the first time in my adult life, a majority of the Supreme Court has committed itself to an expansion of civil liberties instead of restricting them. Except the Establishment Clause of course.

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

This website has already detailed how law firms are adapting to meet challenges posed by the ongoing COVID-19 pandemic. Indeed, law firms have implemented work-from-home programs, communicated with clients and counsel through videoconferencing apps more often, and taken other steps to operate in these uncertain times. The ongoing COVID-19 pandemic has also eliminated many billing opportunities for numerous attorneys, and this has had an impact on the revenue of many law firms.

As mentioned previously in this column, court appearances are usually a cash cow for law firms. Even though court conferences may only take 10 minutes or less to complete, attorneys often need to wait in court for hours before a matter is called for a conference. Attorneys are often able to bill all of the time they spend in court for a conference, even if lawyers are just waiting for conferences to be called. In addition, attorneys usually need to spend an hour or two traveling to and from a court conference. Although clients have different rules about how much travel time is billable, attorneys are typically allowed to bill their clients for at least a portion of the time they spent traveling to and from conferences.

However, at the beginning of the pandemic, many courts adjourned numerous conferences, likely because they did not wish to hold conferences in person and did not have the infrastructure to hold conferences remotely. As time passed, courts have mostly been holding conferences through telephone and videoconferencing apps. Although there were some complications with people getting used to the technology at first, conferences by remote means seem to be going much more smoothly now.

Nevertheless, conferences by remote means do not present the same billing opportunities for firms as traditional in-person court conferences. When courts conference matters through remote means, the parties are usually scheduled to conference a matter at an exact time. As a result, attorneys are unable to bill as much time waiting for a conference as they could when they were in court before a matter was conferenced. In addition, since remote conferences do not require any travel time, attorneys have been missing out on billing travel time like they were able to with traditional court conferences. Although attorneys used to be able to bill several hours for attending a court conference, they are likely able to bill only 15 to 30 minutes of their time for court conferences in the present environment.

The way depositions have been conducted since the start of the ongoing pandemic has also impacted another traditional cash cow of billing for law firms. Attorneys used to be able to bill at least a portion of their time traveling to and from depositions just as with court conferences. For some depositions, attorneys can bill a substantial amount in travel time. Indeed, while I was working at a law firm that handled a number of mass torts matters, I would sometimes spend many hours traveling to and from depositions hundreds of miles away. Sometimes, the travel time billed to a client would pale in comparison to the time actually spent at depositions.

However, most depositions are also being conducted by remote means now in order to promote social distancing. As a result, attorneys are able to call into a deposition from home and have not been billing their travel time as they were in the past. This must be having a substantial impact on firms that rely on such billing for a considerable amount of their revenue.

Some attorneys may believe that disruptions in their billing may be temporary and that as operations return to normal, traditional court conferences and depositions will resume. Of course, some matters are simply easier to conduct in person, and it is altogether possible that court conferences and depositions will begin to occur in person more frequently over the next several months as many states gradually reopen. However, it is possible that the COVID-19 pandemic may permanently change the way certain tasks are conducted so that traditional billing cash cows lost during the pandemic may be permanently disrupted.

For instance, I have heard more than one court attorney relate that they see no reason to drag all of the parties to court for run-of-the-mill discovery conferences ever again. Conferencing routine and noncritical matters by remote means is simply more efficient, and it might not be worth it for all of the attorneys to appear in court for such matters. Furthermore, clients may require attorneys to continue conducting depositions by remote means. Clients may not wish to spend massive sums on travel time and travel costs for attorneys to attend depositions when they are now familiar with how depositions can be conducted remotely at a much cheaper cost.

In the end, many law firms have struggled with issues caused by the ongoing COVID-19 pandemic, and the current environment has restricted the ability of certain shops to bill hours. Some attorneys may believe that such issues will begin to disappear as conditions normalize as COVID-19 restrictions are eased. Nevertheless, lawyers should prepare for the possibility that some billing opportunities available to them months ago may disappear as clients and courts learn lessons about efficiency while operating during the ongoing pandemic.

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

Showtime’s “Billions’” depiction of the hedge fund world isn’t exactly cinema verité. But many of its characters are, with varying degrees of looseness, based on real people: Chief villain Bobby Axelrod is pretty transparently based primarily on Steve Cohen, with bits of Steve Schwarman, Dan Loeb and Howard Lutnick sprinkled in, and those in his orbit seem to have their SAC Capital equivalents, including an ex-wife that seems a combination of both Cohen’s current and former spouses, and a Matthew Martoma who actually cooperates with the authorities. And the lead authority, Chuck Rhoades, is rather obviously a Preet Bharara stand-in, with a bit of Eliot Spitzer thrown in for good measure.

The second wave of the coronavirus is here. Or maybe the first wave never really left. As many cities and states have begun to relax their stay-at-home orders, new coronavirus cases have spiked. This shouldn’t come as a surprise. But unless the virus can be controlled and eventually eradicated, it may result in new shutdowns. In Houston, because of the rapid increase in new cases, the city council is considering imposing another shutdown order if the curve isn’t flattened. In Beijing, a new outbreak has forced the city to shut down again.

New shutdown orders in U.S. cities and states are likely to be met with resistance from the people and the federal government because of the negative effect on the economy and the massive drain on government resources. Also, a group of people would rather exercise their first amendment right to protest, go to church, go to the beach, or to the playground. And because of the low likelihood of becoming seriously ill, I suspect most of those people are willing to risk getting infected and likely not care if they infect others.

Can the virus be controlled? Eventually, I think it will be. But the current environment will make it difficult. I suspect that many Americans are not taking the coronavirus as seriously as they should. This is evidenced by recent protests. Also, Americans are misinformed about the virus.

Since the shutdown orders began, numerous protests have been held throughout the country. The protestors come mainly from two groups of people. There is a third group, but they are a fringe group of racists, opportunistic criminals, or just plain crazy, and they are not worth acknowledging.

The first group comes from those that have been directly and negatively affected by the shutdown orders — mostly businesses and religious organizations. They are arguing that the shutdown orders somehow have violated their constitutional rights. With the unlikelihood of another stimulus package from the government, a second shutdown order will be the possible death knell for many small businesses. They are already suffering from reduced income because of the outbreak and the first shutdown order. The group does not have a central leadership although they seem to get their inspiration and talking points from conservative groups and President Donald Trump.

The second group is those who are protesting the disproportionate police brutality inflicted against African-Americans. Most of these protestors are affiliated with Black Lives Matter. An attempt to donate to Black Lives Matter will direct you to a site run by actblue.com, a platform used to fund Democratic candidates for public office.

The causes and principles these groups stand for are not incompatible. One can be against both the police using excessive force and unreasonable government shutdown orders. But this is an election year, so the two groups’ politics and the general dislike of each group for the other prevents them from meaningfully working together.

The one common ground they have is that protesting takes priority over the pandemic. If they get infected as a result, then so be it. However, I think most of the people that think this way are relying on the low chances that they will get infected and the lower chances that they will develop severe complications as a result of the coronavirus. I doubt they are less motivated by the principles. To put it another way, I doubt I would see a lot of similar protests if there was an anthrax or Ebola outbreak as both having high fatality rates.

Another problem that makes recover difficult is the misinformation about how to treat the virus. This was clearly demonstrated when it came to the use and effectiveness of facial masks.

In the early days of the coronavirus epidemic, many health experts advised people to wear facial masks when going out in order to minimize the spread. The problem was that this resulted in a shortage of masks, mainly due to hoarding and panic buying. Healthcare professionals complained that they could not get them from their usual sources.

So a new narrative was released. This one said that people should not buy masks because they don’t work. Facial masks, even the highly effective N95 masks do not provide absolute protection against the virus. But healthcare professionals needed them because they don’t want to spread their germs in a sterile environment, like an operating room. This claim was questionable at best. Even if masks were not 100% effective, they provide some protection. And if everyone wore masks, the chances of spreading the virus would be minimal, even if people did not practice proper personal hygiene.

What should have been told was that facial masks provide significant protection from the coronavirus but due to a shortage, healthcare professionals should be the first people to have them for everyone’s safety.

There is still lots of strange information out there. Every week seems to bring the announcement of a new “wonder drug” that disappears after a week or two. If the wonder drug is so great, why aren’t news outlets covering the development? This makes me wonder if some companies are trying to pull another Theranos on unsuspecting, dim-witted investors. I’m sure the SEC will eventually want to know as well.

Finally, and returning to the topic of protests, there seems to be a split among the medical community about the protests and the risk of spreading the virus. When the reopen protestors hit the scene, almost the entire medical community denounced them, saying that their presence will certainly spread the virus.

But when it came to the Black Lives Matter protests, they said something different. Many medical professionals supported it but mainly because of the social justice value of the protests. They tried to point out that most of the protestors practiced social distancing and wore masks — although whether they did it mostly to hide their identities is not clear. Others simply said that the risk of contracting the virus was worth it.

Morally, it is their right to support or denounce whatever protest they wish. But it creates a few complications when it comes to full transparency, which has been one of the key goals when it came to managing the virus. If there was an increase in coronavirus cases due to the protestors, it will provide ammunition to their political opponents. On that note, would the protestors be willing to accurately report the number of those infected with COVID-19 if it will hurt “the cause”? In New York City, the “test and trace” campaign has been instructed by Mayor Bill de Blasio not to ask anyone who has been tested positive for COVID-19 whether they have attended a protest.

And the problem with large protests — particularly politically motivated ones — will attract trolls, in this case, dangerous ones. What’s stopping an infected anarchist from secretly attending the protest? A few months ago, Susan Daniel, a lawyer, tweeted that if she was infected with the coronavirus, she would “attend every MAGA rally she can,” presumably attended by Republicans.

In the final analysis, if the American people want to control the spread of the coronavirus, they will temporarily have to put their differences aside so they can take the virus seriously. Unfortunately, with this being the final stretch of the presidential elections, this may not happen for another few months. In the meantime, wear a mask until a vaccine is available.

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Steven Chung is a tax attorney in Los Angeles, California. He helps people with basic tax planning and resolve tax disputes. He is also sympathetic to people with large student loans. He can be reached via email at sachimalbe@excite.com. Or you can connect with him on Twitter (@stevenchung) and connect with him on LinkedIn.