Pony Express


Olga V. Mack is the CEO of Parley Pro, a next-generation contract management company that has pioneered online negotiation technology. Olga embraces legal innovation and had dedicated her career to improving and shaping the future of law. She is convinced that the legal profession will emerge even stronger, more resilient, and more inclusive than before by embracing technology. Olga is also an award-winning general counsel, operations professional, startup advisor, public speaker, adjunct professor, and entrepreneur. She founded the Women Serve on Boards movement that advocates for women to participate on corporate boards of Fortune 500 companies. She authored Get on Board: Earning Your Ticket to a Corporate Board Seat and Fundamentals of Smart Contract Security. You can follow Olga on Twitter @olgavmack.

Beware The ‘New Cold War’ Trap

We must avoid the “New Cold War” trap. The phrase, which attempts to describe U.S.-China relations, reflects Washington D.C.’s lazy and unipolar view on global affairs. The original Cold War concerned a rivalry between two powers that isolated themselves from each other. Comparing U.S.-China relations with the original Cold War disregards how the U.S. and Chinese economies have integrated with each other. Nor does the Cold War provide any insight into urgent issues like regulating the digital economy or the environment. Why call a relationship a war if you do not have to?

Instead, D.C. should replace its bellicose nature with a foreign policy that promotes protections for ordinary people. Protecting ordinary people requires pursuing a sustainable relationship with China, not one that focuses on dominance and competition. For example, we should consider decarbonizing our economy not for the sake of competition, but in order to protect Americans. China could look to our decarbonization efforts as an example to serve its own people.

At the same time, we need to recognize the limits of our influence. A complete “decoupling” in which the U.S. and China untangle their economic interdependence is infeasible. I do, however, believe that a partial decoupling is necessary. As Professor Dani Rodrik writes, “there is little that Western countries can do, individually or collectively, to reshape China’s state-driven economic model or repressive human- and labor-rights regime.” Rather than exporting our values, Rodrik argues, we should uphold our values with trade and investment rules that ensure American firms and consumers are not directly complicit in China’s human rights abuses.

What would incentivize China to abandon its own nascent bellicose approach? In 2019, a group of economists and lawyers proposed an alternative path to U.S.-China trade wars. The 2019 framework would promote protections for ordinary people and allow Beijing to identify specific U.S. policies that cause significant material injury to China’s ability to pursue its goals. Disagreements are inevitable; our aim should be to avoid the intense tensions that we are now observing between the two countries.

From internment camps for Japanese Americans to the Patriot Act, U.S. history offers several examples of domestic tensions arising from D.C.’s failure to check our foreign policy narratives. We have to examine how foreign policy narratives like “the Chinese threat” or “the United States’ Great Enemy” fuel violence against Asian Americans. Words matter. In the case of U.S.-China relations, more attention to phrasing will provide a basis for cooperation.


Public Defender Gets Six Figures Of Law School Loans Forgiven

I’ve been trying to do this for 10 years. I only know one other person who actually got it. I’ve always been secretly convinced that when it was my time, I wouldn’t get it. Even though I was pretty sure that I’d done everything right. That’s why I put it on Twitter. It’s good that people know it’s hard, but they also need to know it’s possible. There’s hope.

— Jessica Buck, a 2010 graduate of Wake Forest University School of Law who has been working as a public defender in Danville, Kentucky, for the past decade, commenting on the forgiveness of her $275,000 loan balance through the government’s Public Service Loan Forgiveness program. She is one of the first lawyers to have been able to take full advantage of this program. How was she able to do it? “You have to be your own advocate. You have to be your own record keeper,” she said.


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.

What You Absolutely, Positively Need To Know About Booking Your COVID Vaccine Appointment In New York

Beginning on Monday, April 6th, everyone over the age of 16 in New York State becomes eligible for a COVID-19 vaccination. That’s amazing news. That means every stressed out Biglaw associate billing mega hours to hit their special bonus threshold, every public defender struggling to find the best way to meet with clients, every in-house counsel wondering how much longer they’ll have to balance conference calls with their kids’ math lessons… everyone will be able to schedule an appointment for the vaccine.

That’s the good news, and it’s great. But the bad news is you’ll be dropped into a Byzantine and overlapping system of appointment scheduling that’s simply a beast to navigate.

But due to a combination of essential worker friends, elderly family members, and pre-existing conditions, it’s something we have a lot of experience with. In fact, we’ve been helping friends and family get vaccine appointments in New York since January — every time the group of eligible New Yorkers expanded slightly, there was someone else who needed an assist to get through the system.

So…. Welcome to Kathryn & Stephanie’s TED Talk on scheduling a vaccine in New York. May the odds be ever in your favor. Feel free to share far and wide.

First of all, know where you’re eligible to receive the vaccine. Some locations have residency requirements, others just require that you live OR work in New York state or New York City (depending on who runs the location). Also try to decide how long and how far you’re willing to travel for the vaccine. Kathryn made a five-hour round trip to secure each dose of the vaccine, but the more places you’re willing to travel to the more opportunities you have to secure an appointment. (Some folks are also unduly picky about which vaccine they can secure an appointment for, but our mantra is a familiar one to parents everywhere, you get what you get and you don’t get upset.)

Secondly, check with your medical provider. Many hospital systems have vaccine doses and open those appointments only to their own patients, so check to see if that’s an option. But if it’s been years since you made it to a primary care physician — we see you — fear not, there are still plenty of options to get the vaccine.

For all of the resources discussed below, time is of the essence. You just need to keep refreshing and act fast if something is available — appointments go immediately. Because of how quickly the appointments go, keep a word processing document opened with relevant information (address, DOB, insurance info — though that is optional and insurance is not required to receive a vaccine) to cut and paste details.

You will lose appointments that are only available for brief moments before someone else scoops them up — unfortunately that is part of the process. Take heart and keep trying, you will get an appointment eventually.

  • Turbo Vax — Run by the Welcome to Chinatown grassroots movement, this website updates in real time government-run vaccine sites in NYC, and you can also follow them on Twitter for up-to-date information.
  • Vaccine List — Another aggregator site that automatically scans for available appointments around the city, and beyond (Westchester, Rockland County, and other suburbs are frequently included) and updates in real time when there are openings.
  • NYC Health + Hospitals vaccine scheduler — They release appointments at various times, but seem to be doing a drop of random appointments right at midnight every night at different locations.
  • The NYC DOH site — This is for scheduling available appointments at DOH-run vaccination centers. They tend to post new appointments between 6-7 PM ET. Again, not a guarantee.
  • Vaccine Finder — Takes you to the full list of sites near a zip code in NYC. This is important because it will also include several that ONLY make appointments by phone. For those, if you can get through and leave your name, they’ll call back to fill their slots as they get more vaccine.
  • New York State Scheduler — Scheduler for state-run and FEMA vaccination sites. Anyone who lives or works in New York State can go to any state site.
  • Vaccine Spotter — Will search all pharmacy locations for available appointment. Pharmacies are currently vaccinating people 30+, essential workers, and folks with pre-existing conditions. Here are the links/details for individual pharmacies as we know them:
    • Walgreens/Duane Reade You need to create a Walgreens account to schedule.
    • Rite Aid
    • CVS Tends to release new availability around 12–1 AM ET
    • Phone/text options — Limited options are available call 877-VAX-4NYC for the official NYC vaccine line. You can also text SIVAX to 51555 for Staten Island specific vaccine information.
  • Walk-in appointments — 3 NYC locations currently offer limited walk-in appointments. To qualify for a walk-in you must be 75+ BUT those folks are allowed to bring a friend to get vaccinated with them (the friend must also qualify to receive a vaccine, which, as of Monday, is anyone 16+). The locations with walk-in slots available:
    • Brooklyn Army Terminal
      140 58th Street
      Brooklyn, NY 11220
    • Bathgate Contract Postal Station
      4006 3rd Avenue
      Bronx, NY 10457
    • Citi Field
      36-2 126th St
      Queens, NY 11368

The whole system is pretty much a nightmare, but things do open up. Good luck!


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).

Downtown Biglaw Mainstay Announces… Probably A Bonus Match?

Look, it’s real simple.

If you’re planning to match the prevailing compensation rate, you want to broadcast that far and wide. If you’re planning to exceed the prevailing rate, you actually have more reason to advertise that fact. The only reason to keep things dodgy is if you’re hoping to shortchange some associates.

So why are we getting class-specific bonus memos out of Cahill that seem to match the market rate? If it’s a full match, just say so!

Maybe there’s a fly in the ointment, but so far Cahill looks like a match. Just as a refresher, this is what a match would look like:

First Second Total
Class of 2020 $4,500 $7,500 $12,000
Class of 2019 $6,000 $10,000 $16,000
Class of 2018 $12,000 $20,000 $32,000
Class of 2017 $16,500 $27,500 $44,000
Class of 2016 $19,500 $32,500 $52,000
Class of 2015 $22,200 $37,000 $59,200
Class of 2014 $24,000 $40,000 $64,000

Payouts will be June and then again at the year end. Nothing more precise… maybe they’re angling to lump it into the final annual bonus.

And who knows what happens with Counsel. Cahill pays its partners very well at the expense of making very few. Counsel are basically golden handcuffed to a FiDi radiator at this firm making just enough to not try their chances at another firm while unlikely to get the nod to join the partnership. Hopefully they’re getting a taste of these bonuses for their trouble.

If the firm is skimping somewhere (or outpacing somewhere… though we don’t expect that here) let us know.

Please help us help you when it comes to bonus news at other firms. As soon as your firm’s bonus memo comes out, please email it to us (subject line: “[Firm Name] Bonus”) or text us (646-820-8477). Please include the memo if available. You can take a photo of the memo and send it via text or email if you don’t want to forward the original PDF or Word file.

And if you’d like to sign up for ATL’s Bonus Alerts, please scroll down and enter your email address in the box below this post. If you previously signed up for the bonus alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each bonus announcement that we publish.


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.

Enter your email address to sign up for ATL’s Bonus & Salary Increase Alerts.

Top 50 Biglaw Firm Rolls Out ‘Enhanced’ Bonus Structure

Thank God it’s Friday night and I just just just just juuuuuuuust, got paid! That’s what associates are singing at Dechert right now, because their firm finally decided to hop aboard the spring special bonus bandwagon.

Earlier this afternoon, we called the firm out as one of the few Top 50 firms that had yet to announce special bonuses, and now, here we are. Dechert will be matching the Davis Polk bonus scale… kind of. Here’s what that looks like at the firm (full memo available on the next page):

This what we’ll call a creative way to make sure everyone gets a little taste of the bonus cash, no matter their hours. Associates and counsel across all class years will automatically receive a minimum bonus of $6,000 in the spring and fall. Attorneys who meet the firm’s standard bonus hours requirements will be eligible for an “enhanced” bonus — and by “enhanced,” Dechert means everyone will be eligible for the rest of the prevailing market bonus. Those who meet their hours requirements in both the spring and fall will be eligible for a match of the full Davis Polk bonus scale. Those who reach their hours targets at year end but missed the first payment cycle will receive the full “enhanced” bonus.

Congratulations to everyone at Dechert.

(Flip to the next page to see the full memo from Dechert.)

Remember everyone, we depend on your tips to stay on top of important bonus updates, so when your firm matches, please text us (646-820-8477) or email us (subject line: “[Firm Name] Matches”). Please include the memo if available. You can take a photo of the memo and send it via text or email if you don’t want to forward the original PDF or Word file.

And if you’d like to sign up for ATL’s Bonus Alerts (which is the alert list we also use for salary announcements), please scroll down and enter your email address in the box below this post. If you previously signed up for the bonus alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each bonus announcement that we publish. Thanks for all of your help!


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.

Enter your email address to sign up for ATL’s Bonus & Salary Increase Alerts.

Another Firm Showers Associates With Special Bonus Money

The spring special bonus war has really taken off, with more and more firms deciding to shower associates with big bucks to keep them happy.

Canadian law firm Torys has joined in the special bonus madness — at least for their New York office. Earlier today, the firm announced bonuses in line with the Davis Polk standard set last month. The payments will be divided equally between June and November payment. There is no hours requirement for the June payment, but associates have to bill 1900 annualized for the November payment. If an associate misses the hours threshold for the November payment but makes up the hours by year end, they’ll get a make-up payment.

The schedule of bonuses is as follows:


The firm also clarified these special bonuses are in addition to the usual year-end money. You can read the firm’s full memo on the next page.

Please help us help you when it comes to bonus news at other firms. As soon as your firm’s bonus memo comes out, please email it to us (subject line: “[Firm Name] Bonus”) or text us (646-820-8477). Please include the memo if available. You can take a photo of the memo and send it via text or email if you don’t want to forward the original PDF or Word file.

And if you’d like to sign up for ATL’s Bonus Alerts, please scroll down and enter your email address in the box below this post. If you previously signed up for the bonus alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each bonus announcement that we publish.


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).

Enter your email address to sign up for ATL’s Bonus & Salary Increase Alerts.

Alternative Dispute Resolution: Well-Suited To Online Proceedings

One of the more colorful examples of a breakthrough in a mediation is when parties reach an impasse around the table but then run into each other in the hall on the way to get coffee and reach an impromptu deal.

The COVID-19 pandemic may have put a stop to that kind of serendipity, but there’s always the possibility that unexpected hallway meetings can go sideways.

“If the parties are emotional, you don’t want them running into each other,” said Manly Ray, southeast regional director for the Financial Industry Regulatory Authority’s Office of Dispute Resolution and faculty for the Practising Law Institute’s program,  “Securities Arbitration 2020.”  “It might inflame emotion, which can stop or slow down the process. On Zoom you can mute microphones and put everyone in a breakout room. That can be a good thing.”

Overall, alternative dispute resolution has proven well-suited to virtual platforms. Ray reported that for securities disputes, both mediations and arbitrations moved online during the pandemic with no detrimental effects.

“We’ve done over 250 mediations remotely, and the settlement rate is over 90 percent,” Ray said. As for arbitration, “the effectiveness is right there in front of us, in the customer awards rendered. … It’s apparent that arbitrators are able to hear and analyze the evidence over Zoom. Going in, a certain element may have been skeptical, but at this point some of the skepticism has diminished.”

Kimberly J. Donovan, a partner with Squire Patton Boggs LLP, in Miami, said virtual ADR was also effective in the healthcare sector. “It really didn’t skip a beat. I had many pending arbitrations, both as an arbitrator and as an advocate, and it was pretty much business as normal.” Donovan spoke during a virtual conference of the American Bar Association, for a session titled, “The Future of Healthcare ADR: How did COVID-19 Enhance ADR?”

Speaking during the same ABA session, Michelle Skipper, vice president of the American Arbitration Association in Charlotte, NC, said, “The settlement rate did not change for healthcare cases over the last year. [It] stayed close to 80 percent.”

Choosing to Go Remote

Given that ADR works independently of the courts, parties could agree to proceed with an arbitration or mediation in-person, but it has been rare.

“At this point we’ve had one arbitration that went forward in-person in Houston, probably within the last four to six weeks, with social distancing, people in masks, people there to make sure everyone followed the guidelines,” Ray said. He added that there haven’t been any in-person mediations, although one has been scheduled for April.

The fact that some FINRA mediations were already telephonic before the pandemic no doubt eased the transition to online. Ray said that, pre-pandemic, parties had the option to mediate by telephone if their cases involved less than $50,000. When COVID-19 hit they created a similar program with reduced fees. That program ran through October of last year. In November, Ray said FINRA merged the two programs, giving clients the choice of a telephonic mediation or one via Zoom.

“We expanded the reach to more of the caseload,” Ray added, to cases up to $100,000. “The program is running along nicely.”

The same situation existed in the healthcare arena. The Hon. Myra C. Selby, a partner with Ice Miller in Indianapolis and a former associate justice for the Supreme Court of Indiana, said during the ABA session that, pre-pandemic, a lot of arbitration was already conducted either virtually or by telephonic meeting. “That enabled arbitration to smoothly transition into completely virtual or . . . a hybrid of virtual and in-person.”

Skipper of AAA reported that the number of healthcare disputes rose by 25 percent in 2020, and about 50 cases with claims totaling almost $450 million moved along thanks to online platforms. “So these were not small cases that proceeded to virtual hearings. These were significant, large cases.”

Kathy S. Adams, the owner of Colorado-based Dispute Resolutions Services and faculty for the Practising Law Institute’s program on securities arbitration, said it took a while for her clients to get behind remote proceedings.

“I tried to get people to do some of their smaller cases by virtual platform for a while. It never took. I would say, ‘Why are we getting on an airplane for a $75,000 or a $100,000 case?’ but I couldn’t get anyone to bite. It was very rare. Then mediations went 100 percent online and a lot of people have really taken to it.”

Benefits of Remote ADR

Parties may have embraced online ADR in part because it has benefits independent of safety during a pandemic. 

One significant advantage is avoiding travel and “the expense and everything that goes along with that travel,” said Ray from FINRA. “In some cases, we have elderly customers who do not want to travel, so that’s a big positive. Then we have other people who may be tangential witnesses who are going to be on the stand for two hours. Say we’re in Boca Raton and they’re in Los Angeles. They don’t have to get on plane to appear for two hours.”

Virtual platforms are certainly more convenient for busy mediators. Ray said some mediators are in demand all over the country.

Adams pointed out the time savings. She mentioned all the different parties that may be drawn into a mediation. “You have the lawyers, however many claimants. … And on the other side, you have in-house lawyers, outside counsel, maybe brokers who should be in the office producing. Travel takes maybe the day before and half the day after.” That’s a lot of lost productive time on top of the expense of traveling, she said.

Differences Between Remote and Live ADR 

Despite the convenience, some may always prefer in-person mediation and arbitration. Not least because, “when you’re not in a room, you have no chance to build a relationship,” Adams said. “The personal relationships are hard online. It’s much more of a business transaction. Not being able to get a feel for the parties. Not being able to look someone in the eyes.”

Adams also said the number of parties has its effect. “If you have 10 people on a Zoom meeting you have 10 little tiny blocks of people. You lose some of that ability to have an organic interaction.”

Preparations can also differ substantially. Ray said parties need to bear in mind that they will be in front of a camera. “You need to look and appear a certain way, get used to looking at the camera, get used to talking to the camera,” he said. For instance, if you were to get up to stretch your legs you might not give a thought to the fact that you’ve walked off camera, but the other parties might conclude that you’re not engaged, Ray explained.

“You don’t want to have a bunch of things going on,” he added. “You want a clean background.” 

As for exhibits, Ray said that when they’re needed for a mediation they’re generally shared with the meditator in a breakout session, or emailed. But there is a lot less emphasis on exhibits in mediation than in arbitration.

“On the arbitration side, Zoom has a way to share exhibits and share screens, to make sure everyone is on the same page,” Ray said. “Sharing on the screen is a very good tool.”

Then there are the inevitable mishaps. While no one pretends mishaps can’t happen with in-person ADR, virtual meetings have a unique set of possibilities. They can be amusing.

“I think the world has come to know we’re all working at home and we all know things can happen,” Ray said.

According to Adams, “People have been humanized. One time in a mediation a woman had a cat all of a sudden jump on her keyboard. There was another guy, his dog would not leave the room. It was lying on the bed snoring loudly. There have been a lot of unexpected kid entries.” She added that almost everyone has adopted a “‘We’re all doing the best we can,’” attitude. “People are a little more kind to each other.”

A Good Option Going Forward

Once the pandemic is over, Ray thinks that remote ADR will continue to be an attractive option. “Even when we return to the in-person world, Zoom is going to be a mainstay in mediation. In arbitration as well, but definitely in mediation because of its effectiveness and because it lessens expense.”

Adams agrees. “One hundred percent, [remote mediations] are here to stay. Not for all cases but for certain categories.” 

All the same, Adams said she’ll be glad to get out into the wider world again. “I have my first in-person mediation in a long time in another month and I’m excited to get back to it.”

Even as live interaction comes back, Skipper thinks parties will want to take advantage of the possibilities offered by virtual platforms. “Even arbitrators have said, ‘Why can’t we have preliminary hearings via Zoom?’” A big part of arbitration or mediation is that the parties get to set the process. Post-pandemic, she expects them to take advantage of the flexibility offered by remote ADR.

PLI offers additional programs and program segments related to remote trials, mediations, and depositions, including: Current Developments in Federal Civil Practice 2021; Remote Depositions: Practical Considerations and Best Practices for Taking and Defending Virtual DepositionsSecurities Arbitration – Arbitration and Mediation Settlement Practicum; and Specialized Deposition Techniques 2020.


Elizabeth M. Bennett was a business reporter who moved into legal journalism when she covered the Delaware courts, a beat that inspired her to go to law school. After a few years as a practicing attorney in the Philadelphia region, she decamped to the Pacific Northwest and returned to freelance reporting and editing.

The Skinny On Recent Antitrust Decisions In The Federal Courts Of Appeals

(Image via Getty)

The law.com definition of antitrust laws begins by detailing “acts adopted by Congress to outlaw or restrict business practices considered to be monopolistic or which restrain interstate commerce.”  This broad definition shows how antitrust law may filter into many other legal areas related to business and commerce.

The purpose of this post is to examine antitrust decisions by the United States Courts of Appeals. Since antitrust law bleeds into so many other legal areas, case selection was no simple task. 

A dataset was developed using Westlaw’s opinions coded as antitrust dating from in the federal appeals courts dating from January 1, 2021 through March 25, 2021. The set initially encompassed 106 cases, but 22 cases were removed for not conforming to the contours of antitrust law or for not providing a clear victorious party.

An example of a case removed from the initial set of 106 cases is United States v. Wehrle (CA7). This is much more a criminal justice case as it begins, “After detecting an internet protocol address downloading child pornography, police executed a warrant to search Lance Wehrle’s home. They seized hard drives and digital devices that contained over one million photos and videos of child pornography. The search also turned up lascivious photos taken in his home depicting the seven-year-old nephew of Wehrle’s friend.”

Conversely, BanxCorp v. Bankrate provided an example of a properly coded antitrust case. This case contains common antitrust language: “BanxCorp’s inability to define the relevant market also proved fatal to both its attempted monopolization and Clayton Act claims. Absent a proper market definition, BanxCorp could not prove Bankrate had ‘a dangerous probability of achieving monopoly power’ within the relevant market, and its attempted monopolization claim fails.”

The context of antitrust litigation is provided by the uscourts.gov statistical tables. Here we find the relative number of both civil appeals per circuit for 2020 and appeals coded as antitrust under federal question jurisdiction. The antitrust cases are only those coded as purely antitrust in the federal dockets and so constitute a smaller set than provided by Westlaw. 

From the circuits we see a similar number of antitrust appeals (on the right) in the Ninth and Second Circuits and then a big drop off to the Fifth and Fourth Circuits which come up next in the graph.  The circuits’ relative numbers of antitrust cases obviously do not track perfectly with the relative total number of appeals per circuit. The next graph shows the number of antitrust cases per circuit in the 2021 dataset.

While the Ninth Circuit still comes out with the most cases so far, in this dataset, the Third, Fourth, and Eleventh Circuits are all not far behind. 

The more intriguing findings come from the analysis of the parties’ relative successes in the cases. In these cases, the plaintiffs from the courts below or those bringing charges of antitrust violations lost most of the decisions (the number of decisions correlating to the percentages are in parentheses). 

What is the cause for the disparity in results? Although the verdict is still out there are several possibilities worth investigating. One possibility is that the panel compositions are different in cases favoring plaintiffs than in cases favoring defendants.  Panel composition, especially the parties of appointing president of the judges is correlated with judicial ideology. (Epstein, Lee, William M. Landes, and Richard A. Posner. The behavior of federal judges: a theoretical and empirical study of rational choice. Harvard University Press, 2013.) 

Panels in 10 of the 13 circuits had more Republican than Democratic judges. This correlates fairly closely with the decisions for plaintiffs versus decisions for plaintiffs in the pie chart.  There were only two circuits with more decisions for plaintiffs than decisions for defendants.

The First Circuit had both more Democratic judges on the panels and had more decisions for plaintiffs than for defendants. The other circuit with more decisions for plaintiffs than defendants was the D.C. Circuit, which had a 2:1 ratio of Republican to Democratic judges on the panels.  The United States Supreme Court Database codes pro-competition (the plaintiff side in antitrust cases) as liberal, and since judges appointed by Democrats tend to be correlated with liberal rulings, we might expect more pro-plaintiff rulings from such judges.

Even with the bevy of judges on the Federal Courts of Appeals (not to mention senior judges and district court judges sitting by designation), several judges sat on multiple panels in the 84 case set. Judges that sat on three or more panels in the set are displayed in the graph below.

Two judges from the Fourth Circuit, Judges Quattlebaum and Gregory, sat on four panels of the 30, or on 14% total Fourth Circuit panels.  Judge Eid from the Tenth Circuit also sat on four panels or on almost 27% of the Tenth Circuit panels.

This rich dataset may be further developed with additional cases. Future analyses might look in greater detail at the decisions of particular judges. Additionally, attorneys may be added to the set to examine if certain lawyers are particularly successful in such cases.

Read more at The Juris Lab … 

Adam Feldman runs the litigation consulting company Optimized Legal Solutions LLC. For more information write Adam at afeldman@thejurislab.com.

Find him on Twitter: @AdamSFeldman.

Wisconsin Demands Trump And Sidney Powell Cough Up Legal Fees In BS Election Suits

(Photo by Drew Angerer/Getty Images)

In the continuing fallout from the “Kraken” election suits, Wisconsin is seeking hundreds of thousands of dollars in attorneys’ fees from Donald Trump and Sidney Powell for their attempts to overturn the state’s election results via lawsuits that were “frivolous, dilatory, and without merit.”

That’s one expensive plate of calamari.

The state asks U.S. District Judge Brett Ludwig to hold the former president and his attorneys jointly and severally liable for $145,000 to reimburse the state for the costs of defending against a suit that was barred by laches, incompetently pleaded, and all but identical to one the campaign had already lost in state court.

“From this case’s inception through the staggeringly expedited subsequent proceedings, there is no doubt that Trump and his attorneys brought and litigated this lawsuit in bad faith,” the state argues. “Unconscionably, they did so for the purpose of sowing doubt about the legitimacy of the 2020 presidential election, with a goal of disenfranchising nearly 3.3 million Wisconsin voters in order to secure the presidency contrary to majority will.”

And noting that the plaintiff continued to prosecute his claim after it was clearly moot, while using the specter of litigation to raise $250 million from his rube supporters, the state demands sanctions because “Trump did not pursue this case, or any other post-election litigation, in good faith; instead he used the courts—as well as the defendants, all of whom were government actors—as tools to assist him in raising funds to aid future political endeavors.”

Graded on the 2020 Batshit Litigation curve, it sounds pretty tame, really. But the motion for sanctions against Sidney Powell and her hapless client William Feehan is a hilarious catalog of self owns and stepped on rakes.

How do you file in the name of a plaintiff who never consented to be part of the case; demand injunctive relief without asking for a TRO or expedited briefing; screw up the entry of appearance; copypasta a demand for evidence from the Michigan Kraken tentacle into the Wisconsin filing; fabricate a quote from a case in the very circuit where you’re arguing; cite a case which has been overturned; misrepresent the qualifications of your expert witnesses; appeal before a final judgment is entered; race off to the Supreme Court before the Seventh Circuit has un-f*cked the procedural mess caused by your first untimely appeal; then botch that filing as well, and write a snotty letter blaming the SCOTUS clerk for it  — ALL IN THE SAME CASE?

Dunno. But Sidney Powell does.

“Plaintiff’s complaint did not outline coherent legal claims so much as it flitted among a variety of fringe conspiracy theories, sourced to anonymous declarations submitted by ostensible experts who were later identified and revealed to be extreme partisans with neither experience nor qualifications to provide any type of opinion on the subject matter,” the state argues.

But wait, there’s more!

Even more egregious than the slapdash way Plaintiff’s attorneys handled the proceedings, was their request that this Court overturn Wisconsin’s certified election results, disenfranchising nearly 3.3 million voters, and counterfactually declare by fiat that Donald Trump had won the state’s electoral votes. This would be completely unprecedented, but for the fact that Plaintiff’s counsel had filed similar cases seeking similar relief—all ending with similar failure—in several other states before filing in Wisconsin. Instead of evidence and legal argument, Plaintiff offered a tangled web of irrelevant (and inaccurate) conspiracy theories, ultimately suggesting that Dominion voting machines had altered individual votes to favor Joseph R. Biden, Jr.

And so Wisconsin is demanding $106,000 in fees, since it had to waste time defending against this rancid cowpie of a lawsuit. Good thing the plaintiff and his attorney didn’t already piss off U.S. District Judge Pamela Pepper with their antics this winter.

Oh, wait …

Trump v. Wisconsin Elections Commission [Docket via Court Listener]
Feehan v. Wisconsin Elections Commission [Docket via Court Listener]


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