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Flatten the Research Curve

Flatten the Research Curve

Wolters Kluwer

I can’t think of anything more important than electing Joe Biden and replacing President Trump. If Trump gets another appointment to the U.S. Supreme Court, and appoints a 40-year-old, we could lose that court for a generation. All the successes that we’ve seen for civil rights and social justice in the last 40 years could literally evaporate. I don’t want to turn back the clock.

— Dallas attorney Marc Stanley, who serves as chairman of the “Lawyers for Biden” arm of Joe Biden’s campaign for president, explaining why he thinks it is essential that Biden be elected president in November. Stanley says he’s recruited thousands of lawyers from across the country to join him in his efforts.

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Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

The only good solution to attorney licensure this year is diploma privilege.

There are a bunch of almost good solutions and they deserve credit where it’s due, but where we sit right now there is no way to have a functional in-person exam without delaying until next year or massively curtailing those sitting for it and remote alternatives are preferable but with the uncertainty surrounding the process they are unfair to the applicants.

For anyone out there eye-rolling about the concerns of applicants, just check out this thread from one that lays out the challenges these folks are facing that radically outstrip the standard pressures of the exam.

With little movement on diploma privilege adoption around the country, some law school graduates in Minnesota took it upon themselves to file their own petition to the Minnesota Supreme Court seeking a diploma privilege option. It’s the sort of uphill battle that one might expect to see from graduates before the weight of the practice beats the idealism out of them. But the twist is… it worked!

That’s some compelling performative evidence that law school graduates are ready to practice law right there!

After filing the petition on Monday, Chief Justice Gildea issued an order on Wednesday taking up the petition and opening a public comment period until July 6. So if you’re in Minnesota, do your part to help the cause by filing a comment.

It’s a massive win and hopefully a blueprint for applicants out there looking to get some progress from their states. Good luck!

(Petition and order available on the following pages.)

Earlier: Law School Graduates Push For Diploma Privilege As A Matter Of Racial Justice

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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.

Year in and year out, we watch law firm after law firm pay lip service to their commitment to diversity in the legal profession, with promises to put women attorneys on equal footing with their male counterparts, whether it be through hiring and retaining more women attorneys, promoting more women attorneys to equity partnership ranks, providing more leadership positions to women attorneys, or adopting more family-friendly policies to ensure that women attorneys are able to excel at their jobs while maintaining a stable work/life balance. Despite these continued assurances, and despite the fact that a number of firms have made great efforts to improve women’s stature in the law, there are only a few that offer women the chance to rise through the ranks to become major power players and to receive startlingly booming compensation.

Thanks to the Women in Law Empowerment Forum (WILEF), we have a way to find out exactly which firms are on top when it comes to offering women attorneys the chance to perform on par with their male colleagues in terms of prestige and pay.

WILEF offers Biglaw firms with 300 or more lawyers practicing in the United States the chance to become Gold Standard certified, meaning that they must comply with four of six benchmarks meant to drive women lawyers to succeed in business development and leadership roles. Here are the criteria (one of which is mandatory):

• 20% of equity partners or 33% of the attorneys becoming equity partners during the past twelve months are women (mandatory)
• 15% of the firm and US branch office heads are women
• 20% of the firm’s primary governance committee are women
• 20% of the firm’s compensation committee or its equivalent are women
• 15% of the top half of the firm’s equity partners in terms of compensation are women
• 10% of women equity partners are women of color, or 4% of women equity partners are LGBT

This year, 48 firms made the cut, compared to last year’s showing of 45 firms. Biglaw firms continue to tout their commitment to women’s initiatives, yet once again, not even half of the Am Law 100 appears on this list. Still more must be done when it comes to Biglaw firms raising the bar for their female attorneys.

Here are the 2020 recipients of Gold Standard certification:

Baker, Donelson, Bearman, Caldwell & Berkowitz

Ballard Spahr

Buchanan Ingersoll & Rooney

Cooley

Covington & Burling

Davis Wright Tremaine

Dorsey & Whitney

Faegre Drinker Biddle & Reath

Foley & Lardner

Fredrikson & Byron

Frost Brown Todd

Gibson, Dunn & Crutcher

Goodwin

Haynes and Boone

Hogan Lovells US

Holland & Hart

Hughes Hubbard & Reed

Ice Miller

Jackson Lewis

Jenner & Block

K&L Gates

Kutak Rock

Latham & Watkins

Littler

Manatt. Phelps & Phillips

Mintz, Levin, Cohn, Ferris, Glovsky & Popeo

Morgan, Lewis & Bockius

Morrison & Foerster

Norton Rose Fulbright

Ogletree, Deakins, Nash, Smoak & Stewart

O’Melveny & Myers

Orrick, Herrington & Sutcliffe

Paul, Weiss, Rifkind, Wharton & Garrison

Perkins Coie

Pillsbury

Polsinelli

Quarles & Brady

Reed Smith

Shook, Hardy & Bacon

Sidley Austin

Simpson Thacher & Bartlett

Skadden, Arps, Slate, Meagher & Flom

Steptoe & Johnson LLP

Stinson

Stoel Rives

Thompson Coburn

Vorys

Womble Bond Dickinson US

Although WILEF doesn’t tell us how the firms stack up against one another in terms of the criteria needed for certification, we do know that 23 firms met all six benchmarks. Those firms are: Ballard Spahr; Buchanan Ingersoll & Rooney; Cooley; Covington & Burling; Foley & Lardner; Jenner & Block; Hughes Hubbard & Reed; K&L Gates; Kutak Rock; Littler; Manatt, Phelps & Phillips; Morgan Lewis & Bockius; Ogletree, Deakins, Nash, Smoak & Stewart; Orrick, Herrington & Sutcliffe; Paul, Weiss, Rifkind, Wharton & Garrison; Pillsbury; Polsinelli; Reed Smith; Shook, Hardy & Bacon; Sidley Austin; Stinson; Stoel Rives; and Thompson Coburn.

It’s also worth noting that 12 firms have received Gold Standard certification every year since 2011, when WILEF first created this award. Those firms are: Ballard Spahr; Davis Wright Tremaine; Holland & Hart; Hughes Hubbard & Reed; Littler; Morrison & Foerster; Quarles & Brady; Reed Smith; Shook, Hardy & Bacon; Skadden, Arps, Slate, Meagher & Flom, Stinson; and Stoel Rives.

Last, but certainly not least, only one firm has received Gold Standard certification every year since 2011 while meeting each and every benchmark: Reed Smith.

Here are some interesting facts about how this year’s certified firms did overall:

• 6% of certified firms met the criterion of 20% women among US equity partners
• the average was 30% of women as US branch heads
• women constituted 30.9% of the members of the firms’ governance committees
• women constituted 32.6% of their compensation committees
• 16% of women were in the top half of equity partners, in terms of compensation
• 12.4% of certified firms met or exceeded the 10% threshold for women of color, and 3.8% met or exceeded the 4% threshold for LGBT women

Congratulations to all of the firms that met WILEF’s criteria for Gold Standard certification. You have our thanks for rising to the top of the Biglaw pack when it comes to women’s empowerment. We still have a way to go but these firms are making strides in the right direction. Thank you for helping women shine in legal practice.

WILEF Announces 2020 Gold Standard Certification Firms [WILEF Tribune]

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Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

Normally, I use this column to try to call people’s attention to the immigration-related skullduggery the Trump administration quietly sneaks through while we’re all distracted by the latest tweetstorm. Because my only power is to call attention to those things, these columns tend to end with the text equivalent of that gif of Ilana Glazer screaming.

But today, I have a special treat for you: Something you can actually do something about! And you don’t even need to put on pants.

Last week, on the same day the left was celebrating the Supreme Court’s decision in Bostock, the Department of Homeland Security announced a proposed rule that effectively guts federal asylum law. The proposal is framed as a series of rules based on United States asylum law, but it could be better understood as an attempt to radically change that law without bothering to get the Congressional approval that the Constitution requires. The proposed rule would deny asylum to:

• Anyone who passed through two or more countries on the way to the United States.
• Anyone who stayed in another country for at least 14 days before arriving in the United States.
• Anyone who has been unlawfully present in the United States for at least a year. This is even though the statute directly says aliens may apply for asylum “irrespective of such alien’s status.”
• Anyone who claims they were persecuted based on gender (because nobody ever does anything mean to women!)
• Anyone who claims they were persecuted based on opposition to gangs or terrorist organizations.

If you’re familiar with why and how many Central Americans come to this country, it’s difficult not to see these as geographically/racially targeted.

It would also:

• Redefine “persecution,” the basis for an asylum grant, to cover only “extreme” harms. (The rule literally says that military strife, harassment, and intermittent detentions are not persecution, which is the kind of statement you can only make when you are not subject to any of them.)
• Allow immigration judges to use the fact that someone entered the country without papers as a “significant adverse factor” when deciding whether to grant asylum. Again, this is despite language in the statute directly saying asylum is available irrespective of immigration status or whether the applicant came through a designated port of entry.
• Broaden the definition of a “frivolous” application for asylum, which makes the applicant ineligible for any other kind of immigration relief.
• Redefine “firmly resettled” in another country to mean “could possibly have resettled” because those are totally the same thing.
• Raise the standards for withholding of removal or protection under the Convention Against Torture, which are fallbacks for asylum applicants.

But wait, there’s more! If someone managed to apply for asylum despite all these other rules, they wouldn’t get an ordinary immigration court hearing. Instead, they would be shunted into a “streamlined” proceeding where the court will consider only asylum, not any other kind of relief the applicant might be eligible for. Furthermore, immigration judges would be permitted to deny asylum applications without a hearing if they don’t think there’s enough evidence in the applications. This will come down hard on pro se asylum-seekers, who are the vast majority, because there is no right to a lawyer in immigration court.

The notice and comment period ends July 15 — that’s half of the usual amount of time for a big rule change — so you will need to do this soon. You can submit a comment here. If you are at a loss for an opinion, you are welcome to borrow mine, although you may be better off with the opinions of American Immigration Lawyers Association, the American Immigration Council, the Catholic Legal Immigration Network, Inc., or many of the other immigration nonprofits that have been in the trenches on this for years.

Now, I am not saying that the Trump administration will actually do what people suggest. Elie Mystal, in these hallowed pages, once accurately noted that the agencies “never give a rat’s ass.” And fans of net neutrality know how that notice and comment period went.

But you should still do it, because — as Mystal also noted — the comments do matter when the rule is later challenged in court. The Trump administration’s failure to even pretend to go through this process is why they lost the DACA case last week. When the inevitable Administrative Procedure Act lawsuit is filed, I would love to see the plaintiffs’ counsel well armed with evidence that the people did not want this.

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Lorelei Laird is a freelance writer specializing in the law, and the only person you know who still has an “I Believe Anita Hill” bumper sticker. Find her at wordofthelaird.com.

After efforts to strip him of his honorary degrees and a call for him to resign from his law school faculty, Attorney General Bill Barr’s high school is now entering the debate over whether to tear him down like the walking Confederate statue he kind of is.

The Horace Mann school is holding a Zoom call today to discuss striking Barr from its list of distinguished alumni. Class of 2020 students Kiara Royer and Jessica Rosberger started a petition to get the school to make the move and quickly garnered over 8,000 signatures. Sources told the NY Post that it’s touched off a big debate within the alumni committee.

Barr received the Award for Distinguished Achievement in 2011 despite his primary achievement to that date being his successful effort to cover up the Iran-Contra scandal. Per the Post:

Alums decrying Barr is nothing new. Since 1991, a Horace Mann peer of his, Jimmy Lohman, now an attorney, has been publicly accusing the AG of being a racist who bullied him at school because he supported civil rights.

That totally tracks.

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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.

Earlier this month, in partnership with our friends at Lake Whillans, we released our Outside Counsel rankings, a look at the Biglaw firms most trusted by corporate legal departments. Today, we look at the firms that were rated highest by in-house attorneys based on the industries in which they practice.

Drawing on input from GCs and in-house counsel from a range of business categories, we’ve compiled rankings for seven different industries: Consumer Products, Telecommunications, Energy, Media/Entertainment, Life Sciences/Health Care, Finance, and Technology.

Seventeen firms appear on more than one of our industry lists; these three firms below show up on three (!) or more:

• Kirkland & Ellis (Tech, Energy, Defense)
• Latham & Watkins (Energy, Finance, Consumer Products)
• Gibson Dunn (Energy, Defense, Healthcare, Consumer Products, Media)

Wow, Gibson Dunn with impressive range across five specialities. Congratulations to all the firms recognized.

Yesterday, a Virginia court dismissed Devin Nunes’s defamation suit against Twitter, ruling that federal law immunizes the media company for content posted to its site. Looks like California’s most litigious congressman won’t be getting that $250,000,000 payout after all. Womp womp!

In the first of his many gonzo suits, last March Nunes filed a claim against Republican strategist Liz Mair, Twitter, and two anonymous Twitter accounts, known as @DevinNunesMom and @DevinNunesCow. Nunes claimed that he was grievously injured because Mair and the Twitter handles poked fun at him for his investment in a winery which allegedly hosted a fundraiser on a yacht featuring cocaine and prostitutes. In fact, he was so grievously injured when the hashtag #YachtCocaineProstitutes started trending that he only won his reelection race by five percent in 2018.

And even though Section 230 of the Communications Decency Act specifically states that, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider,” Nunes was sure that Twitter’s occasional moderation of content magically transformed it into a co-author of every tweet on the site.

Twitter creates and develops content, in whole or in part, through a combination of means: (a) by explicit censorship of view points with which it disagrees, (b) by shadow banning conservatives such as Plaintiff, (c) by knowingly hosting and monetizing content that is clearly abusive, hateful and defamatory — providing both a voice and financial incentive to the defamers — thereby facilitating defamation on its platform, (d) by completely ignoring lawful complaints about offensive content and by allowing that content to remain accessible to the public, and (e) by intentionally abandoning and refusing to enforce its so-called Terms of Service and Twitter rules – essentially refusing to self regulate — and thereby selectively amplifying the message of defamers such as Mair, Devin Nunes’ Mom and Devin Nunes’ Cow, and materially contributing to the libelousness of the hundreds of posts at issue in this action.

Hooboy!

Sadly for Congressman Cowpoke, Judge John Marshall of the Henrico County Circuit Court did not agree with his interpretation of the federal statute.

“Plaintiff seeks to have the court treat Twitter as the publisher or speaker of the content provided by others based on its allowing or not allowing certain content to be on its Internet platform,” he wrote in a letter opinion dismissing Twitter from the case. “The court refuses to do so.”

Even if it were true that Twitter is censoring conservatives and monetizing hate speech, it would still not subject the company to liability under Section 230. And Trump’s executive order directing Bill Barr to draft a proposal to change the statute to allow him to sue Twitter for slapping a warning label on his tweets — a proposal which Nancy Pelosi will use to blot her lipstick before tossing in the wastebasket — doesn’t change that.

Which leaves Nunes suing the two Twitter avatars that he has still failed to unmask, plus Liz Mair, who pretty clearly does not have $250,000,000 dollars lying around. Which very much sucks for Liz Mair, who has to pay her lawyers to fend off the congressman, but counts as a victory for free speech. But never fear, because Nunes still has pending cases against CNN, The Washington Post, Hearst, McClatchy, and Fusion GPS. It’s a wonder he finds time to legislate with all that mooin’ and suin’!

Devin Nunes can’t sue Twitter over statements by fake cow, judge rules [Fresno Bee]

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

Imagine leveraging all the power and might of Biglaw, and law firms in general, in order to fight racism, Well, imagine no more, Over 125 firms (so far!) have signed onto the Law Firm Antiracism Alliance (LFAA) and it includes some of the biggest and most prestigious firms in the country. According to the LFAA charter, the purpose of the group is to “leverage the resources of the private bar to amplify the voices of communities and individuals oppressed by racism, to better use the law as a vehicle for change that benefits communities of color and to promote racial equity in the law and in government institutions.”

As reported by Law.com, Kimberly Jones Merchant and the Racial Justice Institute and Racial Justice Network at the Shriver Center on Poverty Law is the LFAA’s initial point, and she said the increased resources for their work will be able to make a real difference:

She said that while efforts to facilitate change on a systemic level have received temporary support in the past, the disproportionately dire effects of COVID-19 on Blacks as well as the murder of George Floyd galvanized efforts in a way that had not been present previously.

“APBCO [The Association of Pro Bono Counsel] and other organizations like the EJI [Equal Justice Initiative] bring advocates to the table,” Jones Merchant said. “But they have constrained resources and can’t operate at the ‘high’ levels. Now we have those resources behind us.”

The LFAA plans on holding two summits this year, and Jones Merchant anticipates a steep learning curve, what with so many well-meaning allies having to unlearn a lot about privilege and race:

“We are going to have some bumps in the road,” Jones Merchant said. “It is an experiment, and both sides are going to have to make adjustments. We are going to learn from each other. Pro bono counsel will have to learn a lot about systemic racism.”

Still it is a great step forward, and it’s exciting to imagine what such a talent group of lawyers can accomplish when racism is the target of their efforts.

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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).