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Judge Carlton Reeves of the Southern District of Mississippi didn’t have a lot of leeway under the law of the Fifth Circuit. The Fourth Circuit may have recently raised concerns over the gradual transition of “qualified immunity” to de facto absolute immunity for law enforcement, but that’s not something Judge Reeves gets to work with.

Instead, Judge Reeves wrote a sprawling 72-page opinion granting a police officer’s motion for qualified immunity while eviscerating the modern monstrosity of a legal doctrine that makes a mockery of the criminal procedure. The officer in Jamison v. McClendon pulled over a black man driving in Mississippi and subjected him to a lengthy intrusion.

Clarence Jamison wasn’t jaywalking.
He wasn’t outside playing with a toy gun.
He didn’t look like a “suspicious person.”
He wasn’t suspected of “selling loose, untaxed cigarettes.”
He wasn’t suspected of passing a counterfeit $20 bill.
He didn’t look like anyone suspected of a crime.
He wasn’t mentally ill and in need of help.
He wasn’t assisting an autistic patient who had wandered away from a group home.
He wasn’t walking home from an after-school job.
He wasn’t walking back from a restaurant.
He wasn’t hanging out on a college campus.
He wasn’t standing outside of his apartment.
He wasn’t inside his apartment eating ice cream.
He wasn’t sleeping in his bed.
He wasn’t sleeping in his car.
He didn’t make an “improper lane change.”
He didn’t have a broken tail light.
He wasn’t driving over the speed limit.
He wasn’t driving under the speed limit.
No, Clarence Jamison was a Black man driving a Mercedes convertible.

And time and time again, Judge Reeves explains, courts let cases like these go based on a reading of qualified immunity that sets the bar so high that it is all but impossible to hold law enforcement accountable for illegal acts. Judges constantly complain about this but no one seems willing to do anything about it. Worse, the doctrine pins the victim of abuse with locating precedent backing them on point when courts are producing less. Reeves quotes Judge Don Willett, “Courts then rely on that judicial silence to conclude there’s no equivalent case on the books. No precedent = no clearly established law = no liability. An Escherian Stairwell. Heads government wins, tails plaintiff loses.”

With the obligatory quip about the current Supreme Court’s hostility to established precedent in cases like Janus, Judge Reeves basically pleads for appellate judges to step back from this doctrinal nightmare and recognize that qualified immunity is destroying straightforward legal protections.

…judges took a Reconstruction-era statute designed to protect people from the government, added in some “legalistic argle-bargle,” and turned the statute on its head to protect the government from the people. We read § 1983 against a background of robust immunity instead of the background of a robust Seventh Amendment. Then we added one judge-made barrier after another. Every hour we spend in a § 1981 case trying to parse “temporal proximity” is a distraction from the point of the statute: to determine if there was unlawful discrimination. Just as every hour we spend in a § 1983 case asking if the law was “clearly established” or “beyond debate” is one where we lose sight of why Congress enacted this law those many years ago: to hold state actors accountable for violating federally protected rights.

Where are the textualists and originalists when you need them? Because we have a pretty good example right here for judicially manufactured interpretive noise clouding a plainly worded statute that was commonly understood at the time of drafting to be about preventing exactly the kind of stop in this case.

Maybe the Supreme Court will step in and resolve this… oh, wait, no.

(You should seriously check out the full opinion on the next page.)

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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.

As remote work has become the new normal, more and more companies are implementing applications like Slack, Zoom, and MS Teams for operational efficiency.  As a result, data is taking on new formats, and is growing at exponential rates.  From an eDiscovery standpoint, it’s hard to keep up.

Whether you are an attorney or consultant advising your corporate clients, or an in-house legal professional, please join our webinar on August 12th at 2 p.m. ET / 11 a.m. PT to find out how to best prepare for eDiscovery in the cloud.

You’ll learn:

• The unique challenges of cloud data
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Nicole Thompson – Head of Customer Success, Onna
Robert Keeling – Litigator, co-chair of E-Discovery Task Force, Sidley Austin

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In federal court, plaintiffs must, of course, always have “standing” to pursue their claims. For the few nonlawyer readers, that means that a plaintiff has to show that they are suffering an injury that stems from the conduct of the defendant. Seems simple enough. But in some cases, courts will dismiss what would otherwise be viable claims under this doctrine. In one famous case called Lujan v. The National Wildlife Foundation, the Supreme Court dismissed the claims of environmentalists who argued that they would suffer damage from a rule that would hurt endangered animals outside the United States, since the environmentalists hadn’t actually completed their travel arrangements to visit these exact areas. No tickets, no injury, no standing.

The same issue of standing is arising in a case that I’ve mentioned in this column previously. Despite multiple recent losses in federal court, the United States government continues to insist on its interpretation of immigration law that makes it harder for children born abroad to U.S. citizen same-sex male couple parents to qualify for citizenship at birth. Citizenship at birth, or being a “natural born citizen” per Article Two of the Constitution, is necessary to qualify to be president of the United States.

Being A “Natural Born” Citizen Is A Surprisingly Big Deal.

While that may seem like a trivial issue, it comes up surprisingly often among candidates for the presidency. Everyone, of course, remembers the challenges to President Barak Obama’s eligibility for presidency based on the wild accusation that he was born in Kenya, and thus not a “natural born” citizen. It was also an issue with John McCain — born in Panama while under U.S. control, as well as Ted Cruz — born in Canada to a U.S. citizen mother. Now, the fate of 2-year-old S.M.-G.’s future presidency is at stake. Among other issues.

As a refresher, S.M.-G. is the daughter of Derek Mize and Jonathan Gregg, a married couple, and both U.S. citizens. S.M.-G. was born through surrogacy in the United Kingdom. The proud new parents were shocked when their daughter was denied U.S. citizenship at birth because the U.S. government considers their daughter to be born “out of wedlock.” But now, due to a standing challenge, we may never get to hear the court’s thoughts on that interpretation or the substantive arguments in the case.

Gregg and Mize initiated their challenge to their daughter’s denial of citizenship back in July 2019. Since then, they have lived in fear that their daughter could be deported for being out of status after her visitor visa expired. For their family’s protection, while this case was pending, they applied for S.M.-G. to receive legal permanent resident status. Despite the government-published minimum wait times for such applications being over 10 months, S.M.-G.’s application was shockingly approved, in the midst of a pandemic, in 4 months! Yay! Right?

The U.S. government then filed a motion to dismiss for lack of subject matter jurisdiction, arguing that the question of S.M.-G.’s citizenship was now moot. In addition to receiving the legal permanent resident status, she had also qualified for citizenship under a different section of the immigration code. But that isn’t citizenship at birth!

What’s The Difference Between Naturalization And Citizenship At Birth?

Does the gap in rights between citizenship at birth and another form of citizenship constitute enough of a difference, and cause sufficient harm to S.M.-G., to maintain standing? S.M.-G and her dads argue that yes, aside from the wrongs of what their family has endured and the accompanying stigma, that gap in rights is harm enough to merit standing. Among the differences between citizenship at birth and naturalization are:  the ability of the U.S. government to take away the citizenship of a naturalized citizen (while it can never strip a citizen from birth of their U.S. citizenship); the ability to obtain national security clearances and obtain certain forms of governmental employment; and the ability to access some governmental benefits (if proposed legislative changes happen). And, of course, the ability to run for president is denied to those who receive citizenship at a time other than birth.

Pure Speculation.

The defendants argue that these are not sufficient to maintain standing, because S.M.-G. is not alleging that she is currently suffering, or will imminently suffer any concrete injury based on the difference, and that any future injury is purely speculative at this point. Sure, S.M.-G is only two, and has not recently applied for any high-security government jobs. And she may not have concrete plans to run for president, yet. And the internet tells me there is only a 1 in 200 million chance of any particular American becoming president anyway.

But it feels like a bigger deal. Just having the right and the ability to run for president of our country, no matter how small the odds are of ever actually becoming president, feels significant. And something a court should let you fight for. Even when you are only two.

I, for one, am hoping the case is heard on its merits. And when someone asks S.M.-G. what she wants to be one day, I hope she can answer, without reservation, president. I’ll have my “S.M.-G for President 2054” lawn sign ready. And then, maybe, once she’s president, she can save the endangered animals.

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Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

You’re smart. You can connect dots all by yourself, so I’ll just lay out the facts and trust you’ll figure out what is going on.

Attorney Lane Ruhland is a senior counsel at Husch Blackwell — an Am Law 100 firm that made $380,303,000 in gross revenue last year. As recently as July 27th, court filings indicate Ruhland is working on behalf of Donald J. Trump for President, Inc. And, as reported by Vice, Ruhland has a long history of supporting the GOP — she worked on the Romney campaign while in law school, and post graduation, has served in many positions supporting conservative goals:

Ruhland most recently was director of environmental and energy policy at Wisconsin Manufacturers and Commerce, a GOP-leaning business group that often helps fund Republican candidates. Before that she was a deputy chief of staff for then-Wisconsin Attorney General Brad Schimel (R), and from 2014-2015 was the Wisconsin Republican Party’s legal counsel.

And now it’s come to light that this tried and true GOP operative is helping none other than self-declared presidential candidate Kanye West get on the ballot. Take a look at the footage of Ruhland dropping off the signatures West needs to get on the Wisconsin ballot.

And Twitter has come to the rescue with receipts of Ruhland’s representations:

Ruhland isn’t some rogue GOP loyalist working on behalf of the rapper turned political candidate. GOP operative Gregg Keller has done work for West, and a number of folks who signed up to be West electors have a long history with the Republican party. I guess propping up a potential spoiler candidate is more of a priority for the GOP than any actual policies.

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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).

A lot of digital ink has been spent over the past several months about how the legal profession could change for the better because of COVID-19. Indeed, virtual court conferences, work-from-home policies, and other practices adopted during the pandemic can make attorneys more efficient at serving clients. I myself have published a few articles on how the legal industry can change for the better because of how we dealt with the challenges posed by COVID-19. In a similar vein, law schools have also had to adapt in order to contend with the ongoing pandemic, and law schools should learn from recent experiences in order to permanently improve.

Online Law Schools

Even though online colleges have been operating for decades, online law schools are not a major part of legal education. The main reason why online law schools have never taken off is because the American Bar Association has traditionally taken a dim view of schools that exclusively operate online. After a very rudimentary amount of research, I was unable to find an online-only school that has full accreditation by the American Bar Association, although it appears as if some hybrid programs have been accredited.

Accreditation by the American Bar Association is extremely important for law schools. Bar candidates in many states cannot sit for the bar examination unless they graduate from a law school that is accredited by the American Bar Association. As a result, unless law schools get the approval of the American Bar Association, they cannot operate as a steppingstone for students to begin careers as attorneys, which is the number one reason why people attend law school. Of course, there are some good reasons why the American Bar Association has traditionally looked down upon online law schools, since the value of courses offered at these schools may come into question, and the on-campus connection may be important to law students. However, the restrictions on online law schools may just as easily be explained as a way to decrease the number of people entering the practice of law.

Nevertheless, pretty much every law school in the country has become an online law school due to the COVID-19 pandemic. Indeed, nearly every law school in the United States held classes online for the remainder of the most recent semester, and many plan on doing so for the upcoming semester. Surely this experience demonstrates that law schools can operate in an online environment, and the American Bar Association should give serious consideration to sanctioning online-only law schools. Such law schools are also presumably cheaper than traditional bricks-and-mortar institutions, so permitting online law schools to exist would give students the option to complete their degrees on their own terms and likely at a cheaper rate than traditional schools.

Attendance Policies

When I attended law school, many of my courses had an attendance policy. This meant that if a law student failed to show up in class a certain number of times, their grades could suffer. I am not sure if this was a school requirement or a requirement of some professors, but I always thought it was strange that attendance would factor into grades. It seemed to me that grades should reflect one’s actual acuity at the course and not something as arbitrary as filling a seat in class. This is even more true with massive lecture classes with over a hundred students in which there is not much interaction among students.

The ongoing COVID-19 pandemic has shown that law school courses can continue even if students and professors are not physically present in class. As a result, law schools should expand policies that allow students to use remote means to virtually participate in classes after the pandemic subsides. This would assist students who are sick, traveling for job interviews, or find themselves in many other situations that make it difficult for them to appear in class. Law students are often extremely busy with externships, clinics, and other pursuits that do not fit neatly into an academic schedule, and law schools should encourage these pursuits by empowering students to attend courses virtually if needed.

As a corollary to this point, law schools should expand the availability of recorded lectures. A law school I attended recorded all lectures so that people could view them if unable to be present in class. However, if I remember correctly, students needed to specially apply for permission to view these recordings. Now that law schools have learned how to operate with videoconferencing technology, law schools should record more lectures for the convenience of students and make these recordings freely available.

All told, law schools have an incredibly difficult job operating during the pandemic, and many institutions have adopted innovative measures to contend with COVID-19. Law schools can learn from these lessons to make permanent improvements to legal education.

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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.

Harvard sits atop a mountain of cash. Apparently not enough to spare to keep support staff employed during a pandemic, but a mountain of cash nonetheless. And this money is invested all over the place including private prison companies making a fortune turning America into a latter season Orange Is The New Black hellscape.

We’ve covered the efforts of the Harvard Prison Divestment Campaign before — they’ve been advocating for the school to get out of the human misery business and ended up getting “investigated” by the school for their trouble. Investigated is in quotes because it’s never been quite clear what the students did that warranted an inquiry of any kind.

Now the effort has an unexpected ally in Harvard Law’s Charles Fried. Fried, the Solicitor General during the Reagan administration might seem on paper to be a supporter of private prisons — institutions that are generally propped up by “law and order” Republican state governments. But Fried is firmly opposed to the private prison industry and Harvard’s financial complicity in the endeavor, joining Professor Ron Sullivan for a panel discussion hosted by the Harvard Law Forum and Harvard American Constitution Society.

Fried’s argument fundamentally conservative and rooted in straightforward free enterprise. Private prison advocates like to posture as paragons of private enterprise, but as Fried points out, the market only works when there’s competition and when private companies are simply subcontracted to exercise the monopoly on state violence it basically devolves into torture. It’s a reminder that most of the American right has fetishized “privatization” with little attention to what makes the free market actually work.

Sullivan, who unintentionally became a “political correctness amok” talking point for briefly representing Harvey Weinstein, backs Fried’s reasoning and adds that if Harvard wants to present itself as committed to racial justice, getting out of this business would be a pretty good way to do that.

The ball is now in Harvard’s court.

Earlier: Harvard Law School Students Come Together To Demand The School Stop Harassing Three Students

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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.

You might think that the wave of bankruptcies impacting pandemic-stricken America are an unreservedly bad thing. That the dire straits or worse in which many iconic companies—J. Crew, Gold’s Gym, Neiman Marcus, J.C. Penney, Hertz, GNC, Chuck E. Cheese, Brooks Brothers, Ann Taylor and Lane Bryant, California Pizza Kitchen, Lord & Taylor, Men’s Wearhouse—have no silver lining amidst the lost jobs and general immiseration. CFOs of such companies—in particular, you might expect—would not see much to celebrate in the legal acknowledgment that their employers can no longer, you know, finance their continued existences.

* A Chicago lawyer featured on the Netflix show Indian Matchmaking is facing a tough adjustment after experiencing the fame of being on the show. This series keeps showing up on my queue… [Chicago Sun Times]

* The Los Angeles District Attorney’s husband will face charges for waiving a gun at protesters near his home. [Hill]

* A new lawsuit is demanding that White House briefings have sign language interpreters. [New York Times]

* The American Bar Association has voted on a set of best practices for third-party litigation funding. That sentence may sound boring, but the implications are profound. [American Lawyer]

* A new class-action lawsuit claims that the popular app TikTok steals consumer data and sends it to China. [NPR]

* Check out this story of a lawyer who paid off $200,000 in student loans in two years. Man, she beat me by 22 months, hope she doesn’t start a blog… [Business Insider]

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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.

It may be too early to declare the legal profession back to normal, but we’ve now seen some major law firms reverse course on cost cutting and even announce some bonuses. Meanwhile, it took all of a couple hours for the in-person bar exam experiment to net its first positive COVID test.