Category: News Feeds

HBR Consulting  just released the 2020 Benchmarking + Legal Information Services Survey (BLISS). The innovative and interactive delivery format is at least as interesting as the content. The survey focused on the core metrics such as staffing, budgets, and resources but also covered hot topics such as innovation and COVID-19 impact. The survey was undertaken during June and July 2020, three months after most law firms were two months into mandatory work from home. That enabled the  survey designers to capture some insights into how law firms were adapting legal research and knowledge services in response to the pandemic.

I asked Colleen Cable, director at HBR Consulting, to provide some insight into HBR’s goal in creating the survey. According to Cable “HBR recognized that there was a need for law firm library benchmarking data that could be utilized to support decision-making within the firm. This type of benchmarking, available by Am Law segment, is not offered anywhere else in the market, so HBR stepped in and BLISS was born.” One of the things I noticed immediately is that this report captured attorney staff ratios. This has been an elusive “holy grail” of library benchmarks that I have been begging for over the many years I have been reviewing library surveys produced by both associations and commercial companies.

BLISS topics include the following:

• Cost management opportunities
• Coordination of print materials
• Supporting firm innovation initiatives
• Research requests
• Work-from-home policies for information professionals

The BLISS survey  includes data from 60 participating law firms across Am Law 100, Am Law 200 and Am Law 200+ segments. The respondents were almost equally allocated across firm size and geography.

The Format’s The Thing

There is no printed BLISS report, but participating law firms can interact with the survey results and view the data based on law firm segment. Users can see how their own responses compare to the data within their firm’s peer group.

• Key features
  • Deliverable is interactive via a website
  • Ability to segment by firm size to review benchmarks based on participant parameters
  • Trending data included
  • Each participant receives a unique password to access the interactive website
  • On the interactive website, the participant’s individual responses appear below each graph and data point for a quick comparison of one’s firm against the overall responses

Key Takeaways

• 27% of respondents did intend to increase staffing in the next 12 to 18 months
• Research requests were up 33% over 2019
• The number of firms having a sole provider in place in 2020 (39%) remained flat from 2019
• Due to office closures and the new work-from-home culture mandated by COVID-19, reduction of various print resources accounted for half of the identified cost savings opportunities
• Though loose-leaf filing is by far the most commonly outsourced library function, there are additional areas where outsourced support is being considered, such as partially outsourced research services (11%) and contract negotiations (16%)
• The top 5 advanced research tools responding firms are considering purchasing are Westlaw Edge, Checkpoint Edge, Casetext Compose, Courtroom Insight, and Lexis Context
• While 68% of respondents indicated that their researchers conduct research directly for clients, HBR notes that this is a 10% decrease from 2019 results
• 2020 collection budgets  increased 4% from 2019, while personnel budgets increased by 3%
• Only 11% of respondents noted increasing resource budgets, while the remaining respondents were evenly split between maintaining and reducing resource budgets
• 82% of responding firms use a resource metering tool, like Onelog or Research Monitor, and 59% of responding firms use a research management system, like Quest, to support staffing alignment, make content decisions, and analyze research statistics
• Even during an economically turbulent year, responding firms spent 4% more on print and digital resources in 2020 than in 2019, with attention to adding tools to support innovation

The Digital Revolution That Stalled

One of the metrics that surprised me most was the percentage of budget still devoted to print resources. E-treatises, ebooks, and online database substitutes have been available for over a decade. While librarians often bear the blame for the high print costs, it is often the partner insistence on the  retention of print that has stalled the revolution. Law librarians who had the foresight to invest in web-enabled catalogs, IP-authenticated e-treatises, and digital desk book shelves over the past decade saved their firms a world of grief and money.

Law firms that had made the digital leap and completely transitioned lawyers to their digital desktops had virtually no start up issues when COVID-19 mandates to work from home were issued last March. By contrast, law firms that still relied on print found themselves locked out of their office libraries and were faced with building the digital libraries and training lawyers during the frantic early WFH days. That inconvenience was coupled with painful cost consequences. Law firms with large print collections were largely stuck with legacy multiyear print-subscription contracts which major vendors such as Lexis and Westlaw refused to cancel or adjust in light of the pandemic and working from home conditions.

Librarians who want to participate in the 2021 survey can register at this link.

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Jean O’Grady is a knowledge strategist/librarian/lawyer with over 30 years’ experience leading the transformation of research and knowledge services in Am Law 100 law firms. She is the author of the Dewey B Strategic blog, which monitors the evolving landscape of technologies and companies that are transforming the business and practice of law.

As early as today, the Biden administration will begin contacting the 56 senate-confirmed U.S. Attorneys to ask for their resignations, CNN reports. The only exceptions to the ouster of Trump appointees will be David Weiss in Delaware, who is investigating Hunter Biden for tax issues, and Connecticut’s John Durham, who is still plugging away on the origins of the Trump-Russia probe.

Acting Attorney General Monty Wilkerson, heading the DOJ until such time as Lindsey Graham gets off his high horse and allows Merrick Garland to be confirmed, called Weiss and Durham last night and told them that they would be exempt from the turnover, although Durham will no longer be U.S.A. for Connecticut.

The move has been widely anticipated, with Senators soliciting applications for the expected vacancies for months. Indeed, it is standard practice for presidents to replace political appointees at the Justice Department. Although most administrations handle the transition with more aplomb than Trump, who told Preet Bharara that he could stay at S.D.N.Y, then backtracked, only to have his personal attorney Marc Kasowitz brag that he’d personally gotten Bharara fired.

It’s unclear whether Biden intends to immediately replace acting U.S. Attorneys Audrey Strauss in Manhattan and Seth DuCharme in Brooklyn, both career DOJ employees heading up politically charged investigations in offices that Bill Barr tried to to ratf*ck in spectacular fashion. Ditto for acting U.S.A. Michael Sherwin in D.C., who has been holding down the fort since Barr pushed out Jesse Liu with an offer of a Treasury Job which never materialized, and is now managing the Capitol riot probe.

As for the other offices, according to CNN, “Justice officials have scheduled a call with US attorneys around the country to discuss a transition that is expected to take weeks,” which sounds like they’re aiming to do this in an orderly fashion, rather than shoving everyone out the door post haste.

Competence, it’s so refreshing.

DOJ to ask Trump-appointed US attorneys to resign [CNN]

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

Harvard Law School’s Law Review recently elected its first Muslim president, adding to a series of noteworthy diversity firsts for the school’s prestigious legal journal. The move attracted much fanfare, but it turns out that Harvard isn’t the only T-14 law school to announce a diversity first for its incoming editorial board.

As it turns out, Stanford Law School’s Law Review recently elected its first Iranian-American, Muslim president. Daniel Khalessi ’22 was elected in November 2020, and assumed the role last month. This is what he had to say about his new position in an interview with the Stanford Daily:

I think the hope that I have for my election, if it has any symbolic meaning or anything like that, is that I want people to know that there is a more tolerant America beyond the America that we’ve seen in the last four years. There’s a lot of challenges, there’s so many problems going on and they’re not going to get resolved. But, I think, electing people of color and minorities to these positions and opening doors for others is really important in showing that America can be a very inclusive and tolerant place.

Khalessi, a Stanford graduate who later attended Yale for his master’s degree and spent a year at Peking University in China as a Yenching Scholar, has expressed an interest in constitutional, national security, and international law. He says one of his long-term goals is to become an international legal scholar.

Congratulations to Daniel Khaleesi on his noteworthy achievement.

Q&A: Diversity makes us better, Stanford Law Review president says [Stanford Daily]

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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.

It’s become downright trite to say COVID-19 has “massively changed” some aspect of everyday life we used to take for granted. Seriously, anyone who has been around for the last year or so already knows that — hell, even infants know something’s up. But with everything thrown into a tizzy, it is easy to forget all the “massive changes” that have been racked up, unless they directly impact you. That’s just the normal way human brains deal with overwhelming amounts of information. So, unless you’re actively involved in law student recruitment, how it’s being dealt with in pandemic time easily could have slipped your mind.

Anyway, back in the spring of 2020 (when we are so naive that many believed the length of the pandemic would be tracked in weeks, not years), many law schools and Biglaw firms made the move to change the dates of their on-campus interviews. Most elite law schools traditionally have a week in the late summer/early fall dedicated to getting top Biglaw firms in search of the next generation of legal talent to meet with their rising 2Ls for summer associateships following the upcoming academic year. But as in-person meetings and non-essential travel were verboten in August 2020, those were largely pushed to January.

That’s what happened at Duke Law. But even though hiring for summer 2021 was moved, folks wondered what would happen for summer 2022 hiring. With slow vaccine rollout, that Zoom-life isn’t going anywhere anytime soon but Duke has decided how it’ll handle the next recruiting season.

Rather than stick with the later January date, Duke is moving back to August for on-campus interview week. Though, as detailed in the email below, the August OCI will still be virtual.

While we haven’t heard much about how other top law law schools will handle the next recruitment season, I predict they’ll also move back to the summer. There’s a bit of a herd mentality, and if this is what one elite law school is doing, others are sure to follow.

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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).

Ed. note: This column originally appeared on Original Jurisdiction, the new Substack publication from David Lat. Judicial Notice is a weekly review of notable legal news that appears each Saturday. You can register to receive Judicial Notice and other updates from Original Jurisdiction through this signup page.

As Original Jurisdiction hits the two-month mark, I’m happy to report that I’m just a few readers shy of 2,000 subscribers. Thanks to all of you for subscribing and helping to spread the word.

Now, on to the news.

Lawyer Of The Week: New York State Senator Brad Hoylman

The obvious picks for LOTW honors would be the lawyers involved in the Trump impeachment trial — the nine house managers, all lawyers; their outside advisors, including Barry Berke and Joshua Matz; and Donald Trump’s defense team, including Bruce Castor and David Schoen. But you don’t read Judicial Notice to learn about the obvious.

So I’m going in a different direction and naming New York State Senator Brad Hoylman, a Rhodes Scholar and Harvard Law School graduate, as Lawyer of the Week. Hoylman, Chair of the Senate Judiciary Committee, just secured the repeal of New York’s notorious “walking while trans” law — an overbroad anti-loitering statute that gave rise over the years to police abuse and harassment, especially of women of color, many of them transgender. Hoylman — a Democrat who represents the 27th District, and a member of the LGBTQ community himself — was lead sponsor of the bill, which was sponsored by Amy Paulin in the Assembly.

As you might expect from a lawyer, Hoylman looks out for the legal profession as well. He’s also the lead sponsor of Senate Bill S8682A, which would create a form of diploma privilege in New York State, sparing thousands of law school graduates from having to take the bar exam in the midst of the coronavirus pandemic — an increasingly popular option given the challenges of administering a bar exam during a global public health crisis.

Runner-up: Perkins Coie associate Zachary Newkirk, who will appear on Jeopardy’s tournament of champions later this year after winning almost $125,000 over six episodes in 2020. Good luck, Zachary!

Judge Of The Week: Judge Lynn Hughes

Judge Lynn Hughes (S.D. Tex.) strikes (out) again. As reported by Alison Frankel of Reuters (via Howard Bashman of How Appealing), the frequently reversed Judge Hughes just got benchslapped yet again by the Fifth Circuit, this time in Miller v. University of Houston. These tweets, by Raffi Melkonian and Orin Kerr, say it all:

You can read the full opinion here (also via Howard). It’s a doozy.

Runners-up: Judge Juliet Howard and Judge Norma Jennings, both of New York City Housing Court. When Judge Howard takes the bench later this month, they will become the first married same-sex couple appointed to the same court in New York, according to the Richard C. Failla LGBTQ Commission of NY Courts. Matthew Skinner, executive director of the Commission, commented that the duo “really add something wonderful to the bench in New York City.” Congratulations, Your Honors!

Ruling Of The Week: Tsao v. Captiva MVP Restaurant Partners LLC

The Supreme Court issued some interesting rulings this past week. It gave California churches partial relief from COVID-19 restrictions, ruled in favor of Germany in a closely watched case over Nazi-era art, and held that federal courts can review an administrative board’s refusal to reopen a case denying disability benefits to a railroad worker. That third case, Salinas v. U.S. Railroad, was the first 5-4 ruling in an argued case this Term, and the line-up was interesting; Chief Justice John Roberts and Justice Brett Kavanaugh joined the three liberal justices to rule for the plaintiff.

But big-ticket rulings from SCOTUS are obvious. And, as noted, you don’t come here for the obvious.

So for Ruling of the Week, I’m actually going with the Eleventh Circuit’s decision in Tsao v. Captiva MVP Restaurant Partners LLC, which I’d file under “seemingly boring but actually important.” The case presented two questions. First, did plaintiff Tsao, patron of a fast-casual restaurant chain whose information was stolen in a data breach, have standing to sue because of exposure to the future risk of identity theft, absent any actual misuse of his information? Second, were Tsao’s efforts to mitigate the risk of future identity theft, such as canceling a compromised credit card (and losing out on reward points), a concrete injury sufficient to establish standing?

Judge Gerald Bard Tjoflat, writing on behalf of himself and Judge William B. Traxler (4th Cir.), answered no to both questions. Judge Adalberto Jordan concurred in the judgment, ending his concurrence by all but begging SCOTUS to get involved: “Hopefully the Supreme Court will soon grant certiorari in a case presenting the question of Article III standing in a data breach case.”

I believe that the Court will — and should — take such a case. As practicing litigators know, standing, which might seem dry and boring, is actually of critical importance. And as data breaches become increasingly common, the issue of who can sue over a breach and when will only grow in significance.

Litigation Of The Week: State Attorneys General Versus McKinsey

McKinsey & Company, the Cravath of management consulting, just announced a massive $573 million settlement with the attorneys general of 47 states, the District of Columbia, and five territories. The settlement resolves investigations into McKinsey’s role in helping its clients “turbocharge” their opioid sales, which fueled the opioid epidemic in the United States. The company also struck separate deals with Washington State, for $13 million, and West Virginia, for $10 million. (Nevada has not settled and continues to pursue its own opioid investigation.)

As noted by the New York Times, the settlement is striking because it’s rare to see McKinsey held accountable for its work on behalf of clients — clients who, McKinsey likes to stress, receive McKinsey advice but ultimately make their own decisions. The terms of the settlement are also noteworthy: although McKinsey admits no wrongdoing, which is standard for such deals, it agreed to abide by court-ordered restrictions on its work with certain addictive narcotics, to retain emails for five years, to disclose potential conflicts of interest when bidding for state contracts, and to put tens of thousands of pages of documents about its opioid work onto a publicly available database.

This settlement, while sizable and sweeping, does not represent the end of McKinsey’s legal woes. It doesn’t preclude local governments from suing the consulting giant, nor does it bind the federal government — so stay tuned to see whether the Biden administration takes action.

Speaking of the Biden administration, my first runner-up for Litigation of the Week is the Department of Justice’s lawsuit against Yale University, challenging the school’s affirmative action policy as discriminating against white and Asian-American applicants — a lawsuit the new administration just dropped. Keep an eye out for similar shifts in government positions over the weeks and months ahead.

Second runner-up: election technology maker Smartmatic’s $2.7 billion lawsuit against Fox News and three of its anchors, Maria Bartiromo, Jeanine Pirro, and Lou Dobbs (now a former Fox anchor). The 276-page complaint was filed on Smartmatic’s behalf by J. Erik Connolly of Benesch, Friedlander, Coplan & Aronoff LLP. (In case you’re wondering why Smartmatic filed in New York Supreme Court rather than in a federal court, it’s because Smartmatic and Fox News, both Delaware corporations, lack diversity.)

Deal Of The Week: Stone Point Capital And Insight Partners Buying CoreLogic

On Thursday, a pair of private equity firms, Stone Point Capital LLC and Insight Partners, announced their purchase of real estate-data provider CoreLogic Inc. for $6 billion — a handsome 51 percent premium to CoreLogic’s share price last summer, which is when shareholder activists showed up on the scene and started making noise.

Congratulations to the three law firms advising the principals: Skadden Arps for Corelogic, Kirkland & Ellis for Stone Point, and Willkie Farr for Insight. But note that the deal isn’t quite done yet. Rival bidder CoStar Group Inc., another player in the real estate-data space, is reviewing its options — which could include a new bid or a proxy fight. So more work for law firms might still be on the way.

Runner-up: Bayer AG’s $2 billion settlement of future claims that its widely used weedkiller, Roundup, causes cancer. Settlements of litigations are, of course, deals — and sometimes the dollar amounts involved can dwarf those of M&A or capital markets transactions.

Law Firm Of The Week: Kaplan Hecker & Fink

This week, whenever there was some interesting legal matter in the news, lawyers from Kaplan Hecker & Fink — the elite New York boutique led by Robbie Kaplan, Sean Hecker, and Julie Fink — were there.

On Tuesday, the House impeachment managers delivered their 77-page brief laying out their case against former President Donald Trump. Although former KHF partner Joshua Matz is mentioned only in the final footnote thanking him for his “invaluable assistance,” Matz — who, along with Professor Laurence Tribe, literally wrote the book on impeachment — surely played a major role in this effort. (Matz is working on the impeachment trial in his personal capacity — just as he did when he worked on Trump’s first impeachment trial, he resigned from Kaplan Hecker & Fink before going to help out the House managers — but don’t be surprised if he returns to the firm yet again when this is all over.)

Also on Tuesday, Pornhub issued a statement announcing what it described as “a series of industry-leading safety and security policies,” which it enacted in the wake of a scathing New York Times expose alleging that the online porn purveyor essentially turned a blind eye to the proliferation of illegal content on its platform. The new policies and procedures reflect the results of KHF’s independent review of Pornhub’s moderation procedures and other safety protocols. Some might find representing a porn platform to be distasteful — but like it or not, porn isn’t going away anytime soon, so it’s important to make sure that what’s out there is legal and consensually produced.

On Wednesday, Judge Norman Moon (W.D. Va.) set an October 25 trial date for Sines v. Kessler, the landmark litigation brought by KHF against the neo-Nazis and white supremacists responsible for the August 2017 Charlottesville car attack that killed Heather Heyer and injured 19 others. The lawsuit, first filed back in 2017 by Robbie Kaplan and Karen Dunn (then of Boies Schiller Flexner), raises the interesting and important issue of where to draw the line between protected free speech and illegal incitement to violence.

When I interviewed Robbie Kaplan back in 2017 about the launch of her new firm, she spoke about her desire “to fuse together a private commercial practice with a public interest practice for the mutual benefit of both.” Almost four years into the venture, it looks like she and her team are doing just that.

Lateral Move Of The Week: Biglaw Spawning Boutiques

We’re still in the first quarter, so not surprisingly, lateral movement remains brisk. The intellectual property space was especially active. Jenner & Block hired three partners — Mark Davis and Ron Pabis from Goodwin Procter, and Alex Hadjis from Oblon, McClelland, Maier & Neustadt — to launch an International Trade Commission (ITC) practice group. And two former administrative patent judges of the Patent Trial and Appeal Board (PTAB) found new gigs: Phil Hoffmann joined Ropes & Gray as a senior attorney, and Scott Kamholz left Covington & Burling, where he had been of counsel, to join Flagship Pioneering’s Tessera Therapeutics as vice president of intellectual property.

There were also a number of notable office openings, fueled by partner poaching. K&L Gates launched in Nashville, after hiring 27 attorneys from area firms Waller Lansden Dortch & Davis, Butler Snow, Dickinson Wright, and Bass, Berry & Sims; Quinn Emanuel launched in Atlanta, after hiring antitrust partner Debra Bernstein from Alston & Bird; and Holland & Knight launched in Orange County, California, after hiring seven litigators previously with the Enterprise Counsel Group.

But I think the biggest moves of the week were three groups breaking away from Biglaw to launch boutiques. This continues what I see as a decade-long trend of partners leaving large firms in search of more autonomy, more collegiality, fewer conflicts, less overhead, and — at least in some cases — more money. Specifically:

• Eight partners, including international arbitration practice founder and head Emmanuel Gaillard, left Shearman & Sterling to form Gaillard Banifatemi Shelbaya Disputes. The new firm, which will have offices in Paris, London, and New York, will reportedly take with it some $30 million to $40 million in revenue, as well as 30 or so associates. (They seem to be leaving on good terms; Shearman even issued a press release about the departures.)
• Seven partners — Andrew Glenn, Lyn Agre, Jed Bergman, Trevor Welch, Olga Fuentes, Michael Bowen, and Marissa Miller — left Kasowitz Benson to form Glenn Agre Bergman & Fuentes. The new firm is subletting space from Boies Schiller Flexner in New York and San Francisco, and Glenn Agre and Boies Schiller plan to work on cases together as well. (Name partner Olga Fuentes is married to Boies Schiller partner Peter Skinner.)
• Former Texas Solicitor General Scott Keller left Baker Botts, where he served as head of the firm’s Supreme Court practice, to form Lehotsky Keller with Steven Lehotsky, who left his role as chief litigation counsel at the U.S. Chamber of Commerce. Both former Supreme Court clerks (Keller for Justice Anthony M. Kennedy and Lehotsky for Justice Antonin Scalia), they will focus on complex litigation, including practice before the Supreme Court and challenges to federal and state laws and regulations.

Congratulations to these three exciting new firms. Several developments over the past decade or so, including improvements in ediscovery technology and the rise of vendors and alternative legal service providers who focus on large-scale discovery, have made high-end litigation much easier to handle without all the bodies of Biglaw. You just need the brainpower — which is why I’m betting on boutiques as the future of high-end, cutting-edge litigation.

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David Lat, the founding editor of Above the Law, is a writer, speaker, and legal recruiter at Lateral Link, where he is a managing director in the New York office. You can read his latest writing about law and the legal profession by subscribing to Original Jurisdiction, his Substack newsletter. David’s book, Supreme Ambitions: A Novel (2014), was described by the New York Times as “the most buzzed-about novel of the year” among legal elites. Before entering the media and recruiting worlds, David worked as a federal prosecutor, a litigation associate at Wachtell Lipton, and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@laterallink.com.

“You know what Mitch’s biggest thing is in the whole world? His judges…. He will absolutely ask me, please let’s get the judge approved instead of 10 ambassadors.”

That’s what Trump told Bob Woodward for Woodward’s latest book. It’s one of many honest moments over the course of those interviews that underscore how remarkably clueless Trump was about everything going on around him in the White House. The idea that McConnell’s obsession with judges was some sort of juicy observation to gift upon the literal archetype of a D.C. journalist betrayed a child-like naïveté that could only be explained by Trump being gloriously stupid or covering for his behind-the-scenes efforts to fight a secret cabal of sex trafficking cultists who drink baby blood. Occam’s Razor!

For anyone paying attention, unlike the former president, none of this was a surprise. Mitch McConnell spent the last several years holding up qualified judicial nominees to create artificial vacancies and then using Donald Trump to ram through every unqualified hack the Federalist Society could scrounge up, creating an unelected lifetime aristocracy to preserve his ideology well beyond its dwindling power at the polls. And all he had to do to keep Trump happy was create a Space Force so Trump could wave the USS Enterprise flag whenever he wanted. Not a bad bargain.

But what ideology is McConnell hoping to preserve? The parlor game elevated to an art by the Federalist Society is casting it as just a principled commitment to “limited government” and protecting the country from the tyranny of moderate taxes and background checks for hand cannons. Critics think this sort of pablum is just a fig leaf for more odious threads of white nationalism. That McConnell is much more aggressive to demand protection for confederate statues than balance the budget might provide some insight into his priorities. We’ll appeal to Occam’s Razor again.

What kind of judge is McConnell looking for (aside from ones the ABA identifies as unqualified, of course)? Back when McConnell was the Chief Legislative Assistant to Senator Marlow W. Cook, he wrote an article for the Kentucky Law Journal laying out his ideal justice. Young McConnell was addressing the then-recent sinking of the nominations of Clement Haynsworth and G. Harrold Carswell. Haynsworth had supported school efforts to avoid integration and crushed unionization efforts. Carswell was more straight-forward, having gone on record as believing in segregation in past remarks. But these defeats apparently chapped McConnell, who explained exactly what kind of judge the federal system needs.

Taney was approved, after more than two months of spirited debate, by a vote of 29 to 15 over vehement opposition including Calhoun, Clay, Crittenden, and Webster. He had actually been rejected the year before but was re-submitted by a stubborn Jackson.

History has judged Chief Justice Taney as among the most outstanding of American jurists, his tribulations prior to confirmation being completely overshadowed by an exceptional career.

A contemporary obituary of Roger Taney read, “The Hon. old Roger B. Taney has earned the gratitude of his country by dying at last. Better late than never.” I guess “outstanding” doesn’t technically have to mean “good.”

McConnell, biographers note, started out in his early 20s as a Republican activist in the South when that made him a civil rights advocate. It’s a detail that his supporters have wielded as a shield over the years when he poses in front of confederate battle flags for fun. Whether he ever truly believed in the cause or just saw it as the best path to office as a Republican before the post-Civil Rights Act realignment isn’t clear, but by 1970, it’s pretty clear that he’d abandoned any commitment to it. It’s impossible to get through law school without a clear understanding of what Roger Taney was. As toxic as the former Chief Justice’s reputation was in his lifetime, it’s only managed to get worse with the passage of time.

McConnell, who’d graduated from Louisville Law in 1967, knew exactly what dog whistles he was blowing by crafting Roger Taney as a model jurist and it puts the events of the last six years that he served as majority leader in perspective. McConnell wants a generation of judges to enforce the next Dred Scott so the politicians don’t have to. For a while he’ll have it, but just as Taney’s name is garbage regardless of McConnell’s youthful efforts to rehabilitate him, the long haul eventually pegs people for what they are.

But for cynicism junkies, there’s nothing more pure than the concluding paragraph:

In conclusion, these criteria for Senate judgment of nominees to the Supreme Court are recommended for future considerations. It will always be difficult to obtain a fair and impartial judgment from such an inevitably political body as the United States Senate. However, it is suggested that the true measure of a statesman may well be the ability to rise above partisan political considerations to objectively pass upon another aspiring human being. While the author retains no great optimism for their future usage, these guidelines are now, nevertheless, left behind, a fitting epilogue hopefully to a most unique and unforgettable era in the history of the Supreme Court.

His lack of optimism was well placed.

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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.

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A few months ago, I discussed why hemp-derived cannabidiol (CBD) products should be regulated as dietary supplements despite the fact that the FDA deems the marketing of these products as unlawful. If you recall, this rationale stems from an exclusion clause in the definition of “dietary supplement” under the Food, Drug and Cosmetic Act (FDCA) that generally disallows the use of an FDA-approved “drug” as a dietary supplement (the Drug Exclusion Rule). Because CBD was investigated and approved as a new drug ingredient — Epidiolex — before CBD was marketed as a dietary supplement, the sale and marketing of these products violates the FDCA.

In that article, I also mentioned that Congress shared my views and introduced bipartisan bills, namely H.R. 5587 and H.R. 8179, that proposed to exempt CBD products from the Drug Exclusion Rule so they could be regulated as dietary supplements.

Though these bills died in the 2020 legislative session, Representatives Kurt Schrader (D-OR) and Morgan Griffith (R-VA), along with 18 bipartisan co-sponsors, recently reintroduced H.R. 8179, also known as The Hemp and Hemp-Derived CBD Consumer Protection and Market Stabilization Act (the Act).

If enacted in its current form, the Act would legalize the manufacture, sale, and marketing of hemp, hemp-derived cannabidiol, and other hemp extracts (collectively referred to as “Hemp Products”) as dietary supplements under the FDCA.

To be compliant with the FDCA, these Hemp Products would need to meet the existing regulatory framework imposed on dietary supplements. This comprehensive regulatory framework mandates, in part, that these products be safe, as well as properly labeled and marketed.

Because Hemp Products were not sold and marketed in the U.S. as dietary supplements or conventional foods before October 15, 1994, they would be deemed “new dietary ingredients” (NDIs). Pursuant to Section 413 of the FDCA, if a dietary supplement contains an NDI, its manufacturer and distributor must ensure that the NDI is adequately substantiated as being safe — this includes following stringent manufacturing requirements known as “Current Good Manufacturing Practices” (CGMPs) — and must notify the FDA about that ingredient prior to marketing.

To meet this standard, manufacturers and distributors of Hemp Products would have to provide the FDA with information that is the basis on which they have concluded that their Hemp Products are reasonably expected to be safe under the conditions recommended or suggested in the labeling.

If the manufacturers or distributors were to receive a no-objection letter from the FDA, or no response at all, they could lawfully market their Hemp Products after the 75-day notification period is over, assuming there is in fact a history of use or other evidence of safety establishing that the Hemp Products, when used under the conditions recommended or suggested in the labeling, are reasonably expected to be safe.

When it comes to labeling requirements, manufacturers and distributors of Hemp Products would need to ensure their product packaging contains specific labeling elements, such as an identity statement and a supplement facts panel, but also contain no medical claims about the therapeutic values of their products. Inclusion of medical claims would suggest that the Hemp Products’ intended use is that of a drug, and thus, would violate the FDCA and warrant FDA and Federal Trade Commission (FTC) enforcement actions — the FDA and the Federal Trade Commission both regulate the marketing of dietary supplements.

In sum, the enactment of the Act would help alleviate regulatory uncertainties surrounding the legality of Hemp Products, which have hindered market opportunities for hemp farmers and businesses. In addition, the passage of this bipartisan bill would help raise the quality and safety of Hemp Products, and thus, assure consumers that these products are safe.

Industry leaders, such as the U.S. Hemp Roundtable, the U.S. Hemp Authority, and the National Association of State Departments of Agriculture (NASDA), as well as major herbal products associations like the American Herbal Products Association (AHPA), have expressed strong support for the bipartisan bill, which suggest the significant likelihood that CBD and Hemp Products will finally be regulated this year.

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Nathalie practices out of Harris Bricken’s Portland office and focuses on the regulatory framework of hemp-derived CBD (“hemp CBD”) products. She is an authority on FDA enforcement, Food, Drug & Cosmetic Act and other laws and regulations surrounding hemp and hemp CBD products. She also advises domestic and international clients on the sale, distribution, marketing, labeling, importation and exportation of these products. Nathalie frequently speaks on these issues and has made national media appearances, including on NPR’s Marketplace. For two consecutive years, Nathalie has been selected as a “Rising Star” by Super Lawyers Magazine, an honor bestowed on only 2.5% of eligible Oregon attorneys.  Nathalie is also a regular contributor to her firm’s Canna Law Blog.

* A lawsuit has been filed following the Rose Bowl being played in Texas this year because of COVID-19. They should have a bowl game to resolve the dispute… [Fox News]

* President Trump’s former lawyer Michael Cohen has apologized to Stormy Daniels for putting her through “needless pain.” [Yahoo News]

* A Pennsylvania lawyer, who allegedly helped clients commit insurance fraud, has been disbarred. [Bloomberg Law]

* Robinhood is facing a wrongful death lawsuit filed by the family of a college student who allegedly killed himself after purportedly sustaining trading losses using the platform. [Hill]

* The Justice Department has dropped a lawsuit filed against a former aide to Melania Trump over a tell-all book published about the Trump Administration. That book must be a pager-turner… [Washington Post]

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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.