Category: News Feeds

It’s still hard to believe that there will actually be bar exams next week. But even in states with a basic respect for public health warnings, the exams are mostly just delayed, requiring applicants to keep ramping up for a test only to be forced to forget everything again when the next delay is announced. The only way to avoid this cycle is to adopt an emergency diploma process. This week, Joe chats with Dr. Pilar Escontrias, Donna Saadati-Soto, Efrain Hudnell, and Emily Croucher, co-founders of United for Diploma Privilege. Follow them @DiplomaPriv4All.

Eighteen states, plus Washington, D.C., have established laws that allow for legal, regulated sports-betting within their borders since SCOTUS overturned the Professional and Amateur Sports Protection Act of 1992, which previously served to provide Nevada with a decades-long monopoly on sports wagering. The normal expectation would be that, in those states, illegal sports betting has been drastically reduced. The data paints a different picture.

The American Gaming Association, a national trade group representing the $261 billion U.S. casino industry, released a study that shows illegal offshore operators realized a 3% increase in activity in the past year within states with legal sports betting. The study, conducted by Heart + Mind Strategies, surveyed 3,451 American adults over the age of 21 from various subgroups.

While it is apparent and obvious that many consumers would shift their sports betting activity from illegal, offshore operators to domestic legal options such as DraftKings, FanDuel, PointsBet, or MGM, it is surprising that the amount of illegal activity has actually increased in those states that have taken the initiative to legalize sports wagering within their borders. Perhaps many states’ efforts have not gone far enough or states’ greed has gotten in the way of their success in converting illegal bettors to consumers placing their money with licensed and regulated operators.

The biggest problem remains a lack of options for the consumer. States that have proven unwilling to provide constituents the opportunity to bet through mobile devices will continue to find people opting for the ease and convenience of placing wagers with illegal, offshore options.

New York is a perfect example. New York’s more than 8 million inhabitants cannot place a bet through their mobile phones. Amending its laws to allow online sports betting has been discussed, but was once again punted by the legislature on July 20. The measure apparently also lacks support from Governor Andrew M. Cuomo.

“Unfortunately online will never happen in NY,” states a tweet reply to the news that New York will delay debating online sports betting. “Guys like myself actually couldn’t care less. I still have multiple offshore accounts and a handful of locals I have used for 25+ years, knowing I will always get paid and never get capped with a limit.”

Therein lies the major problem for states that believe they are making progress by legalizing sports wagering within their borders, but refuse to take the extra necessary step of also providing consumers the opportunity to place wagers through their mobile devices. Alternatives exist that will lead to continued growth of illegal offshore operators within those very states that claim they are adding transparency and acting in a progressive manner. This is also recognized by American Gaming Association President and CEO Bill Miller.

“Giving consumers convenient alternatives to the illegal market, like regulated mobile offerings and competitive odds, is key for getting bettors to switch to legal channels,” Miller said.

Another problem identified by Miller is that more than half of consumers who placed most of their wagers with illegal operators over the past year did so while believing they were betting legally. As such, more needs to be done to educate consumers about the legal options within their states. If the data is to be taken seriously, then such a large number of people unknowingly wagering illegally is something that must be and can be corrected.

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Darren Heitner is the founder of Heitner Legal. He is the author of How to Play the Game: What Every Sports Attorney Needs to Know, published by the American Bar Association, and is an adjunct professor at the University of Florida Levin College of Law. You can reach him by email at heitner@gmail.com and follow him on Twitter at @DarrenHeitner.

St. Louis prosecutors recently charged attorneys Mark and Patricia McCloskey with “unlawful use of a weapon” after their zany impromptu gun show a few weeks ago. Waving an AR-15 and a pistol at marchers passing by their house may confer hero status among the white grievance set, but in the real world it opens you up to felony charges. Luckily for them, Attorney General Eric Schmitt also gets his CLE credits from Tucker Carlson and he’s on a mission to end the politicization of the justice system by directly injecting himself into the process for purely political reasons.

From Ozarks First:

“Enough is enough,” said Eric Schmitt, Missouri attorney general. “As Missouri’s chief law enforcement officer, I simply will not stand by. That’s why I’m entering this case and seeking the dismissal of this case.”

The crux of Schmitt’s argument, outlined in a 12-page amicus brief, is that the Second Amendment protects every American’s right to brandish deadly weapons, the castle doctrine applied to the McCloskeys’ actions on their own property, and that any prosecution would chill others from trying to go Tony Montana on peaceful protestors. It’s a laughable jumble of words.

In the immediate wake of the incident, I wrote that the McCloskeys were probably within their rights because they stayed entirely on their property. Waving guns at people off your property shouldn’t be legal, but I assumed that Missouri was exactly the sort of state that would provide an absolute defense to doing whatever one wants on their own property. But it turns out this isn’t the case!

The operative statute, §571.030 makes it a felony to “Exhibit[], in the presence of one or more persons, any weapon readily capable of lethal use in an angry or threatening manner.” The exceptions to this are laid out in §563.031:

(1) He or she reasonably believes that such deadly force is necessary to protect himself, or herself or her unborn child, or another against death, serious physical injury, or any forcible felony;

(2) Such force is used against a person who unlawfully enters, remains after unlawfully entering, or attempts to unlawfully enter a dwelling, residence, or vehicle lawfully occupied by such person; or

(3) Such force is used against a person who unlawfully enters, remains after unlawfully entering, or attempts to unlawfully enter private property that is owned or leased by an individual, or is occupied by an individual who has been given specific authority by the property owner to occupy the property, claiming a justification of using protective force under this section.

The McCloskeys have a whole lot of subjective belief, based on their claim that they thought the protestors were out to get them and were moments from storming the house, but translating that to “reasonable” — especially with the available footage — should prove an uphill climb with a jury. Even if the protestors unlawfully entered the gated subdivision, there doesn’t seem to be any evidence that the people on the receiving end of the McCloskey muzzles ever entered McCloskey property which is a big problem for this defense. The McCloskeys are big fans of adverse possession but even they can’t claim ownership of the street.

So, the statutes make it pretty clear that the McCloskeys could aim their guns at anyone who entered their property, but until someone did so they don’t have any right to aim at anyone.

To this, Schmitt responds quoting the deep history of constitutional law establishing an unencumbered right to keep firearms, which is to say he quotes the 12-year-old opinion that marked the very first time in American history that the law embraced that interpretation. Whenever I write about this case I get angry emails from people about the right to bear arms that seem to have no grasp for the fact that the conservative wing of the Supreme Court thought this was an utterly baseless proposition as recently as the late 80s. Honestly, the most effective “we’ve always been at war with Eastasia” of my lifetime has been the complete erasure of the history of the Second Amendment from 1791 to 2008.

He also lays out the statutory landscape in Missouri, but fails at any point to address that there’s not a castle doctrine defense when no one is in the castle. All he succeeds in doing with this brief is making it clear that the only defense the McCloskeys have to a felony charge rests on making the case that they had an objectively reasonable belief that a home invasion was happening… which is exactly the sort of fact question that requires a trial. So, yes, the AG makes the airtight argument for going forward with the case in his brief asking to dismiss the case.

This would be damning if this brief was even attempting to be a real legal document, but it’s not. This is just a quick blurb about the Second Amendment designed to give Schmitt some free publicity during an election year. He gets to tell his base that he won’t let a black woman like St. Louis prosecutor Kim Gardner tell white folks what to do. That should be good for some fundraising!

Unfortunately, it’s not good for public safety. Like a lot of states, Missouri’s chief law enforcement post is occupied by a stuffed shirt more interested in wasting state resources on abortion bans and trying to score cable news hits. But, the strategy has worked for the incumbent so far so it’s hard to imagine it’s going to change.

(Full brief on next page…)

Missouri attorney general entering the McCloskey case to fight for its dismissal [Ozarks First]

Earlier: St. Louis Lawyers Wave AR-15 At Protesters Like Totally Normal, Totally Not Bonkers People
Opening Up The Above The Law Mailbox… Of Hate Mail!
AR-15 Couple Teach Us All About Adverse Possession!

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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.

Roy Den Hollander, 72, the “anti-feminist” lawyer named as a suspect in the fatal shooting at the home of Judge Esther Salas (District of New Jersey), left a long and disturbing paper trail in his wake — one filled with racist and misogynistic rhetoric that attacks the judge by name.

Den Hollander, who once worked as an associate at Cravath, stands accused in the violent shooting death of Salas’s son, Daniel Anderl, 20, as well as the wounding of her husband, criminal defense attorney Mark Anderl. The self-proclaimed Trump campaign volunteer was later found dead of a self-inflicted gunshot wound.

In his more than 10,000 pages of PDF screeds against women and people of color, Den Hollander referred to Salas as an “affirmative action” case and “a lazy and incompetent Latina judge appointed by Obama.” In 2019, Salas presided over a case filed by Den Hollander where he argued that barring women from the mandatory male draft was illegal. Apparently angered that Salas had allowed the Department of Justice to file a fourth motion to dismiss, he wrote that she “clearly wanted to further her career by moving up the judicial ladder to the Court of Appeals or maybe even the Supreme Court. After all, there was now a Latina seat in the form of Sotomayor on the Court.” The Atlantic has additional details on his writings:

“Female judges didn’t bother me as long as they were middle age or older black ladies,” he writes when discussing a lawsuit he filed that went before Judge Salas, the first Hispanic woman appointed a federal judge in New Jersey. “They seemed to have an understanding of how life worked and were not about to be conned by any foot dragging lawyer. Latinas, however, were usually a problem—driven by an inferiority complex.”

Along with the attacks on Salas, Den Hollander’s writings also go after President Barack Obama (who he said has an “obsession to turn America into a banana republic”), Supreme Court Justice Sonia Sotomayor (who he claimed was “angry that nobody had invited her to her high school senior prom”), Hillary Clinton (whose supporters were “teary-eyed, sad-sack, PC loonies watching their power of intolerance go down the drain”), and an Obama appointee (whom he describes as part of “that Orwellian party of feminists, ethnics, Muslims, illegals and queers who think they are superior to everyone else, especially white males.”)

Den Hollander, who was an active participant in anti-feminist and misogynist groups on Facebook, including Humanity Vs. Feminism and Men Going Their Own Way, self-published a 1,700-page autobiography this year where he switched gears often, at one point writing of Salas that he “wanted to ask the Judge out, but thought she might hold me in contempt.” According to NBC News, Den Hollander also repeatedly denigrated and railed against female judges, including “fantasizing about the rape of another judge who presided over his divorce case.”

In his writings, Den Hollander also revealed his terminal cancer diagnosis, and voting system researcher Mike Farb of Unhack the Vote thinks that, coupled with his hate for Salas, may have served as his “impetus for murder.”

We will continue to follow this tragic case and provide updates should more information about Roy Den Hollander be revealed.

The New Jersey Shooting Suspect Left a Pro-Trump Paper Trail [The Atlantic]
Suspect in federal judge’s home ambush railed against her in misogynistic book [NBC News]

Earlier: Former Cravath Lawyer Named As Suspect In Fatal Shooting At Federal Judge’s Home
Shooting At Federal Judge’s Home Leaves One Dead, One Critically Injured

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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.

Well that was weird, wasn’t it?

The Supreme Court Term that just concluded, October Term 2019, was one of the most unusual terms ever — and certainly the most unusual in the 15-plus years that I’ve been writing about the Court. I like how Professor Josh Blackman put it, speaking with David French and Sarah Isgur of the (excellent) Advisory Opinions podcast:

My friend Chris Walker is right [in describing OT 2020 as “such an unusual and important Term”]. This is a Term unlike any other. We had an impeachment, we had a COVID epidemic, and we had the Chief Justice rise to become the deciding factor.

The COVID-19 epidemic was especially consequential for the Court. As longtime watchers know, the Court is an institution committed to tradition — but COVID-19 caused the Court to, well, adopt new traditions. Most notably, the Court held remote oral arguments, conducted telephonically, and livestreamed the proceedings. I viewed the Court’s new approach to oral argument and livestreaming as quite successful (stray toilet flushes notwithstanding), and I hope SCOTUS preserves some elements of it in the post-pandemic era.

COVID-19 also changed the SCOTUS clerkship experience — and probably not for the better. As former Supreme Court clerk Tobi Young told Tony Mauro, in an interesting interview about her experience as the first Native American SCOTUS clerk:

I’ve tried to put myself in the shoes of this year’s clerks. I would not have enjoyed doing the work entirely remotely, never seeing my teammates and the justice and colleagues from other chambers. I bet most clerks willingly would have brought sleeping bags and quarantined at the court to preserve the unique experience and collaboration. Missing out on performing the ritual skit for the justices must be a lot like a high school senior missing prom! Yet the work must get done, and they’re getting it done, as the release of opinions illustrates each week.

It took a little longer to get the work done, with the term running past the July 4 holiday for the first time since 1986. But given the challenges of trying to go about their work remotely, in the midst of a global pandemic, I must commend the justices and the OT 2019 clerks for getting it all done in the end.

Clerking in the 2019-20 Term might have been more difficult and less fun than usual, at least in some respects. But SCOTUS clerkships, like diamonds, are forever — and so even if the clerkship experience wasn’t quite the same, the clerks will still enjoy the lifelong prestige of being members of The Elect (and those $400,000 signing bonuses).

Which brings us to what you’ve come here for: the complete roster of Supreme Court law clerks for October Term 2020. Although OT 2020 won’t officially start (presumably remotely) until the first Monday in October, the new clerks are already “arriving” and starting their work (also remotely).

Now, if you who follow @SCOTUSambitions on Twitter — originally the feed for my novel of the same name, now converted to a clearinghouse for SCOTUS clerk hiring news — you’ve already seen these hires. If you’re looking for SCOTUS clerk hiring news in real time (or at least something closer to real time — I tweet hires as soon as I learn about them, which is sometimes well after the fact, and after I’ve verified them) — please follow @SCOTUSambitions.

But it’s nice to have all the hires in one place. And at least for the October Term 2020 clerks, please note that this is the official roster, duly verified by the Court’s Public Information Office (for which I thank the PIO).

In a future post, which you can think of as a “Part II” for my report on the OT 2020 clerk class, I will provide my usual color commentary and demographic analysis. This will include analysis of top law schools for producing SCOTUS clerks, top feeder judges, and gender breakdown of the clerk class.

I will also offer a special profile of the last OT 2020 clerk whose hiring I heard about, Amy Upshaw (Chicago 2016/Sykes), Above the Law’s own version of Mr. Irrelevant. If you have fun tidbits to share about Amy, please reach out to me using the contact info provided below. (To get an idea of what I’m looking for — good clean fun, nothing scandalous — please see my last Mr. Irrelevant profile, starring Joe Masterman.)

So, without further delay, here are the SCOTUS clerk lists for OT 2020 and OT 2021, plus a few hires for OT 2022 (not yet in list form, but I’ll put them in list form once I have a critical mass). As mentioned, the OT 2020 clerk roster has been officially confirmed by the Public Information Office, but the OT 2021 and OT 2022 hires have not been so verified.

I don’t report a hire until I have confirmed it on good authority, but occasionally I do make mistakes (e.g., a typo in a name, an incorrect graduation year, or the wrong feeder judge). So if you have any corrections to this information, or if you have any hiring news I have not yet reported, please reach out by email or text (917-397-2751). Please include the words “SCOTUS Clerk Hiring” in your email or text message, perhaps as the subject line of your email or the first words of your text, because that’s how I locate these tips in my overwhelmed inbox. Thanks!

P.S. Speaking of corrections — please note the correction to my last SCOTUS clerk hiring round-up regarding the first child of two SCOTUS clerks to become a SCOTUS clerk himself. As pointed out in this (fascinating) article by Tony Mauro, When Supreme Court Clerkships Become a Family Tradition, that honor appears to belong to Jonathan Meltzer (OT 2015/Kagan), son of the late Dan Meltzer (OT 1976/Stewart) and Ellen Semenoff (OT 1976/Marshall) — not Joshua Revesz (OT 2020/Kagan), son of Ricky Revesz (OT 1984/Marshall) and Vicki Been (OT 1984/Blackmun).

OCTOBER TERM 2020 SUPREME COURT CLERK HIRES (as of July 21, 2020)

Chief Justice John G. Roberts
1. Leslie Arffa (Yale 2018/Livingston/Boasberg (D.D.C.))
2. Patrick Fuster (Chicago 2018/Watford/Chhabria (N.D. Cal.))
3. Benjamin Gifford (Harvard 2017/Rakoff (S.D.N.Y.) /Katzmann)
4. Stephen Hammer (Harvard 2018/Sutton/Katsas)

Justice Clarence Thomas
1. Philip Cooper (Chicago 2017/W. Pryor/Stras)
2. Joshua Divine (Yale 2016/W. Pryor)
3. Jack Millman (NYU 2016/O’Scannlain/E. Carnes)
4. Amy Upshaw (Chicago 2016/Sykes)

Justice Ruth Bader Ginsburg
1. Jack Boeglin (Yale 2016/Srinivasan/Calabresi)
2. Thaddeus Eagles (NYU 2015/Rakoff (S.D.N.Y.)/Katzmann)
3. Eliza Lehner (Yale 2017/Watford/Furman (S.D.N.Y.))
4. David Louk (Yale 2015/Boasberg (D.D.C.)/Katzmann)
5. Brittany Jones Record (Stanford 2016/Sutton/Millett)

Note: as I mentioned previously at @SCOTUSambitions, Thad Eagles was originally hired by Justice John Paul Stevens, before Justice Stevens passed away. But as is its custom when a justice passes, the Court has found a new chambers for Thad; he will be clerking for Justice Ginsburg (and is listed on the PIO’s official roster as a fifth Ginsburg clerk, not a Stevens clerk).

Justice Stephen G. Breyer
1. Emily Barnet (Yale 2015/Rakoff (S.D.N.Y.)/Katzmann)
2. Diana Li Kim (Yale 2017/Hall (D. Conn.)/Calabresi)
3. Arjun Ramamurti (Yale 2018/Garland/Pillard)
4. Daniel Richardson (UVA 2018/Wilkinson/Bristow)

Justice Samuel Alito
1. Taylor Hoogendorn (Yale 2018/Wilkinson/Katsas)
2. Mary Miller (U. Michigan 2016/Owen/Leon (D.D.C.))
3. Maria Monaghan (UVA 2017/Thapar/E. Carnes)
4. David Phillips (Harvard 2018/Colloton/Silberman)

Justice Sonia Sotomayor
1. Greg Cui (Yale 2017/Fletcher/Furman (S.D.N.Y.))
2. Kristen Loveland (NYU 2016/Furman (S.D.N.Y.)/Lohier)
3. Imelme Umana (Harvard 2018/Wilkins)
4. Sarah Weiner (Yale 2017/Tatel/Oetken (S.D.N.Y.))

Justice Elena Kagan
1. Peter Davis (Stanford 2017/Srinivasan/Boasberg (D.D.C.))
2. Madeleine Joseph (Harvard 2018/S. Lynch/Howell (D.D.C.))
3. Isaac Park (Harvard 2018/Srinivasan/Oetken (S.D.N.Y.)
4. Joshua Revesz (Yale 2017/Garland)

Justice Neil M. Gorsuch
1. James Burnham (U. Chicago 2009/Kozinski)
2. Trevor Ezell (Stanford 2017/Sutton/Oldham)
3. Krista Perry (U. Chicago 2016/W. Pryor/Kennedy)
4. John Ramer (Michigan 2017/Kethledge/Bristow)

Justice Brett M. Kavanaugh
1. Harry Graver (Harvard 2019/Wilkinson)
2. Tyler Infinger (NYU 2016/Rao)
3. Zoe Jacoby (Yale 2019/Barrett)
4. Megan McGlynn (Yale 2017/W. Pryor/Friedrich (D.D.C.))

Justice Anthony M. Kennedy (retired):
1. Ben Wallace (Yale 2016/Kethledge/Srinivasan)

Note: as reflected in the PIO’s official clerk roster, retired Justice David H. Souter did not hire a clerk for OT 2020 — and presumably won’t be hiring clerks for future terms as well.

OCTOBER TERM 2021 SUPREME COURT CLERK HIRES (as of July 21, 2020)

Chief Justice John G. Roberts
1. Maxwell Gottschall (Harvard 2019/Srinivasan/Boasberg (D.D.C.))
2. ?
3. ?
4. ?

Justice Clarence Thomas
1. Christopher Goodnow (Harvard 2017/Sykes/Katsas)
2. Manuel Valle (U. Chicago 2017/E. Jones/Larsen)
3. ?
4. ?

Hired by Justice Thomas for OT 2022: Bijan Aboutarabi (U. Chicago 2018/W. Pryor/Thapar).

Justice Ruth Bader Ginsburg
1. ?
2. ?
3. ?
4. ?

Justice Stephen G. Breyer
1. Elizabeth Deutsch (Yale 2016/Pillard/Oetken (S.D.N.Y.))
2. ?
3. ?
4. ?

Justice Samuel Alito
1. ?
2. ?
3. ?
4. ?

Justice Sonia Sotomayor
1. ?
2. ?
3. ?
4. ?

Justice Elena Kagan
1. Andra Lim (Stanford 2019/Friedland)
2. ?
3. ?
4. ?

Justice Neil M. Gorsuch

1. Stephanie Barclay (BYU 2011/N.R. Smith)
2. Louis Capozzi (Penn 2019/Scirica/Wilkinson)
3. Mark Storslee (Stanford 2015 / O’Scannlain)
4. ?

Justice Brett M. Kavanaugh

1. Alexa Baltes (Notre Dame 2017/Gruender/Barrett)
2. Athie Livas (Yale 2019/Thapar/Friedrich (D.D.C.))
3. Jenna Pavelec (Yale 2017/Thapar/Kethledge)
4. Sarah Welch (Chicago 2019/Sutton/W. Pryor)

Hired by Justice Kavanaugh for October Term 2022: Thomas Hopson (Yale 2020/Katsas/Friedrich (D.D.C.)), Cameron Pritchett (Harvard 2018/Edwards/Gallager (D. Md.)), and David Steinbach (Stanford 2019/Boasberg (D.D.C.)/Srinivasan).

Justice Anthony M. Kennedy (retired):
1. ?

Once again, do you know about a hire not previously reported, or do you have an addition or correction to any of this info? Please share what you know by email or text (917-397-2751). Please include the words “SCOTUS Clerk Hiring” in your email or text message, as the subject line of your email or the first words of your text, because that’s how I locate these tips in my inundated inbox. Thanks!

Earlier:

• Supreme Court Clerk Hiring Watch: The Return Of The Tiger Cub
• Supreme Court Clerk Hiring Watch: Justice Kavanaugh’s History-Making Class Of Clerks
• Supreme Court Clerk Hiring Watch: The Complete Clerk Roster For October Term 2018
  

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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. 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. David previously 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.

The Eastern District of Texas has long been known as the forum of choice for patent holders looking for a payday. While the past few years have seen the Eastern District get displaced from its pedestal as the most popular patent court — based primarily on TC Heartland’s major shift in patent venue law, as well as the rise of the Western District as an attractive forum for patent holders with the ability to sue defendants in Texas — the district still retains a favorable impression as a plaintiff-friendly choice, especially for nonpracticing entities. It is a bit unusual, however, to see the Eastern District of Texas as the selected forum for a much broader, albeit nonpatent, IP dispute involving a couple of Silicon Valley-based combatants. But unusual does not mean never — and we now have a juicy IP battle involving two high-profile grocery delivery companies to savor.

The first salvo was fired by perhaps the best-known name in grocery delivery, Instacart. While I suspect that Instacart’s popularity has gone up recently due to customer concerns about shopping in grocery stores during the Covid-19 pandemic, the sensibility around the grocery delivery space indicates an expectation of even more growth going forward. With a key driver of that growth being improved technology, just as it is for a host of companies looking to leverage technology to provide services for customers. But with increased commercial potential comes increased competition, putting a premium on Instacart being able to maintain its lead over rivals. Key to that effort for Instacart is the strength of its technical platform, as well as the goodwill it has generated from its brand-building efforts. At the same time, when a well-funded challenger arises that appears to have appropriated material from Instacart to get a head start in the ongoing race, aggressive litigation steps are both expected and called for.

And aggressive litigation steps are exactly what Instacart has recently taken, in a move that has garnered a significant amount of (welcome, considering the importance of controlling the narrative around litigation filings against competitors) media attention. From its announcement that it had filed a complaint against competitor Cornershop, to making strongly worded accusations that Cornershop had engaged in a “systematic effort to steal Instacart’s IP,” to moving for a preliminary injunction — Instacart has chosen the all-out-war route from the outset in an attempt to hobble a dangerous competitor. Even though Cornershop responded to Instacart’s cease-and-desist letter in just one day, with a representation that it had “ceased the activities” it was accused of, that was not enough to avert the lawsuit and preliminary injunction filing just two days later. The aggressive timing becomes a lot more understandable, however, when one factors in that: 1) Cornershop is owned by services-via-app behemoth Uber, and 2) had recently launched service in Texas and Florida, marking its first foray into direct competition with Instacart.

At the heart of Instacart’s complaint is that it has solved a critical problem facing grocery delivery services, namely that good images of every product for sale at any given grocery store simply don’t exist. To address that problem, Instacart claims that it empowered regular people to help fill gaps in the images database for each retailer with its Mobile Photo Studio, which allows regular users to upload images of products to Instacart for processing and eventual inclusion in Instacart’s product catalog. Indeed, “Instacart claims it spent “tens of millions of dollars” and “and a tireless amount of effort” to build its catalog, which features items from more than 30,000 stores across its footprint.” Unsurprisingly, Instacart claims copyright ownership in many of the images contained in its catalog, while complaining vigorously that Cornershop has disregarded its legal rights in those images as part of a sustained campaign to “scrape” Instacart’s catalog as the basis of its own.

In fact, Instacart accuses Cornershop of a systematic campaign to profit off the sweat equity and financial investment that went into building Instacart’s catalog. From lifting of images, to changing of file names to mask the origin of the files, to soliciting engineers with experience in “advanced scraping” — Instacart’s complaint tells a media-friendly story of a competitor looking to take advantage of the market leader’s investments for its own benefit as it looks to launch in the critical United States market. At the same time, we can expect that Cornershop, and its parent Uber, will mount a vigorous defense to Instacart’s claims while quickly pivoting toward increased investment in building out Cornershop’s catalog free of any further accusations of impropriety. Instacart’s preliminary injunction motion, if granted, could go a long way toward forcing Cornershop’s hand in that direction.

Ultimately, Instacart’s filing heralds the start of what will likely be a years-long fight for supremacy in the grocery delivery space. For now, it appears that at least part of the battle will take place in an East Texas courtroom, with the promise of both sides fighting vigorously in support of their legal claims. It is definitely too soon to predict which side will prevail — either in court or in the battle for customer attention — but there is at least precedent for an Uber-backed company buying its way out of significant IP trouble, in the form of the Waymo trade secret battle in the recent past. For now at least, Instacart is hoping that the court will deliver it an injunction to help seal the message that Cornershop is the stale alternative to Instacart’s fresh and reliable service.

Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

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Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

Over at The Washington Post, Radley Balko has been continually updating a piece where he offers evidence that the “criminal justice system is racist.” Here are just a few of the examples Balko provides:

A 2010 report by the Equal Justice Initiative documented cases in which courts upheld prosecutors’ dismissal of jurors because of allegedly race-neutral factors such as affiliation with a historically black college, a son in an interracial marriage, living in a black-majority neighborhood or that a juror “shucked and jived.”

In March of 2019, researchers compiled and analyzed data from more than 100 million traffic stops in the United States. What they found: Police were more likely to pull over black drivers. The researchers were able to confirm racial bias by measuring daytime stops against nighttime stops, when darkness would make it more difficult to ascertain a driver’s race. As with previous studies, they also found that black and Latino drivers are more likely to be searched for contraband — even though white drivers are consistently more likely to be found with contraband. They also found that legalization of marijuana in Colorado and Washington has caused fewer drivers to be searched during a stop, but that it did not alter the increased frequency with which black and Latino drivers are searched.

To put it mildly, there is a lot evidence out there that the criminal justice system treats people differently by race. Yet, as Michelle Alexander has explained, the Supreme Court has effectively closed the courthouse doors to claims of race discrimination via two cases: McCleskey v. Kemp, 481 U.S. 279 (1987) and United States v. Armstrong, 517 U.S. 456 (1996).

In McCleskey, the Court held that racial bias in sentencing could not be challenged under the Fourteenth Amendment’s equal protection clause unless clear evidence of conscious, discriminatory intent was presented. In support of his claim, Warren McCleskey had presented a study, called the Baldus study, of more than 2,000 murder cases in Georgia (the state in which the defendant, McCleskey, was convicted). Acknowledging that numerous factors besides race can impact the judgment of juries, prosecutors, and judges when it comes to sentencing, the Baldus study took into account 35 nonracial variables. Nevertheless, even with those variables, the study found that defendants charged with killing white victims were 4.3 times more likely to receive the death penalty than defendants charged with killing black victims. Although the Court accepted these racial disparities as valid, and that “[t]aken to its logical conclusion” McCleskey’s claim “throws into serious question the principles that underlie our criminal justice system,” the Court nevertheless held that demonstrated patterns of race discrimination were not enough, and that McCleskey needed to show an admission that a prosecutor or judge acted because of racial bias. As any defense attorney will tell you, the problem with such a standard is that a plethora of procedural rules shield prosecutors from scrutiny. Moreover, the Armstrong decision made obtaining such evidence effectually impossible.

In Armstrong, the defendant, Christopher Armstrong, was charged with conspiracy to distribute 50 grams of crack cocaine. At the time, federal law punished crack offenses a hundred times more severely than offenses involving powdered cocaine (don’t get me started on that), whereas state penalties for crack cocaine were far less severe. The federal public defenders handling Armstrong’s case, however, had begun to notice a disturbing trend in the federal crack cases they handled: all the defendants were black. Indeed, in the previous three years that particular public defenders office had handled 53 crack cases, yet not one defendant was white, despite the fact that most crack users were (and are) white.

The suspicion was that white defendants were being diverted by federal prosecutors to the state system, where, again, the penalties were far less severe. Like the McCleskey case, the statistical evidence was absurdly damning. In order to prove the intent requirement, Armstrong asked the Supreme Court for discovery in order to obtain evidence — evidence that was in the sole possession and control of prosecutors — of prosecutorial racial bias. The Court denied this request for discovery, because of course they did. And in one of the most tragically ironic rulings I know of, demanded that Armstrong produce, in advance, the very evidence of racial bias by prosecutors he could only obtain through discovery. In other words, proving race discrimination in the criminal justice system is a giant catch-22, where defendants are required to produce evidence they are procedurally blocked from obtaining.

Now let’s compare this catch-22 standard in race discrimination cases with proving religious discrimination. Recently, four members of this current Supreme Court argued that differential treatment of large churches during a deadly pandemic from “dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods” nevertheless demonstrates “indisputably clear” discrimination by the government. Of course, that argument lost, but it is worth noting how close it came to winning, and how ridiculously more lax such a standard — where any differential treatment by the state amounted to per se discrimination — is compared to proving discrimination by race.

In cases where religious discrimination has been found, however, the standard is arguably no less lax. In Espinoza v. Montana Dep’t of Revenue, the Supreme Court held that Montana’s state constitutional provision prohibiting taxpayer funding of religious schools discriminates against religion. The important point to keep in mind, however, is that Montana was not treating private schools differently based on their religious character. Both secular and religious schools were being denied state funding under the rationale of the state’s constitution. In other words, there was no differential treatment or denial of access to public funds based on religion at all, and therefore no conceivable burden was being placed on free exercise. Nevertheless, the Court insisted, without providing any example of how, Montana was conditioning “the availability of benefits upon a recipient’s willingness to surrender [its] religiously impelled status.’ ” Again, Montana was treating all nonreligious and religious entities the same, yet the Court conjured discriminatory treatment out of thin air.

Furthermore, entirely missing from the Court’s analysis in Espinoza was clear proof of conscious discriminatory intent (as is required in proving race discrimination) by anyone who crafted the Montana constitutional provision at issue or implemented it. The best the Court could do was discuss the Blaine framework of the 19th century that anyone can plainly see bears no relationship to Montana’s 1970s constitutional provision at issue in Espinoza that wiped away the old framework.

The bottom line is any comparison of the religious discrimination standard with race reveals an absurdly lopsided doctrine in favor of religion. There is simply no logical or legal justification for why race discrimination should require proof of intent in every circumstance, including instances where statistical evidence reveals grotesque levels of disparity, but religious discrimination can be assumed to occur even when no discriminatory treatment or intent can be presented. Like all gross disparities, these patterns reveal a bias, a bias this Court should be ashamed of when it comes to both standards.

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

When you hear that the NALP Foundation and the University of Texas School of Law’s Center for Women in Law recently conducted a study on the experiences of women of color in law schools, you’d probably think that The Jabot podcast — dedicated to issues of diversity in the legal profession — would be all over that. But it pretty quickly came to my attention that despite the no doubt good intentions of the study, there was something pretty important missing — specific data about Native American women in law school.

In this week’s episode of The Jabot, I speak with Thomasina Real Bird, Angelique EagleWoman, Paulene Abeyta, Christina McDonogh, and Aidan Graybill about the exclusion of Native voices in the The Center for Women in Law and The NALP Foundation’s study, “Women of Color – A Study of Law Student Experiences.” We discuss what NALP gets wrong in their study, why the NALP response to the criticisms isn’t sufficient, and the unique issues facing Native American law students and what work is needed to address them.

Additional Reading:
– Native women law students excluded from so-called “Women of Color in Law Schools” study
– Native American Attorney Study

The Jabot podcast is an offshoot of the Above the Law brand focused on the challenges women, people of color, LGBTQIA, and other diverse populations face in the legal industry. Our name comes from none other than the Notorious Ruth Bader Ginsburg and the jabot (decorative collar) she wears when delivering dissents from the bench. It’s a reminder that even when we aren’t winning, we’re still a powerful force to be reckoned with.

Happy listening!

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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).

Banks are expected to be on the lookout for a lot of things their customers shouldn’t be doing, at least not through their bank accounts. Money laundering, for example, or bilking sovereign wealth funds of billions of dollars, or serving sellers of that evil and still very-much-illegal-on-the-federal-level weed, uh, weed. Now, they’ve got to keep an eye out for an equally sinister and immoral action: supporting democracy.

Bankers at Credit Suisse Group AG, HSBC Holdings Plc, Julius Baer Gruppe AG and UBS Group AG, among others, are broadening scrutiny under their programs that screen clients for political and government ties and subjecting them to additional diligence requirements, these people said.

The designation, called politically exposed persons, can make it more difficult or altogether prevent people from accessing banking services, depending on what the bank finds about the person’s source of wealth or financial transactions.

* The top lawyer at Ford is headed to Coca-Cola. They must have better “fizz” benefits. [Detroit Free Press]

* Whole Foods workers have filed a class action against the grocery store chain for allegedly discriminating against employees for wearing Black Lives Matter masks. [Boston Globe]

* An attorney donated touch-free thermometers to his local courthouse so that officials could more accurately screen for COVID-19. [WPXI News]

* A Florida teachers union has filed a lawsuit to attempt to stop the reopening of schools in the Sunshine State next month. [Fox News]

* A judge is accused of electronically “muzzling” defense counsel during a virtual court hearing by pressing a mute button. Bet some judges wish they had that ability during in-person proceedings… [Courier Journal]

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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.