Category: News Feeds

On July 7, Harper’s Magazine published A Letter on Justice and Open Debate signed by prominent writers and academics from a broad range of political backgrounds. The expressed goal of the letter is to raise objection to “a new set of moral attitudes and political commitments that tend to weaken our norms of open debate and toleration of differences in favor of ideological conformity.” As one of the signees will tell you, some of the reactions to the letter present a powerful argument as to why it was necessary in the first place. Although any sane person can see that things can, and have, gone too far when it comes to even the most prominent of our writing institutions. The central idea expressed throughout the letter that the “free exchange of information and ideas […] is daily becoming more constricted,” is profoundly and demonstrably untrue.

If viewed from a legal perspective in fact, the premise that speech is under some kind of threat is nothing less than absurd. Beginning with Justice Oliver Wendell Holmes’ dissent in Abrams v. United States, the modern era has since witnessed an ever-increasing expansion of free speech protections. Put simply, Americans have never, and I mean never, enjoyed this much freedom to speak without fear of government retaliation. Of course, the authors of the Harpers letter are not warning against legal threats by an oppressive government but limit their criticism to cultural forces they insist are restricting debate. But even viewed from a purely cultural perspective, the argument that our society is experiencing the “stifling atmosphere” the letter claims is tough to agree with or find evidence to support.

For one thing, as Mike Masnick puts it in TechDirt, there is simply no evidence that fewer people are participating in open debate. In fact, all available evidence indicates more people than ever before are participating in the marketplace of ideas. Per Masnick:

“There are more places and ways to speak your mind than ever before, and the free exchange of information and ideas is more available and accessible to all sorts of voices than ever before in history. The idea that it’s “more constricted” has no basis in reality. There are so many different ways to get ideas out there today, and that has actually enabled tons of previously suppressed voices to speak out loudly and clearly — even if sometimes it’s to point out that the supposed wisdom of others is anything but. There is no real evidence of any “constriction.” There is evidence that many people are utilizing their newfound voices and ability to express themselves to show that the emperor has no clothes when it comes to some of the ideas presented by the old guard.”

As with the guarantee of free speech itself, however, greater participation acts as a kind of double-edged sword. While empowering those who were once suppressed with the ability to speak more freely is a great thing, enabling the greater exchange of information does not mean the information or ideas will be moral or tolerant. Nevertheless, allowing intolerance and immorality into the debate also arguably offers overall value.

John Stuart Mill in On Liberty proclaimed that the “evil of silencing the expression of opinion,” even the wrong opinion, is that you deny others “the clearer perception and livelier impression of truth, produced by its collision with error.” In other words, bad ideas, intolerance, and immorality are arguably a necessary part of the market of ideas in that they help us discern their opposite. Of course, the Harper’s letter expressly denies the authors are trying to silence anyone. In fact, they claim they are refusing “any false choice between justice and freedom, which cannot exist without the other.” But as Masnick counters, the entire purpose of the Harper’s letter betrays this statement: “The only ones trying to silence anyone are those in this letter, saying that public shaming is somehow beyond the pale. It’s almost as if they don’t really want ‘argument and persuasion’ while pretending that’s exactly what they do want. If they believe that the public shaming (counterspeech) is bad, then they should go right ahead and use argument and persuasion to show why it’s actually bad, without claiming it’s an unfair attack on their speech. Inasmuch as this letter attempts to do so, it fails.”

I must admit that when I first read the letter, I read it similarly (and as cynically) as Masnick. It appeared to me as one giant false antithesis where almost every statement within it contradicted the broader proposition of the letter itself. Noted free speech lawyer Ken White has called the Harper’s letter a “motte-and-bailey argument” stating it uses “the very widespread feeling that people shouldn’t get fired for (say) retweeting an academic paper” and tries “to apply it when someone calls out blatant overt yelling-at-stranger-in-a-restaurant racism. Which is a thing.”

As I cited at the beginning of this piece, of course you or I could point to many instances where public shaming has been misplaced or gone too far. Indeed, it is no coincidence that many of the authors of the Harper’s letter have been victims of what is now called “cancel culture.” Take Steven Pinker, I know it may sound cliché to write this, but this man’s work literally changed my whole view of humanity. Yet, even though Pinker is an outspoken proponent of all the Enlightenment ideals that progressives purport to value, Pinker is also the victim of (in my opinion at least), a misplaced progressive “purity posse.”

When you compare the (unsuccessful) attempts to professionally smear Pinker though, with other, indisputably more serious threats to free speech, you’re forced to take some measure of perspective. Perhaps if we all took a little more perspective, we might understand that more speech, and more participants, means more of the good and the bad.

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.

Alabama posted its two highest daily infection rates in the last week and its most COVID deaths in a day a mere four days ago. So, obviously, the in-person July administration of the bar exam will go forward as planned!

The state supreme court just issued an order requiring the Alabama State Bar to adhere to safety precautions and make arrangements for an alternative September bar exam that applicants can opt into. But the July bar exam is still going to happen regardless of the data pouring in daily.

Not even Lou Saban could stop the bar exam at this point.

But while the order begins “having considered the COVID-19 pandemic, and its potential impact on applicants for the July 2020 administration of the Alabama Bar Exam,” in reality the court appears to have… not done that. Nor did it take stock of every available sign along the way warning them not to go forward with this perilous plan.

For example, the venue becoming a ghost town on them. The Alabama bar is held in one location — the Birmingham-Jefferson Convention Complex — and while the site officially puts on a brave face about working to provide a safe environment, the color scheme of their schedule really says it all:

The Masked Singer won’t even show up AND THEY’RE ALREADY WEARING MASKS. In the exam’s defense, there is more than enough room in the empty BJCC to give everyone a wide berth. People could be positioned 20 feet from each other if they wanted. But distance is only half the battle with infectious diseases. There’s still the lines to get in, the crowds moving in and out, the bathrooms, the recycled air… and just bringing people from all different corners of the state into one place and then promptly sending them back to spread the bug. The World Deer Hunters are the only other group that thinks anything is going to even be safe by the end of August and that seems, appropriately, like a game of Russian Roulette.

If that wasn’t enough, a hotel where bar applicants were encouraged to stay cancelled all reservations this week. Where are all these people supposed to stay when they come in for the test? And even if this is just one hotel, it should concern the bar examiners because hospitality businesses tend to follow the pack and one cancellation portends more to follow. At best it means a further crowding of applicants into fewer hotel spaces opening a disease vector independent of the testing venue.

There’s a classic joke about a guy who dies in a hurricane after denying help from a neighbor, a boat, and a helicopter, waiting for God to save him and upon reaching the afterlife having God scolding him, “I sent your neighbor, a boat, and a helicopter!” Infections are up. The venue is all but closed. No responsible entity — or Nick Cannon — wants to risk it. The hotels are shutting down. Seriously, how many more signs does Alabama need?

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.

Traditionally summer is peak wedding season. Good weather, pretty flowers, and lots of vacation time make this time of year the perfect setting for nuptials. While COVID-19 has put a damper on large affairs, weddings are still managing to persevere in untraditional locations. Regardless of how one ties the knot, marriage always involves the the blending of two individuals’ lives, along with their families, assets, and values.

Pre-nuptial agreements are an important consideration for a marrying couple, regardless of their age, net worth, or family disposition. Often people forgo the pre-nup, because of their lack of wealth, young age, or the host of other items they have to deal with before the big day. In the age of COVID-19, many other considerations come into play before marriage. Given everything our society has faced during this pandemic, I maintain that executing a pre-nuptial agreement along with estate planning documents should be an engaged couple’s priority.

A pre-nup is an important document for many reasons, most notably because it dictates the distribution of assets and income in the event of a dissolution of marriage. For those who are not focused on money matters, a pre-nup, at the very least, encourages a couple to talk about their finances, disclose their financial health, and, albeit scary, address various possibilities their marriages may take.

Pre-nups generally focus on the dissolution of marriage, however, they also can determine how assets are distributed upon death. Divorce and death — two topics every engaged couple is eager to discuss. Often a pre-nup will indicate that assets will be distributed via intestacy or by last will and testament, assuming the latter is written. Usually, attention is given to the right of election, which is the statutory right of a surviving spouse to elect against the deceased spouse’s estate in the event she is disinherited. In other words, public policy dictates that you cannot disinherit your spouse. Depending on the state, a spouse, even if not included in an estate plan, can file an election in the probate court to receive a percentage, oftentimes, one-third, of the estate.

For those who marry when they are young, it is possible that the spouses will wish to leave their estates to people other than their new spouse, whom they may not know for a long period of time. Pre-nups will often include waivers to to the rights of election in the other’s estate in favor of parents or other relatives receiving the monies. If it is a second marriage, a waiver may be agreed upon so that the children from another relationship receive without any monies going to the surviving (second) spouse.

Having a pre-nuptial agreement, however,  is not a replacement for a last will and testament. When writing the latter, an attorney should inquire as to the existence of a pre-nuptial agreement and use it in her analysis of the estate plan. A last will and testament executed following the execution of a pre-nup will govern, however, one must be wary of waiving his or her right of election. It is possible that a last will will leave a bequest to a surviving spouse but not sizeable enough to the survivor’s liking. If the waiver is executed, he or she will not be able to elect against an estate.

Additionally, attention should be paid to whether a spouse will serve as executor under a last will. Beneficiaries under retirement plans should also be considered. If spouses are not going to serve in those capacities, special waivers may be needed.

With so much to do prior to getting married, a pre-nup is often put off. The idea of speaking with lawyers and discussing divorce and death do not seem to be in the spirit. A post-nuptial agreement, however, is also an option for those who do not get around to the execution before walking down the aisle. Once married, however, relationships undoubtedly change. The longer one waits to concretize an agreement, the more families change and assets may be commingled. Of course, children may be born, thus complicating relationships even more and perhaps lessening the feelings one had with regard to the holding of assets, prior to marriage.

It is important to note that one can revise, in writing, prenuptial agreements if situations change. The same goes for last wills and testaments. Like the execution of a last will, power of attorney, and health care proxy, executing a pre-nuptial agreement is prudent regardless of age, estate size, or family makeup.

Cori A. Robinson is a solo practitioner having founded Cori A. Robinson PLLC, a New York and New Jersey law firm, in 2017. For more than a decade Cori has focused her law practice on trusts and estates and elder law including estate and Medicaid planning, probate and administration, estate litigation, and guardianships. She can be reached at cori@robinsonestatelaw.com.

There are many different and exciting ways to rank law firms. How prestigious are they? How much money are they making? How much take-home cash do partners earn? How big are they?

Yes, size matters, especially during these crazy COVID times. Amid furloughs and layoffs — acknowledged and stealth — firms could still be cutting associates while putting up big head count numbers.

The New York Law Journal recently unleashed its annual NYLJ 100, a ranking of largest law firms in New York covering the previous calendar year. As luck would have it, many Biglaw firms increased their New York City head counts by more than 10 percent in 2019, and now here we are, facing down austerity measures due to a pandemic. If you’ve ever wondered about head counts, this is the ranking for you.

The NYLJ 100 ranks the 100 largest firms by number of lawyers in the state of New York. All private law offices in the state are considered … irrespective of where the firm is headquartered or where it claims a home office. Non-U.S.-based law firms are considered equally with domestic U.S. firms; the sole criterion for inclusion in the NYLJ 100 is the size of a firm’s New York state presence.

The top 15 biggest firms (numbers show attorneys in New York) are not surprising. Let’s take a moment to gawk at Manhattan’s Biglaw behemoths:

1. Paul, Weiss, Rifkind, Wharton & Garrison: 832
2. Davis Polk & Wardwell: 700
3. Skadden, Arps, Slate, Meagher & Flom: 656
4. Kirkland & Ellis: 646
5. Simpson Thacher & Bartlett: 601
6. Weil, Gotshal & Manges: 563
7. Sullivan & Cromwell: 543
8. Cravath, Swaine & Moore: 496
8. Cleary Gottlieb Steen & Hamilton: 496
9. Debevoise & Plimpton: 481
10. Latham & Watkins: 480
11. White & Case: 433
12. Sidley Austin: 429
13. Milbank: 425
14. Fried, Frank, Harris, Shriver & Jacobson: 381
15. Willkie Farr & Gallagher: 380

Congratulations to Paul Weiss for employing more lawyers in New York than any other firm. This firm wins the award for putting the “big” in Biglaw in the Big Apple.

Head to the New York Law Journal if you’re curious about the firms ranked 16-100.

NYLJ 100: The Largest Firms in New York by Number of Lawyers [New York Law Journal]

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 was an interesting weekend for Law Professor Twitter. I’ll spare you the details. Although you can find selected portions of the discussion on Professor Josh Blackman’s blog post about it.

The bottom line: A junior law professor (“Commentator”) made a comment.  The comment was about another junior law professor (“Our Hero”) bringing suit to open bars back up in Arizona during a health crisis. Commentator questioned whether that was a smart move. The Commentator didn’t mention the case, the name of Our Hero bringing the case, or anything of the sort. You know, a subtweet. Still, questions were raised about what kind of bully Commentator was being for calling out the constitutional law hero of the drinking world.

There was an outpouring of conservative support, the likes I haven’t seen since I and others tweeted that it was a terrible idea for a law student to clean his gun on screen during a zoom class. And, as I’ve mentioned, within hours there was even a blog post about the tweet! That blog post DOES mention both professors by name. I mention that because the original outrage was about a subtweet.

This post isn’t about the Arizona case or either of those two professors: It is the notion of academic bravery.

First, I want to thank Blackman for writing the post. It caused me to think and, therefore, is a good thing. In particular, this comment struck me: “[Our Hero] has courage to take a stand for a cause he believes in. Courage is lacking in our society. It is not courageous to take a position that is popular. Courage is taking a position that you know will be unpopular, and doing it anyway. I wish there were more scholars like [Our Hero] who have the fortitude to talk more, and smile less.”

Taking an extreme minority position in the wake of (or perhaps in anticipation of) criticism is brave. Taking a popular position is not.

Having read Blackman’s blog post, I’ve decided I have not been brave enough.  In fact, I have called out for being anonymous (AGAIN). Happens every time I move away from puns into something substantive. They might say, “Please, LPB, identify yourself so we can sling ad hominems more readily! Be courageous and stand by yourself! Or maybe create a society called the … never mind.”

So, I’m going to be more brave. But let me be clear on the ground rules.  Because academics are mostly “liberal” (they tend to vote Democrat and therefore … ), it is not academically brave to take a position in favor of, say, racial justice. That is a popular law professor windmill at which to tilt!  Certainly no death threats there! It is also not academically brave to be in favor of background checks for gun ownership. It is not academically brave for a professor to support the Voting Rights Act. It is not academically brave to support gay rights in the South. It is not academically brave for a female law professor to call out for gender equity in the face of rape threats. Nope, none of that is brave. You’d know if it were brave because you would find strong disagreement in the academy. However, it’s not that conservatives won’t support you even if you aren’t brave in these ways. That sound of crickets chirping is actually their full-throated support!

And, just so we are clear, it is definitely not brave to assert that academics are way too elitist in their hiring practices, you anonymous coward! Ah, I hear the crickets.

So, I think I’ve found a hypothetical in which I come off sounding brave.

I’ll be defending Godzilla.

Godzilla entered the United States, and immediately started wreaking havoc in San Francisco. The military sought to bomb Godzilla and kill him.

I thought to myself: What a perfect time to bring an action via the Endangered Species Act!

Who could be more oppressed that Godzilla? He suffers from being unique, way beyond the “discreet and insular” minority contemplated in Carolene Products. And he doesn’t have a voice (okay, literally, he roars and that’s it).  And like Anakin Skywalker, he brings balance to the Force (if you have seen the most recent movies).

I didn’t stop there, and my legal practice as an academic clearly does not demonstrate my core values. Sometimes you just got to take the hard cases for higher principles. Don’t judge me! There are bigger issues at stake!

For example, local officials wanted to close bars and restaurants in areas where Godzilla frequented. Searching hard, I was able to make a clever argument that such closures violated the state constitution. Sure, I didn’t get paid because my client and his fellow partygoers were crushed under Godzilla’s foot, but sometimes there are more important things going on with the law.

Bar Examiners wanted to continue to have a live bar exam. And I agreed.  However, I was successful in convincing them to require that all exam takers wear seven-foot metal spears so if Godzilla tried to stomp on them during the exam, he would get an “owie” on his foot. The spears would be searched before the exam to prevent cheating, of course. This was a compromise because I was unfairly criticized for caring more about Godzilla than my own students.

It’s weak tea to complain about my moral core. If I had a dime for every time someone cried about their baby getting stomped by Godzilla! They just don’t understand that I’m the underdog fighting against a big bad oppressor who is trampling (pun intended) upon (my interpretation of) the Constitution. Many of my friends have been crushed by Godzilla! My mother, too! That’s just how much I love (selected parts) of the Constitution. I’m willing to have others sacrifice for me. I’m very brave, and my scholarly impact score soars! And, I’m brave because I don’t see anyone else in the cowardly academy defending Godzilla.

My next client is King Ghidorah. Every single damned head. Just a coincidence I’ve defended two monsters. I would totally defend those trampled under foot by Godzilla. If I had the time for it. But not that person seeking to get health care under the ACA after being trampled. There are bigger issues at stake!

You liberal law professors: Don’t you dare bully me by tweeting that defending Godzilla might not be a good idea as he tears up our armed forces.

Okay, enough. Think you might get a sense of what I stand for over time by the cases I take?

Yes, the law DOES require lawyers and law professors to take controversial and adversarial positions. And no one is saying Our Hero shouldn’t be able to defend bar owners or that he should be punished for it. And you KNOW I believe this because I’ve personally been horrified by Professor Amy Wax’s comments. But if you look carefully you’ll see I didn’t advocate killing her tenure. Something about consistency, I suppose.

Yes, law professors defend people on death row, serial killers, and the ability of Nazis to march in Skokie. However, what we are defending should transcend political football teams. It says something about the principles of a law professor who defends the right to peacefully assemble, both when the neo-Nazis seek to march and when antifa seeks to do the same. It says something about the lawyer’s principles, too, if their practice is based only on defending neo-Nazis. We might call the former principle consistency, and it often is missing when law professors choose political football teams.

Silence says something, too. For example, one might be silent when a law professor is being bullied for advocating gender equality, yet outraged when someone questions whether it is a good idea to open bars given all the evidence of bar patrons and COVID-19 being perfect companions. And it might say something if we are silent when students are forced to take a bar exam during a pandemic all the while applauding someone who seeks to open bars for alcohol. It might say something when we vigorously defend the gun-cleaning student and stay silent as students seek desperately not to have to risk their health to take the bar exam.

And, standing up to government isn’t always brave. For example, antitrust law professors charging thousands of dollars an hour to work for billion-dollar corporations seeking to merge are not bravely battling government.  Standing up against a government seeking to integrate the schools in the 1960s doesn’t strike me as brave, either.

I think academics should read “The War Prayer” by Mark Twain.  That piece starts with a church in which the parishioners pray for victory in war. A figure comes in, and informs the folks that their prayer has two parts, the part that was uttered and the part unuttered. The unuttered part is horrific.  In seeking victory, the parishioners have sought the massacre of others and the utter destruction of their enemies.

Legal academia is like that. To argue a position has consequences far beyond scholarly impact. So one might one day be able to utter aloud: “I just killed the ACA!” But the silent part is: “Someone likely just died because I killed the ACA!”

I’m not asserting whether the ACA is constitutional. I’m suggesting another component of the calculus that ought to enter the picture when we write. It should be weighed carefully. Not glibly. Law professors should be humble in what they are seeking to do with the law. And, as we gaze into the mirror, we ought to consider whether we pick and choose which great expansions of governmental power we fight against and which we accept in silent endorsement.

#BeBrave, my colleagues in academia. And remember, when someone criticizes you, there’ll be professors there to protect you against that criticism. Depending on what your viewpoint is.

LawProfBlawg is an anonymous professor at a top 100 law school. You can see more of his musings here. He is way funnier on social media, he claims. Please follow him on Twitter (@lawprofblawg) or Facebook. Email him at lawprofblawg@gmail.com.

* Reese Witherspoon is facing a class action over statements that allegedly implied she’d give teachers an unlimited amount of free dresses. Elle Woods and Tracy Flick would have talked to counsel before making any offers… [Hollywood Reporter]

* Mitch McConnell is proposing sweeping immunity from claims relating to COVID-19 in exchange for additional government relief. [CNN]

* Check out this article on the challenges facing bar candidates this summer. [Forbes]

* Alex Jones has hired a new lawyer to represent him in Sandy Hook defamation litigation. [Connecticut Law Tribune]

* The feds have shut down the website of a Kentucky man who claimed to have a vaccine for COVID-19. Real life is looking more and more like the movie Contagion with every passing day. [Courier Journal]

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.

Ed. note: Welcome to our daily feature, Trivia Question of the Day!

According to data recently released by the U.S. government, which law schools received paycheck protection program (PPP) loans from the Small Business Administration?

Hint: The ABA-accredited, standalone schools in question received between $150,000 and $5 million loans from the government during the coronavirus crisis.

See the answer on the next page.

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.