Peekaboo, I See You II: Why Facial Recognition Technology Needs Humans As Much As AI

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Over the past few years, facial recognition technology has progressed significantly — so much so that it is becoming more and more prevalent in our everyday lives. As I have previously written on this topic, however, this progress has not come without significant concerns over personal privacy and other rights — having your photo as part of a database for servicing of tailored advertising to you is one thing, but being part of a surveillance platform is quite another. Unfortunately, one of my big concerns has come to pass, and it only highlights the deep divisions and concerns over this technology, proving that there is far more to this technology than meets the digital AI.

The incident I refer to occurred back in January of this year and involved a gentleman who seems to have found himself on the wrong side of an algorithm (as opposed to the law).  Robert Julian-Borchak Williams, who is African-American, was apparently working at his job at an automotive supply store when he was contacted by the Detroit Police to turn himself in for shoplifting. Believing this call to be a prank (as he did not commit any such crime), he ignored it. Upon his return home from work (apparently merely an hour later), he was boxed in by Detroit police cars as he pulled into his driveway and placed under arrest. Why did this happen to him? You guessed it — the Detroit Police placed surveillance video in front of him claiming it showed him shoplifting at a Shinola store in the trendy Midtown area of Detroit. The problem? It wasn’t Williams. There appears to have been a flawed match of Williams’ face with the surveillance video obtained by the Detroit Police. I don’t know about you, but in this case, “oops” just doesn’t seem to cut it.

When it comes to facial recognition technology, your face may simply not be “yours” anymore. In a report from Georgetown Law’s Center on Privacy and Technology, the Center found more than 117 million adults are part of a “virtual, perpetual lineup,” accessible to law enforcement nationwide. Just think about that for a minute — even though you may not have ever gotten anything more than a speeding ticket, your photo may be part of digital lineup of more than 3 billion faces. Even worse, there are significant concerns about the technology being “biased” — for example, research by the Gender Project in the MIT Media Lab uncovered that the algorithms powering the facial recognition technology are less accurate when it comes to delineating gender, skin type (lighter versus darker skin tones), age, and other attributes (such as ethnicity). In other words, different facial recognition engines seemed to demonstrate what amounts to a racial bias. This should be unacceptable on its face (no pun intended), but in the context of law enforcement use, it is downright dangerous.

Although some of the software referenced in the Gender Project study has progressed to correct such deficiencies, the point here is that it appears undue deference is being given to facial recognition technology output without the necessary checks and balances that should be part of the use of such technology in law enforcement. First and foremost, this technology is evolving — there is absolutely no basis for treating the output from this technology as gospel. Moreover, such technology use by law enforcement can never, ever, replace the need for human intervention and quality detective work. From the facts I have been able to gather, the fuzzy photograph of Williams did not provide an absolute match and, in fact, was easily distinguishable from Williams upon closer inspection. Worse, it’s not like the Detroit Police Department did not voice concerns about facial recognition technology — during a public hearing discussing facial recognition technology use in Detroit, an assistant police chief (who is also African-American) stated that with respect to false positives, it “is absolutely factual, and it’s well-documented.” No matter how cutting-edge the technology, nothing excuses a lack of quality law enforcement follow-up.

Thankfully, this incident has not gone unnoticed — the ACLU filed a formal complaint on behalf of Williams regarding the false arrest. Williams has also provided his own account of his arrest in a Washington Post op-ed, and it should prove a wake-up call to every reasonable American concerning this technology and how it is being used. As a technology lawyer, I have come to appreciate the innovation and vision behind cutting-edge (and especially “disruptive”) technologies. That said, with such innovation comes the responsibility for ensuring not only accuracy in execution but also in its application. This type of technology can prove a useful tool to the law enforcement arsenal, but it should only be regarded as a tool — it is not infallible and it most certainly is not a replacement for good old-fashioned police work. States are also taking notice — for example, this year Washington implemented legislation restricting the use of facial recognition technology in law enforcement. Make no mistake, more legislation and regulation of this technology is on the horizon.

It appears that this incident may be “the first known account of an American being wrongfully arrested based on a flawed match from a facial recognition algorithm.” Whether it is, however, is not the main point. The bigger issue is how such facial recognition platforms are trained and whether questionable images (such as low-resolution and blurry photos and videos) should even be used with such systems. It also raises the significant additional question: How on earth did the Detroit Police meet the requisite level of probable cause for a warrant to issue for Williams’ arrest given the nature of the photographs and error in facial recognition? I don’t know if I really want an answer to that question, as the answer may be more problematic than I am prepared to accept. The question we all need to ask, however, is whether facial recognition technology should be used in law enforcement without proper checks and balances in discerning its results. Personally, I think it is high time that states take additional legislative action to ensure that facial recognition technology is used properly before more damage is done to our rights. But don’t take my word for it – just ask Robert Julian-Borchak Williams.

Tom Kulik is an Intellectual Property & Information Technology Partner at the Dallas-based law firm of Scheef & Stone, LLP. In private practice for over 20 years, Tom is a sought-after technology lawyer who uses his industry experience as a former computer systems engineer to creatively counsel and help his clients navigate the complexities of law and technology in their business. News outlets reach out to Tom for his insight, and he has been quoted by national media organizations. Get in touch with Tom on Twitter (@LegalIntangibls) or Facebook (www.facebook.com/technologylawyer), or contact him directly at tom.kulik@solidcounsel.com.

Patchwork Of Judicial Decisions Exacerbates Confusion On Legality Of CBD Products

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In the past few months, the cannabidiol (CBD) industry has seen an uptick in consumer class actions lawsuits.

In virtually all of those cases, the complaints were filed shortly after new rounds of warning letters were issued by the FDA. The complaints, which were filed by the same plaintiff’s law firms, make nearly identical legal claims: (1) the CBD products are illegal drugs, foods, or dietary supplements that violate the FDA guidelines; (2) the CBD products make impermissible health claims; and/or (3) the CBD products are mislabeled in terms of their CBD content.

As a result, CBD companies have raised similar legal defenses, resulting in U.S. courts having to rule on similar legal issues that will most certainly shape the future of the CBD industry.

Although these cases address similar legal issues, courts that have already ruled on these issues have ruled differently, causing additional confusion on the legality of CBD products.

For example, in January, Judge Ursula Ungaro from the U.S. District Court for the Southern District of Florida stayed a CBD class action relating to the marketing and sale of CBD products — Snyder v. Green Roads of Florida, 430 F. Supp. 3d 1297 (S.D. Fla. 2020) — until the FDA forges a legal path for the manufacture, sale, and marketing of the products. Ungaro placed this case on hold, invoking the “primary jurisdiction doctrine.”

The primary jurisdiction doctrine generally applies in cases where a plaintiff’s claim implicates the special competence of an administrative agency. This doctrine is a prudential doctrine that is reserved for a limited set of circumstances that require resolution of an issue of first impression or of a particularly complex issue that Congress has assigned to an administrative agency.

As you already know if you read this column and keep a pulse on the hemp and CBD industry, the Agriculture Improvement Act of 2018, better known as the 2018 Farm Bill, expressly recognizes the FDA’s authority to regulate products containing hemp-derived products, including hemp-derived CBD. Moreover, Congress has repeatedly urged the FDA to complete the rulemaking process to solve the proliferation of CBD products, particularly foods and dietary supplements, in violation of the Food, Drug & Cosmetic Act (FDCA). Yet, nearly two years following the passage of the 2018 Farm Bill, the FDA has yet to adopt formal regulations.

In light of this, Ungaro concluded that “FDA regulations currently provide little guidance with respect to whether CBD ingestibles, in all their variations are food, supplements, nutrients or additives and what labeling standards are applicable to each iteration,” and thus, deemed the existing regulatory framework inadequate to resolve these issues.

Other U.S. courts, which recently considered whether CBD companies labeled their CBD products in violation of federal law, found Ungaro’s opinion persuasive. These courts, including one in the Central District of California — Colette v. CV Sciences, Inc., No. 2:19-cv-10228-VAP-JEM(x) (“Colette”) — and another in the Eastern District of California — Glass v. Global Widget, LLC, No. 2:19-cv-01906-MCE-KJN (“Glass”), explained that although the FDA expressed its position about CBD products in its warning letters, these letters do not amount to final agency action and that the FDA has yet to formally express its position on the regulation of these products. The Colette Court also wrote that “the number of CBD class actions currently pending in the federal district courts makes clear the danger of inconsistent adjudications.” Accordingly, the Collette Court, and the Glass Court, which closely followed the Snyder and Colette analyses, concluded that they would benefit greatly from the FDA’s pending rulemaking efforts, and thus, granted the motions to stay while the FDA adopts final rules.

These orders suggest that federal courts might be inclined to give deference to the FDA’s primary jurisdiction over CBD products, which would likely delay other CBD-related lawsuits until the FDA forges a legal pathway for these products.

However, in the months between the Snyder order and those issued in May by the California U.S. District Courts, other federal courts have rejected the primary jurisdiction doctrine defense and have reached a different conclusion from that made by the Snyder, Colette and Glass courts.

In Potter v. Potnetwork Holdings, Inc., et al., No. 19-24017-Civ-Scola, for instance, Judge Robert Scola for the Southern District of Florida — the same district as Ungaro’s — denied putting this case on hold based on the primary jurisdiction doctrine. Although Scola began his analysis much the same way as Ungaro did in Snyder, Scola ultimately agreed with the plaintiff’s argument that despite the adoption of formal CBD regulations, the FDA would not modify disclosure requirements regarding the accurate content of a product, and thus, would not allow manufacturers to lie about the exact amount of CBD contained in their product in its formal rules.

These inconsistent rulings by federal courts — including courts in the same district — show that the lack of FDA regulations is causing growing confusion regarding the legal status of these products and emphasize the need for the agency to develop a comprehensive, uniform regulatory framework.

So until the FDA starts to serve its role of regulator, CBD companies, especially deep-pocketed ones, should obtain sound legal advice regarding the federal and state regulations of these products and should ensure strict compliance with the FDCA’s manufacturing and labeling requirements — these requirements apply to any category of products regulated by the FDA — to mitigate the risks of litigation.

Nathalie Bougenies practices in the Portland office of Harris Bricken and was named a “2019 Rising Star” by Super Lawyers Magazine, an honor bestowed on only 2.5% of eligible Oregon attorneys. Nathalie’s practice 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. Nathalie is also a regular contributor to her firm’s Canna Law Blog.

3 Questions For A Litigator Turned Litigation Funding Executive (Part II)

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This week, I continue my written interview with John Garda of Longford Capital, regarding his experiences leaving a Biglaw partnership to join a leading litigation funder. Please see below for John’s answers to my second and third questions, focused on how clients and law firms can best position their matters to attract investment from litigation funders like Longford.

As usual, I have added some brief commentary to John’s answers below but have otherwise presented his answers as he provided them.

Gaston Kroub: How can clients, and not just law firms, take advantage of the opportunities presented by litigation finance?

John Garda: Longford Capital provides several funding options directly to our corporate clients. We are currently experiencing an increase in demand for our capital as the impact from the COVID-19 crisis continues to negatively impact individual companies and industries. In this uncertain and stressful landscape, our capital may provide a critical resource for businesses, and our industry continues to quickly evolve and innovate along the way to provide additional offerings. These offerings should prove especially useful in the current business climate. For example, in addition to traditional litigation funding of attorneys’ fees and expenses involved with bringing the claims, Longford Capital also provides a lump-sum catch-up payment to the business claim owner for attorneys’ fees and expenses that were previously incurred in the litigation before entering into a funding arrangement.

In addition, we are experiencing an increase in demand for ordinary working capital needs from businesses. As certain businesses struggle with short-term and long-term cash flow needs and other budgetary challenges, they can take advantage of the availability of our capital to overcome these challenges. We are now increasingly capable of stepping in and providing working capital to not only help these companies remain operational — but also to allow them to thrive — while also pursuing their legal claims.

Moreover, we are experiencing an increase in businesses wanting to monetize their existing legal claims before those claims are finally resolved in the underlying litigation. Many businesses want to take advantage of our available capital and recoup some of the losses in the form of cash now, not later. In the right circumstances, Longford Capital offers to pay the claim owner a portion of the claim’s perceived value up-front, so the company can earn a return at any stage of the litigation, including before even filing the claim, or after trial when a favorable judgment is currently pending on appeal.

GK: If anyone had any doubt that incorporating a discussion with litigation funders is a good idea for IP lawyers, John’s answer should dispel any such doubts. Even without the increased stress on law firms and clients due to COVID-19, funders like Longford are positioning themselves as true financial partners for companies with meritorious legal claims — no matter where in the life cycle of those claims the funder gets involved. At bottom, Longford seems committed to offering financial support for claimants and their counsel when and where it is needed. Getting access to that support, however, comes with an obligation to do some real work. For how best to do so, read on.

What advice would you give to practicing IP lawyers interested in seeking out litigation funding on either a case or portfolio basis?

JG: Before approaching the funder, the IP lawyer should prepare a set of documents including the key information that the funder will need to help expedite the due diligence process. In addition to a full case budget and a damages analysis, the IP lawyer should include claim charts involving the top three to four patents aimed at the top three to four targets and any information related to validity including the results of any prior art searches and a re-examination. It is critical that the IP lawyer take ownership of the claim charts that are presented to the funder and be able to explain them in great detail.

Scheduling an initial conference call with the funder at the very beginning of the process is strongly recommended to introduce yourself, discuss the case and the package of information provided, and allow the funder to ask some preliminary questions. This is a very good first step toward establishing effective communication with the funder. The best way to position yourself for success is to be very attentive to the funder’s specific requirements and responsive to any requests for additional information. Maintaining effective communication throughout the process will help ensure the best chance of obtaining a successful funding arrangement.

One common mistake that IP attorneys make when presenting a case to a funder is focusing almost exclusively on liability and ignoring, for the most part, any meaningful damages analysis. Worse yet, providing a pie-in-the-sky damages analysis quickly falls apart when put to the test by the funder. This may cause a funder to quickly pass on an otherwise promising opportunity.

As with any business transaction, maintaining credibility is paramount. To that end, a practicing IP lawyer seeking funding should be very candid when assessing the strengths and weaknesses of the case. Using a matter-of-fact tone in presenting the case and shooting straight with the funder goes a long way in building trust. Proactively addressing the challenging aspects of your case while explaining how best to deal with those challenges is extremely helpful to better position your case for funding.

GK: I have long been a proponent of a “damages first” approach to evaluating claims. Taking that approach necessitates an honest appraisal — by both client and law firm — of the likelihood of the case or cases achieving the client’s financial goals, while sticking to the agreed-upon terms of any engagement between the client and their counsel. If the decision is made to try to involve a funder like Longford, it makes complete sense to recognize that at bottom there are financial metrics that must be met — both in terms of potential case recovery relative to the investment, as well as with respect to controlling the matter’s costs. As John correctly notes, a relationship with a funder is exactly that — a relationship — and common sense dictates that the foundational aspects of any relationship (e.g., candor, pragmatism, etc.) hold true in interactions between counsel and a funder. It may still be early days for many IP lawyers when it comes to litigation funding. But, in my view at least, the time to start thinking about your firm’s relationship with potential funders was yesterday.

My thanks to John for the insights and cooperation, and I wish him continued success at the cutting-edge of litigation funding’s inroads into the legal industry. It is always a privilege to hear from someone who is engaged in interesting and timely work of deep interest to IP lawyers and their clients, and I thank John for agreeing to this interview. I am always open to conducting interviews of this type with other IP thought leaders, so feel free to reach out if you have a compelling perspective to offer.

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.

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.

Regulation Under Late Trumpism

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The COVID-19 Crisis And The Perils It Poses

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(via Getty Images)

At the end of June, we’ll be roughly four months into the COVID-19 crisis. The novel coronavirus and the measures taken to contain it have had profound effects on our society, our economy, and our nation. I’m hard-pressed to identify a four-month period as consequential for the country as the one we now find ourselves in, from March through June 2020.

The news hasn’t been all bad. Back in April, for example, I identified four silver linings to the coronavirus cloud for Biglaw. Looking beyond Biglaw, response to COVID-19 has had other benefits for the legal profession. Take the judicial system. As Chief Justice Bridget McCormack recently observed in her (virtual) testimony before Congress, the pandemic has given rise to more (positive) change in the past three months than in the past three decades, in terms of using technology to make the judicial system more accessible, transparent, and efficient.

But make no mistake: the COVID-19 crisis has harmed the legal world in a number of ways, and now is an opportune time to assess the damage. Here are three ways in which the pandemic has harmed the profession.

1. Economic Dislocation.

The most obvious negative effect of the crisis on the legal industry is the economic harm to lawyers and law firms. Since the start of the crisis, numerous law firms have announced various austerity measures to help them ride out the tough times — around 100 firms, according to Above the Law’s COVID Crisis Tracker. These measures have included pay freezes, pay cuts, furloughs, and layoffs — which all have very real economic impacts upon lawyers, staff, and their families.

And Biglaw, of course, is just a microcosm of the legal industry writ large. In April alone, the legal sector lost 64,000 jobs, according to the Bureau of Labor Statistics.

Is the end in sight? Maybe; there are signs that we are starting to turn the corner. But my own guess is that we still have more suffering in store before recovery.

2. Mental Health Effects.

To their credit, even before the pandemic, law firms were starting to pay more attention to the mental health of their lawyers and staff (with nudging from several sources, including Above the Law). This wasn’t a moment too soon, since the COVID-19 crisis has only exacerbated the challenges on this front.

Fears of the disease, worries over financial problems, and loneliness from isolation have caused anxiety and depression to spike within the legal profession. The Association of Corporate Counsel (ACC) recently polled its members and reported these findings:

Nearly 50% reported “feeling tired or having little energy” while also having trouble sleeping. More than 43% were experiencing anxiety; 40% had trouble concentrating; nearly 22% reported an “increased use of substances,” such as alcohol and tobacco; and nearly 19% said they’d been depressed. Nearly 44% had anxiety. Unsurprisingly, nearly 50% of respondents reported having trouble switching off from work and nearly 75% were experiencing moderate to very high levels of burnout.

Of course, many of us don’t need a survey to tell us this; we’ve been experiencing it firsthand. And anxiety and depression have ripple effects, harming lawyers’ ability to serve their clients, to be good colleagues, and to be there for their families and communities.

3. The Disadvantages Of Remote Learning.

This past spring, law schools abruptly went virtual, consistent with efforts to prevent the spread of COVID-19 and government stay-at-home and shelter-in-place orders. Looking ahead to the fall, some schools have already announced plans for virtual or online-only semesters, including Harvard Law School and Berkeley Law.

Law school deans, professors, and staff should be commended for their noble efforts to make this work. But there’s pretty much universal agreement that online learning is suboptimal — a poor substitute for classroom education. It’s simply much harder for students to pay attention and to participate in virtual classes.

And not all students have the resources or technology to take full advantage of online classes. It’s worth noting that when HLS announced its move to remote learning for the fall, it also announced that it was setting aside $1 million to assist students with challenges relating to internet access and other essential technology.

To sum up: law firms, law schools, and the courts are doing a superb job of responding to the terrible crisis created by COVID-19. But there’s no denying that it is, in fact, a terrible crisis. And we’re all looking forward to its end.

DBL square headshotDavid 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.

Yet Another Law School To Hold All Fall 2020 Classes Online Due To Coronavirus

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(Image via Getty)

We strive to provide a consistent educational experience for all of our students while being sensitive to our community’s safety and security. The most demanding challenge posed by the pandemic is uncertainty. We want to provide as much notice to our students, facility, and staff, in order to plan appropriately and deliver the high-quality course content and access to faculty that VLS is known for.

— Thomas McHenry, President and Dean of Vermont Law School, commenting on the decision to hold all Fall 2020 classes remotely due to the COVID-19 pandemic. An informational page on the law school website notes that “[w]hile Vermont is presently a low-risk state, the pandemic is continuing to rage in parts of the country where many VLS students live. This is a contributing factor to the decision. It could make travel more challenging and perhaps difficult for students to come to campus or return home.” Vermont Law will offer a “January Start” for first-year students, and the school joins Harvard Law and Berkeley Law in the decision to hold all classes online this coming fall. Harvard is being sued over its “outrageous tuition” for remote classes.

Staci ZaretskyStaci 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.

Judge Agrees To Delay Roger Stone Surrender Date To Protect Other Prisoners From COVID

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(Photo by Drew Angerer/Getty Images)

Take heart, comrades! Roger Stone’s plea to postpone the day he’ll have to report to FCI Jesup in Georgia has not fallen on deaf ears.

After considering the request to delay Stone’s surrender from June 30 to September 3 due to the “serious and possibly deadly risk he would face in the close confines of a Bureau of Prisons facility, based on his age and medical conditions,” Judge Amy Berman Jackson agreed that something must be done in light of the grave danger posed by the novel coronavirus in the close confines of a federal penitentiary.

Not that Judge Jackson is worried about protecting Roger Stone from the germy prisoners, though, since there are exactly zero confirmed cases of COVID at FCI Jesup among the inmates and staff. No, Her Honor is concerned that Roger Stone will bring coronavirus into the prison, and she’s allowing him to delay surrender for two weeks for the safety of his fellow prisoners.

Judge Jackson notes that remaining at large indefinitely is not an appropriate sentence for someone convicted of witness intimidation who spent the entire trial forcing the Court to deal with his “repeated attempts to intimidate, and to stoke potentially violent sentiment against, an array of participants in the case, including individuals involved in the investigation, the jurors, and the Court.” Then turning to the danger of COVID, which is currently running rampant in Florida, the court observes that Stone’s quarantine practices have been somewhat desultory.

Stone has spent “the overwhelming majority” of his time at his home; he wears a mask “in the appropriate situations;” he avoids closed quarters with “numerous” people for “extended” durations; he has “on at least one occasion” attended a gathering at which more than ten people were present; and he has been present in public places such as restaurants “as local regulations have permitted.”

Stone’s lawyers are probably regretting that letter from his internist advising that “He needs to maintain at least 6 feet distance from people. He should avoid closed quarters with many people.” Because now the doctor’s orders will be backed up by Court Order.

For all of these reasons, the Court will grant the motion in part, and it is hereby ORDERED that the defendant’s date to surrender to the Bureau of Prisons will be extended for another fourteen days, until July 14, 2020. This affords the defendant seventy-five days beyond his original report date. It is FURTHER ORDERED that during that time, defendant’s conditions of release will be modified to include the condition of home confinement in accordance with the Attorney General’s memorandum and the strong medical recommendation submitted to the Court by the defense that he “maintain strict quarantine conditions.” Letter at 1. Pretrial Services may monitor his compliance through any appropriate electronic or nonelectronic means selected in its discretion in accordance with its current practices, which may include such methods as SmartLINK or Voice Recognition. This will address the defendant’s stated medical concerns during the current increase of reported cases in Florida, and Broward County in particular, and it will respect and protect the health of other inmates who share defendant’s anxiety over the potential introduction and spread of the virus at this now-unaffected facility.

So Roger Stone gets to spend the next two weeks on strict home confinement, probably tethered to an ankle bracelet to monitor his movements. After which — assuming he hasn’t already been granted a pardon by the president — he can surrender at FCI Jesup without risking the safety of his fellow inmates.

WOMP WOMP.

Memorandum Opinion [US v. STONE, No. 1:19-cr-00018-1-ABJ (D.D.C. June 26, 2020)]

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

Trump Wins Order Halting Niece’s Book From Judge With One-Star Performance Reviews

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(Photo by Win McNamee/Getty Images)

There are some very fine state judges in this world. There are also some state judges very in over their heads in this world. Charles Harder has made a career out of finding the latter — as the demise of Gawker shows — and he may have found another winner!

Judge Hal Greenwald of Dutchess County, New York just granted Harder the order he tried to get in New York City: a prior restraint blocking the publication of Mary Trump’s new book, “Too Much and Never Enough: How My Family Created the World’s Most Dangerous Man.” (affiliate link). At least temporarily.

Harder, representing presidential brother Robert Trump in a failed effort to keep Donald’s tiny hands clean in this drama, secured a temporary restraining order barring Mary Trump and Simon & Schuster from publishing the book and ordering them to appear to show cause that he shouldn’t convert this into a preliminary injunction.

That sounds like a procedural mouthful because it requires a good deal of gymnastics to pretend this isn’t a flatly unconstitutional prior restraint, but Judge Greenwald is going for the gold in this order. At least he can see his name printed next to Ted Boutros for a couple weeks.

But seriously, how does anyone with a passing grasp of their law school studies authorize a prior restraint? According to some ratings from people who’ve appeared before him, folks don’t exactly laud Judge Greenwald’s acumen:

This guy is lost. Refuses to transfer the matter when he can because he want to play “local hero” however, he makes no effort to learn or understand the law. Apparently the CPLR is lost on him as well as he does not even understand the level of review in an Article 78.

Zero would be the best rating

Oof. Robing Room ratings are like legal Yelp so your mileage may vary as to the accuracy, but when there’s a string of one-star reviews it’s safe to consider that a trend.

Judge Greenwald should never be able to sit behind a bench, when confronted with his own words he runs and hides. Hes scared of confrontation and being told he’s wrong. He should never rule in any matter where a childs life is at stake. GET HIM OFF THE BENCH!

Perhaps Lawyers.com will offer a better acquittal of his skills:

Mr Greenwald is a terrible judge. Biased against females, and moms who didn’t lose custody of her children. Don’t worry, complaint coming soon!

Ooooookay.

couldn’t make it as an attorney and was hearing parking ticket offenses before getting elevated (inappropriately professionally but very much still needed heigh-wise and IQ-wise, to family court clown. makes his own rules and went to a too bit law school….and his behavior on the bench/potty, is sheer insight into his lowly level education, less-than-mediocre training and lack of scruples. LOL little “hal”

That’s pretty harsh. Sorry you had to read that Pace Law.

Look, take everything with a grain of salt. Family law cases engender uniquely hard feelings. But there’s also the possibility that Harder has found another judge he can really work with.

Full order on the next page.

HeadshotJoe 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.

Oregon Adopts Diploma Privilege

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After Washington adopted diploma privilege, it became hard to believe that Oregon would cling to an in-person bar exam. The two states are too professionally intertwined to not look to the other for guidance on best practices and crafting COVID licensure procedures turned out not to be an exception.

The deans of the law schools joined the cause for diploma privilege and yesterday the Oregon Supreme Court agreed, voting 4-3 to waive the bar exam requirement on an emergency basis for Oregon law school graduates and ABA-accredited law school grads where the bar passage rate is over 86 percent.

Those left in the cold under that model will have access to an online exam in October that would not count for portability. One of the smartest features of the Washington model was maintaining a fall UBE administration for people who need portability with the expectation that most folks won’t need to take it because they’re satisfied with local admission. That would allow the state to run an appropriately distanced exam and cater to everyone’s situation. As of now, Oregon isn’t following that path.

Still, welcome news for graduates who were up against it with a state still mulling a July in-person administration until yesterday.

HeadshotJoe 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.