Category: News Feeds

Just a few short years ago, we lamented the fact that a portion of the population had “never heard of” the Supreme Court, and that nearly two-thirds of Americans couldn’t name a single Supreme Court justice. These days, people are much more aware of the high court’s existence, if only for political reasons, and they’re much more knowledgable about the identities of certain justices thanks to their controversial confirmation hearings, highly acclaimed biopics, documentaries, and pop-culture celebrity, and a president who gripes about some of them on Twitter.

That’s why the results of the latest Economist/YouGov survey, where respondents were asked to rate all of the Supreme Court justices, were a bit unsurprising.

Let’s start out with the basics before we get to the justices’ favorability ratings. According to the survey, 48 percent of Americans approve of the current Supreme Court, while 26 percent disapprove. Can you believe that back in the day (between 1987 and 2010), the high court’s approval rating never fell below 57 percent, and was oftentimes higher than 70 percent? Those were simpler times.

Now, before we start discussing the names of the judges who ranked the highest in the favorability poll, we’ll break down the Economist/YouGov survey’s methodology for you. From June 21 to June 23, 1,500 American adults were asked whether they found each Supreme Court justice “very favorable,” “somewhat favorable,” “somewhat unfavorable,” “very unfavorable,” and “not sure” (a rating which we’re guessing amounts to a polite “uh, who?”).

How do SCOTUS justices stack up against one another when it comes to favorability?

Justice Ruth Bader Ginsburg took home the top prize, with 42 percent rating her “very” or “somewhat” favorable,” while 26 percent rated her “very” or “somewhat” unfavorable. Thirty-three percent of respondents were “not sure” about her.

President Trump’s Supreme Court appointments, Justices Neil Gorsuch and Brett Kavanaugh, both fared worse than Ginsburg in the eyes of the public. Kavanaugh broke even with 33 percent rating him “very” or “somewhat” favorable, while 33 percent rated him “very” or “somewhat” unfavorable. Thirty-four percent were “not sure” about him. As for Gorsuch, 27 percent rated him “very” or “somewhat” favorable, 23 percent rated him “very” or “somewhat” unfavorable, and 50 percent weren’t sure about him at all.

Mediaite has the details on the rest of the justices’ favorability ratings:

Justice Sonia Sotomayor notched 27 percent total favorable versus 21 percent unfavorable, and 42 percent “not sure.”

Justice Elena Kagan scored 27 percent total favorable, 18 percent total unfavorable, and 54 percent “not sure.”

Justice Samuel Alito got 27 percent total favorable, 20 percent total unfavorable, and 54 percent “not sure.”

Chief Justice John Roberts was at 31 percent total favorable, 24 percent total unfavorable, and 44 percent “not sure.”

Justice Stephen Breyer tallied 25 percent total favorable, 15 percent total unfavorable, and 59 percent “not sure.”

And Justice Clarence Thomas scored 33 percent total favorable, 28 percent total unfavorable, and 38 percent “not sure.”

It’s worth noting that Kavanaugh was the only justice who failed to achieve positive net favorability in this survey. At least he still has his beer.

Supreme Court Justice Ruth Bader Ginsburg CRUSHES Trump Picks Kavanaugh and Gorsuch in Favorability Poll [Mediaite]

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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.

Wear the mask. Not only because it’s better to be safe than sorry, but because, yes, your state has the right to require you to wear a mask during a pandemic. The states’ power to establish and enforce laws to protect the public welfare, safety, and health, commonly known as the police power, is supported by the Tenth Amendment. While the Constitution has been amended in countless ways since its execution, the police power as it relates to public health has been largely untouched by later construction.

From the Constitution’s early days, the courts have contemplated the government’s ability to protect the “public health,” or society’s interest in assuring healthy living conditions, by regulating society in times of widespread disease. Chief Justice John Marshall defended the police powers in Gibbons v. Ogden, including “inspection laws, quarantine laws, [and] health laws of every description.” Gibbons v. Ogden, 22 US 1, 78 (1824).

Throughout the early 19th century, the whole country had been “roused” by the “havoc” wrought by yellow fever for years. Smith v. Turner, 48 U.S. 283, 341 (1849). It was not long after yellow fever ran rampant through the colonies, and then the states, that the issue of mandatory smallpox vaccination arose before the Supreme Court in Jacobson v. Massachusetts. The Court found that the states had the right to impose upon an individual’s body by requiring that they submit to vaccination for smallpox, and that the individual must give up certain freedoms for the benefit of living in a civilized society. “[T]he liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly free from restraint.” Jacobson v. Massachusetts, 197 U.S. 11, 29 (1905). The Court determined this, in part, on the grounds that, as Edward Richards and Katharine Rathbun so aptly noted, “this is the bargain that makes public health possible.”

Mask requirements, while perhaps irritating, are certainly less of an imposition than a vaccine. They are also legally sound. Justice John Marshall Harlan in Jacobson emphasized necessity — a demonstrable and nonarbitrary threat to public health; reasonability — the “real or substantial relation” of the requirement to protecting public health; proportionality — the interference with individual autonomy ought to be proportional to the expected benefit; and harm avoidance — those posing a risk to society can be required to submit to certain measures for the public good, or, if a person can demonstrate they would be harmed by those measures, quarantine. Similar balancing tests are still applied today, and requiring a mask certainly passes those tests. Richards and Rathbun’s aforementioned article further notes that, for a disease-control program that imposes restrictions on individual liberties to survive a constitutional challenge, the program must meet five standards. The public health requirement must (1) address an actual problem that poses a direct threat to third parties; (2) develop a science-backed control strategy; (3) implement that strategy in the most effective way while minimizing restrictions on individuals, considering the resources available; (4) periodically evaluate the restrictions to show efficacy; and (5) phase out the restrictions when they are no longer epidemiologically warranted. The mask requirement in the face of a confirmed and still rising (in the U.S.) health crisis certainly satisfies those standards. This may be perceived as, perhaps, a low bar for state imposition on individual liberty. But being required to wear a mask to protect the health of oneself and others is a bargain.

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Megan E. McKenzie, a recent graduate of Georgetown University Law Center, works at Balestriere Fariello while her admission to the bar is pending. She works with her colleagues on all aspects of domestic and international complex litigation, arbitration, appeals, and investigations. You can reach her by email at megan.e.mckenzie@balestrierefariello.com

The bar exam. Few things invoke a stronger reaction in law students, and not in a good way. There’s no getting around the fact that sufficiently preparing to pass the bar is an intense, time-consuming process. But thanks to Crushendo, founded by BYU Law grad Adam Balinski, it no longer has to be a boring one.

For decades, bar prep services have relied on primarily two main methods for delivering the information they think you need to know to pass the exam: long, talking-head lectures and outlines so voluminous they could serve as doorstops. Even as law students have seen more bar prep options enter the market, they haven’t seen much change in the way study materials are structured.

Until now. Crushendo is changing the bar prep game with audio and visual outlines that are accessible and engaging. Combine that with online flashcards, practice questions, and prices that won’t break the bank, and Crushendo is turning the bar prep industry on its head.

A New Approach to the Traditional Outline

Crushendo’s whole approach to bar prep is to help you memorize crucial information faster. This starts with informative, visually appealing outlines that are easy to digest and accompanied by audio.

The outlines provide convenient breakdowns of how often certain topics tend to be tested on the bar exam. From there, each topic is presented in discrete, logical chunks through the help of hundreds of proprietary mnemonics, color-coding, and illustrations. The idea here is to instill visual images that are easy to recall come testing time.

There are mnemonics for almost everything, and they have a handy color-coding system to aid with memorization. Mnemonics presented in green (or avocado) imply “and” logic, meaning all elements are required (“avocado” = “a” = “and”). Those in orange involve “or” logic (“orange” = “o” = “or”). If a mnemonic is simply a list without relational logic, it appears in black.

The outlines also include handy blue hyperlinks that will take you to many of the underlying cases or statutes.

As cool and engaging as these outlines are, they’re just the beginning. The real game changer is when the audio comes in. Crushendo intends for their outlines to be read in full as a first step, but you have options for how you do this, depending on your personal preferences.

If you’re a studier who can’t stand noise, you should read your outline for the first time in complete silence at your own pace. For those who can tolerate, or even prefer, background music, you’ve got two options – you can read along as the written outline is paired with an audio outline, or you can also add classical background music to the mix (each subject has its own optional background song). The key is finding the right level of audio engagement that works best for you.

After you’ve digested the whole outline once, your Crushendo bar prep experience allows you to listen to each section of each outline as an audio file any time, anywhere. Throw on a torts track while hitting the weights at the gym. Listen to the civil procedure course while you’re grocery shopping. Or if you’re like this Google reviewer, you can even use Crushendo to increase your quality time with your pets: 

“I became instantly hooked by Crushendo’s use of mnemonics, concise outlines, and their tips and tricks from ONE YouTube video, that I had to get their MPRE package. It was the best decision ever. Although I had already purchased an MPRE outline from a popular bar company, it was simply not helping me memorize rule statements. Now, with Crushendo, I am able to go on my hour-long walks with my husky and be repeating the audio outlines, with awesomely vivid mnemonics, and feel like the rule statements are sticking! I have already recommended Crushendo to several classmates and can’t wait to buy their UBE package. Thank you, Crushendo!!”

The idea is to listen to each and every track 7-10 times so you eventually memorize all the concepts in convenient chunks. The combination of the information and music, especially when paired with mindless, enjoyable activities (stress relief, anyone?), is the best way to cement your knowledge of the concepts that will help you to pass the big exam.

Most bar prep products are designed to be used exclusively for that – studying come bar time. That’s why you get sold on expensive courses (more on that in a bit) and don’t see any materials till much later. Crushendo is different.

You get the materials right away, and you can use them throughout your law school experience to gain a deeper understanding of black letter law that will help you through your courses and finals, not just the bar exam itself. Take it from one successful Facebook user:

“I used Crushendo’s Civil Procedure outline during 1L and received my best grade in law school in Civil Procedure. I now listen to Evidence and Criminal Procedure during my daily commute and the repetition and the mnemonics are real game changers. If you commute and want to make that time more productive, you NEED Crushendo!”

Praise doesn’t get much better than that. (And speaking of Facebook, Crushendo gets an impressive 5 out of 5 stars).

Beyond Outlines (Stop! CrammerTime)

The Crushendo experience doesn’t end with the audio outlines and visual outlines. You also get compelling audio flashcards and online visual flashcards to help you further visualize and cement key concepts, as well as loads of official practice questions to prepare for the big day.

Flashcards are a great way to drill down those mnemonics and help with chunking – putting the right concepts in the right buckets so you’ll better remember them. With Crushendo, you get your flashcards in audio format, dubbed “CrammerTime,” accompanied (or not) by classical music tracks, according to your preference.

The final piece of any bar prep puzzle is practice questions, and Crushendo has you covered. Crushendo provides over 2000 practice questions, which they get directly from the NCBE itself – the folks who produce the Uniform Bar Exam – so you know they’re more reliable than many of the things you’ll randomly find on the internet. Even better, the essays and MPTs come with the actual bar grader reference point sheets, so you’re getting the best possible feedback instantly on your practice answers.

And since convenience is everything, all your Crushendo materials are available on both your computer and mobile devices. There’s even a blog and creative videos for more tips and tricks for surviving the bar. It’s hard to imagine how Crushendo could make bar prep any easier.

The Most Enjoyable Way to Crush Bar Prep

Crushendo is different than any other bar prep course you’ll come across, and that’s a great thing. The bar exam may be a rite of passage that will stand the test of time, but study materials have long needed to catch up with the modern age.  That’s exactly what Crushendo has done.

Whether you’re preparing for law school finals, the UBE (or any its subparts – MBE, MEE, or MPT), your state bar exam, or the MPRE, Crushendo is the flexible study system that gives you the freedom to study and cram when and where you want. You get lifetime access to your materials for a fraction of the cost of any other equally comprehensive study program, and there’s even financing available if you need it. There’s also a 30-day, no-questions-asked, money-back trial period for you to test it out (though if you’re like 98% of their users, you won’t change your mind).

Let’s face it. The bar exam will always be hard and prepping for it will always be a ton of work. But it doesn’t have to be miserable. Break free from the lectures and outlines, and let Crushendo guide you to a more flexible, engaging, and effective study experience.

Yesterday, a march in St. Louis called upon the mayor to resign. As the march passed by a recently restored palazzo, they were greeted by the homeowners who responded entirely rationally by waving an AR-15 at the crowd.

And, obviously, they are both lawyers.

Mark and Patricia McCloskey of the McCloskey Law Center came out of the house brandishing firearms and cut figures that were a lot less “Rambo” and a lot more “Jimmy Buffett survivalist chic.”

Is that gun… bigger than he is? And while AR-15s are more prone to capture our attention because their only practical application is a mass shooting, we would be remiss if we didn’t highlight Patricia waving a handgun around breezily as if to say, “I don’t care what you say, Gilligan, Mr. Howell and I are getting off this motherf**king island, now!”

In their defense, the Daily Mail reports that protesters had broken through the entrance to the gated community and they handled the matter themselves and apparently didn’t bring in the police and escalate the altercation. And with the police brutality we’ve seen against peaceful protesters over the past few weeks, telling the protesters to “keep moving” rather than sitting back and waiting for the Chicago Democratic Convention to break out on their front lawn is a start.

However, there are several steps between “some people are outside” and “let’s get the assault rifle.” One of which might be just engaging the group and telling them that this wasn’t the mayor’s house.

But the Missouri legal community has some thoughts on the idea of their fellow attorneys casting themselves in a Mark Wahlberg movie:

Given that they stayed on their property and the protesters were on a private road, I’m not sure how the assault claim would play out, but the gatekeepers of the profession may have a few things to say about lawyers whose first instinct is to take the law into their own well-manicured hands.

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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.

Under Armour has decided to discontinue its partnership with UCLA and break a 15-year contract that required the apparel company to pay the university a total of $280 million. It is justifying an early termination of the agreement entered into by the parties in May 2016 based on allegedly not receiving marketing benefits for an extended time.

“The agreement allows us to terminate in such an event and we are exercising that right,” Under Armour said in a statement. UCLA has indicated that it is exploring all of its options to “resist Under Armour’s actions.”

The 37-page Athletic Product and Sponsorship Agreement between The Regents of the University of California and Under Armour, Inc. includes a controlling law section that indicates the agreement shall be construed under the laws of California, but it does not have a jurisdiction clause. It is assumed that if UCLA chooses the option of litigation, it will bring such a case on its home turf, in Los Angeles, and that Under Armour will have a tough time dismissing or removing the action for lack of jurisdiction.

Ultimately, a legal action will be focused on the language that begins on the bottom of page 26 of the terminated (according to Under Armour) agreement. The agreement provides permission for Under Armour to terminate early if UCLA breaches any material term of the agreement or any one of seven circumstances (laid out in the agreement) occur and UCLA does not cure the breach or circumstance within 30 days of receiving written notice from Under Armour specifying the breach or concern. The only circumstance that seems to be even remotely relevant is the one that centers on UCLA not fielding an NCAA Division I Core Team or that one of those teams does not participate for any reason (other than for a force majeure event) in a complete regular season, missing at least 50% of the scheduled games during the regular season.

Core teams are defined as UCLA’s football, baseball, men’s basketball and women’s basketball teams.

What provision of the agreement Under Armour is resting on to cause an early termination is not clear. The company’s public statement merely said that it has been paying for marketing benefits that it has not received, and says that the lack of deliverables has been an issue for “an extended time period.” That statement makes it seem as though the issue goes beyond any claim that Under Armour may have concerning a lack of play by any core team due to coronavirus. Instead, it appears to imply that UCLA has failed to perform on its obligations, which begin to be laid out on page 14 of the agreement and includes many requirements concerning signage, advertising, and appearances by UCLA coaches and administrators.

Further, it is not clear that Under Armour properly provided UCLA with an advanced notice of any breach nor an opportunity to cure any alleged failure by UCLA to comply with the terms of the agreement.

However, if Under Armour is actually going to rest on the failure of any UCLA core teams to participate in at least 50% of the scheduled games during a regular season as a way to cause an early termination, then the force majeure event definition will need to be inspected. It is defined as any cause or event that is beyond the reasonable control of UCLA and renders the performance of the agreement by the affected party either impossible or impracticable. While the definition does not specifically include epidemics nor pandemics (and it should be assumed that these types of contracts will in the future), a persuasive argument can be made that COVID-19 made it, at a minimum, impracticable for UCLA to perform. As such, it would make it incredibly difficult for Under Armour to cite to a lack of participation by a core team as grounds to terminate with cause and without penalty.

Expect UCLA to challenge Under Armour’s early termination by initiating litigation against the brand and for UCLA to have strong claims that Under Armour had no solid grounds to terminate with cause.

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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.

Should we buy the $5 billion company? Should we fire the CEO?

You should agonize over those decisions. They matter.

But there are low-stakes decisions.

Who should we call first about the threatened protest at our building — security or the other tenants? Shall we send Pirrip or Magwitch to the meeting? Should we buy white legal pads or yellow?

You should not agonize over those decisions. They don’t matter.

Remarkably, many people seem unable to tell the difference between decisions that matter and decisions that don’t.

Here’s the nasty part: The fact that decisions are low stakes doesn’t mean that they’re easy.

It could be very hard to decide whether to buy white legal pads or yellow.  The pads might have different absorbency or reflectivity characteristics.  Jarndyce might prefer white, while Summerson might prefer yellow. If we buy white, what will Summerson say? How will we answer? What will Summerson say next? Will Summerson be distraught?

Faced with a difficult — but low-stakes — decision, an intelligent person might well say: “Flip a coin, for God’s sake! We’ve already spent more time discussing this than the issue warrants. Let’s spend our time thinking about the high-stakes matters!”

But that intelligent person would surely be criticized: “Flip a coin? On a matter that affects this institution? And something that’s actually very difficult to decide? How dare you say such a thing? We must continue to debate this, on into the night, until we reach the right decision on the legal pad question!”

Let it go.

Think first about whether the decision makes any difference. If it doesn’t, just decide and be done with it.

On the other hand, if the decision does make a difference, then fret. It’s worth the effort.

Don’t get caught up in things that don’t matter.

(I read somewhere, but I can’t find a link, about a World War II handbook on how corporate executives stranded in Europe during the war, but supportive of the Allied cause, should contribute to the war effort. Those corporate officers, the manual said, should insist on debating every last item to exhaustion. No issue was too small to ignore. Once a decision was made, revisit it! Have people start the debate again. By debating and reconsidering every insignificant item, folks would ensure that no products were actually made, and the Nazi war effort would be crippled.

When you start to feel that way at your firm or corporation, advocate intelligence. Fret about the things that matter. For things that don’t matter, simply decide, and move on. You may have decided wrong, but you’ve decided. Remember: It doesn’t matter.)

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Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

There’s no time like a financial crisis even worse than the last one to gut the signature regulation stemming from said previous financial crisis, or so it seems to those in charge of enforcing it, who have finalized the demolition of the Volcker Rule at a time when very little else is going one.

The looser restrictions approved on Thursday will allow banks to more easily make investments in various areas of venture capital.

The rule changes will also allow banks to avoid having to set aside cash when making derivatives trades between different affiliates of the same firm.

* The estate of Sir Arthur Conan Doyle is suing Netflix for its depiction of Sherlock Holmes as a kind and caring sleuth. Wonder if there was ever legal action over Holmes and Watson… [CNN]

* Texas law firms are rethinking reopening plans amid a spike in COVID-19 cases. [Texas Lawyer]

* A disciplinary panel has suggested a two-year suspension for a lawyer who showed “aggressive tactics and relentless vindictiveness” in practicing law. Some clients might like those qualities. [ABA Journal]

* A lawyer claims that he was retaliated against for exposing financial irregularities at a healthcare company. [Dallas Morning News]

* Justin Bieber has filed a $20 million defamation lawsuit against women who have accused him of assault. [CNN]

* A Nebraska attorney who accepted cocaine as compensation has been disbarred. He should have just stuck to cash, check, or credit card… [Associated Press]

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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.

The three women are all leaders of the Movement for Democratic Change’s youth section [Tsvangirayi Mukwazhi/AP Photo]

A HIGH Court Judge on Friday 26 June 2020 set free three victims of
abduction and torture, who had been languishing in prison for close to
two weeks, after they were denied bail by Harare Magistrate Bianca
Makwande on Monday 15 June 2020.

High Court Judge Justice Davison Foroma ordered the release from
Chikurubi Maximum Prison of Harare West legislator Hon. Joana Mamombe
aged 27 years, Cecelia Chimbiri aged 31 years and Netsai Marova aged
25 years, after presiding over the hearing and determination of a bail
appeal filed by their lawyers Alec Muchadehama, Jeremiah Bamu,
Tinomuda Shoko and Roselyn Hanzi of Zimbabwe Lawyers for Human Rights.

Hon. Mamombe, Chimbiri and Marova were arrested by Zimbabwe Republic
Police members on 11 June 2020 and charged with publishing or
communicating false statements prejudicial to the state as defined in
section 31(a)(ii) of the Criminal Law (Codification and Reform) Act
and publishing or communicating false statements prejudicial to the
state as defined in section 31(a)(iii) of the Criminal Law
(Codification and Reform) Act. The trio was also charged with
defeating or obstructing the course of justice as defined in section
184(1)(f) of the Criminal Law (Codification and Reform) Act.

The trio’s freedom bid had been dismissed by Magistrate Makwande who
on 15 June 2020 told Hon. Mamombe, Chimbiri and Marova that she vetoed
their bail application after being convinced that there were
compelling reasons not to admit them to bail as they were likely to
abscond from trial.

But Justice Foroma on Friday 26 June 2020 set free Hon. Mamombe,
Chimbiri and Marova after ruling that Magistrate Makwande had
misdirected herself when she denied bail to Hon. Mamombe, Chimbiri and
Marova.

The Judge ordered the trio to pay RTGS$10 000 each as bail money, to
report at the Criminal Investigations Department’s Law and Order
Section at Harare Central Police Station on Mondays Wednesdays and
Fridays, to continue residing at their given residential addresses,
not to interfere with state witnesses and to keep their passports in
the possession and custody of the Clerk of Court at Harare Magistrates
Court until their matter is finalised.

Justice Foroma also barred the trio from communicating whether
directly or otherwise with any of the public and or private media
including on social media in connection with their matter.

Hon. Mamombe, Chimbiri and Marova went missing on 13 May 2020, when
they were abducted in Harare by some unidentified people and were
later found on 15 May 2020 after being dumped in Bindura in
Mashonaland Central province.

They have already been charged with committing public violence after
they were arrested on 26 May 2020 for allegedly participating in an
anti-government protest against hunger during the national lockdown
period as defined in section 37 of the Criminal Law (Codification and
Reform) Act and for contravening section 5(3) (a) as read with section
5(1) of Statutory Instrument 99 of 2020 of Public Health (COVID-19
Prevention, Containment and Treatment) (National Lockdown) Order, 2020
and will stand trial in August.