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A lot of digital ink has been spent over the past several months about how the legal profession could change for the better because of COVID-19. Indeed, virtual court conferences, work-from-home policies, and other practices adopted during the pandemic can make attorneys more efficient at serving clients. I myself have published a few articles on how the legal industry can change for the better because of how we dealt with the challenges posed by COVID-19. In a similar vein, law schools have also had to adapt in order to contend with the ongoing pandemic, and law schools should learn from recent experiences in order to permanently improve.

Online Law Schools

Even though online colleges have been operating for decades, online law schools are not a major part of legal education. The main reason why online law schools have never taken off is because the American Bar Association has traditionally taken a dim view of schools that exclusively operate online. After a very rudimentary amount of research, I was unable to find an online-only school that has full accreditation by the American Bar Association, although it appears as if some hybrid programs have been accredited.

Accreditation by the American Bar Association is extremely important for law schools. Bar candidates in many states cannot sit for the bar examination unless they graduate from a law school that is accredited by the American Bar Association. As a result, unless law schools get the approval of the American Bar Association, they cannot operate as a steppingstone for students to begin careers as attorneys, which is the number one reason why people attend law school. Of course, there are some good reasons why the American Bar Association has traditionally looked down upon online law schools, since the value of courses offered at these schools may come into question, and the on-campus connection may be important to law students. However, the restrictions on online law schools may just as easily be explained as a way to decrease the number of people entering the practice of law.

Nevertheless, pretty much every law school in the country has become an online law school due to the COVID-19 pandemic. Indeed, nearly every law school in the United States held classes online for the remainder of the most recent semester, and many plan on doing so for the upcoming semester. Surely this experience demonstrates that law schools can operate in an online environment, and the American Bar Association should give serious consideration to sanctioning online-only law schools. Such law schools are also presumably cheaper than traditional bricks-and-mortar institutions, so permitting online law schools to exist would give students the option to complete their degrees on their own terms and likely at a cheaper rate than traditional schools.

Attendance Policies

When I attended law school, many of my courses had an attendance policy. This meant that if a law student failed to show up in class a certain number of times, their grades could suffer. I am not sure if this was a school requirement or a requirement of some professors, but I always thought it was strange that attendance would factor into grades. It seemed to me that grades should reflect one’s actual acuity at the course and not something as arbitrary as filling a seat in class. This is even more true with massive lecture classes with over a hundred students in which there is not much interaction among students.

The ongoing COVID-19 pandemic has shown that law school courses can continue even if students and professors are not physically present in class. As a result, law schools should expand policies that allow students to use remote means to virtually participate in classes after the pandemic subsides. This would assist students who are sick, traveling for job interviews, or find themselves in many other situations that make it difficult for them to appear in class. Law students are often extremely busy with externships, clinics, and other pursuits that do not fit neatly into an academic schedule, and law schools should encourage these pursuits by empowering students to attend courses virtually if needed.

As a corollary to this point, law schools should expand the availability of recorded lectures. A law school I attended recorded all lectures so that people could view them if unable to be present in class. However, if I remember correctly, students needed to specially apply for permission to view these recordings. Now that law schools have learned how to operate with videoconferencing technology, law schools should record more lectures for the convenience of students and make these recordings freely available.

All told, law schools have an incredibly difficult job operating during the pandemic, and many institutions have adopted innovative measures to contend with COVID-19. Law schools can learn from these lessons to make permanent improvements to legal education.

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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.

Harvard sits atop a mountain of cash. Apparently not enough to spare to keep support staff employed during a pandemic, but a mountain of cash nonetheless. And this money is invested all over the place including private prison companies making a fortune turning America into a latter season Orange Is The New Black hellscape.

We’ve covered the efforts of the Harvard Prison Divestment Campaign before — they’ve been advocating for the school to get out of the human misery business and ended up getting “investigated” by the school for their trouble. Investigated is in quotes because it’s never been quite clear what the students did that warranted an inquiry of any kind.

Now the effort has an unexpected ally in Harvard Law’s Charles Fried. Fried, the Solicitor General during the Reagan administration might seem on paper to be a supporter of private prisons — institutions that are generally propped up by “law and order” Republican state governments. But Fried is firmly opposed to the private prison industry and Harvard’s financial complicity in the endeavor, joining Professor Ron Sullivan for a panel discussion hosted by the Harvard Law Forum and Harvard American Constitution Society.

Fried’s argument fundamentally conservative and rooted in straightforward free enterprise. Private prison advocates like to posture as paragons of private enterprise, but as Fried points out, the market only works when there’s competition and when private companies are simply subcontracted to exercise the monopoly on state violence it basically devolves into torture. It’s a reminder that most of the American right has fetishized “privatization” with little attention to what makes the free market actually work.

Sullivan, who unintentionally became a “political correctness amok” talking point for briefly representing Harvey Weinstein, backs Fried’s reasoning and adds that if Harvard wants to present itself as committed to racial justice, getting out of this business would be a pretty good way to do that.

The ball is now in Harvard’s court.

Earlier: Harvard Law School Students Come Together To Demand The School Stop Harassing Three Students

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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.

You might think that the wave of bankruptcies impacting pandemic-stricken America are an unreservedly bad thing. That the dire straits or worse in which many iconic companies—J. Crew, Gold’s Gym, Neiman Marcus, J.C. Penney, Hertz, GNC, Chuck E. Cheese, Brooks Brothers, Ann Taylor and Lane Bryant, California Pizza Kitchen, Lord & Taylor, Men’s Wearhouse—have no silver lining amidst the lost jobs and general immiseration. CFOs of such companies—in particular, you might expect—would not see much to celebrate in the legal acknowledgment that their employers can no longer, you know, finance their continued existences.

* A Chicago lawyer featured on the Netflix show Indian Matchmaking is facing a tough adjustment after experiencing the fame of being on the show. This series keeps showing up on my queue… [Chicago Sun Times]

* The Los Angeles District Attorney’s husband will face charges for waiving a gun at protesters near his home. [Hill]

* A new lawsuit is demanding that White House briefings have sign language interpreters. [New York Times]

* The American Bar Association has voted on a set of best practices for third-party litigation funding. That sentence may sound boring, but the implications are profound. [American Lawyer]

* A new class-action lawsuit claims that the popular app TikTok steals consumer data and sends it to China. [NPR]

* Check out this story of a lawyer who paid off $200,000 in student loans in two years. Man, she beat me by 22 months, hope she doesn’t start a blog… [Business Insider]

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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.

It may be too early to declare the legal profession back to normal, but we’ve now seen some major law firms reverse course on cost cutting and even announce some bonuses. Meanwhile, it took all of a couple hours for the in-person bar exam experiment to net its first positive COVID test.

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

Which state’s appeals court recently said they will no longer use the term “grandfathering” to discuss a structure built before the enactment of zoning regulation “because we acknowledge that it has racist origins”?

Hint: The phrase “grandfather clause” originally referred to voting restrictions which required literacy tests for African Americans but allowed illiterate white people to vote because descendants of those eligible to vote before 1867 were exempted. Read more about the history of the term here.

See the answer on the next page.

In a move reminiscent of Britain declaring war on the German Empire in the aftermath of the Kaiser’s invasion of Belgium en route to France, the eighth most popular website in the United States, Pornhub (no link — to protect the innocent and to let web filters take a break) declared patent war on interactive video marketer-turned-voluminous patent case filer, Haulstars. Just as Belgium was a neutral country thrust into the midst of the real battle between European powers Germany and France, so too were Haulstars’ (in cases filed under its corporate name, Scorpcast LLC) initial targets seemingly neutral “content partners” of Pornhub, rather than Pornhub (MG Freesites Ltd., for those who prefer corporate monikers over brand names) itself. While the appeal of Haulstars’ assault on the relatively weaker — and perhaps most importantly considering that Haulstars is asserting a single patent, less likely to IPR — content partners is an obvious starting gambit for a patent enforcer, it has also drawn a strong reaction from Pornhub.

Like the British, Pornhub has thrown its own legal forces into the fray. At the tip of the spear — at least until what seems like the inevitable IPR gets filed — is a declaratory judgment lawsuit filed on July 28, 2020, against Haulstars in Delaware district court. A new front in the patent war between the parties has therefore been opened. In the case, Pornhub seeks a declaration that it doesn’t infringe Haulstars’ United States Patent No. 9,965,780 (“the ‘780 Patent”), which it notes is already the subject of 18 pending lawsuits (filed by Haulstars against Pornhub’s content partners) in the Eastern District in Texas. In support of its demand for declaratory judgment, Pornhub points to the fact that the Pornhub website is accused of infringement in each of the 18 Texas cases, since “ScorpCast specifically refers to the Pornhub website as the “Accused Instrumentalities” in its infringement allegations in each of the Copending Complaints.” As a result, Pornhub argues that declaratory judgment jurisdiction lies in Delaware, since it has a “reasonable apprehension and potential that ScorpCast could file a lawsuit against FreeSites for infringement of the ‘780 Patent.”

The ‘780 Patent itself is a key reference point for Haulstars’ own customer marketing. On its website, the company declares that it “offers patented interactive video technology that makes content experiential and shoppable.” As part of its assertion of the ‘780 Patent against Pornhub’s content partners, Haulstars alleges that the videos uploaded to Pornhub by those content partners, when combined with Pornhub’s interface, “enables a navigation event to occur at least in response to a user selecting images and/or text (together “Tags”), which are overlayed over the video, resulting in a navigation event opportunity.” Put differently, Haulstars’ infringement claims center on the “Tags” functionality offered by Pornhub’s video playback interface, where the content partner can “add Tags to the slider bar” which can contain text or images, and “allow the user to to jump to specific points in the video.” While Pornhub aficionados may be more familiar than most with that functionality, it seems clear that it is not limited to porn per se, but is technology relevant to video playback generally. At the same time, Haulstars apparent strategy of trying to take the path of least resistance with its assertion of the ‘780 Patent suggests that it considered Pornhub an easier initial target than YouTube, for example.

The filing of the declaratory judgment action by Pornhub puts the lie to any suggestion that it would be unwilling to defend its suppliers (i.e., content partners) or leave itself vulnerable to an infringement claim by Haulstars at a time and place not of its choosing. Not only did Pornhub protect its ability to IPR by filing only for a declaratory judgment of noninfringement as opposed to invalidity as well, it also included some substantive points that preview its noninfringement arguments as to the ‘780 Patent. For example, it points out that when the Pornhub user interacts with the video playback bar, the image shown to the user is from the video itself, not from a separate image as required by the claims. Similarly, Pornhub points out that any text shown to the user is not clickable — and thus can’t trigger a “corresponding navigation event” as required by the claims. At first blush, it seems like these arguments will at least trigger claim construction issues for resolution by the court, assuming one of the earlier-filed Texas cases doesn’t get to Markman first. But at the same time, I would not be surprised to see Pornhub file an IPR in short order, in support perhaps of trying to get all the District Court cases stayed while the validity of the ‘780 Patent is litigated in the PTAB.

Ultimately, this situation highlights the panoply of options available to a determined accused infringer, even what that party is initially attacked indirectly. Considering the porn industry’s robust relationship with IP issues — whether it be copyright in video content, trademark protection of brand names, or patenting activity around innovative adult toys — it is perhaps not a surprise to see Pornhub taking an active approach to defending its content partners, and by extension itself, from the attempts of an industry outsider to force it to pay royalties. At the same time, Haulstars has clearly committed to making the most out of the ‘780 Patent and will have no choice but to press its claims against multiple fronts in the absence of settlement.  It may not be titillating to anyone but patent litigators, but the procedural maneuverings thus far suggest this is one patent battle worth a watch.

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

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

It seems that Donald Trump’s banker is no more interested in following the rules than her most famous client.

In June 2013, the banker, Rosemary Vrablic, and two of her Deutsche Bank colleagues purchased a Park Avenue apartment for about $1.5 million from a company called Bergel 715 Associates, according to New York property records.

Mr. Kushner, a senior adviser to the president, disclosed in an annual personal financial report late Friday that he and his wife, Ivanka Trump, had received $1 million to $5 million last year from Bergel 715…. Typically banks restrict employees from doing personal business with clients because of the potential for conflicts between the employees’ interests and those of the bank.

Who wants to talk some more about Alan Dershowitz getting a massage in his underpants at billionaire pedophile Jeffrey Epstein’s house?

Let’s go with nobody. No one earth needs the visual of Dersh in his skivvies getting rubbed down by an “old Russian lady,” and we don’t want to think about his “perfect, perfect sex life” either. Hardest of passes!

And yet the distinguished law professor will not shut up about it, so here we are. Again.

Currently he’s got his knickers in a twist — shut up, he wears them all the time! — because of an episode of CBS’s The Good Fight in which a fictional attorney who is supposed to have previously represented Epstein refers to Professor Dershowitz as a “shyster.”

“Probably about the time he ditched me for Dershowitz,” says the character played by actor David Alford. “At least I didn’t get a massage, like that shyster. And for the purposes of any potential lawsuit, ‘shyster’ is just my opinion not a statement of fact.”

“The idea that a fictional character can get away with defaming somebody is really a new one,” Dershowitz told Variety, which printed his letter and CBS’s response in full. “You either have to have an entirely fictional account in which they make up the names of everybody or a truthful account. You can’t mix the genres. When you do mix the genres, the law of defamation applies.”

Or as his lawyer Imran H. Ansari put it in his demand that CBS retract the episode and issue a public apology for defaming his client, “Clearly, the dialogue and the context in which it is made, with words loaded with innuendo such as ‘massage,’ ‘Epstein,’ the ‘Virgin Islands,’ in combination with the word ‘shyster,’ falsely suggests that Professor Dershowitz engaged in sexual conduct, i.e. a ‘massage,’ with an underage girl associated with Epstein, and is crooked, unscrupulous and lying about it, i.e. a ‘shyster.’”

From the one-liner about “just my opinion,” Ansari infers “consciousness of guilt,” calling it “indicative that CBS knew the statements were defamatory, yes [sic… “yet”] sought, albeit weakly, to skirt liability.” Because sure, why not, right?

We can only imagine that Jonathan Anschell, ViacomCBS Media Networks executive VP and general counsel was delighted to have this one land on his desk. It’s not every day you get to defend a television character from charges of defaming a world-famous, nudist law professor!

If we understand your letter correctly, you are complaining about a line spoken by a fictional character, in an episode of the fictional series “The Good Fight” (the “Series”). You make this complaint on behalf of Professor Alan Dershowitz, a public figure who has long been associated with Jeffrey Epstein, and who has admitted on television to receiving a massage from a woman at Epstein’s mansion. In the non-fictional world, these factors require us to decline your request that we withdraw the episode, and our correspondence could end right here. Nevertheless, out of respect for Professor Dershowitz, we explain more fully below.

Noting that the very precedents cited in Ansari’s letter affirm that there is no liability for expressions of opinion and that “[v]iewers are generally familiar with dramatized [shows] in which scenes, conversations, and even characters are fictionalized and imagined,” Anschell concludes, “In other words, as one might explain to a small child, the Series, its characters and the things they say are all make-believe.”

Needless to say, CBS will not be apologizing or yanking the episode any time soon. Will Dersh make good on his threat to sue to avenge his honor? Well, we are talking about the same guy who has engaged in protracted defamation litigation to remind America once again of his association with a known pedophile, so … odds are good!

Alan Dershowitz Demands Apology for ‘The Good Fight’ Jeffrey Epstein Episode (EXCLUSIVE) [Variety]

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