See, That’s Not How This Impeachment Thing Works

(Photo by Spencer Platt/Getty Images)

A lot of Americans are about to learn that impeachment does not equal removal from office.

— Professor Rick Hasen predicting the epic case of confusion about to befall the majority of the country when they learn how the impeachment process plays out. Meanwhile, Mitch McConnell is mulling whether to dismiss the charges with a simple majority vote or let the trial run its course so Trump can accurately declare that he was acquitted and claim the false finality that this process was always going to give him.

For anyone still thinking that voters will be savvy enough to see through Trump’s acquittal spin, Hasen’s quote should be a sober reminder that a nuanced grasp of this process isn’t in the cards.

Book Review: My Mom, The Lawyer

Sometimes I review books in this column, and more often  than not, they’re about issues relating to the intersection of law and technology. But every once in a while a book is sent to me that’s completely off-topic, but nevertheless catches my interest. The children’s book, “My Mom, the Lawyer,” is a perfect example.

The book is authored by Michelle Browning Coughlin, an IP and data privacy lawyer from Louisville, Kentucky — who happens to be a mom. She’s also the founder of Mothers Esquire, a nonprofit organization devoted to gender equity in the legal profession, with a particular emphasis on support and advocacy for mothers and other caregiving lawyers.

When I was contacted about reviewing this book and offered a complimentary copy, I immediately agreed. After all, I’m a lawyer and a mother of teenagers — and I’ve struggled to juggle the demands of my career with my parental obligations for nearly two decades. So even though this book has absolutely nothing to do with technology, it’s still right up my alley.

From the start, I had great expectations for this book and eagerly awaited its arrival. And I’m happy to report that when I finally got my hands on it two weeks ago, it was exactly what I hoped it would be.

For starters, it’s got great, colorful illustrations of mom-lawyers from all walks of life interacting with their children. Every mother and child will relate to those pictured in this book and feel as if it’s directed right at them. It’s incredibly representative, with images of people from many races, nationalities, religions, and disabilities.

The plethora of jobs that require a law degree are discussed and explained using clear, simple descriptions. The career paths covered run the gamut and include law student, law professor, litigator, appellate lawyer, in-house counsel, transactional attorney, military lawyer, solo attorney, family lawyer, politician, judge, and even a lawyer-mom on maternity leave.

Not only does the book do a great job of discussing the many career paths that lawyers take, it also helps children understand the importance and impact of their mothers’ work. The author explains how lawyers solve problems that help people, and thus make their communities — and the world — a better place.

An emphasis is placed on how hard people work to become lawyers and on the skills needed to be successful as a lawyer, such as intelligence and hard work, oral and written advocacy, and decision-making capabilities. The author also emphasizes the positive impact that all of that hard work has on communities and the lawyer-moms’ families, too.

Importantly, the book also addresses the impact of working parents on families. Topics covered include: 1) going to work with mom and coloring quietly in her office while she works, 2) the fact the lawyer-moms sometimes come home late from work, 3) that lawyer-moms sometimes travel, and 4) that sometimes lawyer-moms work while the other parent stays at home with the kids.

That lawyer-moms’ schedules sometimes conflict with family events is mentioned, with the narrator, a child, explaining that as a result other family members occasionally attend school-related events that may conflict with the lawyer-mom’s work obligations — and that that’s OK. I particularly liked how the author interspersed the reality of the impact of work obligations on family life with references to the many fun and caring interactions that lawyer-moms have with their children.

I found the focus on the realities of having a lawyer-mom to be one of the best parts of the book, since it helps the children of lawyer-moms understand that lots of other families with lawyer-moms are out there. Importantly, it shows that their experience with having a mom who happens to be a lawyer isn’t unusual, and that lawyer-moms are great role models — and great moms.

So if you’re a lawyer-mom or have someone on your holiday gift list who is, then what are you waiting for? Buy a copy of this book today, and rest easy knowing that not only is this book the perfect gift, all proceeds benefit Mothers Esquire. It’s a win-win! What could be better than that?

Cars turned into bedrooms as residents demand stop to nuisance – The Zimbabwean

This came out at a residents meeting held on Tuesday. The meeting was attended by Ward 8 Councillor, Keith Charumbira and the Environmental Committee Chairperson, Councillor Stewart Mutizwa.

Representatives from the Zimbabwe Republic Police as well as from the business sector were also in attendance.

Minutes of the meeting indicate that Newlands, Chisipite, Kamfinsa and Runiville shopping centres were experiencing deep problems ‘in terms of nuisance’.

Newlands Shopping Centre has become one of the popular nightspots in Harare with a lot of illegal activities happening there.

Councillor Charumbira agreed that Newlands Shopping centre had been turned into a serious crime zone and acknowledged there was need to take action against illegal drinking activities that have reduced the status of the shopping centre.

According to the minutes, Councillor Mutizwa expressed concern over the developments. At Newlands Shopping Centre.

“In terms of nuisance, Newlands, Chisipite, Kamfinsa and Runiville shopping centres are all experiencing problems. He stated that we need to get rid of idle people who hang around and to this effect ZRP has been asked to handle the nuisance, but this has been ineffective.

“There are bedrooms in cars and unacceptable behaviour which municipal police are unable to help with. However, if nuisance can be proved then there can be an enforcement order issued to close down the nuisance (bars operating at Newlands Shopping centre). He stated that the property values are affected by the nuisance encountered at the shopping centre as a result of it becoming unsightly and with unbecoming behaviour of visitors to the shopping centre,” said Councilor Mutizwa.

The minutes also showed that residents who attended the meeting expressed concern over the state of affairs at Newlands Shopping Centre and said ‘they do not shop there anymore because of the filthy state and the inability to find a parking spot’.

It was also reported that some tenants at the shopping centre had since left as standards continue to decline.

A representative from the Zimbabwe Republic Police suggested the setting up of a police base at the Newlands Shopping Centre saying this would largely assist in maintaining order.

Zimbabwe’s currency crisis is far from being resolved

Post published in: Featured

Morning Docket: 12.12.19

(Photo by John Lamparski/Getty Images for Hulu)

* President Trump is considering Alan Dershowitz for his impeachment legal team. Seems like he is taking a page out of O.J. Simpson’s book… [ABC News]

* An attorney was entitled to more disability benefits since he was scheduled for a pay raise one day after he suffered a heart attack. [Bloomberg Law]

* Former judges are faulting presidential candidate Deval Patrick for unequal pay and retaliation suffered by the jurists. [Boston Globe]

* Another Fox News host has filed a sexual harassment lawsuit against the network. [Axios]

* Utah’s high court has made it easier for Dreamers to legally practice law within the state of Utah. [Desert News]

* The University of California is being sued for requiring the SAT and ACT to be taken for admission. It would be amazing if this lawsuit had legs… [CBS News]


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.

Zimbabwe’s currency crisis is far from being resolved – The Zimbabwean

A man holds Zimbabwe bond notes in Harare, Zimbabwe, 09 September 2018. The newly appointed minister of Finance and Economic Development, Professor Mthuli Ncube, in an interview with the local weekly Sunday Mail, was quoted as saying that the current currency approach was not working in that way that the country adopted the US dollar and removed the bond notes in circulation through a demonetisation process. EPA-EFE/AARON UFUMELI 

Zimbabweans are heading into yet another bleak festive season, with basic commodity costs soaring beyond the reach of many, and basic service delivery on the brink of collapse. The health system is barely holding, with junior doctors on three-month industrial action and teachers threatening to follow suit.

Civil servants are demanding salaries pegged at the formal US dollar exchange rate known as the interbank rate. There is a real risk of basic commodities running out, and fuel queues continue unabated. There seems to be no real solution in sight. To address the myriad social and economic woes, the currency crisis must be addressed urgently.

This year has seen many twists and turns in Zimbabwe’s long-running currency saga. In February, the electronic real-time gross settlement (RTGS) dollar was officially adopted as a local currency, alongside bond notes and multiple foreign currencies. In June, the use of the US dollar and other foreign currencies was outlawed for most transactions, while in October, Zimbabwe dollar notes were reintroduced.

In the process, the value of the local currency has plummeted. Originally the RTGS dollar was simply a US dollar held in a bank account. Over time the fiction that the “bank” dollar was worth US$1 could not be maintained, as banks lacked the US dollar reserves needed for convertibility.

The value of this bank (or mobile money) dollars has continued to drop, from an official rate of 2.5 per US dollar back in February to around 16 in the interbank market and 25 in the parallel market in early December. In the process, inflation has sky-rocketed and incomes have been slashed.

Zimbabwe’s currency crisis has been long-running. It goes back to the fixed exchange rate days and shortages of foreign currency since independence, to the rapid depreciation and re-denominations of the currency during the 2000s, culminating in hyperinflation and the eventual formal “dollarisation” of the economy in 2009.

Zimbabwe isn’t alone in its currency instability; many countries have been through periods of high inflation, weak domestic currencies and shortages of foreign currency. The root causes are always similar: a combination of bad macroeconomic policies, fiscal and balance of payments deficits, and excessive monetary expansion.

However, Zimbabwe’s experience is unusual in several respects. In few countries has inflation spiralled completely out of control into hyperinflation. Similarly, in few countries has currency breakdown been so extreme that the domestic currency was completely abandoned.

A more typical experience is that as confidence in the domestic currency declines (due to high inflation), citizens and firms switch to holding their bank deposits and making transactions in a foreign currency, usually US dollars. This “partial dollarisation” involves the coexistence of the domestic currency and US dollars in the financial system. Some countries have managed to recover from this, and re-establish a credible domestic currency.

The situation in Zimbabwe from 2009 to early 2019 was complete dollarisation, with no domestic currency. This is not particularly unusual – there are 13 other countries in the world that use another country’s currency. What is unusual is the attempt to reintroduce a domestic currency after complete dollarisation due to a currency collapse.

Some countries have introduced new currencies – Botswana in 1976, and the Czech and Slovak republics after the break-up of Czechoslovakia in 1993 – but the success of these efforts rested on the credibility of these countries’ (new) central banks and macroeconomic policies. These factors are not present in the case of Zimbabwe.

Zimbabwe is trying to introduce a new currency with a two-decade history of economic and currency crisis, and a central bank that lost much of its credibility during the era of hyperinflation.

It has been claimed that Zimbabwe needs to reintroduce a domestic currency because of the need to have its own independent monetary policy. But this isn’t a valid argument. There are 57 other countries that have no separate legal tender, are members of monetary unions or operate a currency board, and hence don’t have an independent monetary policy.

Based on international experience, re-establishing a stable and credible Zimbabwe dollar would be a tall order. The minimum requirements would include restoring macroeconomic stability; ending government fiscal deficits, and quasi-fiscal operations by the Reserve Bank of Zimbabwe; complete transparency in the foreign exchange market and RBZ operations more generally; and ending compulsory forex surrender requirements for exporters, subsidies for imports, and access to foreign exchange at privileged rates.

Zimbabwe also needs to negotiate a quasi-HIPC (heavily indebted poor country) arrangement with its creditors to reschedule and reduce its foreign debt and re-establish access to international capital markets.

Does Zimbabwe have other currency options that could lead to a sustainable outcome? Given the need to re-establish macro-economic credibility, adopting an external monetary and institutional anchor is almost essential. Back when the multi-currency regime was introduced in 2009, many analysts considered that it would make more sense to adopt the South African rand (ZAR) as the domestic anchor currency, rather than the US dollar. The ZAR is more relevant considering Zimbabwe’s trade patterns, and less likely to lead to competitiveness problems.

But unlike the US dollar, which can be used by any country unilaterally and doesn’t need the agreement of the US government, adopting the ZAR needs the agreement of the South African government and Reserve Bank. To get a nod from SA’s central bank, Zimbabwe needs to put its house in order.

The independence of Zimbabwe’s central bank has to be assured and an independent Monetary Policy Committee put in place. Zimbabwe’s Finance Minister, Mthuli Ncube, established this committee in September, but its independence is yet to be tested. Zimbabwe’s government also needs to be consistent regarding economic policy reforms to guarantee some measure of economic stability before they can be considered for the rand monetary union.

While it’s not certain that the Common Monetary Area members would admit Zimbabwe as a member, opening negotiations to explore this option could be the first step in re-establishing currency stability in Zimbabwe. DM

On brink of ‘man-made’ starvation, Zimbabweans struggling to cope – The Zimbabwean

Drought and inefficient government policies have left nearly eight million Zimbabweans hungry [Tendai Marima/Al Jazeera]

Bulawayo, Zimbabwe – Every morning, just before the daily power cut kicks in, Juliet Gumbo enters her kitchen to start preparing her meal. It will be her only food for the day, but she will have it hours later, when she returns to her electricity-lacking home after a day spent farming or hawking goods on the streets of Bulawayo, Zimbabwe’s second-largest city.

Gumbo, a 52-year-old widow lacking a steady job, is just one of many Zimbabweans struggling to cope with a scorching drought and economic instability that have pushed millions to the brink of famine.

“I eat what I can get,” Gumbo said.

Zimbabwe is in the grip of its worst economic crisis in 10 years, with inflation soaring to 300 percent and the population suffering fuel shortages, power rationing and currency woes. Emmerson Mnangagwa, who succeeded Robert Mugabe after a military intervention forced the longtime president to resign, has struggled to revive the economy while the long-standing financial troubles have been worsened by extreme weather shocks.

And now Zimbabwe is facing major food insecurity as many people do not have enough food to eat or they cannot afford it. According to Hilal Elver, the United Nations‘ special rapporteur on the right to food, the country is on the verge of “man-made starvation”, with close to 60 percent of its 14-million population being food insecure.

Juliet Gumbo is trying to plant her own food as she can no longer afford to buy maize [Tendai Marima/Al Jazeera]

After an 11-day visit last month to areas hit by the El Nino-induced drought, Elver said the crisis affected a “staggering” 5.5 million people in rural areas and a further 2.2 million in cities.

“These are shocking figures,” she said, adding that notwithstanding the devastating effect of recurrent droughts and powerful cyclones, the crisis was partly due to chronic economic mismanagement, high unemployment, widespread poverty and rampant corruption.

Sanctions and failed policies

In her statement, Elver also suggested economic sanctions by the United States and the European Union against officials and entities linked with the ruling ZANU-PF party over alleged abuses are contributing to Zimbabwe’s current malaise.

The government in Harare also says sanctions are impeding economic growth and “hurting ordinary Zimbabweans” – but the US embassy refutes the claim.

“The government of Zimbabwe’s failed economic policies, not sanctions, hinder Zimbabwe’s economic growth,” the embassy’s press office said in a statement to Al Jazeera.

“Billions of dollars have been lost due to decades of corruption and harmful economic policies which have culminated in the current economic crisis. Implementation of economic and political reforms are the key to improving Zimbabwe’s trajectory.”

Analysts say years of shifting policies on land reform and food subsidies under Mugabe and Mnangagwa are also partly to blame for Zimbabwe’s food scarcity.

The country’s agro-based economy began to collapse following the state’s violent seizure in the 2000s of an estimated 10 million hectares (25 million acres) for redistribution from white commercial farmers to resettle the landless black majority. Mugabe’s government over the years resorted to price controls and money printing to tackle skyrocketing inflation and food shortages, but the measures impoverished local state-owned agricultural companies and contributed to the collapse of the local currency in 2009.

Although the removal of sanctions is a key demand of the post-Mugabe government’s re-engagement with the West, the country is battling to stabilise its economy as it transitions from a decade of using the US dollar as part of its multiple currency system.

But the reintroduction of a local currency at the end of February and, more recently, the reversal of a decision to remove a government subsidy on maize have failed to ease the situation.

Last week, Finance Minister Mthuli Ncube said the government is making “perfect” efforts to reform the economy and attribute the larger part of the crisis to natural disasters and bad luck.

“Who gets a cyclone, and then another, then drought then power outages?” Ncube told reporters on Wednesday, referring to this year’s farmland-ravaging Cyclone Idai and Cyclone Kenneth that followed it. “That is a classic example of being unlucky.”

On Thursday, the government announced that the price of a 10kg (22 pounds) bag of maize meal selling for at least 105 Zimbabwean dollars ($6.32) would drop to 50 Zimbabwean dollars ($3.32).

But some consumers are doubtful if price controls will have any effect on escalating costs.

For Gumbo, her monthly state grant of 45 Zimbabwean dollars ($2.71) of her late husband’s benefits is inadequate to meet her living needs. With the price of mealie meal – a staple food made from milled corn – beyond her reach, she opts to plant maize hoping that she will be able to yield a harvest in March that could help her to survive a further six months.

“I still can’t afford it; today, they [the government] will say it’s 50 Zimbabwean dollars but the price will still go up in the shops,” said Gumbo, a sometimes seasonal farmer. “I’d rather plant and hope the rains will improve so I can have something to eat.”

Zimbabwe food scarcity

Farmer Sikhumbuzo Mlilo says he has been threatened with eviction by the government [Tendai Marima/Al Jazeera]

Zimbabwe’s food scarcity problems, however, are not recent. Once a regional breadbasket, the country over the past 10 years has been hit by rising food insecurity partly due to the fast-track land reform programme that saw a drop in agricultural production – mainly of dairy, beef and wheat.

While those who took over the white-owned farms have contributed significantly to the domestic consumption of corn, production remains insufficient to build up a store of grain reserves.

And now, even some of the resettled face eviction.

In the southern district of Umguza, an area 500km (311 miles) south of the capital, where some of the earliest resettlements took place, Sikhumbuzo Mlilo and his partner Buyiswa Moyo live on a plot apportioned from a white-owned commercial farm.

The pair, who have been farming the land since 2000, allege that in October they were issued with an eviction notice.

“We need to eat so we can survive, but if they tell us to leave this land after being here for so long, how do we plant our crops, where are supposed to go and find new land?” he told Al Jazeera.

The 44-year-old said the order made an already tough situation even worse for his farming-dependent family.

“Last [rainy] season we did not reap much from the harvest because the rains came late, so we’ve had to buy maize meal in town, but now it’s so expensive it’s hard for us,” he added. “We just can’t afford it.”

Following the toppling of Mugabe after 37 years in power, Mnangagwa pledged to end eviction of white commercial farmers while maintaining there was no going back on land reform. Though seldom, eviction of white farmers still occurs while resettled black farmers who are not productive on their land have been warned of expulsion.

Mlilo denies underutilisation and suggests the plots of those threatened with expulsion could be earmarked for a larger farming project for “those with money and good government connections” – a fear also echoed by other resettled farmers.

Since the land seizures, Zimbabwe depends on production by subsistence farmers to provide the bulk of its maize needs, but local wheat production is inadequate.

As a result, the country suffers from a cereal deficit with current production falling short of 761,000 metric tonnes needed for 2019-20, according to regional statistics from the UN Office for Humanitarian Affairs. Cereals and pulses such as wheat and soya beans are largely imported but due to chronic shortages of foreign currency, the government has struggled to pay for importation which has resulted in periodic shortages of bread and cooking oil.

Zimbabwe food scarcity story

Government-approved prices for basic goods often do not match those in supermarkets [Tendai Marima/Al Jazeera]

Meanwhile, over the past year, the price of bread has increased more than four times as bakers and millers struggle to keep pace with the quickly eroding value of the local currency against the US dollar.

Mangaliso Ndlovu, the former minister of trade and industry and current environment and tourism minister, acknowledged that inflation has drastically reduced the purchasing power of many Zimbabweans despite regular adjustments of civil servants’ salaries.

“The wages have not been aligned to the exchange rate and that has been the major challenge which we are gradually addressing,” he said.

“There is a challenge when it comes to food security and that is why we have put a flash appeal to the United Nations. When we talk of people going hungry we are literally talking about food on the table and this is a direct impact from the drought and this has stretched government’s social protection programme.”

Zimbabwe food scarcity story

Nokusila Ndlovu goes without food to make sure her children have enough to eat, making a regional version of doughnuts when bread becomes too expensive [Tendai Marima/Al Jazeera]

In an effort to combat escalating prices, the government has launched the National Bakeries Programme, a series of community initiatives around the country where entrepreneurs use wood-fired ovens to make a cheaper version of bread.

The lower standard of homemade bread has not caught on, however, as the small bakeries struggle to produce enough to compete with bigger competitors.

Instead of buying bread, Nokusila Ndlovu, 27, an unemployed mother of four who lives on the outskirts of Bulawayo has resorted to making vetkoeks, a regional version of doughnuts, on an open fire to feed her children.

“I can go without food the whole day, sometimes I eat one meal, but my children can’t. So I have to find cheaper alternatives to bread. The price is just too much for me. So whenever I have money, I buy flour to make vetkoeks to keep them full,” she said.

In an attempt to plug the nutritional gap faced by low-income households, the World Food Programme hopes to deliver more than 240,000 metric tonnes of essentials during the first half of 2020 – but the UN food agency faces a colossal task.

The WFP has appealed for nearly $300m to meet Zimbabwe’s emergency needs, but less than 30 percent of funding has so far been guaranteed.

“Funds are required immediately for WFP to meet the growing needs of the hardest-hit Zimbabweans,” it said in a statement.

Are SCOTUS Term Limits A Real Possibility? — See Also

Findings from the 12th Annual Law Department Operations Survey – Webinar

Findings from the 12th Annual Law Department Operations Survey – Webinar

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The 2019 LDO Survey reveals how law departments are leveraging legal operations, including insights on: Artificial Intelligence ,Technology, Effectiveness, Legal Project Management, and more.
Join us on December 11th at 1pm ET to learn more!

Mexico Better Pay For The Wall Because Courts Keep Telling Trump He Can’t Steal The Money

(Photo by Justin Sullivan/Getty Images)

Quietly, this has been a very bad week for WALL. While the Supreme Court has allowed Trump to steal money from other Department of Defense projects in order to build his vanity metaphor for bigotry, the big part of WALL funding was to come from an illegal misappropriation of funds from the 2019 Consolidated Appropriations Act (CAA).

Two district courts, one in California and the other in Texas, put an end to all that nonsense. The government will likely appeal to the Circuit Courts, but for now, WALL is once again a petty rhetorical threat and not any closer to becoming a physical reality.

The first case ruling came down yesterday in El Paso v. Trump. Judge David Briones permanently enjoined Trump’s attempt to steal $1.375 billion dollars from the CAA and redirect it towards the WALL. Pursuant to Trump’s (ridiculous) declaration of a “national emergency,” the administration invoked 10 U.S.C 2808. Section 2808 allows the President to undertake “military construction projects” to “support the armed forces” in the event of war or a national emergency. The Trump administration argued that The WALL was such a construction project, and that Section 2808 allows Trump to appropriate the funds, over the express objection of Congress.

Judge Briones completely rejected that argument. The administration had hoped that the Supreme Court’s ruling in Trump v. Sierra Club — where the Supreme Court allowed Trump to steal DoD money for WALL — would make Briones think twice about making his preliminary injunction a permanent one. But he did not. Briones was able to easily distinguish the misappropriation of DoD dollars from this attempt to use Section 2808 to take money from the CAA.

In fact, Briones even got a little cute and used the fact that Trump was allowed to steal money from DoD as evidence that closing off Section 2808 was not necessarily preventing Trump from building his WALL. He wrote: “[T]his injunction merely stops the unlawful augment of the funds that were already appropriated for border wall funding.” That’s good jujitsu right there. Briones is using Trump’s success to stop him.

The second ruling against Trump came down in the consolidated cases of California v. Trump and Sierra Club v. Trump. The same issue was at play in California as in El Paso: Trump wanted to use Section 2808 to steal money from the CAA.

Judge Haywood Gilliam largely rejected Trump’s arguments. But Gilliam did give baby Trump one small bottle. He ruled that the President’s declaration of a national emergency was something that a court could not rule on: “The Court accordingly finds that whether the national emergency truly exists, and requires use of the armed forces, are nonjusticiable political questions.”

I think Gilliam is wrong. I think that when the President makes up a national emergency for the expressed purpose of subverting the will of Congress, a court does not have to pretend to be blind. Invoking a national emergency as a pretext to get around the Constitutional separation of powers is not a political question, it’s an illegal act. Courts should feel free to tell that to Trump.

But anyway… while Gilliam decided to stay out of the national emergency fight, he wasn’t willing to play deaf and dumb in the face of Trump’s definition of “military construction.” He found that a court could know what a military construction is, and 175 miles of bigotry ain’t it.

In other words, Defendants contend that “military installation” is “inclusive of [any] activities under the jurisdiction of the Secretary of a military department.” See id., Dkt. No. 236 at 13. The Court finds several flaws with this expansive interpretation.

First, Defendants’ interpretation requires the Court to disregard the plain language of the statute. Defendants would have the Court transform the definition of “military installation” to include not just “other activity,” but “any activity” under military jurisdiction. That simply is not what the statute says…

Second, Defendants’ interpretation would grant them essentially boundless authority to reallocate military construction funds to build anything they want, anywhere they want, provided they first obtain jurisdiction over the land where the construction will occur.

This has always been the key weaknesses and authoritarian horror of the Trump argument. Under Trump’s theory, the federal budget is actually a blank check, passed by Congress, that the President can use for whatever he wants, so long as he says the magic words “military construction” before taking the money. Today, it’s WALL, tomorrow, it could be freaking golf courses. The day after that, it could be Ivanka’s birthday party.

While this week’s rebukes have been harsh, we’re talking about rebukes from Judge Briones and Judge Gilliam, not rebukes from Justices Neil Gorsuch and John Roberts. Everything we’ve seen from the craven, Republican Supreme Court suggests that when they get to weigh in, they will find a way to let Trump do exactly what he wants. Conservatives will be all to happy to rule that the President can steal money to erect a monument to American bigotry, just so long as it’s a Republican President doing the stealing.

But, there’s a ticking clock here. These rulings will have to be appealed. The injunctions will have to go through the Circuit Court process, before reaching the Supreme Court. We’re going to have an election in less than a year, and even an aggressively fast track suggests that the alleged attempted rapist Brett Kavanaugh won’t be able to serve his master before the next election. And even if he is, it’s not like WALL is just going to spring out of the ground like it’s in a pop-up book. After they get the money to build it, the stupid thing would have to be, you know, built. If Trump loses reelection, the whole thing stops anyway, no matter what the Supreme Court does.

If he wins reelection, the Supreme Court will probably clear these injunctions and allow Trump to have his way. But, you know, every wall in history has eventually failed. The Supreme Court can embarrass itself and set bad legal precedents as much as it likes. Eventually, Trump’s WALL will come down, if it ever goes up in the first place.


Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

The Birthplace Of The Supreme Court

Findings from the 12th Annual Law Department Operations Survey – Webinar

Findings from the 12th Annual Law Department Operations Survey – Webinar

The 2019 LDO Survey reveals how law departments are leveraging legal operations, including insights on: Artificial Intelligence ,Technology, Effectiveness, Legal Project Management, and more.
Join us on December 11th at 1pm ET to learn more!

The 2019 LDO Survey reveals how law departments are leveraging legal operations, including insights on: Artificial Intelligence ,Technology, Effectiveness, Legal Project Management, and more.
Join us on December 11th at 1pm ET to learn more!

How Will Newly Confirmed Judge Sarah Pitlyk Rule In Surrogacy Cases?

Last week, following significant controversy, the Senate confirmed Sarah Pitlyk as a federal judge for the U.S. District Court for the Eastern District of Missouri. Before being confirmed, Judge Pitlyk had a prestigious career which included a Yale law degree, a Fulbright Scholarship, an appellate clerkship (with now Supreme Court Justice Kavanaugh), and work in BigLaw.

However, Pitlyk’s career has also involved work directly opposing assisted reproductive technology (my particular specialty of law). Pitlyk was Special Counsel for the Thomas More Society, which has actively labored to oppose surrogacy, as well as in vitro fertilization (IVF) generally, arguing that cryopreserved embryos should be fully recognized as human life. Although Judge Pitlyk was representing her client at the time that the Thomas More Society made these arguments, Judge Pitlyk has publicly indicated she shares the beliefs of her former employer regarding assisted reproductive technology, and full legal personhood for embryos.

Understandably, her nomination did not go unnoticed. Pitlyk was unanimously rated “unqualified” by the American Bar Association for her lack of trial experience, and specifically, because her legal experience had not included ever trying a case, examining witnesses, picking a jury, or participating in a criminal matter. Unsurprisingly, opponents of Judge Pitlyk’s nomination thought that not having these experiences would be problematic for a trial court judge.

Separately, a number of organizations connected to fertility issues — including both RESOLVE: The National Infertility Organization and the Academy of Adoption and Assisted Reproduction Attorneys (AAAA) — opposed Judge Pitlyk for her stance on assisted reproductive technology.

Margaret Swain, who is an AAAA representative attorney, argued that Pitlyk’s “writings appear to be based on ideology and misinformation.” Swain explained that AAAA strongly opposed the lifetime appointment on a federal court of “a person who holds views not based in science or law, and who would prevent those with infertility from receiving care they need.” Swain also explained that Judge Pitlyk’s writings had leveled insults at families who do go through surrogacy by implying that those families were creating a diminished respect for motherhood and the bonds between a child and mother.

How Much Does Pitlyk’s Confirmation Matter?

During her confirmation process, Judge Pitlyk committed to keeping her personal beliefs out of the cases she decides. And while, frankly (or at least hopefully), it’s unlikely that any specific federal judge — particularly trial court judges, who are bound by appellate and Supreme Court precedent -– will set policy on these issues. Nevertheless, there is cause for concern, (1) because cases of first impression do, occasionally, reach a federal court, and (2) because ART law is still in development, and in some cases, there might not be much to go on besides a judge’s “personal beliefs.”

We have seen a number of issues arise when a judge’s personal beliefs clashed with assisted reproductive technology-issues and the law was less than clear.

An Orphaned Child. One of the more striking cases on the topic is that of Baby Jacob, the surrogate-born child of Jay Timmons and Rick Olson. Timmons and Olson had been through the surrogacy process before with their two daughters, and were not expecting complications in the surrogate’s home state of Wisconsin. While Wisconsin does not have specific statutory protections for surrogacy, a state supreme court ruling had recognized surrogacy agreements as legitimate, and Wisconsin judges had historically granted parental rights to the intended parents in a surrogacy arrangement without issue.

Unfortunately for this family, their case was appointed to an anti-surrogacy (or perhaps, more accurately, anti-LGBTQ) judge named James Troupis. Despite the case being uncontested –- all the parties agreed Timmons and Olson were the child’s parents -– Troupis severed the gestational carrier’s presumed parental rights and refused to grant Timmons and Olson parental rights. This left Baby Jacob with no parents — an orphan.

Only after a painful year, and half a million in legal bills, was the case resolved when Troupis stepped down from his judgeship to run for office. The case was then reassigned and resolved with the legal acknowledgement of the fathers’ parent-child relationship.

Anonymous Sperm Donor Deemed Legal Parent. In another distressing case, two years ago a Mississippi state court judge determined that the nonbiological mother of a child born to a same-sex married couple that turned to anonymous sperm donation to conceive was not a legal parent of the child. Instead, the judge ruled that the anonymous sperm donor the couple used was a parent of the child. Therefore, the judge determined, the child already had two legal parents (the biological mom and the anonymous sperm donor), and therefore the nonbiological parent — who had raised the child for the past five years — had no legal rights to the child.

Fortunately, like with Baby Jacob, the situation was eventually remedied. The following year the Mississippi Supreme Court reversed the ruling, granting nonbio mom legal recognition and rejecting the anonymous sperm donor as a legal parent to the child.

Those two examples were before state court judges, not federal court ones, where ART cases are more likely to arise. However, we are certainly seeing assisted reproductive technology cases heading to federal court -– including Pavan where the US Supreme Court found Arkansas’ unequal treatment of same-sex couples using assisted reproductive technology unconstitutional. And the current complicated Teuscher case -– where the seemingly innocent action of a mom to a child conceived from anonymously donated sperm, reaching out to the donor’s relative who was matched to her daughter through a home DNA test, has caused an intense lawsuit -– is in federal court.

I congratulate Judge Pitlyk on her appointment to the federal district court. Obviously, becoming a federal judge is a great honor. I also appreciate her promise to fairly adjudicate the cases before her, without resort to letting her personal beliefs affect her decisions. If she is confronted with a case touching on surrogacy or other assisted reproductive technology issues, let’s hope that the law is sufficiently clear to allow Judge Pitlyk to follow through on this commitment.


Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.