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We are living in a unique time in American history where an already substantial portion of the population that has openly rejected religion is continuing to increase exponentially. This kind of rapid change within a country’s general demographic has, as it always has throughout our history, generated significant backlash from a threatened-feeling former substantial majority. Under this historically unique tension (and throw in a deadly pandemic to boot), a religious liberty drama has been unfolding in Kentucky where a federal judge has issued a blistering, eighty-six-footnote-long temporary restraining order against the mayor of Louisville.

The federal order prevented the mayor of Louisville from prohibiting “drive-in church services” this past Easter Sunday as a response to the COVID-19 pandemic. Adding to the drama, Louisville Mayor Greg Fischer is now claiming “[t]here was never a Louisville Metro Government ban on drive-in church services” to begin with and that the court did not allow the city to make this fact clear.

To begin. The problem with the mayor’s claim is that a number of prior public statements made by Fischer appeared to logically indicate he was banning drive-in church services. What is clear, is that although Kentucky Governor Andrew Beshear did specifically prohibit all in-person gatherings (including church services), he also released guidance on rules to follow for drive-in Easter church services.

A common element to many religious liberty cases, in my opinion, is government incompetence, and Mayor Fischer’s ambiguous statements leading up to Easter Sunday undoubtedly created a great deal more confusion that was necessary. And it should be needless to say that in a time of pandemic, confusion regarding what constitutes a lawful gathering is not what anyone wants to see from the government, at any level. But another common element to religious liberty cases, I believe, is what might be called “Christian-victimhood,” a term characterized by the belief that Christians in the United States exist under some sort of constant legal/social attack. This belief was the dominating feature of Judge Justin Walkers‘ federal order against the mayor of Louisville.

To hear Walker tell it, we are living in state of antireligious dystopian rule. The problem with Walker’s description, however, is that Christianity in general has never enjoyed this much favoritism in federal law. For example, to my knowledge, the Supreme Court has forced citizens, through compelled taxation, to provide financial support for Christian symbols only. In other words, no religion other than Christianity can compel you through the government to support its religious speech/symbols. Meaning that if the facts of a case involve a forty-foot crescent moon of Islam monument that some municipality wants to force you to provide financial support to instead of a forty-foot Christian cross, the legal outcome will be entirely different. Yet, we are somehow asked to maintain the notion of religious “equality” or “liberty” from such a standard.

Moreover, federal statutes have in practice favored Christian exemption from the application of criminal law that all the rest of us live under. Basically, if your criminal actions can be attributed to Christian biblical direction, you stand the best chance of having the federal RFRA statute applied on your behalf. Whether or not you think such obvious favoritism in the law is acceptable because of “historical” reasons, you cannot call it equal. As I have repeatedly stressed, Christians, if anything, are the only authoritarian actors operating right now by fighting (and winning in federal courts) to prevent nonreligious couples from having secular celebrants who share their deeply held beliefs at their own weddings. Or fighting (again successfully), to ban nonreligious citizens from addressing their own state legislatures with messages of inclusiveness and pluralism.

The more important point to be made here however, is that any discussion over whether Christianity is authoritarian or under attack was not at all necessary to issuing the TRO in Kentucky. Moreover, unnecessarily injecting it into the legal discussion did real damage. First, when there is a (I would argue in this case, fictional), religious narrative being injected into a judicial determination, that makes it much more logically difficult to engage in an honest assessment of the legal issues. But there is also a much more pernicious effect of exaggerating the so-called threats against Christianity.

When citizens are told by their courts that their faith is under constant assault by their own government, or that certain “others” such as “secularists,” “Muslims,” “liberals,” etc., are massing and coming to take their faith, this puts citizens in an increasingly pluralistic society into a combative frame of mind against anyone who has a different view. The drafters of our religious freedom clauses in the First Amendment knew how dangerous this religiously combative mindset could be, which is why they implemented such safeguards. Given that we are living in a unique time where the country’s religious makeup is witnessing drastic changes, the caution against wild exaggerations only increases in our current day.

Federal free conscience liberty is a government-created concept that has a stellar track record of keeping the peace and generating social harmony even within diverse populations. In fact, if the protections enshrined in the First Amendment are applied equally to all beliefs, this represents the very best defense against the very things many Christians are claiming they are fighting against. Eroding those defenses so as to establish Christian favoritism in the law based on “history” or some made up grievance, however you want to couch it, means that any future majority can claim history and the narrative now favors them. The only way to prevent such conflict is through a combination of government competence and level-headed federal judges, neither of which was on particular display in Kentucky this past week.

Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.

* A judge is complaining that some attorneys are appearing shirtless and in bed for court conferences held via Zoom because of COVID-19. Of course, this is happening in Florida… [Local 10]

* Speaking of which, the Supreme Court will be conducting oral arguments by remote means next month. It seems that there will be no on-camera component to the arguments, so counsel might get away with participating in their underwear. [CNN]

* Check out this Texas lawyer who traded a suit for scrubs and volunteered to help COVID-19 patients at a New York hospital. [Dallas Morning News]

* A federal judge has ruled that ICE must allow detainees to have private phone calls with their attorneys during the COVID-19 pandemic. [Los Angeles Times]

* McDonald’s employees have filed a class-action lawsuit against the fast food chain alleging that the company has a systematic sexual harassment problem. [Business Insider]

* The North Carolina Attorney General is investigating someone for price gouging for offering to sell a roll of toilet paper for $100. Maybe it was just super premium toilet paper? [AP]

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.

Of the law schools that are currently in operation, which was the first to be established?

Hint: The law school (and the entire college) closed in 1861, and the law school didn’t reopen until 1922.

See the answer on the next page.

We knew this was coming. On Friday, Baker McKenzie — the huge Biglaw firm with over 6,000 attorneys worldwide — gave employees a heads up that COVID-19 austerity measures, namely salary cuts, were coming. Quite a few employees of the mega firm reached out to Above the Law to express their… displeasure at being left wondering how big a financial burden they’d be forced to shoulder over the holiday weekend.

Well, the wait is over. This afternoon, Baker McKenzie North America Chief Executive Officer Colin Murray emailed employees (full email available on the next page) the planned cuts. In the United States, all attorneys and business professionals making over $100,000 will see a 15 percent cut in salary. In Canada folks are getting a 10 percent cut, and no cuts are planned in Mexico. Annual raises, usually scheduled for July 1 at the firm, will not happen. And the firm anticipates these lower salary points lasting from May 1 through December 31.

On the happier side, the firm will establish an emergency loan fund (details forthcoming) for those particularly hard impacted. And they’re keeping the door open for additional bonuses for “exemplary performance”:

We anticipate recognizing and additionally awarding payments to our top performers, as well as to others demonstrating exemplary performance in the face of increasing demands on their time — both timekeepers and business professionals — later in the year.

As Murray said in a statement to the media:

“We all will share in some short-term pain, but in the long term, taking these actions now is the most prudent way for us to move through this crisis as a Firm, with the smallest impact possible on our people and our clients.”

Good luck to those at the firm as they weather the financial consequences of COVID-19.

If your firm or organization is slashing salaries, closing its doors, or reducing the ranks of its lawyers or staff, whether through open layoffs, stealth layoffs, or voluntary buyouts, please don’t hesitate to let us know. Our vast network of tipsters is part of what makes Above the Law thrive. You can email us or text us (646-820-8477).

If you’d like to sign up for ATL’s Layoff Alerts, please scroll down and enter your email address in the box below this post. If you previously signed up for the layoff alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each layoff, salary cut, or furlough announcement that we publish.

Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

“Social distancing” is our new favorite buzzphrase. It refers to reducing close contact between people in the hopes of containing the spread of disease — in this case COVID-19. This term, used by epidemiologists and prominently featured in the Centers for Disease Control and Prevention (CDC) guidelines for “community mitigation strategies,” has found its way into the 2020 lexicon.

Social distancing measures include reducing the frequency and size of large gatherings, altering schedules to reduce mixing, and limiting person-to-person interactions.

The science is certainly on the side of social distancing -– all available evidence makes clear that the practice is effective. There is absolutely no doubt that we must practice social distancing to contain and minimize the impact of this epidemic.

Yet, as lawyers, we know that the language we use matters. And, there is something eerie and disturbing about the term itself.

The Term Social Distancing Is … Well, An Oxymoron

Perhaps it bothers me that the term social distancing is an oxymoron with an overwhelmingly negative connotation, I thought.

Yet, I use oxymorons often. They rarely bother me. Terms like “amicable divorce,” “legally drunk,” “working vacation,” “exact estimate,” or “original copy” don’t bother me.

As a lawyer, I am even used to the king of all oxymorons: a “billable hour.” Let’s just say that placing a currency value on an abstract, invaluable, and relative concept of time results in unhappiness on many levels for everyone involved.

And don’t even get me started on the “reasonable attorney’s fee.” As someone who has been reviewing legal bills for the past five jobs, I can assure you: there’s nothing “reasonable” about it.

Social Distancing v. Social Distance

There is also an important distinction to be made between the term social distance and the practice of social distancing.

It turns out that the three-letter difference here makes a huge difference. It is the difference between the social science term that depicts a prejudice and the epidemiological term.

Specifically, social distance describes the distance between different groups in society, such as social class, race, ethnicity, gender, or sexuality. In other words, it conjures to mind an outdated sexist, racist, ageist, or classist practice.

In a country where we still struggle with these issues daily and still struggle with our historical injustices, that three-letter difference just feels too close to the term that is now repeated regularly in all government communications and media.

Perhaps it’s just me …

The Term Social Distancing Is Not Informative or Actionable Enough

What bothers me most about the term social distancing is that it captures what not to do. Its emphasis is on avoiding certain actions as opposed to what to do.

This term is a little bit like a diet that only tells you what not to eat. At some point, you will get hungry and may make the wrong choices without guidance.

We all crave connecting! After all, connectedness is a basic need for human survival. In fact, isolation is a form of punishment and, in some extreme instances, such as prolonged solitary confinement, is a form of psychological torture with measurable long-term physiological effects.

While the CDC suggests considering distance or e-learning and offering video and audio events, we can do much, much more to help the public choose safer actions and stay connected during these hard times. Why not pick a term that is more informative and actionable?

Perhaps instead of social distancing, we should use another term. I suggest something like “together remotely” or “remote interacting.” In that way we can educate the public about developing new, safe habits and guide them on how to replace old, unsafe ones.

We have a multitude of technological tools and numerous communication channels available to feel connected. We can help everyone overcome the “distance” and lack of in-person interactions. We can continue connecting, collaborating, and interacting as we stay at home. And perhaps making this shift would help us avoid the negative implications on our economy.

To stop this pandemic, it’s not just the practices that we strive for that matter, it’s also how we talk about them. This is not just empty polemics; the words we use matter. They frame issues, provide guidance, and ultimately determine outcomes. Ultimately, words are the difference between the “epic win” and the “epic failure.”

We would be wise to use terminology that makes people feel comfortable, assured, and reminded of what’s available. Using the right terminology would help us adopt a growth mindset during the time of this global crisis. That way, we’ll pay attention, do the right thing, and thrive in the face of adversity.

Olga V. Mack is the CEO of Parley Pro, a next-generation contract management company that has pioneered online negotiation technology. Olga embraces legal innovation and had dedicated her career to improving and shaping the future of law. She is convinced that the legal profession will emerge even stronger, more resilient, and more inclusive than before by embracing technology. Olga is also an award-winning general counsel, operations professional, startup advisor, public speaker, adjunct professor, and entrepreneur. She founded the Women Serve on Boards movement that advocates for women to participate on corporate boards of Fortune 500 companies. She authored Get on Board: Earning Your Ticket to a Corporate Board Seat and Fundamentals of Smart Contract Security. You can follow Olga on Twitter @olgavmack.

I think we can all agree that COVID-19 is one of the most significant health events of our lifetime. Many of you are likely sheltering in place, working remotely, and trying to make the best of a very difficult situation. Thankfully, technology is helping make this difficult situation a bit more palatable when it comes to online legal practice, including the use of mobile devices, videoconferencing, and remote access apps and platforms. Although a great help to the practice of law, we all look forward to the day when restrictions are lifted and our practices (and economy) can get back on track and operating under more normal circumstances. What you may not realize, however, is that this pandemic is placing more than your health at risk.

Given the current restrictions in the US and many foreign countries, most of you are relying on technology to remain of service to your company (or clients). Oddly, it seems that the current pandemic restrictions have helped us leverage technology even more in our practices. It has helped us engage in more videoconference calls; remotely access, edit, and collaborate on documents; and otherwise coordinate discovery and litigation with opposing counsel and the courts electronically. With such technological capabilities, however, come equally challenging issues regarding the valuable intellectual property of your company (or client).

By now, most of you have probably heard about the security issues faced by Zoom Video Communications regarding its online video conferencing system, forcing the company to disable certain features on the popular platform. From unauthorized access of conference calls to what has become known as “zoom-bombing,” the online videoconferencing solution has faced withering criticism from the user community to address these vulnerabilities. Although most of the reported unauthorized eavesdropping on this platform appears to have been more akin to vulgar pranks than espionage, imagine a competitor or nation-state hacker gaining access to a conference call where valuable IP is being discussed. Think I am being paranoid? Think again.

Just as we have come to realize firsthand the importance of taking steps to help minimize proliferation of COVID-19, your company (and clients) need to realize the importance of remaining vigilant with their IP under these circumstances. Here are three considerations that immediately come to mind:

1. Be Wary of SaaS and Remote Access Vulnerabilities. It should come as no surprise that the aforementioned security vulnerabilities are not limited to videoconferencing. Any remote access to systems that contain valuable IP harbors risk. As I have written before here and here, for example, security optimization and data compartmentalization via network segmentation is critical for any company that is permitting remote access by its personnel. Unfortunately, the COVID-19 pandemic forced many organizations to rely heavily upon existing infrastructure that may not have been hardened to such attacks. More importantly, it has forced many organizations to scramble to engage third-party providers to maintain operational continuity without a full understanding of the risks presented by the use of such platforms. Don’t remain inattentive to the details here — now, more than ever, continued diligence is key.
2. Re-Assess IP Portfolio Vulnerabilities. A corollary to the above point is to re-assess where valuable IP resides and how it needs to be accessed during this pandemic. Now is not the ideal time to begin to take stock of the situation (if that is the case, your company or client is likely way behind the curve), but if such steps have not been taken already then they should be approached with gusto. Think of some of the steps taken in implementing a valid trade secret protection program as an example — at a minimum, identifying those requiring access to all (or part) of the trade-secret information, addressing necessary implementation of appropriate physical and virtual security controls to such information, and implementing the requisite audit control of such access. Like data mapping required to understand acquisition of personally identifiable information for GDPR compliance, mapping a company’s IP internally for access through the cloud is a vital step to understanding and rating specific and acceptable data risk. If the organization is unable or unwilling to do so, they do so at their own peril.
3. Prepare a Post-Pandemic IP Game Plan. This point is perhaps the most problematic because it requires a somewhat apocalyptic approach. Let’s be honest: the economy has drastically slowed down as a result of the required steps to impede (if not halt) the spread of COVID-19 in the US and many countries globally. It is not a stretch to presume that when restrictions lift, the economy will not immediately rebound like nothing happened, but will likely take time to get running at full speed –- a process that will not be without its own fits and starts. Certain organizational considerations for IP acquisition pre-pandemic may no longer be viable. Pre-pandemic priorities may require significant realignment. The point here is that one of the most important things your company (or client) can do is to re-evaluate its IP commercialization strategy now so that it can adapt it to a post pandemic world.

I continue to hope and pray that everyone is weathering this COVID-19 pandemic well and  is approaching the future with optimism. That said, we all need to be realistic in assessing IP risk both during this pandemic and after it passes. This may not be an easy task for many, but I promise you it is a necessary one. If you don’t inoculate your practices and IP by taking these steps, you may just find yourself wanting to stay sheltered in place from the fallout.

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

As anyone who lived through the George W. Bush administration will tell you, nothing can possibly go wrong when you put Alberto Gonzales in charge of something. The former Attorney General most famous for saying that declaring that torture wasn’t torture and then resigning before being impeached is now the dean at Belmont University College of Law and like the rest of the legal academy, he’s trying to find a solution to keeping a law school running during a pandemic. Though while the overwhelming majority of law schools have gone to a mandatory Pass/Fail option to avoid unreliable results while still guaranteeing students display subject matter competency, Belmont cooked up a different plan.

Belmont’s policy is an optional, post-grading Pass/Fail system, which is a mistake for all the reasons outlined in these articles on Notre Dame’s poor policy, but it manages to get even worse because the school is limiting students to seven credit hours of Pass/Fail. Since the election occurs after grading, students taking a Pass/Fail are actually flagging that any potential employers should be suspect of student results in certain classes. And because students won’t choose the same classes, employers will see some people with As in those classes and others with Ps and assume — fairly or unfairly — that this is a C-level student.

This helps absolutely no one.

And there’s pretty much no one outside of the dean’s echo chamber suggesting this policy makes a lick of sense. The 1L class of 144 students wrote an open letter demanding a new grading policy. A professor reportedly told a class “This is the option nobody wanted but it’s the option we have.” The exam period kicks off later this week and the school is still clinging to this nonsense.

A tipster informs us that students are being told, “There are two things you can control: your attitude and your effort” which isn’t actually true since they also control which classes will be taken Pass/Fail, meaning the school can’t even stick to its own tone deaf “can-do, bootstraps” philosophy. Schools sticking to a “screw it, let’s pretend nothing’s changed” may be wrong but at least it’s intellectually consistent. It’s not even clear what a policy like this is supposed to accomplish.

Honestly, an optional, pre-exam, blanket Pass/Fail seemed like the worst possible Pass/Fail accommodation but Gonzales has dug deep and come up with something even more problematic. The policy is basically a fig leaf, but where the fig leaf is completely transparent.

It boggles the mind.

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.