Category: News Feeds

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

According to data collected by Law.com for the A-List law firms ranking, which top 20 firm has the highest diversity score?

Hint: The Biglaw firm received 95.5 (out of 100) score on diversity, and is ranked 13th on the list.

See the answer on the next page.

A few months ago, I discussed the legality of lesser-known hemp-derived cannabinoids which appeared to be gaining success in the United States. One of these promising cannabinoids is cannabinol (CBN). Put simply, CBN is a non-intoxicating cannabinoid that results from the degradation of THC. Because it is difficult, if not impossible, to grow CBN-rich strains of hemp, most of the CBN found on the U.S. market is the product of decarboxylation — a chemical reaction that converts other cannabinoids, such as cannabidiol (CBD) and tetrahydrocannabinol (THC), into CBN. This conversion process creates some confusion regarding the legal status of CBN.

Although CBN is not expressly listed under the federal Controlled Substances Act (the CSA), the cannabinoid is a Scheduled I controlled substance when derived from marijuana. The CSA defines “marihuana” to mean “all parts of the cannabis plant” except the stalks and nonviable seeds. Because neither the stalks nor nonviable seeds contain meaningful amounts of cannabinoids, CBN squarely falls under the definition of marijuana and, as a result, is a controlled substance.

On the other hand, CBN derived from hemp is not a controlled substance and, thus, may be lawful. This is true for two reasons. First, the Agriculture Improvement Act of 2018 (the 2018 Farm Bill) expressly removed “hemp”  from the CSA definition of marijuana. Second, the 2018 Farm Bill defines “hemp” as “all parts” of the cannabis plant, including cannabinoids, with a THC concentration that does not exceed 0.3% on a dry weight basis. Accordingly, CBN is probably lawful if derived from hemp.

Nevertheless, some argue that CBN, regardless of its source, is a controlled substance because it is produced from the degradation of THC. The proponents of this argument generally rely on two theories.

The first theory is premised on the federal Analogue Act (the AA). The AA treats any substance intended for human consumption that resembles a Schedule I or II substance in its chemical make-up and effect on the human body as if it were a CSA Schedule I or II controlled substance. But should the AA apply in this context?

The CSA expressly excludes “tetrahydrocannabinols [all forms of THC] in hemp” from the list of Schedule I controlled substances. Moreover, the effects of CBN are not “substantially similar” to those of THC. In fact, its effects are significantly less potent. Therefore, CBN that stems from hemp-derived THC should not be deemed a controlled substance analogue.

The second argument is based on the literal interpretation of “tetrahydrocannabinols in hemp,” and thus, that only CBN derived from THC “in hemp” is lawful. The reasoning here is that trace amounts (no more than 0.3%) of THC that naturally occur in the hemp plant are lawful, but THC that is extracted and isolated from the hemp plant is unlawful. This analysis fails to account for the fact that the 2018 Farm Bill expressly legalized “derivatives, extracts, [and] cannabinoids,” most of which must go through a processing phase that inevitably increases the THC concentration. Accordingly, it is reasonable to infer that Congress intended to legalize processed hemp (i.e., cannabinoids not “in hemp”) as well.

However, as reasonable as this statutory interpretation is, it fails to resolve the position taken by some law enforcement groups that treat processed hemp containing more than 0.3% THC as marijuana (i.e., a controlled substance), even if the THC concentration only increases fleetingly during the processing phase.

Consequently, though it seems clear that hemp-derived CBN should not be treated as a Schedule I controlled substance analogue, it is unclear whether CBN that results from processed hemp-derived THC is lawful, given the confusing legal status of THC not “in hemp.”

This lingering uncertainty regarding the legal status of CBN will likely need to be addressed through legislation or the courts. In the meantime, producing CBN from THC extracted from hemp should be done cautiously and with the understanding that this lesser-known cannabinoid may be treated as a controlled substance under the CSA, even if Congress did not consider or intend this result.

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Nathalie practices out of Harris Bricken’s Portland office and focuses on the regulatory framework of hemp-derived CBD (“hemp CBD”) products. She is an authority on FDA enforcement, Food, Drug & Cosmetic Act and other laws and regulations surrounding hemp and hemp CBD products. She also advises domestic and international clients on the sale, distribution, marketing, labeling, importation and exportation of these products. Nathalie frequently speaks on these issues and has made national media appearances, including on NPR’s Marketplace. For two consecutive years, Nathalie has been selected as a “Rising Star” by Super Lawyers Magazine, an honor bestowed on only 2.5% of eligible Oregon attorneys.  Nathalie is also a regular contributor to her firm’s Canna Law Blog.

The news everyone has been waiting for has finally arrived. Former Vice President Joe Biden, 77, the presumptive Democratic presidential nominee, has announced his running mate for the 2020 election. As announced on Twitter, Senator Kamala Harris, 55, has been chosen to serve as Biden’s vice president, making her the first African American and South Asian American woman to be nominated for vice president by a major political party.

Harris is a graduate of the University of California Hastings College of the Law. After law school, she worked as a prosecutor for several years in the Alameda County and San Francisco district attorney’s offices before running for San Francisco district attorney in 2003. She later went on to become California’s attorney general in 2010. Six years later, in 2016, Harris became the second Black woman in history to be elected to the U.S. Senate. Here’s what Biden said of Harris earlier today:

“You make a lot of important decisions as president. But the first one is who you select to be your Vice President,” Biden said in an email to supporters Tuesday afternoon. “I’ve decided that Kamala Harris is the best person to help me take this fight to Donald Trump and Mike Pence and then to lead this nation starting in January 2021.”

“These aren’t normal times,” Biden added. “I need someone working alongside me who is smart, tough, and ready to lead. Kamala is that person.”

Harris’s husband, Douglas Emhoff, is a partner at DLA Piper, and he’s already showing his wife some well-deserved Twitter love.

Congratulations to Kamala Harris for reaching these great political heights!

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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.

Advice columnist E. Jean Carroll’s defamation suit agains the president is back on track after the Supreme Court ruled in Trump v. Vance that “absolute presidential immunity” is really not a thing.

Last week, New York Supreme Court Justice Verna L. Saunders “construe[d] the holding in Vance applicable to all state court proceedings in which a sitting president is involved” and lifted the stay on discovery imposed pending resolution of the president’s immunity to discovery in a suit filed by former Apprentice contestant Summer Zervos, who also sued for defamation after she accused the president of sexual assault and he called her a liar.

Carroll’s lawyer Roberta Kaplan of Kaplan, Hecker & Fink immediately fired off a letter to Trump’s counsel Marc Kasowitz demanding to schedule discovery, including both depositions and retrieval of a DNA sample from the president.

After Carroll accused Trump of raping her in the dressing room of Bergdorf Goodman’s years ago, Trump denied having ever met the advice columnist, said she was “not my type,” and accused her of fabricating the accusation to sell her book. Carroll sued for defamation, pointing to a photo of the two of them together, and producing a dress she claims to have worn on the day in question and never since. Testing revealed the presence of DNA from an unidentified male person on the dress, and now she’d like a sample from the president to see if there’s a match.

In fact, Carroll’s lawyer has generously offered to be flexible on the date of deposition, postponing it until after the president hands over his genetic material for comparison.

“We propose that Defendant first provide us with a DNA sample, so that our experts can have an opportunity to test it before we take his deposition,” Kaplan wrote.

She was also mindful of the president’s very busy schedule, now that he’s back from three days of golfing in New Jersey. AHEM.

“President Clinton made time to testify under oath about allegations of sexual harassment, and so President Trump can surely make time to testify about allegations of sexual assault and defamation,” Kaplan continued. “His testimony about what he did (and what he said) will strike to the very heart of the case and offer evidence that cannot be obtained from any other sources. He is obviously required to provide it.”

Remember when the nation was regaled with a painfully detailed and likely false description of President Clinton’s manhood in the Paula Jones case? Remember when Clinton was forced to submit DNA to match with the stain on Monica Lewinsky’s infamous blue dress?

Karma’s a bitch.

Trump’s lawyers, who have used every trick in the book to drag this out, including ducking process like a child support deadbeat, will no doubt argue that the Vance decision applies only to criminal process, not civil discovery. It’s not clear whether that position will get any traction with the appellate court, particularly in light of the Jones precedent. But digging their heels in on the DNA test — which would surely take the wind out of Carroll’s sails if there was no match — is hardly a ringing endorsement of their client’s innocence.

Kasowitz Letter, August 10, 2020

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

I am honored to be part of this year’s curriculum at Georgia State University College of Law. Attorneys are among the most important members of your team. It’s imperative you have the right lawyers around you to assist in making the best decisions. Every contract you sign is building towards your overall dreams and goals. I’m excited to see the students get a first-hand look into some of the contracts that have shaped my career thus far.

— Kandi Burruss, a singer, songwriter, actress, entrepreneur, and star of “The Real Housewives of Atlanta,” commenting on the fact that her career will be the focus of Georgia State Law’s “Legal Life of…” course, which is part of the school’s Entertainment, Sports and Media Law Initiative. “I couldn’t be happier for my students to learn the law through Kandi’s career,” said Professor Mo Ivory. Last fall, the course focused on the Legal Life of Ludacris.

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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.

Alan Dershowitz’s long-running legal battle may seem complex but that’s mostly because he’s styled it that way. At its root, this is a case about him calling Jeffrey Epstein’s victims “liars” and one of those women, Virginia Giuffre, suing him for defamation. That it’s become a case where he’s disqualified David Boies on the grounds that the woman’s attorney was a fact witness to Dershowitz’s claim that Boies is orchestrating an extortion plot against the Harvard Law professor, resulting in Boies counterclaiming against Dershowitz is all getting further and further from the point: did Dershowitz defame this woman or not?

One side issue Dershowitz has invited to the case is a bid to secure documents and testimony from billionaire Les Wexner, who used to let Epstein handle his finances, hoping to show that Wexner was the victim of an extortion plot orchestrated by Boies and Giuffre supposedly to quell accusations against Wexner which all goes to prove, Dershowitz hopes, that he’s just a victim like countless other men accused of statutory rape just because they happened to be close friends and associates with a pedophile for years. It’s certainly attenuated from the central claim, but it’s a narrative that plays well theatrically. A “conspiracy of silence” amongst rich people who just refuse to go on record? Sure, why not?

But Judge Preska just nixed the seal on correspondence from Wexner’s attorney John Zeiger and there’s a definitive “we don’t know what the hell you’re talking about, please get off our lawn” coming from their side:

While many of these are discovery subjects that should be, in the first instance, explored with Ms. Giuffre and Mr. Boies, Mr. Zeiger did have communications with Mr. Boies and can readily confirm that: no extortion demand was ever made, no settlement was entered into, and not a penny (or other consideration) was ever paid. Just the opposite is true for Mr. Wexner, however. He had no involvement, and thus lacks any personal knowledge relating to, Defendant’s so-called “Extortion Claim.” Mr. Boies, who is in the midst of litigation with Defendant, can readily confirm Mr. Wexner’s lack of involvement without burdening a non-party.

Attorneys can find a way to weasel out of a lot of stuff, but this isn’t equivocal language. These are some very definitive truth claims. It’s hard to imagine any lawyer making these statements if there’s any chance it could come out to be a lie. Wexner also, apparently, offered to provide written testimony confirming this, which Dershowitz rejects in favor of a video deposition.

People can lie, of course, and credibility can be challenged over the course of questioning, but when the Wexner subplot thrived upon the idea that “what does this guy have to hide?” having it come out that his camp was already offering to testify under oath about this stuff as long as it didn’t burden them with hours of videotaped questioning, it looks less like a guy trying to hide something and more like an old man who doesn’t want something interrupting his retirement.

Who knows at this point, but it might well be that Dershowitz had a better story going before we got our first peek into Wexner’s side of things. On the other hand, some outlets are already spinning these documents as “[Wexner] May Finally Have to Explain His Epstein Ties” so it may be too much to hope that people will accept that third-parties have zero appetite for depositions no matter what the circumstances.

Judge Preska plans to hear argument on whether or not Wexner needs to testify next week.

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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.

For two long years, hedge fund Marble Ridge Capital has railed against Neiman Marcus’ spinoff of its e-commerce business, MyTheresa. That 2018 deal was certainly very good for Neiman’s owners, Ares Management and the Canadian Pension Plan Investment Board, but less so for Neiman’s creditors, including Marble Ridge, removing as it did one of the troubled luxury’s retailers only lucrative assets and leaving Neiman essentially worthless, a fact acknowledged by Ares and the CPPIB when they put the company into bankruptcy protection back in May.

Well, this could have been way worse. That perspective is how I recommend getting through this story with an apoplectic fit.

Anyway, as everyone knows — or at least should know — the reality of in-person education (from kindergarten right on up through law school) is in a precarious position. Trying to balance the benefits of in-person education with the socially distant demands of COVID-19 is difficult and even when everything is going perfectly the whole situation is just an outbreak away from blowing the f up. And rather than acknowledge this reality, far too many people are acting like nothing abnormal is going on, prioritizing their own creature comforts over the health and safety of others.

So, yeah, let’s get to the story of Party Pal 1L (in keeping with Above the Law’s longstanding tradition of not naming law students so their name is not forever linked in infamy to the ATL pages). Party Pal is in her first year of law school at Notre Dame, and rather than worry about her grades or the pandemic, she’s worried about making friends. And I get it, I do. Maintaining a social life during law school is absolutely vital to a balanced existence during a stressful chapter in your life. But, you know, there’s a pandemic raging.

Anyway, Party Pal decided she wanted to host a party (no, the novel coronavirus has not magically skipped over Indiana). As the South Bend Tribune reports on her efforts to make new friends… and potentially host a superspreader event:

[Party Pal], in an attempt to meet other first-year law students, last week invited them to a bring-your-own-beer “game night” at her off-campus apartment Saturday.

“We don’t have any expectations for precautions so please just do what you are most comfortable with,” Webb posted in the class’ private Facebook group, adding “(we will not be wearing masks).

“Looking forward to getting to know more of you!”

Yeah. That doesn’t seem like a smart move. And it turns out the law school dean, G. Marcus Cole, also thought it was a piss poor idea. When he heard about the planned party, Cole wrote an email to the student body, strongly discouraging the event:

The university’s president, the Rev. John Jenkins, “cited the ability to engage in interpersonal connections and participation in a ‘community of care’ as the principal reasons for bringing us all back to campus for in-person instruction,” Cole wrote. “Nevertheless, the world is not the same as it was when the campus was closed on March 13. It is much worse. The failure of our fellow citizens to take this virus seriously has resulted in catastrophic explosions of infection across the country.”

Cole also warned that the law students’ behavior now will begin to establish their professional reputations.

“That reputation will not be enhanced if contact tracing after a COVID-19 outbreak identifies a gathering orchestrated or attended by you as the reason why this school had to shut down. Accordingly, I hope that you will conduct your off campus activities with the same level of responsibility to your classmates and our community that we are trying to encourage on campus.”

And I mean, where’s the lie?

Now for the good news portion of the story, properly chastised, Party Pal canceled the party. Perhaps belying a future in corporate work, Party Pal attempts to blow the whole thing off as a “miscommunication”:

“Ultimately it was mainly a miscommunication,” [Party Pal] said. “I was trying to express that if we were drinking, our masks would be off. I just didn’t have the means to make it in a bigger place.”

[Party Pal] provided The Tribune with a copy of another invitation she sent to classmates via the GroupMe app, and said that she had failed to update the Facebook post.

“We are definitely going to be taking precautions on our side by having hand sanitizer stations, the windows open, and not having communal snack bowls,” [Party Pal] appears to write in the GroupMe post. “I’m also happy to set up a virtual house party if people want to participate and socialize but don’t feel comfortable attending in person.”

Party Pal says that with her soiree canceled, she’s now working with the administration to “brainstorm some new ideas for how to get to know each other in a safe environment in a safe, socially distanced way.” Which is way better than the open invite, BYOB 1L mixer that was originally planned.

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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).

California put out its final order regarding the new bar exam regime and it’s mostly what we expected. An online examination on October 5-6 and a permanently lowered passing score from 1440 to 1390. Given how the online exams around the country are going, maybe we’re jumping the gun to call this the “final order.” Let’s just say this is what they expect to be the final order before the September 30 emergency order asking applicants to just submit dioramas of the fact pattern in Palsgraf for evaluation.

One thing that’s not in the order is a commitment to apply the new 1390 score retroactively as multiple law school deans and applicants requested. In a separate letter from Executive Officer of the Court Jorge Navarrete to the state bar, the supreme court explained that it was not honoring the request because “With one exception, the court is unaware of any jurisdiction in the past decade that has lowered the exam passing score and applied that decision retroactively.”

True… but it’s the only relevant change in the last decade. Montana lowered its cut score a few years ago and made it retroactive to three years. The only other cut score changes that are dancing about are COVID-specific temporary changes — like North Carolina dropping the score by two for the July administration — that reflect the expectation of lower scores during a pandemic rather than a new philosophy on grading. However, California isn’t making a temporary change, it’s doing what Montana did and executing a go-forward declaration. To escape this wrinkle, Navarrete’s article claims the Montana move was designed to offset an earlier cut score increase, while California hasn’t changed its cut score in years.

Yet, the fact of the matter is that looking to other states was the weakest argument raised in favor of retroactivity and the powers-that-be have taken this flimsy shield and turned it into a sword. None of these experiences in other states are controlling and these circumstances arise so rarely that precedent is about as a useful as haruspicy. The Montana analogy was so tangential that I didn’t even mention it my earlier review of the motions seeking retroactivity.

I guess the lesson here is not to give courts shaky arguments they can hang a decision on.

Because the court’s letter only offers a quick aside distinguishing the Montana situation while ignoring the better arguments: (1) that people who took the test in February have a recent enough score to dispel any question of competency and (2) that California accepts scores for FIVE YEARS in the status quo so if a 1450 grade in 2016 is considered a 1450 in 2020 why wouldn’t a 1390 in 2016 be counted as a 1390 in 2020? California could take the position that scores are only fresh until the next administration of the exam, but they don’t. That respect for the durability of a score’s measure of an applicant should cut both ways.

Honestly, I was opposed to the idea of retroactivity before reading these petitions. I was sympathetic to the cause but thought, for better or worse, lines have to be drawn somewhere and the burden would be high to convince me that a score achieved under a different regime should count without opening the administrative hassle floodgates. But when I forced myself to come up with responses to the arguments raised I realized there weren’t good responses to be had. They already explicitly accept stale scores — I just couldn’t explain away why it wouldn’t apply universally. Not only do I suspect the state supreme court never bothered to grapple with this argument, the fact that they went out of their way to avoid mentioning the issue all but confirms it.

Questioning a supreme court’s licensing policy is apparently like asking a robot to define love because smoke just starts coming out of their ears while they wildly repeat “Montana is different!”

That the court mentions NEITHER of these better arguments raised in the petitions should trouble everyone, especially as it’s indicative of the adjudicative laziness that’s impacted several state supreme courts around the country. Sound reasoning doesn’t take a holiday just because the question is within the control of the judicial branch. All anyone’s asking is for the court to have the basic sense of work ethic to address the actual arguments on the page instead of sending the Clerk of the Court out to write a glib dismissal in a letter to the state bar.

But assuming the bar exam is different is better than considering the alternative — that these supreme courts routinely lack a disciplined approach to adjudicating the matters before them.

California Supreme Court Issues Order Finalizing Lower Passing Score for Future Bar Exam Takers [California Courts]

Earlier: Deans And Bar Applicants Ask California To Apply New Lower Cut Score Retroactively

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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.