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Aunt Jemima is the best-selling syrup brand in the United States and it’s not even close. Changing the branding of a successful product is a dicey business move even if it’s a pretty straightforward moral one. Now, roughly a bazillion years too late, the Aunt Jemima brand will be ditched.

Few law firms occupy the rarified air of Davis Polk & Wardwell. It boasts a top 20 Am Law ranking and sits as one of the handful of firms that every major institution considers for high-stakes legal representation across all practices. But as we enter the long overdue era of ending the memorialization of long-dead Confederates and their fellow travelers, Davis Polk should have a serious discussion about rebranding.

John W. Davis, was one of the most prolific Supreme Court advocates in history, arguing more cases at the high court than almost anyone. That certainly makes for an impressive sentence before you start asking about the big cases he was arguing. He secured the legality of “grandfather clauses” to ensure that literacy tests only suppressed the rights of black voters and represented South Carolina in the companion case to Brown v. Board. Building a book of business around being “the go-to lawyer for Jim Crow” is certainly one strategy.

Lawyers can, of course, argue cases they don’t believe in and shouldn’t necessarily be vilified for doing their job. But lawyering is also a business and at a certain level, attorneys get the work they’re seeking out. It’s not an accident that Davis kept getting tapped by segregationists in their constitutional fights. Davis had argued for black voting rights while serving as Solicitor General, but when he returned to private practice he showed little hesitation in jumping the aisle. In Briggs, the Brown companion case, there’s even a historical dispute over whether or not Davis accepted no payment for his work because he lost or if he took on the matter pro bono from the start. You know, when “for the public good” was somehow interpreted as “segregating schools.” No matter how one cuts it, those aren’t the actions of a dispassionate advocate just doing their job — that’s someone with skin in the game. White skin, as it so happens.

Davis Polk isn’t alone in sporting a troubling name. Holland & Knight is named after Spessard Holland, a Florida politician from the era when the state was a lot more Baja Alabama than South Beach. He signed the “Southern Manifesto” condemning Brown v. Board and attempted to defeat the 1964 Civil Rights Act by filibuster. Holland served in either the House or the Senate for 30 years and grounded his political fortunes in defending Jim Crow laws.

Most people never think about Biglaw namesakes (though we’ve been pointing these guys out for years). It’s doubtful if anyone even considers the men behind these names when they glance at the letterhead. But that doesn’t mean there isn’t some ugliness lurking there.

There are problematic people throughout history. For all I know, John Lambert Cadwalader clubbed baby seals. But when it comes to people like Davis and Holland, we’re not talking about people we can honor in spite of their racial politics because their racial politics were integral to their legal legacies. Davis used his practice to further the bloated corpus of racist constitutional law and Holland was a segregationist politician. There’s not much to Holland’s career beyond politics — he was barely even a practicing attorney, having only worked at the firm that bears his name for about three years. These firm names are memorials to icons of a racist past that deserve to be junked.

Obviously these are global brands. Am Law 50 firms with decades’ worth of reputation built on their names. But so was Aunt Jemima syrup. If anything, their success should afford the firms more freedom to rebrand, not less. Whatever name DPW could come up with would still command respect around the world — the sophisticated clientele that hire Davis Polk attorneys aren’t going to be confused. Legal circles almost never used the words “Berkeley Law.” Berkeley WAS Boalt Hall… until it wasn’t. It’s unusual to point positively to something Dewey Ballantine did, but that might be a good template to follow — hire a household name like Thomas Dewey was at the time and reorient the name around that person. Go be Obama Polk & Wardwell.

And for Holland & Knight… well, being the Knight firm just sounds cooler.

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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.

No doubt many of you have seen the widespread praise over the Supreme Court’s decision in Bostock v. Clayton County, Georgia, prohibiting discrimination against gays, lesbians, and transgendered people. Repeatedly included in such praise, however, is the expressed concern that Justice Neil Gorsuch’s textualist approach in authoring the decision “is going to work against a robust protection of rights more than it works to promote them.”

In many ways this concern is completely justifiable. I would argue no Justice on the Court is as wildly inconsistent or willing to completely abandon prior principles so as to reach a politically desired result as Gorsuch. Here is a man who, before he joined the Supreme Court, had basically made a judicial career out of criticizing the power of unelected bureaucrats. Yet, since joining the Supreme Court, Gorsuch has time and again opposed the application of judicial review over the unelected bureaucrat. Even in instances when said bureaucrat is caught lying about why a particular regulation was being implemented and for explicitly racist reasons.

Nevertheless, I find myself daring to believe that Gorsuch’s textualist approach in Bostock is not only not a trap but a clear signal that a majority of this Court is more interested in a robust expansion of rights.

Why do I believe this? Well, for one thing, although Gorsuch might be wildly inconsistent, the rest of the Justices who joined the opinion are not. And if you were to apply the textualist approach in the Bostock opinion faithfully (which I expect the five Justices who are not Gorsuch to do so in the future), then the expansion of rights, particularly the Bill of Rights, becomes inevitable.

Again, you might be asking how I can say this. It comes down to the fact that the things most people are worried about when it comes to textualism/originalism constriction of rights are expressly what the Bostock opinion rejects. For example, one of the most common critiques of textualism/originalism is that it subverts modern — dare I say more-expanded — concepts of morality for the morality of those in the past who supported slavery and bigotry.

Yet, throughout the Court’s Bostock opinion is the rejection of the argument that just because many at the time did not anticipate Title VII of the Civil Rights Act of 1964 to be applied to gays, lesbians, and transgendered people that is not applicable to these classes of individuals. As someone who follows the originalism debate closely, I cannot stress enough how satisfying and explosive this rejection is and the possibly enormous implications it has for the future.

Think about it, the late Justice Antonin Scalia argued that the “cruel and unusual” clause within the Eight Amendment does not apply to anything (including capital punishment), that was practiced at the time the amendment was adopted. As others before me have pointed out, however, Scalia’s argument “assumes that what those who proposed and ratified the Eighth Amendment intended was something such as: ‘The government cannot utilize punishments considered cruel and unusual at the time of the enactment of this amendment.’ Where is the justification for this interpretation? There isn’t any. There is certainly no justification in the text itself because the Founders did not include the language I italicized — although it would have been easy to do so. The Constitution does not have a word limit.”

The framework in Bostock, in my opinion soundly rejects Scalia’s flawed argument that every provision — even open-ended provisions such “cruel and unusual,” “due process,” or “unreasonable” search and seizures — must be interpreted only to the extent that those who passed them understood them to mean. By rejecting this argument, many of the open-ended provisions in our Constitution can rightfully begin to be applied with broader, modern interpretations. Wherever this has been done, such as with the free speech clause, the right has only been expanded ever increasingly.

Of course, time could very well prove me wrong about all this and Joe Patrice right. But given the amount of broad, open-ended rights that are contained within our Constitution and given that six members of the court agreed in a case with monumental political proportions, that laws are not confined to the eras in which they were passed. I find myself daring to believe that for perhaps the first time in my adult life, a majority of the Supreme Court has committed itself to an expansion of civil liberties instead of restricting them. Except the Establishment Clause of course.

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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.

This website has already detailed how law firms are adapting to meet challenges posed by the ongoing COVID-19 pandemic. Indeed, law firms have implemented work-from-home programs, communicated with clients and counsel through videoconferencing apps more often, and taken other steps to operate in these uncertain times. The ongoing COVID-19 pandemic has also eliminated many billing opportunities for numerous attorneys, and this has had an impact on the revenue of many law firms.

As mentioned previously in this column, court appearances are usually a cash cow for law firms. Even though court conferences may only take 10 minutes or less to complete, attorneys often need to wait in court for hours before a matter is called for a conference. Attorneys are often able to bill all of the time they spend in court for a conference, even if lawyers are just waiting for conferences to be called. In addition, attorneys usually need to spend an hour or two traveling to and from a court conference. Although clients have different rules about how much travel time is billable, attorneys are typically allowed to bill their clients for at least a portion of the time they spent traveling to and from conferences.

However, at the beginning of the pandemic, many courts adjourned numerous conferences, likely because they did not wish to hold conferences in person and did not have the infrastructure to hold conferences remotely. As time passed, courts have mostly been holding conferences through telephone and videoconferencing apps. Although there were some complications with people getting used to the technology at first, conferences by remote means seem to be going much more smoothly now.

Nevertheless, conferences by remote means do not present the same billing opportunities for firms as traditional in-person court conferences. When courts conference matters through remote means, the parties are usually scheduled to conference a matter at an exact time. As a result, attorneys are unable to bill as much time waiting for a conference as they could when they were in court before a matter was conferenced. In addition, since remote conferences do not require any travel time, attorneys have been missing out on billing travel time like they were able to with traditional court conferences. Although attorneys used to be able to bill several hours for attending a court conference, they are likely able to bill only 15 to 30 minutes of their time for court conferences in the present environment.

The way depositions have been conducted since the start of the ongoing pandemic has also impacted another traditional cash cow of billing for law firms. Attorneys used to be able to bill at least a portion of their time traveling to and from depositions just as with court conferences. For some depositions, attorneys can bill a substantial amount in travel time. Indeed, while I was working at a law firm that handled a number of mass torts matters, I would sometimes spend many hours traveling to and from depositions hundreds of miles away. Sometimes, the travel time billed to a client would pale in comparison to the time actually spent at depositions.

However, most depositions are also being conducted by remote means now in order to promote social distancing. As a result, attorneys are able to call into a deposition from home and have not been billing their travel time as they were in the past. This must be having a substantial impact on firms that rely on such billing for a considerable amount of their revenue.

Some attorneys may believe that disruptions in their billing may be temporary and that as operations return to normal, traditional court conferences and depositions will resume. Of course, some matters are simply easier to conduct in person, and it is altogether possible that court conferences and depositions will begin to occur in person more frequently over the next several months as many states gradually reopen. However, it is possible that the COVID-19 pandemic may permanently change the way certain tasks are conducted so that traditional billing cash cows lost during the pandemic may be permanently disrupted.

For instance, I have heard more than one court attorney relate that they see no reason to drag all of the parties to court for run-of-the-mill discovery conferences ever again. Conferencing routine and noncritical matters by remote means is simply more efficient, and it might not be worth it for all of the attorneys to appear in court for such matters. Furthermore, clients may require attorneys to continue conducting depositions by remote means. Clients may not wish to spend massive sums on travel time and travel costs for attorneys to attend depositions when they are now familiar with how depositions can be conducted remotely at a much cheaper cost.

In the end, many law firms have struggled with issues caused by the ongoing COVID-19 pandemic, and the current environment has restricted the ability of certain shops to bill hours. Some attorneys may believe that such issues will begin to disappear as conditions normalize as COVID-19 restrictions are eased. Nevertheless, lawyers should prepare for the possibility that some billing opportunities available to them months ago may disappear as clients and courts learn lessons about efficiency while operating during the ongoing pandemic.

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Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

Showtime’s “Billions’” depiction of the hedge fund world isn’t exactly cinema verité. But many of its characters are, with varying degrees of looseness, based on real people: Chief villain Bobby Axelrod is pretty transparently based primarily on Steve Cohen, with bits of Steve Schwarman, Dan Loeb and Howard Lutnick sprinkled in, and those in his orbit seem to have their SAC Capital equivalents, including an ex-wife that seems a combination of both Cohen’s current and former spouses, and a Matthew Martoma who actually cooperates with the authorities. And the lead authority, Chuck Rhoades, is rather obviously a Preet Bharara stand-in, with a bit of Eliot Spitzer thrown in for good measure.

The second wave of the coronavirus is here. Or maybe the first wave never really left. As many cities and states have begun to relax their stay-at-home orders, new coronavirus cases have spiked. This shouldn’t come as a surprise. But unless the virus can be controlled and eventually eradicated, it may result in new shutdowns. In Houston, because of the rapid increase in new cases, the city council is considering imposing another shutdown order if the curve isn’t flattened. In Beijing, a new outbreak has forced the city to shut down again.

New shutdown orders in U.S. cities and states are likely to be met with resistance from the people and the federal government because of the negative effect on the economy and the massive drain on government resources. Also, a group of people would rather exercise their first amendment right to protest, go to church, go to the beach, or to the playground. And because of the low likelihood of becoming seriously ill, I suspect most of those people are willing to risk getting infected and likely not care if they infect others.

Can the virus be controlled? Eventually, I think it will be. But the current environment will make it difficult. I suspect that many Americans are not taking the coronavirus as seriously as they should. This is evidenced by recent protests. Also, Americans are misinformed about the virus.

Since the shutdown orders began, numerous protests have been held throughout the country. The protestors come mainly from two groups of people. There is a third group, but they are a fringe group of racists, opportunistic criminals, or just plain crazy, and they are not worth acknowledging.

The first group comes from those that have been directly and negatively affected by the shutdown orders — mostly businesses and religious organizations. They are arguing that the shutdown orders somehow have violated their constitutional rights. With the unlikelihood of another stimulus package from the government, a second shutdown order will be the possible death knell for many small businesses. They are already suffering from reduced income because of the outbreak and the first shutdown order. The group does not have a central leadership although they seem to get their inspiration and talking points from conservative groups and President Donald Trump.

The second group is those who are protesting the disproportionate police brutality inflicted against African-Americans. Most of these protestors are affiliated with Black Lives Matter. An attempt to donate to Black Lives Matter will direct you to a site run by actblue.com, a platform used to fund Democratic candidates for public office.

The causes and principles these groups stand for are not incompatible. One can be against both the police using excessive force and unreasonable government shutdown orders. But this is an election year, so the two groups’ politics and the general dislike of each group for the other prevents them from meaningfully working together.

The one common ground they have is that protesting takes priority over the pandemic. If they get infected as a result, then so be it. However, I think most of the people that think this way are relying on the low chances that they will get infected and the lower chances that they will develop severe complications as a result of the coronavirus. I doubt they are less motivated by the principles. To put it another way, I doubt I would see a lot of similar protests if there was an anthrax or Ebola outbreak as both having high fatality rates.

Another problem that makes recover difficult is the misinformation about how to treat the virus. This was clearly demonstrated when it came to the use and effectiveness of facial masks.

In the early days of the coronavirus epidemic, many health experts advised people to wear facial masks when going out in order to minimize the spread. The problem was that this resulted in a shortage of masks, mainly due to hoarding and panic buying. Healthcare professionals complained that they could not get them from their usual sources.

So a new narrative was released. This one said that people should not buy masks because they don’t work. Facial masks, even the highly effective N95 masks do not provide absolute protection against the virus. But healthcare professionals needed them because they don’t want to spread their germs in a sterile environment, like an operating room. This claim was questionable at best. Even if masks were not 100% effective, they provide some protection. And if everyone wore masks, the chances of spreading the virus would be minimal, even if people did not practice proper personal hygiene.

What should have been told was that facial masks provide significant protection from the coronavirus but due to a shortage, healthcare professionals should be the first people to have them for everyone’s safety.

There is still lots of strange information out there. Every week seems to bring the announcement of a new “wonder drug” that disappears after a week or two. If the wonder drug is so great, why aren’t news outlets covering the development? This makes me wonder if some companies are trying to pull another Theranos on unsuspecting, dim-witted investors. I’m sure the SEC will eventually want to know as well.

Finally, and returning to the topic of protests, there seems to be a split among the medical community about the protests and the risk of spreading the virus. When the reopen protestors hit the scene, almost the entire medical community denounced them, saying that their presence will certainly spread the virus.

But when it came to the Black Lives Matter protests, they said something different. Many medical professionals supported it but mainly because of the social justice value of the protests. They tried to point out that most of the protestors practiced social distancing and wore masks — although whether they did it mostly to hide their identities is not clear. Others simply said that the risk of contracting the virus was worth it.

Morally, it is their right to support or denounce whatever protest they wish. But it creates a few complications when it comes to full transparency, which has been one of the key goals when it came to managing the virus. If there was an increase in coronavirus cases due to the protestors, it will provide ammunition to their political opponents. On that note, would the protestors be willing to accurately report the number of those infected with COVID-19 if it will hurt “the cause”? In New York City, the “test and trace” campaign has been instructed by Mayor Bill de Blasio not to ask anyone who has been tested positive for COVID-19 whether they have attended a protest.

And the problem with large protests — particularly politically motivated ones — will attract trolls, in this case, dangerous ones. What’s stopping an infected anarchist from secretly attending the protest? A few months ago, Susan Daniel, a lawyer, tweeted that if she was infected with the coronavirus, she would “attend every MAGA rally she can,” presumably attended by Republicans.

In the final analysis, if the American people want to control the spread of the coronavirus, they will temporarily have to put their differences aside so they can take the virus seriously. Unfortunately, with this being the final stretch of the presidential elections, this may not happen for another few months. In the meantime, wear a mask until a vaccine is available.

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Steven Chung is a tax attorney in Los Angeles, California. He helps people with basic tax planning and resolve tax disputes. He is also sympathetic to people with large student loans. He can be reached via email at sachimalbe@excite.com. Or you can connect with him on Twitter (@stevenchung) and connect with him on LinkedIn.

* The former general counsel of the FBI has been hired as an in-house attorney for Twitter. The two workplaces must be just a little different… [New York Post]

* A former lawyer has been found guilty of murdering his wife and throwing her body overboard during a 2006 cruise in the Caribbean. [Lost Angeles Times]

* The Supreme Court halted the execution of a death-row inmate in Texas about one hour before he was set to be executed. [NBC News]

* Attorneys in Tulsa, Oklahoma have filed a lawsuit in an attempt to enforce safety measures at a Trump rally in the city later this week. [Hill]

* A former lawyer, who surrendered his law license for stealing from clients and then became a pastor, will be allowed to practice law again. That was very Christ-like of the bar examiners… [Bloomberg Law]

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Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

With an independent report by a federal judge branding the Department of Justice “corrupt,” this seems like a good time to revisit exactly how we got here. Your elderly aunt on Facebook has a lot to say about Michael Flynn and most of it is wrong. Joe and Kathryn unpack the case and also discuss the case of a lawyer who egged a judge’s car.

Special thanks to our sponsor, Logikcull.

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

According to the study “Women of Color–A Study of Law School Experiences,” a joint research effort between the NALP Foundation and the University of Texas School of Law’s Center for Women in Law, what percentage of minority women law students surveyed gave race relations on campus a positive rating?

Hint: Compare with the 70 percent of white male students who positively view race relations on campus.

See the answer on the next page.

Flatten the Research Curve

Flatten the Research Curve

Wolters Kluwer

Do you like prestige? Of course you do. Is there really a law student who doesn’t? That being said, if you’re like the majority of your colleagues and you’d like to embark upon one of the most prestigious career paths available to recent law school graduates, then you’ll probably want to compete for an elite federal clerkship.

Law.com produced several helpful charts based on law school employment data for the class of 2019. Today, we will take a look at one of the more interesting charts, the law schools that sent the highest percentage of their most recent graduating class into federal clerkships. On this list, you’ll find a dazzling array of law schools from the T14, but we’re not here to tell you what you already know — that graduates of top law schools get top clerkships. That being said, we’re going to dive a little deeper into the list (the Top 20) and highlight the schools you may not realize are some of the top clerkship contenders. Here they are for your viewing pleasure:

1. Stanford: 29.12 percent
2. Yale: 25.81 percent
3. U. Chicago: 23.76 percent
4. Harvard: 17.70 percent
5. UVA: 15.73 percent
6. Duke: 14.03 percent
7. Notre Dame: 11.92 percent
8. UT-Austin: 11.45 percent
9. Georgia: 11.05 percent
10. Washington U.: 10.64 percent
11. Berkeley: 10.37 percent
12. Michigan: 10.10 percent
13. Washington & Lee: 10.00 percent
14. Penn: 9.60 percent
15. Illinois: 9.02 percent
16. Montana: 8.45 percent
17. Alabama: 8.27 percent
18. Vanderbilt: 7.62 percent
19. Cornell: 7.22 percent
20. Baylor: 7.09 percent

Way to go, Stanford! The elite school managed to boot Yale out of the top spot for clerkships this year, which is a remarkable feat in and of itself.

An obvious point to make here is that these rankings don’t distinguish between prestige of clerkship. Were these feeder judges or non-feeder judges, circuit courts or district courts, Article III courts or non-Article III courts? In the land of law, these things are important. Considering how coveted federal clerkships are, we’d absolutely love to see this information. If you have it, please feel free to email us.

Click here to see the rest of the law schools with the highest percentage of graduates employed in federal clerkships, plus other informative charts detailing the law schools with the highest percentage of graduates working in Biglaw, state clerkships, government and public interest jobs, as well as the law schools with the most unemployed graduates and most underemployed graduates.

Are you a recent law school graduate who landed a federal clerkship? What did your law school do to help you? We’re interested in learning about your experiences — good or bad — and may anonymously feature some of your stories on Above the Law. You can email us, text us at (646) 820-8477, or tweet us @atlblog. Best of luck in your clerkship and enjoy your time with your judge!

Law Grads Hiring Report: Job Stats for the Class of 2019 [Law.com]

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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.