Category: News Feeds

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

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

BLICKSTEIN GROUP & ABOVE THE LAW

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.

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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.

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

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

BLICKSTEIN GROUP & ABOVE THE LAW

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.

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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.

— Walter Shaub, former head of the U.S. Office of Government Ethics, calling Attorney General William Barr a “threat to democracy” in an epic 12 part tweet and warning of potential 2020 election interference.

Just over a month ago, Bill Ackman was playing coy. He’d poured as much as 9.5% of his investors’ money into something, but he couldn’t say just what yet. He hadn’t finished buying it yet, and anyway, already up by 45% on the year and drunk on love and kombucha, he didn’t see the harm in having a little fun with the market. He’d tell us all about it in the new year.

Except he just can’t wait! He’s so excited and everything is working that he’s giving us all a little early Hannukah present: the name of a company whose stock we should all clearly go out and buy immediately, because Bill Ackman literally cannot lose right now.

Even in the most ideal of circumstances, going to law school is a crap ton of work. So, I can’t even imagine the fortitude necessary to tackle getting a JD while also cooking a tiny human in your stomach. But it’s true, people do it all the time, and students at one law school say the administration doesn’t support students who are pregnant.

According to a new story from the Belmont Vision, four current and former law students at Belmont University College of Law allege the law school refused to make accommodations to their attendance policy for pregnant students. Those who have come forward are: Juliana Lamar Above the Law famous for bringing her kid with her to get sworn in, said while she was a student at Belmont after an emergency C-section she felt pressured to return to classes before she could even drive herself or carry her textbooks; Cecilia Young is a 3L who says she was denied additional absences despite being diagnosed with a potentially life-threatening condition and being hospitalized post-birth; Kendall Ponchillia, a 3L with a high-risk pregnancy, was also denied additional absences even when she provided a doctor’s note requesting the accommodation; Rachel Clifton a Belmont Law alumni who says she was initially denied any accommodations, including additional absences, by the school’s former Title IX director, but, after raising the issue with Associate Dean of Academic Affairs Ellen Black, she was eventually allowed to pump after the two hour mark during an exam.

The law school has maintained the need to strictly enforce their attendance policy, which limits missed classes to 15 percent — a more draconian standard than most schools impose when interpreting the American Bar Association’s standard of “reasonable” attendance. Most frequently, schools adopt an 80 percent attendance rule.

Provost Thomas Burns said that what the women were actually requesting were exceptions to the attendance policy, and not medical accommodations. The attendance policy, both he and law school Dean Alberto Gonzales said, would not change.

Belmont law’s attendance policy bars students from missing more than 15 percent of classes in a course; any student to exceed that amount will automatically fail the class with a grade of “FN.”

Rather than change the attendance policy, Burns said the school should find ways to assist pregnant students on a case-by-case basis, which can include additional absences.

“What we need to do is find ways that we can support students and make them successful,” Burns said.

But despite these platitudes, women repeated say they were held to the strict attendance policy despite pregnancy related medical issues. Indeed, when a graduate of the law school, Sarah Martin, brought the concerns to the administration, it was quickly clear that very little would change:

Martin met with Dean Black and discussed the women’s difficulties receiving pregnancy-related support from the law school, requesting that the school change its attendance policy.

“It was a very defensive meeting, there was no commitment to do anything,” Martin said. “She was very clear that nothing was going to change about the attendance policy and no accommodations would ever be made.”

Gonzales, the law school’s dean, reached out to Martin via email the week after that meeting, saying that Martin was “correct in assessing that no changes would be made to the attendance policy.”

But that wasn’t the end of the concerns over pregnancy related accommodations. During a regularly scheduled visit to the law school by the ABA, students approached the ABA contingent and spoke to them about their concerns. The ABA brought those concerns to the law school administration, and it seemed the law school softened its stance on pregnancy accommodations:

The ABA brought those concerns to Belmont in a meeting that Gonzales and university President Bob Fisher attended among others. Following the meeting, the law school altered its language in the attendance policy to further clarify that students were to approach Dean Black for pregnancy-related help.

“I think we’ve taken the appropriate steps to make sure that the student’s health is a priority,” said Gonzales in an interview with the Vision last week. “We try to provide the accommodations they need to be successful as a parent, successful as a law student.”

During that same interview, Black affirmed that the law school is doing all it can.

“I have not had an instance where a student has come to me and asked for assistance and I did not provide it,” said Black, adding that the women should continually follow up with her if their situations require medical accommodations.

However, Ponchillia’s pregnancy occurred after the policy was amended. She says, armed with a doctor’s note detailing her high risk pregnancy, she consulted with Black about possible accommodations, and she wasn’t given any help:

“They basically told me to schedule my doctor’s appointments on Fridays so I wouldn’t miss class, that there was nothing they can do for me now, and that they could readdress it in the spring.”

As Martin notes, “The way Kendall [Ponchillia] has been treated makes me think that nothing has changed.”

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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).

“Somewhere around the middle of her forehead.”

— Baltimore Sheriff’s officials confirming that Chief Circuit Judge Wanda Heard was hit by a metal water pitcher hurled at her by Travis Burroughs after Judge Heard finished sentencing him to a life sentence with all but 70 years suspended. The Sheriff’s Department said that they will be pressing charges, not that there’s much more you can do when a guy’s already going down until he’s 106 years old.

It’s that time of the year again. Holiday Parties. Spiked eggnog and lampshades against the backdrop of a legal profession replete with problem drinkers. Along with with that, the increased holiday risk of impaired driving, sexual misconduct, and the general, alcohol-fueled stupidity that ‘spikes’ each holiday season.

It makes sense now, more than ever, to re-evaluate how holiday parties are implemented from Biglaw to small law. Balance is crucial. The good news is that equilibrium can be established in a way that adds to the festivities, rather than “grinching it” with a limited alternative selection of a few liters of soft drinks and bottled water. Think hard about “Mocktailing” your upcoming event. To provide a “blueprint” for your new, incredible, mocktail bar, I reached out to Tanya Pitch, a long-time Dallas, event bartender. Here is her take with recipes!

Mocktails, or zero-proof cocktails, are gaining quite the following these days. Many restaurants are finding that their patrons prefer more options than just mundane sodas, juices, and water. Mocktails also are making their way into the private party scene as well. There is a misconception that nondrinkers are such a minority group that it isn’t worth the effort/investment to create viable options for them.

Providing a mocktail bar at your next party is an opportunity to surprise and delight your audience while making you the BEST host this holiday season. The easiest way to build your holiday party bar is to create a cocktail menu with the catering company you’ve hired.

Don’t assume that guests who want a non-alcoholic beverage have unsophisticated palates. Ask the catering company you hired to help you get creative when it comes to both drink menus. It’s usually best to build the cocktail and mocktail menus off of one another. This will cut down on costs because the ingredients can be used in both the non-alcoholic and alcoholic drink recipes.
If you stock your bar properly, the experienced bartenders will be able to make some unique off-menu drinks as well.

Also, please don’t skimp on glassware. Oftentimes, non-alcoholic drinks are served in flimsy plastic cups, while other guests enjoying their martinis sip out of polished glassware. Without even trying, your holiday party could make the non-drinkers feel like outliers of the crowd. But if you create a full bar just for them, that includes nice glassware, the feeling of inclusion will abound. Holding a drink in a plastic cup may make one feel like a kid at an adult party. But holding a drink in nice stemware that looks different than everyone else’s can give your guests an automatic conversation starter that could help their networking game, as well as lead to interesting discussions about alcohol in general.

A few other additional costs you may possibly incur while providing a separate mocktail bar, besides glassware, are: additional bar staff, extra ice, additional table/bar rentals and, extra linens. The zero-proof/mocktail bar is a great tool to encourage responsible drinking while still participating in the cocktail culture. After all, why should alcohol have all of the fun?  Here are a few potential legally themed recipe options for your upcoming holiday bash. They are yours to use. Feel free to create your own fun drink names!

Mocktail zero proof cocktails (and of these can have alcohol added to them for those who wish to have an alcoholic version.

Objection Over-Yuled!
20 fresh mint leaves. 3 tablespoons lime juice.  4 ounces cranberry simple syrup.  Ice cubes.  4-ounces soda water.  Garnish (optional): fresh mint leaves, fresh cranberries, lime slices. For the cranberry simple syrup:  8 ounces fresh cranberries. 1 cup of water. 1 cup granulated sugar

Subordinate Santa
2 oz. cranberry simple syrup 2 oz. vodka 1/4 c. lime juice, plus extra for garnish 3 oz. ginger beer 1 Handful fresh or frozen cranberries for the cranberry simple syrup:  8 ounces fresh cranberries .1 cup water.  1 cup granulated sugar

Fa Law Law Law Law
1.5 oz. Black Tea .75 oz. Fresh Lemon Juice .5 oz. Simple Syrup .25 oz. Grenadine .25 oz. Raspberry Vinegar Shake ingredients together and then pour into a rocks glass over ice. Garnish with a lemon wheel.

Vested Remaindeer
Middle thumb-sized nub of turmeric 1 oz lime juice 1 oz Agave Syrup Shake and strain into a high ball glass. Top with soda water and a lime garnish

Elf Defense
2 ounces blackberry and raspberry puree 2 ounces cinnamon simple syrup 1/4-ounce fresh lemon juice 4 ounces Ale-8-One or Ginger Beer Orange peel garnish Combine all ingredients in a shaker and pour over ice into a highball glass. Garnish with fresh orange peel.

Litigation Libation
4 ounces orange juice ½ ounce heavy cream ½ ounce honey syrup (1-part honey, 1-part water, mixed well) 3 dashes vanilla extract 3 squirts salt tincture 3 drops orange flower water 6 drops pistachio extract
Combine all drink ingredients in a small cocktail shaker. Fill with crushed ice, then shake for 3 seconds. Pour into a large Collins glass. Top with crushed ice. Garnish with an orange peel rosette and sprinkles of powdered sugar and ground cinnamon.

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Brian Cuban (@bcuban) is The Addicted Lawyer. Brian is the author of the Amazon best-selling book, The Addicted Lawyer: Tales Of The Bar, Booze, Blow & Redemption (affiliate link). A graduate of the University of Pittsburgh School of Law, he somehow made it through as an alcoholic then added cocaine to his résumé as a practicing attorney. He went into recovery April 8, 2007. He left the practice of law and now writes and speaks on recovery topics, not only for the legal profession, but on recovery in general. He can be reached at brian@addictedlawyer.com.