A Tale Of Two Wives

(Image via Shutterstock)

Recently, the United Kingdom and Canada made the news regarding the estates of two violent citizens. In April, Gabriel Wortman died after he shot 22 people in Nova Scotia. Many consider the shooting the worst in Canadian history. Last week, in the United Kingdom, a judge ruled that Sally Challen would be allowed to inherit from the estate of Richard Challen, her dead spouse. Sally killed Richard in 2010 after decades of abuse. She was thereafter convicted and sentenced to life in prison. Last year, her murder conviction was overturned, and the act was deemed to be manslaughter. Her reduced sentence was credited with time served, and she has been set free.

During her court cases, Challen argued that she suffered from years of abuse by her husband, whom she killed by repeatedly beating him with a hammer. The defense team claimed that she was the victim of coercive control and suffered psychiatric illness as a result of the violent and consistent abuse.

The Slayer Rule is a common law doctrine wherein one who murders another cannot inherit under the decedent’s estate, whether it be through the laws of intestacy or the law of wills and trusts. In practice, the application of the Slayer Rule is complicated in cases where abuse is present, and questions will often arise as to whether the death was murder, manslaughter, or some form of self-defense. By Challen’s conviction changing from murder to manslaughter, she was able to reap the benefit of the inheritance laws.

In Challen’s case, she successfully challenged the murder conviction, which resulted in not only a mitigation of punishment, but an inheritance. Judge Paul Matthews, in his decision, noted the extreme and terrible conditions under which Challen was abused and also emphasized that every situation has its own set of facts. In this case, he stated that the circumstances were extraordinary and that the decedent certainly contributed to his own death.

Prior to Wortman’s mass shooting and arson of several Nova Scotian houses, he physically assaulted his common law wife. On the day of the killing spree, he attacked her and tied her up. When the spouse escaped from captivity, she ran to a neighbor’s house and reported Wortman to the police, warning them that he had firearms. Wortman was shot dead at a gas station following his killing of 22 people.

Wortman collected police memorabilia, including police cars and uniforms. He used a car marked Royal Canadian Mounted Police in his shootings and even wore parts of the police uniform.

Wortman, who was a denturist,  had a sizable estate, consisting of about $1.2 million in real property as well as savings accounts. He wrote a last will and testament in 2011 and named his common law wife as his executor and sole beneficiary. She has since renounced her role as executor. The Public Trustee will serve instead. Witnesses report that there was a history of abuse in their relationship.

Questions also remain as to where the firearms were acquired, although it is believed that he received them from a deceased friend. Some have stated that Wortman was paranoid as a result of the COVID-19 pandemic.

There also exists a proposed class-action lawsuit seeking damages from Wortman’s estate. The case claims that Wortman’s estate is liable to the families of the victims. Nicholas Beaton is the representative plaintiff because his pregnant wife, Kristen Beaton, unlike Wortman’s and Challen’s widows, did not survive.


Cori A. Robinson is a solo practitioner having founded Cori A. Robinson PLLC, a New York and New Jersey law firm, in 2017. For more than a decade Cori has focused her law practice on trusts and estates and elder law including estate and Medicaid planning, probate and administration, estate litigation, and guardianships. She can be reached at cori@robinsonestatelaw.com.

Changing The Law School Model

With the new year looming, and no reason to believe COVID will be gone, how are students feeling? Harvard Law is going to online next semester and across the country, according to a new survey from TestMax, many law students and prospective law students are rethinking law school under those conditions. We chat with TestMax founder Mehran Ebadolahi about the survey results and his thoughts on how COVID might usher in lasting changes to the law school model.

Data on Medicaid Recipients Before COVID-19 Gives Snapshot of Potential Problems [Sponsored]

%PDF-1.4 %���� 1 0 obj << /Creator (Apache FOP Version 2.3) /Producer (Apache FOP Version 2.3) /CreationDate (D:20200616010412Z) >> endobj 2 0 obj << /N 3 /Length 3 0 R /Filter /FlateDecode >> stream x��gPTY��{� �M���I��$�$A��@w�i��AQdpFI� ���AFQŀ((��N#��2�”**K�٭�U[�g��x�sO�s�[��1������M��:�1��C�H�(�JN�����!���c����sϑ��>��qy�v�y����%��.��ʱlN2k�w�r4;�-�� 8=%1�{�i��W�-�o�!�o�V��k������Z�kL�0+���t�j� +���|iA/�o3���`?�(��O��f+�y�S/T�����7����o��r�L@�ʿr��`�Q�WN��=t����8@W)��X���o9���Ȁ��

r���”�dQ�(s�+*�JG�*PM��5�(j��F���hS�:��F����ї���)�”���hc,1^�pL �S�9����Lc>` X�!� ��b��l/v;�]Ɖ�Tq�8/��+�5�zpwqӸe�^o�����w�+�m�k�’�A�`F�!�v* g7���D Q�hO%��O/ߒH$5� )��B�Oj&]%=#}��芸��ErEjD:EFD^�qdU�-y+9�A>G�K�ʼn��ڋ����=/:.�(F3�K+k�)6K�P�(�6%�r�r�2EEP���Tu��z�:MC��i��XZ�G�mA�”n$ �!^#~Q�OG����xz �,}��IBN�V�#�O�MbDbIRF�F�#Y(�.9*�I�!�(‘u@�K�4RZK�G:]��5�y���K�P��cYXVK�W6[��좜������U�yy���|�|�|��U�J!F���K�8ÖϨd�3e]S����ԕ��ڕ�*㕙ʑ���}�* *�*9*�*�Uq�L�h�ê�Kj�j�j{պ�f�%�]ճ�[՟h�4�5�44h�5��q�G4�i�Z�Z�Z5Zw�am��#���P���q�5��!�����L��u=t�t�t_������o��ߨ?a@1p3�3�1��PːeXc�`=i��������iq��=4�{�5�3�bbj�3i3�3U1 3�5gҘ��b� 3���Y�����&�)�g���б��h��ݠ����qÔ��e�e�%ߊafůo�hn�`��Fنm�d3c�ik{��Ϯ�n���~��e���C�Ð#��߱�񙓒S�S�ӂ��s��e�����qW9W�k�낛���~w��&�j��Z<�O����瓍��������A�����I޿�}�}j|^����l�nڶ�e�{?;��  �T��r@h@s�R�C`Y ?H/hG��`����LH@HS��f�͇6O����mQߒ���V��[/n#o�v.��9�+�!|1�5�6b�e�:�zŶa���8��2�L�edY�l�e���h������7�.�u�Kq^q'�V���� a �n�����Éډ��$�CI<�?�p<< /Type /Metadata /Subtype /XML /Length 6 0 R >> stream
application/pdf x-unknown 2020-06-16T01:04:12Z Apache FOP Version 2.3 1.4 Apache FOP Version 2.3 2020-06-16T01:04:12Z 2020-06-16T01:04:12Z
endstream endobj 6 0 obj 964 endobj 7 0 obj << /Name /Im1 /Type /XObject /Length 8 0 R /Filter /FlateDecode /Subtype /Image /Width 157 /Height 26 /BitsPerComponent 8 /ColorSpace /DeviceGray >> stream x�͗ilTU��L[J[`b[ k��m�Vٔ��Җ�%”K�%@@Y�”e'(“�”�JD���.�@� �D ��B$(hd *3��u��s�{3ShC�i8��s�]��s�{C�ˀ�5 �ު�^�N��_*�BM���d^�B�$�o�!��n�A���4�)�F.��f2e���t�|��ty>O�핒�֖�a� ۻܠY1��}�j��V�y�����FŐ���Q�m��c�D%NJ�]Hm;[o�ׄ�h���n�U��70�#j���”�xUzkH����v�����I�=G�.�d�`A0�^.7���”�X��)�&�����7:G�(+~T�”�N�+��”v,!z���5�F� %j |�^�;qKw��p�G74���O�v�I�m’Z��N]�W��g�-�ix�L���b�B�U�C�J�D���e�9�}�Jgkp� 8��&���)��f��ψ��a��g��4�<'p���-��pU̿@Ϣ9�P�>‘��2�h.�n8Z����)��l�|��Ft�$��zdr��%[V�3+;�*8r��Z4�_��Q�tR��D�ţ�Q�y1/�w���͸�eS5�z��i��=��@� Jœ�2�&b�T�2�W�5�����F�;”�&*’�c.�����I�)����b�q]jd��a�c�o���^��Eg����u6��^��q{}�̙-�袋20���1U�܉��p(�?�|Ρ�4�cC��7;�E�y����I��Y�dOR�J�r��RhN��������P�U>Q�XJ�{��5X��G�A�4G�WX �1�c�h .���=u�UjL���T*Ki�Z��U�� �j|t�Q��Y�f3�9X�_PP0��'[��+�,q���-����L8�y�_�S�����Xē��$�z�����ke�c,�x�O�T�/��9U��V�L3���pD��e� J�#ʄ�)�=��b�|�0��#8_eR^�����(���0S4�$���D=,R�zV�ͻ�����(r��M��R�KB�%V�7�N�]kG�%6�V�����q�z�����#=���^DG�g�v��_ S��*`���)um��’�A�� �]��X���jU�LU�`82D�,HQ1����J�*�ɔF7��_>’ф��J�JX�����7��%���JeS�.W�q�>A���M�b~St��l�:r�b���_UO���)&�O4���Ҙ�=�f�|��t��NF�ӥ����x����b����Y����6�l�9C��x��GZ(�99���7���[l��/nz�� [vgs�%��u�����dnw�xW�?j��$a�;�ϟ��412�$A�?i endstream endobj 8 0 obj 1384 endobj 9 0 obj << /Name /Im2 /Type /XObject /Length 10 0 R /Filter /FlateDecode /Subtype /Image /Width 157 /Height 26 /BitsPerComponent 8 /ColorSpace [/ICCBased 2 0 R] /SMask 7 0 R >> stream x���kL�W�#2�ˢ�n�ܢ��)ZT��Nq�O��dʭЋ@[[h��֖�fs���m’8]����^U.�)-���dYf�,�Y̲%[^�6��M���Ó����$7 %?ɪz߮�km��v��8 �m�Nk�qB�����a�Ѐ�ߘ��׌�1�D>��’f:kk4���p�);����[���j�`�ɉT�d��n��nc�����g�P�(:| �G���P�P�R6Ec�S±B�i2����ݝ��gU ��’�[���v����˞@�yp�Ɏ�?Q,?q�VӶ��=�R�x�h�sJ8�qhog�C�ڼY O.��3:}Tw�;����S���6�L�x��J�Z�� �~c�H�8W�”��/`Ec�<�£Q����4�PVh~fpI����V텧���̝'���d�Ć��[�gn��3�Ǽ��u��,��19���|�m��a��'08�7�� ��}����� ~F��Mz��a��Z=�z{�v�;I2��⟅���[�r�������uA�v�F��2d��bo�ځ�.��1�bv๬�@pY��mB��|�O���A�+��@aJ�sU��$��,�ԿF6�QRE�ޏy��i��'�ĕ��<�ИT�J_T���^�Xbf$��J�t���;hե���L��0���q��O<�gD�+�o��j�q���Ev�A��L3;~��'�T��rt)��bu2O���J�����$���y�܍D��ܞ��d� �drt���5^�D���|���#|@%�ш1�B&C���fbe��V�v��Ȝ(0�@�~u� /w�,d@��"ue�-��1$p�S�W�#�Ⱦ6��a>��H�f��+’:x� l�b�6@S��kw���vF���ŧ �C53��O���Dǜ/1�*�Hі;g���X �.9�/R�W��Ba߲����]��-2’HW��-�����Jex�”�jqu::�c�y�o�-w��}O:}���Be��,��AG|��q�� �^2�S��R��?��a�s�%��p�Z���� �VUYS���fxK0�ş$��)�=<< /URI (http://prod.resource.cch.com/resource/scion/document/default/hld0180b2f8c27d9d1000810a005056885db609?cfu=Legal&cpid=WKUS-Legal-Cheetah&uAppCtx=Cheetah) /S /URI >> endobj 12 0 obj << /Type /Annot /Subtype /Link /Rect [ 56.692 683.432 486.072 697.418 ] /C [ 0 0 0 ] /Border [ 0 0 0 ] /A 11 0 R /H /I >> endobj 13 0 obj << /Type /Annot /Subtype /Link /Rect [ 56.692 664.532 506.988 678.518 ] /C [ 0 0 0 ] /Border [ 0 0 0 ] /A 11 0 R /H /I >> endobj 14 0 obj << /Type /Annot /Subtype /Link /Rect [ 56.692 645.632 223.628 659.618 ] /C [ 0 0 0 ] /Border [ 0 0 0 ] /A 11 0 R /H /I >> endobj 15 0 obj << /URI (https://prod.resource.cch.com/resource/scion/document/default/hld0180b2f8c27d9d1000810a005056885db609?cfu=Legal&cpid=WKUS-Legal-Cheetah&uAppCtx=Cheetah) /S /URI >> endobj 16 0 obj << /Type /Annot /Subtype /Link /Rect [ 56.692 603.758 218.112 613.748 ] /C [ 0 0 0 ] /Border [ 0 0 0 ] /A 15 0 R /H /I >> endobj 17 0 obj << /URI (https://health.wolterskluwerlb.com/editors/) /S /URI >> endobj 18 0 obj << /Type /Annot /Subtype /Link /Rect [ 71.122 584.589 174.292 594.579 ] /C [ 0 0 0 ] /Border [ 0 0 0 ] /A 17 0 R /H /I >> endobj 19 0 obj << /URI (https://www.kff.org/report-section/understanding-the-intersection-of-medicaid-work-and-covid-19-issue-brief/) /S /URI >> endobj 20 0 obj << /Type /Annot /Subtype /Link /Rect [ 229.712 508.587 266.332 518.577 ] /C [ 0 0 0 ] /Border [ 0 0 0 ] /A 19 0 R /H /I >> endobj 21 0 obj << /Length 22 0 R /Filter /FlateDecode >> stream x��ˎ���W�”% ��w&HvF.��U’��&������Zs=1_�{��X�z�z��?����ߥ����_^~�13L�8�1�����R��2�fZ�0�naY�u����w�O�( v�]�S��u������7o&f>���m�cJ��i��e���D��_�_!��m�O�a�����/�I������)ld�<�6^�[ƅ����>�;��m5�<>b”O�r3�”�X��”��̥+� ��’�g^DZ�����o��Ο|�’����Z��gҋ�”m?�eL�K���F�Z~<�x����I�"07Sc�.Z(J�E�]BIJ&J�L�T�̒K��x�#ߓ��o����;_{�}Qj&Jм*�f3�%�9YT2";e�~�2�'��M��EnQYVu��M���J�c����ڃ���1�X�,��`���<[D�a��l�%� l�]����d^Ǵ�����4�����>3����8�͒&�D�]�p/�6��)뿈��%gV<�I"����dGZ|r�َ+���|�G�v�u's����(�-�F��lB��(������s��g�0�Σ rG�Ƥ��'l(��@VXY��Bt�e���̞�vP �<�P�&$�c��l�yN��d���P<����V?Na��8�ћ(�$n��q���O�3۲ʇ��H6�|6g�3҈��U*��=3{�g��=��w�L�#�D���'E/�߷p�� >(T��)������ݖ�5�h/?�@$h*,�”2a7/1d#&�4�5�bJ%�՜���e�M̨�f^o�*s�’��Ԃ���H>�J.�<����׈gJ���@��Iym���b�|��<�x��6l��y�3p�i�6�,�nz1��Ga�OE��w�8(�T��+oC�|�Y�j��2i�>66Ҕ��nH�x��2��mԼ`��JT�U*s ċ��H0��U�9�y�B1Gf1A8큏}}O��)���y�X�A�v�RL/��V�aj���Ý�(�-K�Y�����L�R�Z�xXfbkk�}�5″t;o`Ay�v�Ǿ�#S����K&���Et�r�0�8��p�`>��^�ƋI�`I�b����]r�#���ܩ6:5A��$�q˗m�.)�*�Rϼ2Kw�+e�8�Ӊ�����;�Q��l��:�.=�־�{�ex����/�F����7�}���I�Z|���-�z kX��c_�Q �c��eD�|���[]��Qk���B#��%uH�ҵ�6��T�6V��p���X%��KG#���H�RI��;j�ۖRN4<�����~XN[ݺ��$K+D�!��/��Љ��y�{���w.#�����Q���^��#��GX)O@�(�_��-9M��A�%�����*}Թ�W<�K���yo���%�p�}k<+voE�w�R�"J�&�ם��q�D̶�׶�:�"�w�|�*��f��9�V2ƺ��2�z,�L�����o�:��/��EX�L]uJZgL�̇���XSMLj]��vE�Rʳ`r�Pm��Ơլ�ԛP�Xڽ��Mҝ�ʃ-:53�v��e"o��NɝxNid*s��� (C�s��{�Nb�nm�+����ڈ�����gYYz�~�j��z�(E���b���y�I� s�Rdu��T:Wba���13��0�h��9���$��T)sɸ��,i�=/J�u]B(m���}ݨ�����|�Gi�J�uݺ���']�^mt)&�x~��o3_gR���(�>*���IE ;;,`��� �O�g���rUm���Oխc�Ȟ0������m���N@�� ���!(�X��V�Ă��c�x9�qo�@�����]��Y(H��S�{m����~1u�^�ݚV�~j�O��IJ4���A���E{�Ĭ^[Aj2�b��Kbυ,Wm�8ۉ�z�UQ��d��y�T;�F)� `���*6�7��:0�m ������̪����bS�^�OX<�E%�]^!�x"�^�񌇣"��}�H��

<�'�i�D�f�e8���v�g����!�H�:�^���|^�p�^�2��Y!V��[�]itz?��N��'z��Y*׫ن���ut����,�u�u���M(�[�f�4&��K{�mv��N���I/�B!�5ȸn]H�ߪۓk��6H -Ԉ�ē'� �6�3��Z�$� 4���lДΏ��#�5�+􎪋�U� ��֚�-��A<�!K�t㽽Vds����Y{]�&�o�x�Us��*�,ި�UW�������D[5;jc�Al���nL1H��#p��:T�W�i?�b9�}M��m����c�gݮ�̒�e.fG1����_�y�Z%���{��[�y���1bq��T ������S,�p�[�,�I�jy����Ӭ�%u�*�2�F �vǕ�<�!V�Sꔯ� �W�`Jv`K��aӵ�8���h6�4}:�G�N��W3�z2��T�.�{O�T�O�sU��R���z�q�X�n;�Qm͕֘�XQk���+��:��F��4�Md[�:�J�S�XBIT�:�jQ`rت��(�Q?N�%�'�#�I��{� ��*1Q�mճ��� �WOQzsۡ���xgɇ����YzocZJ+%�n� &*���*uP��N�R�3`�w�?HY�Z�Y���S���2K�s}�x7�����[�&�w�j�V�vm=Y��l3)��vaŵK���{xS*I�@�_H�z��GR?:�{��`"�r�@>ݳ����Xȱ�ni’��”PIW{)�J���Ŭ�ٟ=w���Wi7�q����#���0�t�ڣ��[����o�:|X: 9ujU:��خa��� yLP���b��e K/S�nn����”9�vI!�z��<��<�R���<;�>��H՘�7�<�~6O�a/�s G��w���F0P�x�G�)շ���!B�b��D�4Nzl���-���K_4�:#�>������{�酆?�|�C�[$�mv5�_”��G�1�8A�E��+�?/r�������^�(��5`�XP�)�`�}�D��Z������x*<< /Resources 25 0 R /Type /Page /MediaBox [0 0 612 792] /CropBox [0 0 612 792] /BleedBox [0 0 612 792] /TrimBox [0 0 612 792] /Parent 26 0 R /Annots 23 0 R /Contents 21 0 R >> endobj 27 0 obj << /Type /FontDescriptor /FontName /EAAAAA+ArialMTPro-Bold /FontBBox [-166 -301 1011 939] /Flags 33 /CapHeight 715 /Ascent 939 /Descent -301 /ItalicAngle 0 /StemV 0 /MissingWidth 500 /FontFile2 28 0 R /CIDSet 29 0 R >> endobj 28 0 obj << /Length1 7280 /Length 30 0 R /Filter /FlateDecode >> stream x��9 xWy���YI{���ޣ�ju�J;{H��:,ۺcI v��kiuX��ڍ�ƹ�:v��Q� )���B�����Ж�)��!|�M����8�y����N� 3~;o���_##�*C� Fǣ��#w���iV��-�-f<�>���[�������`�Y�O��� w���^=�8r���K� ���Rn:��e����r��*:��`� ��V2�ٹ/|d!K%B��j._��,r��}T���1���a����R���E�k����`�!�3�wR6��}0�0�FH��q�c��3�cx��:�?m��B�-0_�ULE-�W�5��:BZ��N�s�F0�?���?�Щ���kx)�d�y,�����~#����T���v>�k������#�p�/z.$O^��}���� ו+��_��0jE��a<�P*᷶b���"�����eTA�S �Q���uX_�^!��`�UwK_���x��U�j��v�B�j�N"�<����b,$F8!��w��`���6�;=�Ѷ;%h��H���3���Sky��P% ���FS�c�`��-���wkS6�h��hEPxI��J�Ee���BM��%ͥ��D��”&�F$r�Y�9�KO�?Mv���̜y��n�����V:���,=�|�C��:���0��W ~�`c� �”?�uB��n��;��zsB8��h�*���3�&����=�gOgw��T���tmwS�ҠV`��l�$ ���b������z�8��o�Id��+���u`�(�t���]���Vi**���諫�x����d;��H�`�I{@W�^Q)M �؞�*��0Ua�*�3�|$w��+����!���^H����9�5�Q�u�eX�N�$;_�TX��x�8��h���c�[4*LL ��;��`�7���7�d���J�!”A� R�(�-L�D��:��8�ֽ��3u[G�LO�:fS�64z�Vb�n(���3;�w��FƄ�X�k���)���� ��R1B RĪ(�qWJ��u�6��v[�<�� ��g��ZR�w8��f��y��!��Ń�쩮3� �;�����ԿR�բ�x��H���j���6���L��%ֶ)��.��aG6s�ߺy�T��s�C����c�'ꈯ,���!?/��D����]���?�=�~��/�[��$� ����~��`|�e��e�9v��GK0M��O�#�ى8�J;�`C�� ƈ����ғʼn��A�D:�����ٻ����|���ǣ���.{ n�4nP_��]ڕ4߂t1��Uy�b!��[!�%q�%� N-��u��ջ>u�� �<+�ΖKd�6Y��&V�]����Z#A��m��|��7a�PR9��^/�+�A��!�K�Q,J/�?qL���� �Q x��F-&"�b�e��K��矸�������ѻFE��m����Z]�-]M�2|�^|�mq�����L۾-5I��8�~s�ۺ���8�WFT�� �w���+�?p|R��w �z�~�Y�6e1-m�8t7����2��񏡲�"�֚# O�.�Q�1PhD�(��F�����Ê8�/x��m�tͶ|�5��6F����P��X�<ĕ9Z����ukl���FG�m���-cy������k�]�*�3d �![�����_�倝�5h�� _�r�3��fΞ=[,��S�0�09���&%�Y �pI��,��݋}=K=���<�c�u��-)lh�m��i,#���"ضx��;�'ѵz��!_��PU�*7����9�1��p�1������������0���i�~xw����>����M`���BBБk�c9ʫ�l�r�t=i��,%-���%�HY�N�Zj���z��z���A��fS�<�KٙRh�@uD�gc�C�E�������}�@�.غ'ݾ+^�9&>r�`�t�υ;F������M�����?N�f3Ɇ”J@ 1`��hzx�GQJ�5�E�T���Y剥�j���}��������4��`]��y����j�NreN�դ��V:�M��{�rK����W+yNE�4.o”�mqK5�i�3:�#o��%7�@M�j.��d)0U}��=S�޻7xkPmuzzնXu�B��@�������:<��X��X)�����_A��C� �����U���[����U���Q�'�"^?;����֯�6�n��qG=�ֿ������R��5�9McJj'����5z�|��ΦS���]w_p��MU��T�|_*���dK�7۰RU�V>���]���i?y`��Z�vq�Xe�Ė�D�X=^n��’݆ k���-���x� J!�ť�J�?�a��eC�Y��V�Y���W �u�EA��#�hg�k1IN�݉��+w%:���U��FO�]� f�Vcy

Are The New Canadian Surrogacy Rules Good Or Bad, Eh?

On June 9, 2020, Health Canada’s Reimbursement Related to Assisted Human Reproduction Regulations came into force. Canada has long banned payment to egg and sperm donors, as well as surrogates, and questions have persisted as to when a reimbursement or other exchange of money might count as a “payment” and risk criminal prosecution under Canada’s Assisted Human Reproduction Act, and when it is permissible.

I had a chance to speak to Sara Cohen, a Canadian attorney and assisted reproduction technology law expert, about the new guidance and whether it is a step forward. Her answer was nuanced. Yes, the guidance document was generally positive in clarifying certain matters, but it did not address a bigger issue — the underlying law.

Good News. Cohen was quick to praise Health Canada in its process for developing the clarifications to the law. The agency had reached out to numerous professionals in the area, including Cohen, and she believes that the guidance document reflects the government really listening to what the professionals in the trenches were saying as to how the law was, and should be, interpreted. Good work, Health Canada!

For example, the Regulations permit reimbursements for things such as expenditures for groceries and telecommunication expenses. It wasn’t entirely clear before what those expenses could include. Health Canada provided a guidance document that clarifies that the costs must be extra and related to the assisted reproduction. The guidance document describes how a pregnancy requires the consumption of an extra 350 to 450 calories a day. (As does quarantine, no?) So intended parents can cover the costs related to the extra calories but should not be covering all of the surrogate’s groceries or her family’s groceries. Similarly, intended parents can pay telecommunication costs related to the pregnancy, such as long-distance charges to speak to related professionals or the intended parents. (Apparently long-distance charges are still a thing in Canada.) “However, much like for groceries, the person who reimburses must be able to demonstrate that the amount being reimbursed is for the costs that are directly related to the surrogacy and not disguised forms of payment (e.g., paying a surrogate mother’s entire telecommunications bill, including for cable TV, high speed internet, etc.)”

Bad News. While Cohen felt Health Canada did a good job of listening to practitioners on the surrogacy front, she thought the guidance document failed to address certain concerns when it came to gamete donation. Specifically, Section 12 of the Assisted Human Reproduction Act allows for surrogates to receive reimbursement for lost wages. By contrast, Section 12 specifies that a donor cannot be reimbursed for any expenditures in the course of donation, unless specified by the regulations. It then proceeds to leave donors out of the section permitting reimbursement of lost wages.

Cohen explained that many donors necessarily have to travel for a donation, and often, as a consequence, have to miss work. Failing to specifically permit the reimbursement of lost wages places an undue burden on the donor, and, for recipients who choose to reimburse, places them in danger of being found in violation of the law. The guidance document, though, specifically states that Health Canada does not believe that reimbursing a donor for her net lost wages is in violation of the Assisted Human Reproduction Act, even though it is not listed in the Regulations.

Further, the new Regulations provide for specific documentation of all reimbursement items. Cohen thinks, with the new government-issued forms on reimbursements, this is going to lead to a whole lot more required paperwork for surrogates and donors than was previously believed to be necessary.

Worse News. Cohen notes that while the guidance document is helpful to understand and safely work within the current law, the law itself is a problem. Cohen believes that Canada has outgrown the paternalistic law preventing surrogacy compensation and that it’s time to move on to more fitting regulation for assisted reproductive technology. Specifically, Cohen believes that Canadian egg and sperm donors, as well as Canadian gestational surrogates, like their American counterparts, should not be legally prohibited from receiving compensation beyond reimbursement of expenses.

Cohen is not alone. In 2018, Member of Parliament Anthony Housefather proposed a bill to permit compensating gamete donation and surrogacy in the Great White North. Since then, Senator Lucie Moncion has taken up the banner, with proposed legislation this year to strike out the compensation prohibitions.

Moncion’s proposed revisions to the law still include safeguards around the process, such as protections that prohibit any person from inducing someone to be a donor or surrogate if they’re incapable of consenting or if there is reason to believe they are being coerced. Makes sense. That is, after all, one of the concerns — that compensation of a donor or surrogate could lead to economic coercion. But if we can find better ways to protect against coercion, and other concerns, is it so unreasonable that a surrogate or donor receives compensation for their time and effort to help someone else achieve the dream of a child? In the United States, we have clearly answered the question in the affirmative. Perhaps, Canada, our strong and free neighbors to the north, will in time agree.


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.

What Can A 90-Year-Old Lynching Case Tell Us About The Cost Of Representation?

Clarence Darrow, America’s original celebrity lawyer, came out of retirement in 1931 to take up the defense of Grace Fortescue, a racist Honolulu socialite and murderer. In this week’s episode of the Lawyer Forward podcast, Mike Whelan uses the bizarre and incredible story of the Fortescue murder trial as a launchpad to explore racism, power, and moral flexibility in lawyering. What are the implications of the “emotional labor” required of lawyers in order to advocate for clients or causes with which they disagree? How far can values be bent before they break?

Make sure you take advantage of the show’s Q&A feature. You can ask Mike questions about the latest episode and he’ll answer at the end of the next episode. Just submit your question in the form at the bottom of this post.

The Law Schools Where The Most Graduates Got State Clerkships (2019)

If you’re a law student who’s interested in a clerkship, but you’ve missed the boat on landing a coveted position with a federal judge, worry not — there are still plenty of options for you at the state level. It’s not only the strength of your application that matters for securing a state clerkship. Attending a law school with high placement rates for state and local clerkships can be very helpful too, as it reflects past graduates’ reputation with judges, and the law school’s pull within the local community. But which law schools have the greatest influence when it comes to state clerkships?

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 most valuable charts for those who are interested in staying local, the law schools that sent the highest percentage of their most recent graduating class into state clerkships.

Here are the top 10 law schools that appear on the list:

1. Seton Hall: 54.29 percent
2. Rutgers: 45.60 percent
3. Baltimore: 34.85 percent
4. Nevada: 30.58 percent
5. Maryland: 29.02 percent
6. Widener-Delaware: 27.88 percent
7. Drexel: 27.61 percent
8. Hawaii: 24.10 percent
9. Vermont: 22.88 percent
10. Penn State-Dickinson: 22.81 percent

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

Are you a recent law school graduate who landed a state 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]


Staci ZaretskyStaci 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.

Oregon Law Schools Join Push For Diploma Privilege

Now that Washington has authorized a diploma privilege admissions regime for the current class of bar applicants, it doesn’t make a lot of sense for its closest neighbor to buck the trend.

Oregon is still presently locked into a bar exam, with the Oregon Board of Board Examiners determining last month that it lacked the independent authority to nix the exam. But the Oregon Supreme Court possesses the inherent authority to regulate the profession that could be invoked to set up a diploma privilege process for admissions.

Marcilynn Burke, Brian Gallini, and Jennifer Johnson, the deans of Oregon’s three law schools, sent a letter to the Supreme Court on Monday requesting the change to allow those looking to practice in the state to move forward with their careers while freeing up more space for the eventual administration of the UBE exam for those who need portability.

The letter also takes aim at one of the least useful half-measures that states have floated to address COVID concerns:

Importantly, allowing our graduates to engage in limited supervised practice is an insufficient substitute. In addition to delaying the exam, many of our graduates will be unable to secure work until licensed. Even those who could secure work would be tasked with studying for a postponed examination while actively representing clients.

It still confuses me how supervised practice ever rose to the level of credible substitute. Graduates with employers could already perform most legal tasks under attorney supervision and attorneys without employers weren’t going to magically find them during an economic collapse. It amounts to a flimsy repacking of the status quo with a “Mission Accomplished” banner.

While the deans made their argument, a letter signed by a growing number of bar applicants outlined the real struggle of preparing for an exam amidst all of this:

At this point, applicants are nearly halfway through traditional bar prep programs and still have limited assurance that a July or alternative fall bar exam is even feasible. We have been unable to use many university facilities and resources in preparation for the bar examination; and have been continually forced to adjust working conditions to accommodate the growing changes associated with the COVID-19 pandemic, including children at home, lost financial resources, and caring for the health of ourselves and our family members. The last thing we want is to risk our lives or the health of our families in an effort to acquire admission to the livelihood we have worked so hard to attain. We should not have to choose between sitting for the bar exam or caring for our families and communities during an unprecedented public health crisis.

Either law schools are held to a high enough standard to be trusted to graduate students with subject-matter competency or they aren’t. It’s a busted model to take hundreds of thousands of dollars from students and then ask them to take another test because their degree wasn’t good enough. But even if there’s no appetite for long-term change, we should all be able to agree that this class of applicants is being asked to do the impossible to study for a test that bar examiners are finding near-impossible to administer.

Just grant the diploma privilege.


HeadshotJoe 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.

It’s Not A Prior Restraint, It’s A Contract Dispute WINK WINK

John Bolton, presumably playing Call of Duty: Modern Warfare (Photo by Kirk Irwin/Getty Images for SiriusXM)

In the nine months since he got ignominiously fired from his job as National Security Advisor, John Bolton has made a series of spectacularly bad bets.

He bet that if he forced House Democrats to sue him to testify in the impeachment hearings, he could play the reluctant witness and preserve his standing with the Republican party. Except the Democrats dropped the suit and moved on without him. Whoopsie! Bolton bet that if he agreed to testify under subpoena, Republicans would call him to give evidence in the Senate impeachment trial. Wrong again.

Then Bolton bet that he could force the Trump White House to expeditiously sign off on his 592-page tome trashing the administration; that the president and his henchmen, whom Bolton describes as guilty of “Ukraine-like transgressions … across the full range of his foreign policy,” and never doing anything “that wasn’t driven by reelection calculations” would scrupulously refrain from abusing the classification process to bury his hit piece until after November. ROFLMAO!

And now Bolton is betting that the DOJ won’t try to throw him in jail and bleed him for every penny he’s got as retribution for going to press without getting the National Security Council to vouch that his book contains no classified information. Which seems rather unwise.

If John Bolton gives you a stock tip, maybe don’t bet the mortgage money on it?

Because yesterday Bill Barr followed through on Donald Trump’s threat to unleash the hounds of justice on his former NSA. Well, sort of.

“That’s criminal liability, by the way. you’re talking about. You’re not talking about, like, he’s got to return three dollars that he made on a book,” the president ranted to the press on Tuesday. “That’s called criminal liability. That’s a big thing. You know, Hillary Clinton, she deleted 33,000 emails. And if we ever found out what those emails say, she would’ve had a liability.”

The DOJ hasn’t charged Bolton criminally, YET. But it did sue him alleging breach of contract and fiduciary duty for failure to abide by the strictures of his non-disclosure agreement and get the government to sign-off that the manuscript contains no classified material. Which is not the same as seeking an injunction against the publisher seeking to prevent publication of the book — Heaven forbid! — because this White House is deeply committed to the First Amendment and protecting free speech.

“The United States is not seeking to censor any legitimate aspect of Defendant’s manuscript;” the complaint assures us. “It merely seeks an order requiring Defendant to complete the prepublication review process and to take all steps necessary to ensure that only a manuscript that has been officially authorized through that process—and is thus free of classified information—is disseminated publicly.”

The DOJ doesn’t want the court to order Simon & Schuster to pulp the book. It wants the court to order John Bolton to order Simon & Schuster to pulp the book. And that’s completely different.

But the DOJ knows that argument is going nowhere, which is why it didn’t even bother to sue S & S other than mumbling something about the court binding “Defendant’s agents and other persons who are in active concert or participation with Defendant or his agents, if they receive actual notice of the order, including Simon & Schuster, Inc. and other such persons in the commercial distribution chain of Defendant’s book.” Unless Bill Barr has busted out an application for a TRO or preliminary injunction in the past ten minutes, Bolton has 21 days to respond to the complaint, by which time the point will be moot, since the book is due to come out on Tuesday, June 23.

The Department can barely be bothered with this nonsense, making only a halfhearted gesture toward asking the court to “Enter an Order directing Defendant to notify his publisher that he was not authorized to disclose The Room Where It Happened” and “take any and all available steps to retrieve and dispose of any copies of The Room Where it Happened that may be in the possession of any third party.”

Because this case is really about the money. The Trump administration wants to make it as expensive as possible for Bolton to go through with publication, in hopes that if they squeeze him hard enough, he’ll tap out and pull the book himself.

What they really want is for the court to “impose a constructive trust for the benefit of the United States over, and require an accounting of, all monies, gains, profits, royalties, and other advantages that Defendant and his agents, assignees, or others acting on his behalf have derived, or will derive, from the publication, sale, serialization, or republication in any form, including any movie rights or other reproduction rights, of The Room Where it Happened.” Because if Bolton has to disgorge his $2 million advance and all the royalties from this book, on top of the hundreds of thousands of dollars he’ll have to pay Chuck Cooper to litigate the case, he might just back down and let the White House sit on that book forever. Or at least until after the election.

And if the money isn’t inducement enough, there’s always the implicit threat of criminal prosecution. You know, in case Donald Trump’s threat to LOCK HIM UP wasn’t clear enough.

NSC has determined that the manuscript in its present form contains certain passages—some up to several paragraphs in length—that contain classified national security information. In fact, the NSC has determined that information in the manuscript is classified at the Confidential, Secret, and Top Secret levels. Accordingly, the publication and release of The Room Where it Happened would cause irreparable harm, because the disclosure of instances of classified information in the manuscript reasonably could be expected to cause serious damage, or exceptionally grave damage, to the national security of the United States.

Very subtle! Almost as subtle as redacting the defendant’s email but not his address, lest anyone think that the omission was unintentional.

So far, it doesn’t look like Bolton and his publisher are blinking. Cooper promises that his client “will respond in due course,” and Simon & Schuster issued a statement calling the lawsuit “nothing more than the latest in a long-running series of efforts by the administration to quash publication of a book it deems unflattering to the president.”

NatSec lawyers Mark Zaid and Brad Moss are confident that the government will get its pound of flesh.

But ACHTUNG, BREAKING this case has just been assigned to U.S. District Judge Royce Lamberth, who has been harshly critical of government overreach and has said that courts are too deferential when the government slaps a “classified” label on information to keep it out of public view. So … this will get interesting.

Get your popcorn ready, kids, this one should be good!

Complaint [U.S. v. Bolton, No. 120-CV-01581-RCL (D.D.C. June 17, 2020)]


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

When ‘Shortlisted’ Means ‘Short-Circuited’

(Photo by MANDEL NGAN/AFP/Getty Images)

How do you define “shortlisted?” One definition is “qualified for a position from a list that creates the appearance of diversity but preserves the status quo.” That’s the definition that the authors, law professors Renee Knake Jefferson and Hannah Brenner Johnson, have crafted in their book Shortlisted, Women in the Shadows of the Supreme Court. In this book, the authors highlight women who have been considered for the United States Supreme Court as far back as almost a hundred years ago but never made it to the Mount Olympus of the legal profession. It took President Ronald Reagan to nominate Arizona judge Sandra Day O’Connor to the Court in 1981, a promise that Reagan had made during the 1980 presidential election campaign to appoint a woman to the Court.

For most of the ATL readership that wasn’t even born when O’Connor was nominated, this book is a fascinating glimpse into the human and political considerations that were made in deciding whether a woman would be nominated. To no surprise, especially not to this “second wave” feminist, one who came of age in the 1970s (per Wikipedia, “second-wave feminism broadened the debate to include a wider range of issues: sexuality, family, the workplace, reproductive rights, de facto inequalities, and official legal inequalities”), the struggle to have a woman nominated was an essential part of the political “push me, pull you.”

While the overt bias against women as lawyers and as judges still exists today, it is more subtle than when several justices nixed the idea of a woman colleague, complaining that the presence of a woman colleague would disrupt the all-male collegiality of the Brethren (and if you have never read the book it’s a must. ) It wasn’t until Chief Justice Warren Burger suggested O’Connor to Reagan’s attorney general, William French Smith, that the nomination happened. Yes, the very same Chief Justice who had previously told President Richard Nixon that he would resign if a woman were nominated.

A number of very accomplished women were on the shortlist during various presidential administrations before Reagan. At least five were from California: 9th Circuit judges the late Cynthia Holcomb Hall and the late Pamela Rymer, two from the state appellate court: Joan Dempsey Klein and Mildred Lillie, and HUD Secretary Carla Hills. Others included Florence Allen of the 6th Circuit; Susie Sharp, the Chief Justice of the North Carolina Supreme Court; Amalya Kearse, a federal appellate judge on the Sixth Circuit, who was the black female seen as a potential Supreme Court nominee; Judge Edith Jones, appointed by Reagan to the Fifth Circuit; and Cornelia Kennedy, nominated by President Jimmy Carter in 1979 to the 6th Circuit, where she remained until her death in 2014. There were others as well.

The authors tell the backstories of each of these amazingly accomplished women, even if they didn’t make it on to the nation’s highest court. and yes, sexism (no surprise there) is a large part of their stories and how they fought to overcome the female stereotypes that existed then and still today.

A few examples, and they would be almost laughable, but not quite: no articles about men shortlisted for the Court described their physical attributes. A New York Times article in 1971, when Lillie was considered as a potential Supreme Court nominee, reported that “fortunately” she had no children and that she had maintained her “bathing beauty figure” into her 50s. Do tell.

What men considered for a seat have been described by their physical appearances? None. Recent appointees Sonia Sotomayor and Elena Kagan, both childless and unmarried, were criticized for their weight, as if that had anything to do with the jobs at hand. Antonin Scalia was not exactly svelte, but it was never an issue the media discussed. Was there any criticism of David Souter’s singlehood? Double standard anyone? In the 40-year period that the authors analyzed from 1970 to 2010, not one male nominee’s domestic skills, such as cooking, was the subject of any attention, but the fact that Ruth Bader Ginsburg, a self-admitted lousy cook, left cooking to her husband merited attention.

Florence Allen, the first woman shortlisted for a seat on the Court, was considered by several presidents. including Herbert Hoover, FDR, and Harry Truman. However, her sex did not keep her from being nominated to the 6th Circuit by FDR in the mid-1930s, where she served on that bench for years. Similarly, other women made it to the federal appellate courts, but no higher.

Disqualifications for various women on the shortlist in the 20th century included personal and professional relationships, views on feminism and racism, motherhood, and age. However, age never seemed to be a disqualifying factor for men. Men mature, while women become invisible after a certain age, and the irony is that it’s exactly when women come into their full power and influence that society thinks they’re done. Don’t get me started.)

Not all the Shortlisted women held views that were consistent with women’s rights, even human rights. Several of them held openly racist views; others felt that passage of the Equal Rights Amendment would be harmful to gains women had already made.

I was not familiar with the term “self-shortlisting” until I read this book. What is it? It’s declining a leadership role even if offered. There can be very good reasons for self-shortlisting, including concern about the “glass cliff,” that is, accepting a leadership position that is risky and where failure is foreseeable and even inevitable. Self-shortlisting is not necessarily shortsighted; it’s a careful evaluation of risk, and oftentimes women who take that risk go down with the ship.

The authors’ mission, at least partially, in writing the book is to have more women go from shortlisted to selected, and they offer a number of suggestions for overcoming the shortlist — collaboration, availability of early child care, and creating meaningful opportunities, just to name a few. While they are useful to law students and those just starting out, those of us who have been around for a while have heard them all before.

The most interesting parts of the books were the “herstories,” how these various women lawyers and judges survived and thrived (even if not nominated to the Supreme Court), withstanding the various slings and arrows, insults, and exclusions in what was then and still is a male-dominated profession.


Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.

The Cutthroat Nature Of Law School Means Pass/Fail Grades Aren’t Likely To Last Past The Pandemic

The COVID-19 pandemic brought a ton of changes to legal academia. One of the most notable has been the widespread adoption of pass/fail grading. And it makes a ton of sense; moving the spring 2020 semester online was hastily done — amid a pandemic, no less — and reducing the stress of grades made a lot of sense even as those decisions were often surrounded in controversy.

Now Kaplan Test Prep has released the results of a survey of nearly 200 recent law school graduates — the Class of 2020 — to see what those directly impacted by the grading changes think about it. The survey reveals decidedly split opinions: 48 percent say they support the change, while 41 percent say they oppose it, with the balance unsure.

As Tammi Rice, vice president of Kaplan’s bar prep programs, noted, given the emerging health crisis, the change in grading policies made sense:

“These are unparalleled times for everyone and legal education certainly isn’t immune from changes that were once unthinkable just six months ago. It’s quite understandable that law schools have moved to pass/fail grading on a temporary basis since students are already stressed out enough thinking about how to stay healthy, securing a job, and prepare for the bar exam. Combining that with the naturally hyper competitive nature of law school could add to that stress, adversely affecting students’ mental health. Students’ physical and emotional well-being must always take priority, perhaps now more than ever.”

But that doesn’t mean future law students should expect pass/fail to be the new normal in law school. The survey also found clear disapproval for pass/fail as a permanent measure. A mere 25 percent support pass/fail grading at law schools to be permanent, and 63 percent are firmly against it.

And Rice says it’s law students’ inherently competitive nature that makes them hesitant to go all in on pass/fail:

“It’s highly unlikely pass/fail grading will be maintained once the pandemic subsides. Students who are looking to work for top law firms or secure prestigious internships know that high grades help differentiate them from others vying for those same positions and most are loath to give that up. It’s important to note that the pandemic is still a long way from being over and more significant changes to legal education, which already includes online learning, are likely on the way. Students should continue to make their voices heard and also adapt.”

So once this pandemic ends, expect law school grading to go back to normal.


headshotKathryn 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).