Category: News Feeds

Justin Reed Walker is a Donald Trump judicial nominee to fill a seat in the Western District of Kentucky, Mitch McConnell’s home state. His confirmation hearing is scheduled for tomorrow. As I can tell, the man’s only qualification for being a federal judge is that he defended Brett Kavanaugh in the media, a lot.

Walker graduated from Harvard Law School in 2009. After that he clerked for (wait for it) Brett Kavanaugh on the D.C. Circuit Court of Appeals. After that, he clerked for Anthony Kennedy on the U.S. Supreme Court. After that… well there hasn’t really BEEN much after that because Trump and McConnell are nominating a judge who is a mere ten years out of law school.

Does he have a record of judicial opinions? No, he’s never been a judge.

Does he have significant legal scholarship to speak of? No, he’s only been a professor at the University of Louisville for four years.

Does he have significant litigation or practitioner experience? No, but he did summer at Gibson Dunn and went back there for a year after his SCOTUS clerkship, probably just to get his clerkship bonus before he bounced.

What makes this 39-year-old white man deserving a job from which he can never be fired? Well, according to his judicial questionnaire, homeboy was all over the Kavanaugh hearings. He wrote articles, did radio hits, and got on the T.V. to talk about how great of a guy Brett Kavanaugh is and how unfair people were being to the man accused of attempted rape and perjury. Here’s just a glimpse of his Kavanaugh fawning:

Judge Brett Kavanaugh should be the next Supreme Court justice. He has by far the strongest, most consistent, most fearless record of constitutional conservatism of any federal court of appeals judge in the country.

Over 12 years and 300 opinions, he has repeatedly fought for principles of textualism and originalism, reined in regulatory overreach, and ensured that administrative bureaucrats are accountable to the elected president. Nominating Kavanaugh would continue President Trump’s exemplary record of selecting the best-qualified person for the Supreme Court, as he did with his brilliant choice of Justice Neil Gorsuch.

I wouldn’t write such saccharine tripe about my wife, and if I did she’d lose respect for me.

In any event, we know how the Republican game works: defend Brett Kavanaugh, get a law job, for you or your family member. I swear to God, if F.B.I. director Christopher Wray ever retires, they’re going to give the job to Ed Whelan.

But there’s another trend going on here, and that is the Trump/McConnell insistence that new federal judges be as young as possible, so that they may promote the Republican agenda long into a future that will be politically run by Millennials. We saw this with Allison Jones Rushing, who was placed on the Fourth Circuit despite having only seven years of actual legal practice under her belt. And we’re seeing it here with Walker who is only 39 and has done nothing of professional note.

Prince William, Duke of Cambridge is also 39 years old. Even he will have to wait longer than Justin Walker before being allowed to wield unaccountable power for the rest of his natural life.

Undoing what Trump and McConnell have done to the courts will take a generation of work.

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.

Joe and Elie watched some of these hearings everyone’s talking about and break down some of the key legal issues that got lost in the spectacle. This is just what happens when a careful, conscientious attorney tries to talk to a bunch of local dry cleaner magnates who’ve managed to fall backward into Congress and then it all gets ciphered by talking heads churning a 24-hour news cycle.

According to data collected by the Internet Legal Research Group, which law school has the lowest bar passage rate (the data was collected collected for the Class of 2017 and the passage rate reflects first-time test takers for the summer 2017 and winter 2018 administrations of the bar examinations)?

Hint: This law school’s bar passage rate didn’t even crack 30 percent, it was a measly 29.2 percent.

See the answer on the next page.

Today is the first day of the July 2019 administration of the bar exam. Around the country, wannabe lawyers are sitting for what is likely the most important (and hopefully last) test of their professional lives. No pressure…

Passing the bar exam takes a lot of hard work, and a pinch of good luck — like the State Bar sharing the subject areas to be tested on the essay portion of the exam just days before the test — all coming together to get you into the legal profession. Don’t think it takes a little bit of luck to pass? Imagine if you weren’t fortunate enough to miss the biggest bar exam mishap ever (courtesy of ExamSoft), or you didn’t go into labor mid-exam even though you were heavily pregnant, or you avoided such extreme intestinal distress that proctors put your desk in the bathroom.

Before the exam even got underway, there was social media buzz about the latest bar exam screw-up that inspired some to… withdraw from taking the test at all:

Some who had bad luck on the bar exam in the past issued warnings for those about to enter the dungeon of the damned:

And even those who managed to pass the exam are still haunted by it:

But here’s the important question: What was the craziest thing that happened during the July 2019 bar exam? If you survived or witnessed some horror story in action, let us know. You can email it to us (subject line: “Bar Exam Horror Story”) or text us (646-820-8477). Maybe your story will inspire others to persevere.

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.

With warm summer days comes AALL’s Annual Meeting and Conference and a guarantee that the conference takes place somewhere with sweltering heat. This year’s conference, held in the nation’s capital, did not disappoint, both in terms of temperature and in terrific and timely topics. The event remains a must-attend occasion to catch up with colleagues and customers and learn the latest in the industry. While a slew of new analytics products dominated the conference conversation this year, the continued need to drive innovation (and by extension, incorporate new tools leveraging analytics, amongst other tools) remains a challenge for many in the industry.

Data continues to accumulate on the impact of innovation efforts. Wolters Kluwer’s Future Ready Lawyer survey found that — on average — Technology-Leading organizations (those currently leveraging technology effectively) reported greater increased profitability from 2017 to 2018 than their peers. The survey also found that these organizations plan to increase their investment in new technologies over the next three years, which may lead to significant performance gaps between Technology-Leading organizations and their peers that are trailing in technology adoption.

So how does one create the business case to invest in technology and innovation? At this year’s conference, I had the privilege of moderating a panel on that very topic: building the case for investment by focusing on best practices that successfully communicate the value of legal innovation to organization stakeholders and spearheading efforts to adopt innovation. To get more insight into the subject, I sat down after the conference with one of the panelists from my session, Catherine Monte, who serves as Chief Knowledge & Innovation Officer at Fox Rothschild LLP.  She offered some interesting insights on how her firm approached innovation.

Prior to her time at Fox Rothschild, Catherine gained extensive experience in Knowledge Management at Clifford Chance’s New York City office. The knowledge she gained from working in a global law firm carried over in a unique way to her role at Fox, a growing national firm that had expanded rapidly via numerous mergers and offered a wide span of practice areas. “When I started, the managing partner at the time believed it was critical to share knowledge across the entire firm — so my job was to get in front of as many different practice groups as possible, learn about their business needs, and ensure they had access to the right resources,” she said.

Building relationships across the firm helped Catherine lay the foundation for what would become the firm’s innovation hub. “Over time, information sharing over intranets evolved into configuring simple but effective collaborative platforms, and from there, we created customized sites for key customers that made information easily searchable and, in some systems, incorporated workflow. That process helped us conceptualize innovation in our firm and how we could deploy it for the benefit of our clients.” Catherine and her colleagues realized successes with these systems, and clients expressed satisfaction with systems that created efficiencies in their day-to-day work.

At the same time, Fox Rothschild was building up its competitive business research team, one of the team’s three distinct research teams at the firm. “This team provided significant context to Fox’s Knowledge Management initiatives,” Catherine commented. “With more competitive intelligence, we were able to look at our data differently. I realized we were approaching many projects in an ad hoc, reactionary way, and we needed to pivot to be proactive in our approach, both for our clients as well as internally for our own business development needs.”

“For example, we received a request from a partner with a specific IP need for their client’s product portfolio, and that led to us creating a customized site for that attorney. Once that site was successfully completed, we then worked with the IP team, showed them what we developed, and let them know that we had the capacity to create something similar for clients in that space.”

As the firm’s practice groups continued to expand, Catherine sought to identify and fulfill more administrative needs for the firm’s clients. “Increasingly, as corporate counsel are pressured to deliver value for a competitive cost, there are more opportunities for law firms to offer additional support and services that make the client’s work more efficient,” she said.

Upon identifying these opportunities, Catherine crafted a plan to make Fox Rothschild’s innovation efforts increasingly proactive. “I approached members of my executive team and gathered their feedback,” she said. “It took time for me to properly articulate what I envisioned, but after several iterations, a formal proposal was ready to present to the executive committee.”

The result was the creation of a dedicated committee focused on client needs and practice areas within the firm to drive innovative efforts. Committee members regularly attend practice group meetings to discuss innovation and gather information and feedback for new initiatives. “Currently, we’re focusing on efficiencies around document and contract automation. Our outreach has revealed a significant need for that for our clients right now,” Catherine said.

For intrepid would-be innovators in other organizations, Catherine offers the following advice:

• Know your audience: “Understanding the culture of your firm — and in particular, your leadership team — is key to bringing more technology into the firm’s practices,” Catherine said. “My managing partner recommended I find data that would resonate with our executive committee. I did, and ultimately, we presented a very compelling case to them.”
• Create a process: Once they had official buy-in, Catherine’s team established a formal process around innovation for firm stakeholders. “I knew we would need more structure, more formality, and specific attorney participation for this to be successful. While we were technically already driving innovative efforts, wrapping those efforts in a process made it easier for us to proactively identify more practice groups whose clients could use new tools and solutions.”
• Communicate results: “The fastest way to spark an attorney’s interest is to demonstrate value for a client in a meaningful way,” Catherine said. “Starting with one specific project, communicating how well it’s working, and demonstrating the value-add helps generate interest from others within your organization who may have similar needs.”

“We’re a few months into our process now, and we should have more to report on our progress soon,” Catherine said. “The big push for us is getting a deeper understanding of the client base we have as we continue to grow.”

At a time when the legal profession is undergoing a significant global transformation, all lawyers can benefit from examining how their organizations are investing in and maximizing technology. Catherine’s experience exemplifies that tech adoption does not happen overnight. Having a number of specific, successful use cases can be the key to building the business case for innovation, by proving to your stakeholders the impact that innovation can have. Driving innovation can take many forms — but understanding your organization’s business priorities, culture, and stakeholders is paramount to establishing a system that will not only have impact today, but will also help your business to thrive well into the future.

Dean E. Sonderegger is Senior Vice President and General Manager of Wolters Kluwer Legal & Regulatory U.S., a leading provider of information, business intelligence, regulatory and legal workflow solutions. Dean has more than two decades of experience at the cutting edge of technology across industries. He can be reached at Dean.Sonderegger@wolterskluwer.com.

Next year marks the centennial of women’s suffrage in the United States. In 1920, the Nineteenth Amendment to the Constitution was ratified, providing that “[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.”

Perhaps surprisingly to some, women were able to practice law in the United States before they were able to vote. Indeed, at the time of the passage of the Nineteenth Amendment, the National Association of Women Lawyers (NAWL) had some 170 members in 25 states — and many of NAWL’s members played leading roles in the movement for women’s suffrage.

I learned this and many other interesting historical facts about women lawyers in the United States when I had the pleasure of attending NAWL’s 2019 Annual Meeting and Awards Luncheon, which took place here in New York earlier this month. (Cadence Counsel — the in-house division of Lateral Link, where I now work — was a proud sponsor of the event, so we had a table.)

In her opening remarks, Kristin Sostowski, a partner at Gibbons and the 2019-2020 president of NAWL, discussed the role of the organization and its members in promoting women’s suffrage. In particular, she highlighted the work of Inez Milholland, a lawyer and activist who became famous for her advocacy of women’s rights.

After graduating from Vassar College in 1909, Milholland applied to the law schools of Harvard, Yale, and Columbia, but was rejected on the basis of her sex. After graduating from NYU Law in 1912, she devoted her legal career to advancing equality for women, workers, and people of color (she was a member of the NAACP as well as NAWL). She was especially known for her work on women’s suffrage, leading the giant 1913 suffrage parade in Washington — on horseback, no less — and going on a national speaking tour for the cause.

Sadly, Inez Milholland did not live to see women’s suffrage become a nationwide reality. She died in 1916, three years before ratification of the Nineteenth Amendment, collapsing onstage at a suffrage event in Los Angeles. She was hospitalized for what turned out to be an untreated infection of her tonsils, passing away 10 weeks later. She was just 30 years old at the time of her death — and her martyrdom helped advance the cause of women’s suffrage, which became the law in her home state of New York the following year.

Milholland continues to inspire advocates for women’s equality, in both society at large and in the legal profession specifically. NAWL president Kristin Sostowski said that she often asks herself, “What would Inez do?” But as Sostowski reminded the NAWL luncheon attendees, even though Milholland accomplished so much in her all-too-short life, so much work remains to be done.

The board of the National Association of Women Lawyers (NAWL), 2019-2020. (Courtesy of NAWL – photo by Pablo Corradi.)

And NAWL and its members are doing that work. At the lunch, the organization presented the Virginia S. Mueller Award to four of the group’s most outstanding members: Susan Alker, COO and general counsel of Crescent Cove Advisors LLC; Elizabeth Banzhoff, counsel at Perkins Coie; Tamela Merriweather, senior vice president and assistant general counsel at Northern Trust Corporation; and Heather Stenmark, counsel at Allstate Insurance Company.

Of course, the fight for women’s equality in the legal profession is not just a fight waged by women. NAWL bestowed the Lead By Example Award to James Chosy, executive vice president and general counsel at U.S. Bancorp, for being a leading male attorney who supports the advancement of women within his organization. At U.S. Bancorp, the fifth-largest bank in the country, Chosy has achieved the impressive feat of building a legal department that is more than two-thirds women — and where women make up a whopping 78 percent of lawyers in senior leadership.

Inequality comes in many forms, and some have to overcome multiple forms of disadvantage in order to advance in the legal profession. Consider the story of Grace Speights, recipient of NAWL’s M. Ashley Dickerson Award, which recognizes lawyers who promote diversity.

Speights, an African-American woman, grew up in Philadelphia below the poverty line, raised by a single mother who worked in a drapery factory. Despite these challenging circumstances, Speights graduated from the University of Pennsylvania and the George Washington University Law School (Order of the Coif), clerked for a federal judge, and went on to become one of the nation’s leading employment lawyers. Today she leads the labor and employment practice of Morgan Lewis & Bockius — and does all she can, both as a lawyer with her clients and in her work outside the firm, to ensure inclusive and respectful workplaces and to advance diversity in the law.

The last two awards both went to organizations — fittingly enough, because combating inequality requires coordinated and collective action. The NAWL President’s Award, given for championing policies and programs to retain and promote women attorneys, went to USAA, the Fortune 500 company that offers diversified financial services to people and families who serve or served in the U.S. military. The Arabella Babb Mansfield Award, given for professional achievement, positive influence, and valuable contribution to women in the law and in society, went to the ACLU Women’s Rights Project, for its many decades of dedication to advancing the equality of women under the law.

All in all, NAWL’s 2019 Annual Meeting and Awards Luncheon was both educational and inspiring, a wonderful opportunity to honor leading advocates for women’s equality in the legal profession. I look forward to attending this event in the future — and to celebrating future leaders in the movement for gender equity in the law.

David Lat, the founding editor of Above the Law, is a writer, speaker, and legal recruiter at Lateral Link, where he is a managing director in the New York office. David’s book, Supreme Ambitions: A Novel (2014), was described by the New York Times as “the most buzzed-about novel of the year” among legal elites. David previously worked as a federal prosecutor, a litigation associate at Wachtell Lipton, and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@laterallink.com.

Evangelical Christians continue to represent a sizeable percentage of the current president’s base support. To those who have watched evangelicals spend “the last 40 years telling everyone how to live, who to love,” and “what to think about morality,” the continued alliance with this president makes evangelicals the “biggest phonies” in all of politics. Indeed, the behind-the-scenes details of how a “thrice-married, insult-hurling” president obtained the endorsement of the evangelical hierarchy are as lewd and hypocritical as one might expect.

As much as the hypocrisy of evangelicalism can be mocked and exposed however, there exists a kernel of truth lurking behind the claim that evangelicals are supporting this president out of fear. It is simply impossible to deny that institutionalized persecution of religious ideas by public universities has occurred. Thankfully, this persecution has been continuously challenged and overturned in the courts.

The fact that persecution of religious ideas can and has occurred in our society however, does not even remotely suggest that intolerance is a uniquely “secularist” problem. In fact, intolerance of dissent and censorship of opposing views has been a general feature in religious institutions for thousands of years. Moreover, the same intolerance and censorship evangelicals claim they hate so much when it occurs in “secular” institutions is expressly embraced at the largest Christian colleges in the United States today, such as Liberty University. Does this past and current existence of intolerance in religious institutions mean that religion is inherently intolerant? No, because human bias exists generally in all human institutions, a fact the framers of the Constitution knew all too well and the exact reason why they chose to embrace secularism.

Of course, if you were to ask an evangelical about how the Founders established religious freedom, you would likely get the (wrong) answer that separation of church and state was never originally intended. One of the most ridiculous claims made by evangelicals that the Constitution does not provide for the separation of church and state is that the phrase “separation of church and state” is not itself in the Constitution. As author Ronald Lindsay has explained:

What these persons fail to understand is that it would have been redundant to include such a phrase in the Constitution. The document as a whole embodies the view that government is not to meddle in religious matters. The federal government is given very specific, limited powers only over various secular matters. It has no powers relating to religion. The government is secular both in its origin (the consent of the governed) and its function. The government and religious institutions are completely separate and have nothing to do with each other. To insist that the Constitution doesn’t mandate separation of church and state because it doesn’t contain that phrase is more preposterous than a person who is not named as a beneficiary in a will insisting he has a claim on the estate because the will does not specifically exclude him by name.

The origins of our religious liberty come from pre-Constitution Virginia, in the year 1785 in fact, where James Madison would engage in a political fight to establish what would become the fundamental American precepts of religious separation in the Constitution. What prompted Madison’s engagement was a state bill that proposed enacting tax assessments for churches, but afforded citizens complete individual autonomy in selecting which church could receive the funds. The bill also included specific exemptions for Quakers and Mennonites who belonged to churches without clergy. Along with these specific exemptions, the bill directed all undesignated funds to the state general fund for developing “seminaries of learning” that were not required by the text of the bill to be religious in nature in order to receive the funds.

In the view of those who supported the assessment bill, the absence of continued public funding of religion at the state level was “fatal to the Strength and Stability of civil government.” However, because the proposed bill gave control to the individual, not the government, and not to any “Sect or Denomination of Christians,” its proponents were arguing they were offering “a General and equal contribution of the whole state upon the most equitable footing that is possible to place it.” To James Madison however, this non-preferential, neutrally applied, and individual choice religious assessment framework remained impermissibly coercive to freedom of conscience. As I have tried to explain the way in which Madison reached this conclusion contradicts virtually all modern evangelical claims about American secularism and the separation of church and state:

According to Madison, using civil support mechanisms to support religion always violated the free conscience of citizens, even if no taxpayer objected. To allow civil support was for Madison a contradiction to religion itself “for every page of it disavows a dependence on the powers of this world.” Civil support for religion also presented “a contradiction in terms” to Madison because it weakened “those who profess this Religion a pious confidence in its innate excellence and the patronage of its Author.”  In other words, Madison felt religion stood in no need of civil assistance, and to provide aid, even neutrally applied as it was in the assessment bill he was opposing (and how funding is justified today), ultimately undermines religion’s authority.

Although Madison was successful in defeating the bill in Virginia and establishing his brand of separation of church and state, not every state adopted Madison’s view. Indeed, many early states maintained established churches well into the 19^th century. Madison was able to convince Congress however, to adopt his principled version of religious liberty in the First Amendment (see Justice Souter’s concurring opinion in Lee v. Weisman). That early states maintained established churches while the federal government prohibited such arrangements did not present any constitutional concerns at first. It was not until the 14^th Amendment’s Due Process Clause incorporated Bill of Rights protections to the states, including the First Amendment’s Establishment Clause, that those early forms of state establishment became unlawful.

What is clear from this history is that Madison was not trying to establish a secular country that separated the domains of religion and government because he hated religion or wanted to discriminate against believers. Rather, Madison sought to establish a secular country to protect religious belief, protection that will only become more necessary the more religion declines. Today, however, secularism has become the ultimate scare word for evangelicals. For example, David French, who I would argue is a moderate evangelical, has argued recently that we should be wary of European immigration because those countries have a “secular-bias” that will “alter American culture in appreciable ways.” In answering this nonsense from French, it is important to acknowledge that such a statement amounts to nothing less than vile bigotry.

To illustrate, imagine for one second how French would react if a liberal pundit on MSNBC  said we should avoid immigrants from Christian-majority countries because America is steadily becoming more secular. Is there any doubt French would find such a statement to be a reflection of bigotry against Christians based on ridiculous notions that they are somehow incapable of assimilating into American culture? Yet he felt no issue disparaging and demeaning immigration from a whole continent based entirely on whether they held certain religious beliefs or not. Why? Because for all too many evangelicals, non-belief is simply not viewed with the same respect as religious belief, despite the fact that our Constitutional free conscience liberty makes no distinction. Put simply, it is nothing less than disgraceful the level of bigotry that evangelicals impose on the none-religious. Until and unless the religious stop lying about the nature of secularism, falsely depicting it as the ultimate evil, I fear such bigotry will continue to increase.

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.