Category: News Feeds

I have come to believe that nothing engages fragile masculinity quite like veggie burgers. There’s something about performative maleness that requires the public perception of a willingness to eat flesh. Men must be “hunters,” not “gatherers” like the women-folk. If you can’t provide for your family by putting a dead animal on the table (then buggering off while a woman plucks it, skins it, cleans it, guts it, prepares it, and serves it to your fat ass after you wake up from your nap), then what kind of a “man” are you? Certainly not the kind who could attract a mate (50,000 years ago). Nothing says “I’m manly enough to die of scurvy” than scoffing at a veggie dog and demanding to be shown the “real meat.”

I used to be one of these men. I used to think that the entire tofu industry was trying to trick me out of my God-given right to eat what I killed (or, you know, Seamless-ed). But at some point, I found myself enjoy turkey kielbasa in the privacy of my own home and realized that my public insistence on “real” beef was just dumb. It was just me trying to seem unevolved, as if my knuckles scraping on the ground made me more of a man.

So when I say that this law passed in Arkansas outlawing the use of the meat-sounding words on labels if they are modified by plant-sounding words is the most pathetically snowflake excuse for manliness I’ve heard of outside of Donald Trump’s Twitter account, know that I’ve thought about this for a while. The ACLU, which is suing, explains:

The state of Arkansas thinks you’re confused about whether a veggie burger comes from a cow. In fact, it thinks you’re so confused that it passed a law making it illegal for companies to use words like “meat,” “roast,” and “sausage” to describe products that are not made from animals. Under the law, it doesn’t matter if those words are modified by “vegan,” “veggie,” or “plant-based.”

Rather than focusing on genuine consumer concerns — such as rising healthcare and education costs — Arkansas politicians have decided to take on an imaginary crisis: confusing a veggie burger for a hamburger, or almond milk for cow’s milk.

Laws like this are popping up all over the country, and even around the world. The EU has apparently proposed a law that would require the makers of veggie burgers to label them as “veggie discs.” Usually, labeling restrictions require the addition of adjectives. You know, like: “This product contains EVIL-ENHANCED nicotine.” Here, they’re trying to change the noun. You can jam all the GMO, steroid-enhanced future tech you can into a “burger,” but as long as there are a few cells that once had a mother, you can call it a “burger.”

This seems like a good time to point out that “hamburgers” have no “ham” in them, for those “real” Americans who aren’t good at classifying mammals.

Fragile masculinity alone cannot explain such stupidity. Here, we’re also witnessing old-school protectionism. Makers of “real” meat, to say nothing of “real” milk and “real” rice — Arkansas is the largest producer of rice in the country and they’re getting increased competition from “cauliflower rice” producers — are getting their lunch eaten by these alternative products. They’re hoping that by forcing producers to call their meatless products something different entirely, they can retain market share from their traditional consumers. Like I said personally, turkey kielbasa is something I was willing to try. Would I have bought “turkey bark-enhanced intestinal casing”? Probably not.

Despite the bald protectionism of such laws, I’d be inclined to let them stand if protectionism were the only problem. The link above about the EU proposal comes from Reason.com, and — pro tip — any time you find yourself agreeing with a legal argument on Reason it is wise to think more deeply and imagine how the argument can be used to by a giant corporation to repurpose their mercury waste as silver dollar pancake mix.

But the Arkansas statute is so poorly written and, again, extremely dumb, that it should easily fail on First Amendment grounds. From the ACLU complaint:

There is no likelihood of consumer confusion about what a veggie burger is. There is, I suppose, likelihood of confusion if your host prepares veggie burgers, and doesn’t tell you. That’s less a legal problem and more of a Pepsi Challenge problem.

Labeling requirements are not bad. When the label conveys important information, like how quickly the product will kill you, that is appropriate. But here… I mean, if you are really worried about getting a tricked into eating a veggie burger, maybe you should just go out and hunt your own roadkill like your ancestors did before God created Fresh Direct.

Arkansas Wants to Make Sure You Know ‘Almonds Don’t Lactate’ [ACLU]

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.

Somewhere along the line, the people who vape decided that we were all supposed to give their oral fixation a pass and let them turn the whole world into their private opium den. It’s certainly better than giving everyone a massive dose of second-hand smoke, but now that they’ve flavored all their vape juice to smell just like Marlboro Reds, the only remaining difference between smoking and vaping is that the vapeheads have deluded themselves into thinking it’s socially acceptable.

Someone sucking on their high-tech binkie in a bar (or while you’re trying to record your award-winning podcast) is one thing, but a judge doing it during trial is a whole other level. But that’s apparently what’s been happening in Cuyahoga County:

Administrative Judge John J. Russo said Thursday that he approached Judge Joseph D. Russo and asked him to stop vaping on the bench earlier this year after a juror complained.

John Russo said that his colleague stopped vaping after their conversation. He also said that he asked the court’s human resources department to add language to its policy manual to specifically bar the use of vaping devices and e-cigarettes in the courtroom.

This presents the most high-stakes contest of competing theories of statutory interpretation to rock the Cuyahoga County courthouse in ages. Look at those crazy judicial activists get away with telling Judge Russo he can’t vape just because the rules clearly and obviously assume judges shouldn’t be blowing smoke in people’s facing regardless of the technology involved? Don’t tread on me, man!

Amazingly, this wasn’t Judge Russo’s first brush with the rules:

Joe Russo’s vaping was also called out in a January motion for a new trial filed by a man convicted of rape. Jaustin Browning wrote in the motion he filed himself that the judge was “constantly slurping and sucking on a battery powered smokeless watervapor cigar or cigarette (vape)” during his July 2018 bench trial.

Browning wrote that vapor was billowing out of Joe Russo’s mouth on the bench and that the device resembled “a teether or rattle which was a constant distraction.” The vape altered the judge’s brain chemistry so he could not give full-bridled attention and render a fair verdict.

The motion was denied, but all credit to the convicted rapist who thought “the judge was vaping” would make for a new trial. In the world of jailhouse lawyering, this guy may be the new Darrow.

Cuyahoga County Common Pleas Court judge had to be told to stop vaping on the bench [Cleveland.com]

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Imagine being someplace for years where you have little contact with the real world. You don’t have to cook. You don’t have to earn a living.  Everything is taken care of for you. The only catch is, your every move is watched, and you can’t leave.

Welcome to prison. It’s no vacation. You can only see your friends and family sporadically and so you miss all the major landmarks in their lives — birthdays, weddings, births of children, deaths.  The food is so bad, you save your less-than-dollar hourly wage to buy whatever’s in the vending machines to heat in the communal microwave.

Your cell is outfitted with three things, all cemented to the wall or floor.  A metal cot, metal toilet, and metal sink.  Even outside the cell, there’s not much choice.  There’s a schedule of time when you can go to the cell outfitted with some workout apparatus.  Or you might spend some time in the yard, fenced in by barbed wire. Then there’s the common room.  But careful, if you’re not looking over your shoulder, another inmate could sneak up on you and cut your face with a shiv.

The look and feel of the entire place is institutional grey, punctuated by a photo of the reigning warden or a warning of the consequences of attacking a prison guard. Boredom permeates every waking moment.

Maybe you went in when you were a kid, say 18.  Now, you’re 40 and slated to be released.  You’ve never held a steady job, struggled with drug abuse, and didn’t go to college.  Maybe your parents are dead and your siblings can’t house you.  You’ve worked on your physique — one of the few things you were able to do in jail — but you’ve got no skills to make a living wage.  And you’ve got a felony record, which automatically eliminates your ability to be hired at most workplaces.

Thanks to the “First Step Act” (FSA), a few years have been cut from your sentence time. That’s because the federal government realized that housing people for long terms on non-violent drug offenses is both a financial strain and not fair.  The effort to equalize the sentencing disparity between powder and crack cocaine shortens your sentence, but you’re being released into a new world.  Smartphones, computer tablets, Netflix, Venmo, iTunes — stuff that never existed when you went in.

You’re a different person than the one sentenced all that time ago.  You’re older and a little wiser. Maybe you found god or Allah, but you’re also finding out that it’s not easy going home, thinking for yourself, having free will.

So, what’s your first step? Where do you go? How do you handle a world without the regimentation you lived for the past 20 years of your life?

Last week, the federal government released from jail some 3,000 federal prisoners serving sentences for drug crimes as part of the FSA — a bipartisan effort to put more “justice” back in the criminal justice system.  The first step was to identify offenders who qualified for sentence reductions and release them.

But the next step is going to be far more challenging, both for the former inmates, now labelled as felons, and whatever system is implemented to help smooth their transition back to the real world.

Without proper planning, follow through, and training, the First Step Act is doomed to fail as inmates recidivate and naysayers shake their heads with I-told-you-so glee: “See, those people can’t do any better. They should all be put back in prison.”

The government is great at coming up with acronyms to describe “tools” they’ll use to determine which of the newly released inmates are most at risk of reoffending.  For “First Step,” they developed PATTERN: Prisoner Assessment Tool Targeting Estimated Risk and Needs.

According to the Department of Justice press release:  

PATTERN is designed to predict the likelihood of general and violent recidivism for all BOP inmates. As required by the FSA, PATTERN contains static risk factors (e.g. age and crime of conviction) as well as dynamic items (i.e. participation or lack of participation in programs like education or drug treatment) that are associated with either an increase or a reduction in risk of recidivism. The PATTERN assessment tool provides predictive models, or scales, developed and validated for males and females separately.

It’s useful to have predictors, but even better is to have funds for staff to help former prisoners find housing, get employment, and connect with social services like health insurance, food stamps, and drug and mental health counseling.

Simply moving to another city to change your job requires an adjustment. Imagine the adjustment it takes in leaving jail and going home.  The mere restraint of liberty and arbitrariness of rules and punishment is traumatic, in and of itself, even if one is not subjected to solitary confinement or attack from either other inmates or guards (as many are).

Making the transition from prison will require a lot of handholding.  Ideally the people providing transition help will not come to it with finding fault in mind, but from a perspective offering assistance and guidance — what can we do to boost this person’s chances, so he doesn’t go back to jail.

This is truly a “first step” in recognizing that long prison terms are neither cost-effective nor necessary.  The next steps will determine whether the program is a success or failure.

Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.

It’s hard to believe that less than a decade ago, Americans would have thought the era of mob killings was limited to Sopranos reruns and Donald Trump was a bankruptcy artist with a reality show and terrible taste. Fast forward and the reputed Gambino family crime boss is gunned down in his driveway and attorneys contend the defendant did it because he’s deep into the QAnon conspiracy theory that buoys Donald Trump’s administration. It’s 2019 and “supporting the President of the United States” is an insanity defense in a murder trial and that actually sounds entirely plausible.

Anthony Comello admits that he shot Francesco “Franky Boy” Cali 10 times, but his attorney Robert C. Gottlieb of Gottlieb & Janey is arguing that “He ardently believed that Francesco Cali, a boss in the Gambino crime family, was a prominent member of the deep state, and, accordingly, an appropriate target for a citizen’s arrest.”

Gottlieb’s motion claims that Comello’s QAnon fascination — a right-wing conspiracy theory that believes there’s a secret government plot against Donald Trump — “evolved into a delusional obsession.” The spoiler alert is that QAnon is never not a delusional obsession. Even as conspiracy theories go, QAnon requires an absurd departure from basic common sense to string together into a coherent worldview. At its very core, QAnon is founded on the ludicrous premise is that there’s some highly organized, all-powerful “deep state” that can mobilize to thwart Trump’s agenda but couldn’t figure out how to fix the election in the first place. Even the Russians can figure that out!

Despite the whole thing making less sense than an episode of Ancient Aliens, Comello’s lawyers argue that the defendant took it entirely seriously and showed up with a gun and handcuffs to arrest Cali on suspicion of some unknown link to this conspiracy against Trump, which is downright insane because there’s almost no chance someone living in Staten Island with lots of money potentially wrapped up in construction, gambling, and large-scale graft was anti-Trump.

It’s not Comello’s first attempt to make a QAnon arrest. From Law & Crime:

According to the defense, Comello tried twice in February to perform a citizen’s arrest of NYC Mayor Bill de Blasio. He also contacted U.S. Marshals to help him arrest U.S. Reps. Maxine Waters (D-Calif., 43rd District), and Adam Schiff (D-Calif., 28th District). Authorities, uh, didn’t help. (The Times said that law enforcement confirmed these incidents.)

So he tried to get U.S. Marshals to help him get an 80-year-old congresswoman, but he figured storming the Corleone compound was the job he could handle on his own. For the record, this decision is not the basis of the nascent insanity plea and that’s because it’s still not as crazy as trafficking in the MAGA world in the first place.

Man Who Killed Mafia Boss Also Wanted to Do Citizen’s Arrest of Maxine Waters: Defense [Law & Crime]

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

It was not all that long ago that yoga was fringe and marijuana could land you in jail. Now, it seems that everyone’s doing their downward dog before hitting the local dispensary.

In the accelerated dog years of the internet, something similar has happened with AI-powered brief analysis. Introduced just three years ago by a feisty legal research startup, brief analysis quickly became fashionable. Now, with announcements last week of new products from Thomson Reuters and Bloomberg Law, it has officially gone mainstream.

The concept is simple. Think of it as a legal research wizard. Upload a brief or memorandum, and it will tell you what authorities or arguments are missing. Use it as a failsafe to check your own brief before filing or use it to look for holes in your opponent’s brief.

Just in the last 10 days, two major legal research companies have launched brief-analysis tools. On July 12, Thomson Reuters unveiled its Quick Check, a feature that will be available starting July 24 to all subscribers to Westlaw Edge. (See: AI-Driven Brief Analysis Comes to Westlaw, But Does It Differ From Competitors?)

Then last Monday, Bloomberg Law gave a preview of its forthcoming brief analyzer, which it is calling by the eponymous placeholder name Brief Analyzer, and which will be out in beta in September and then for general availability by the end of the year. (See: Now Comes Another Brief Analyzer, this from Bloomberg Law.)

Call it the trickle-up effect, because it has been three years since the first brief analyzer came to market, introduced by the innovative legal research startup Casetext. Launched in 2016, its CARA — short for Case Analysis Research Assistant — uses artificial intelligence to analyze users’ uploaded briefs and memoranda and find relevant cases the document omits.

CARA targeted two use cases. One was to analyze an opponent’s brief to see what authorities and arguments it left out (whether intentionally or not) and thereby jumpstart your reply and find weak spots in its arguments. The other was to serve as a check-and-balance on your own research, either as you are drafting a brief or before filing the final version.

From those initial use cases, CARA evolved into a tool to jumpstart research of any kind. CARA is now integrated within Casetext’s standard research workflow, so that a user can upload a relevant document of any kind and use it to enhance keyword queries and deliver results that are far-better matched to the facts and issues at hand.

One year after CARA launched, the American Association of Law Libraries named it new product of the year. Other legal research companies began paying attention and launched CARA variations of their own. These included Clerk from Judicata, launched in late 2017; EVA from ROSS Intelligence, launched in January 2018 as a standalone product and now integrated into the ROSS platform; and Vincent from vLex, launched in September 2018.

Of these, the most different from CARA is Clerk, which Judicata founder Itai Gurari describes as moneyball for motions. “Just as different batters have different on-base percentages, different motions have different probabilities of being granted or denied,” Gurari wrote in a 2017 blog post.

What makes Clerk unique is that it not only identifies missing cases, but it also analyzes the strengths and weaknesses of a brief’s citations and arguments in fairly granular detail, and then suggests ways to improve the arguments and the brief’s overall drafting. Clerk is undeniably cool, but so far works only for California cases.

Vincent from vLex is the only one of these AI-driven brief-analysis tools that has the ability to simultaneously analyze documents in two languages, English and Spanish. And because the vLex legal research platform is international in scope, its results span multiple jurisdictions and can even include a firm’s internal knowledge management resources.

So it can hardly be said that either Thomson Reuters or Bloomberg Law were breaking new ground with their announcements last week of their own brief-analyzer tools. Even so, their entries into the field and their investments of significant resources into developing their tools demonstrate that even the big players see brief analysis as valuable to their customers. And each of these new products brings something unique to the field.

TR’s Quick Check is like CARA in that it enables a lawyer to upload any document that contains at least two citations and obtain a list of other relevant authorities that the document does not cite. It also flags any cases the document does cite that may not be good law. Unlike other brief-analysis products, it delivers only a limited set of results with only the most highly relevant citations. TR says this is to make it more efficient for lawyers to use.

Probably the greatest differentiators for Quick Check are that it is included directly within Westlaw Edge and that its AI technology was developed at TR’s Center for AI & Cognitive Computing, a highly regarded AI research laboratory.

Although Bloomberg Law’s Brief Analyzer is so far only a prototype, it promises unique features as well. For one, it displays its suggested authorities side-by-side with a view of the brief itself, aligning its suggestions with the arguments and sections of the brief. For each suggestion, it provides a concise, plain-English explanation of why the authority is suggested.

No two of these brief analyzers are identical. The best way to get a sense of how they work is to try them for yourself. Even if you are not a subscriber to any of these services, you still have options for testing these tools. Both Casetext and ROSS offer 14-day free trials, and subscribers to the legal research platform Casemaker can get a free one-week trial of Vincent and then half off first-year pricing.

(You can also watch this Legal Robot Battle, in which Casetext presented a comparison of the different brief-analysis tools.)

So get yourself into a comfortable Lotus pose, light up if you care to, and give brief analysis a try.

Robert Ambrogi is a Massachusetts lawyer and journalist who has been covering legal technology and the web for more than 20 years, primarily through his blog LawSites.com. Former editor-in-chief of several legal newspapers, he is a fellow of the College of Law Practice Management and an inaugural Fastcase 50 honoree. He can be reached by email at ambrogi@gmail.com, and you can follow him on Twitter (@BobAmbrogi).

Justice Neil Gorsuch is perhaps best known around these parts as the man who stole Judge Merrick Garland’s seat on the Supreme Court, but this term alone he surprised many by siding with his liberal colleagues more often than any other conservative on the high court. In another surprise, Gorsuch — the same man who wanted to let a trucker freeze to death in the name of dismantling Chevron deference — offered some very special law school advice to a first-year student in search of a Supreme autograph.

Patrick Sobkowski, a rising 2L at the University of Dayton School of Law, recently received this touching note from Justice Gorsuch:

Here are the most important parts of Justice Gorsuch’s letter:

My advice to law students is very simple: work hard, learn to write and speak effectively, never give up your passions, treasure your family and friendships, find time to do public service, and learn to win — and lose — graciously.

More than all that, know you will have many regrets in life — things said or done or things left unsaid or undone — but the one thing you will never regret is being kind.

As noted by Sobkowski, this letter is chockful of “[f]antastic advice[,] regardless of whether you are a lawyer or not.” It’ll be a nice keepsake from a Supreme Court justice whose heart we once believed was as cold as ice.

Life advice from US Supreme Court justice Neil Gorsuch [Quartz]

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.

Kyoto.

Although the data is a little old, that’s the big city with the most Michelin-starred restaurants per capita.

Courchevel (wherever that is).

That’s the small town with the most Michelin-starred restaurants per capita.  (I was just kidding.  Everyone knows that Courchevel is a ski town in France.  Either everyone knows it, or Google is a wonderful thing.)

I was thinking about collecting similar data for law firms.

We all know that Bigg & Mediocre has 100 lawyers who are ranked in their field by Chambers or the Legal 500!  But Bigg & Mediocre has 3,000 lawyers, for heaven’s sake.  If you pick up the phone, call B&M, and ask for a lawyer, you have about a three percent chance of talking to someone who’s any good.

Okay, okay: I admit this is all silly.  First, Chambers and the Legal 500 call folks and ask respondents to identify lawyers who are good in their field.  That’s hardly a perfect system.  (Sometimes, it’s even worse than that.  The raters sometimes ask firms to identify in-house lawyers who can give feedback on the firm’s work.  How many lawyers at firms couldn’t identify at least a couple of in-house lawyers who would say something nice about them?  Name your brother-in-law, for heaven’s sake, or your cousin.)  This process creates a bias in favor of big firms, and it doesn’t necessarily extract information from anyone who’s in a position to judge lawyering skills.  Additionally, reputation is sticky: You might have been a great lawyer 10 years ago; the ratings guide may insist that you’re still good 30 years from now, long after you’ve retired and met your maker.

Second, nobody is silly enough to call Bigg & Mediocre and ask for a lawyer.  That’s a crapshoot if ever there was one.  The local managing partner to whom your call is directed will think, “Eureka!  Jarndyce hasn’t billed a minute of time in the last 18 months.  Now this clown is calling and asking me for the name of a lawyer!  I’ll sing the praises of Jarndyce and finally put Jarndyce to work after all this time.  I don’t really care about the new client anyway; it’s not a long-time institutional client, so I’ll give this client what it deserves.”

(Do you think I’ve been playing this game for too long, or what?)

In any event, why isn’t some firm advertising that it has the largest percentage of Chambers-ranked lawyer per capita?

That may not say much, but it says something.

To people who are convinced by the ratings system, that statistic says that the firm is the most consistently high-quality joint that you could hire.  If you get assigned a random lawyer at Small & Grate, the lawyer is likely to be pretty good.  If you hire a specific lawyer at Small & Grate, the randomly selected rest of the team is likely to be pretty good.

That statistic also gives law firms something to advertise.

Firms are regularly boasting that they have “100 Lawyers Ranked By Chambers” or “30 Illinois Super Lawyers” or “50 Lawyers In The Legal 500” or “We Recently Hired A Lateral Who You Never Heard Of In Some City You Don’t Care About.”

I think my boast is just as good: “Lawyer For Lawyer, We Were Just Rated The Best In The World!”

Come on, admit it: That’s not bad.

And my boast would work for lots of firms: The best in the country according to Chambers; the best in each of the 50 states according to Chambers; the best in the country according to the Legal 500; the best in each of the 50 states according to the Legal 500; the same for The Best Lawyers In America, and Super Lawyers, and probably a couple of other lawyer-rating outfits that aren’t coming to mind.

Come on, guys!  You’re missing a trick.

Count up the number of accolades per capita and start boasting!

Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

* In a series of wide-ranging interviews across the political spectrum — or “Fake News,” per President Trump — the commander in chief’s closest allies admitted that they didn’t think he had any idea what he’d done or what kind of havoc he’d wreaked with his racist tweets. [Washington Post]

* According to House Judiciary Chairman Jerry Nadler, former special counsel Robert Mueller’s report contains “very substantial evidence” that the president is “guilty of high crimes and misdemeanors.” Let’s see if Mueller’s testimony can change any minds on impeachment. [CNN]

* After one scandal too many, it looks like Deutsche Bank has decided to hire someone new to look after its legal and regulatory affairs. [Corporate Counsel]

* Students and alumni from Penn Law are calling for Professor Amy Wax’s ouster from faculty teaching duties following her latest foray into racism. [Big Law Business]

* Aside from Sophia Chua-Rubenfeld and Clayton Kozinski, who else will be clerking for Supreme Court justices for the upcoming October term? In addition to these controversial choices, we’ve got the second blind person to ever clerk at the high court, and someone who was picked dead last in the 2010 MLB draft. [Associated Press]

* Joan Bullock, former dean of Thomas Jefferson Law School, has decamped to become Dean at the Texas Southern University Thurgood Marshall School of Law. Congrats! [National Jurist]

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.