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By November 2016 when the 2 Bond note was introduced to be followed by the 5 Bond note a month later, the USD effectively disappeared.

At first, withdrawals were half-bond, half-USD, and thereafter subsequently dwindled until they were all bonds. Interestingly to note was that Bond and USD withdrawals were done separately.

The Bond withdrawals were done using a withdrawal slip while the USD withdrawal was done using the ATM card. Later on, all this disappeared and everything was collated together into bond notes. For good measure, the Bond and USD was pegged at 1:1 so that it appeared natural for one to buy using a USD10 and above to be changed using the Bond.

However, under little circumstances could one get a USD change having bought using a Bond note.

This was daylight robbery.

Later on, supermarkets were seen hoarding the USD and slowly but surely, the USD disappeared from the market and became a scarce commodity for the general populace but a preserve for Osipatheleni (illegal money changers) and top government officials and those with such mentality.

Over time, the general populace got the shock of their life to realize that all their hard earned forex had turned into Bond notes.

At this juncture, I shall remind the readers of this blog that to open those accounts people had used forex and they were, therefore, foreign currency accounts. But later on, the account holders were told that those accounts were no longer forex accounts but had become Bond notes accounts. As to how they had overnight transformed into Bond notes only accounts, it is only Mangudya and the top ZANU-PF officials who know.

People were then told to open fresh accounts of forex called Foreign Currency Accounts (FCA) commonly known as the Nostro Accounts.

What is important however is to note that in each transitional period, the government most likely stole large sums of money from the poor masses. To prove that, one can make reference to the USD10 million dollars that was recovered by the soldiers from Ignatius Chombo’s house or the millions recovered at Kudzanayi Chipanga’s house during Operation Restore Legacy in November 2017 but whose fate was never made public.

One may not be far from the truth to conclude that the money that was stolen during that period may actually be the same money that was given to the illegal money changers (Osiphathelani) whom most of the unverified reports claim they are linked to top government officials.

From the above, it becomes substantial to conclude that more than a result of carelessness; the Zimbabwean economic crisis was most likely a deliberate creation by the government so that it legitimizes its ways of stealing from the general populace and I hereby hold it responsible for the long-suffering of the Zimbabwean people.

In this blog, however, I do not detail all the contents of S.I. 142 of 2019 and my interest is Section 3 (1) (a) and (b) of the instrument.

It reads: 3 (1) Nothing in section 2 shall affect –

(a) The opening or operation of foreign currency designated accounts, otherwise known as “Nostro FCA accounts”, which shall continue to be designated in the foreign currencies with which they are opened and in which they are operated, nor shall section 2 affect the making of foreign payments from such accounts;

(b) The requirement to pay in any of the foreign currencies referred to in section 2(1) duties of customs in terms of the Customs and Excise Act [ Chapter 23:02] that are payable on the importation of goods specified under that Act to be luxury goods, or, in respect of such goods, to pay any import or value-added tax in any of the foreign currencies referred to in section 2(1) as required by or under the Value Added Tax Act [Chapter 23:12 ].

Looking at the above, in all legal terms and honest, the act sounds good and promising, giving hope to the Nostro account holders.

But it coming from a government which is not known for keeping promises, it is only a matter of time before the Nostro account holders cry foul.

Again one will not be far from the truth to conclude that just like the introduction of bond notes in 2014, or any other financial/monetary policy before that or thereafter, this is just another way of this government to symphony money that they never worked for and that they do not deserve.

It was going to be better if the stolen money could be used to bring this tottering economy back to its feet but knowing the traits of those in charge, the money will be channelled to self-enrichment and other nonsensical ventures.

My point is that the earlier you withdraw your forex from these unreliable banks the better, and the earlier you caution those who are sending you forex to stop sending it the best. Zimbabwe should have its Zim-dollar than to reap where it did not sow.

In a nutshell, the black market is there to stay until this government completely reforms (if ever they are willing to).

As a parting shot, Osiphatheleni is there to stay as long as things are like this. It needs proper, serious and well-thought reforms, not these piecemeal and haphazard temporary measures that will do nothing than worsening a situation already in the decaying stage.

What Zimbabweans are rejecting is not the Zimbabwean dollar but useless money that does not buy anything and useless policies that are meant to enrich a few individuals and leave the masses suffering.

Post published in: Business

Today nearly four out of every five Zimbabweans just about survives in absolute poverty. On average, Zimbabweans are poorer now than they were at independence in 1980. Informal employment is at 95% , which is why the civil service has more than doubled over the last ten years to 600,000 employees – this is the only place the government can create jobs.

Whole communities today live on less than 35 cents per person per day. In practice, this pays for a small dollop of maize, four leaves of vegetables, and a cap of cooking fat. We have a term for this, Tsaona, which means living by “accident”.

But the crisis Zimbabwe faces is no accident. This is a man-made calamity. Over the last 39 years of independence, ZANU-PF has presided over the disintegration of the productive sector of the economy. Driven by sheer incompetence, greed, and the need for regime survival, the party has completely destroyed a once thriving economy.

Firstly, industries closed in the face of government parties as opposed to foreign investment. Secondly, infrastructure failed to be maintained and no investments were made; even today, Zimbabwe continues to rely on the Kariba hydro-electric facility opened in 1959 by Queen Elizabeth II. Thirdly, the backbone of Zimbabwe’s economy was ripped out when the farming sector was politically redistributed through ill-planned and badly-executed land reform exercises, aimed not at the empowerment of citizens but the enrichment of elites. Fourthly, to paper over these deep problems and continue to make profits for the elites, monetary policy became a tool for further enrichment, resulting in Zimbabwe’s inflation reaching 500 billion percent.

In today’s Zimbabwe, the elites prosper, in spite of the misery, and because of mal-governance. They use their preferential access to dollars to arbitrage against other local, artificial digital currencies. Furthermore, they have created cartels that are able to entirely control the import and distribution of fuel coming into the country.

Meanwhile, the military and other favoured clients are offered mining concessions that are then parcelled out opaquely to friends, local and foreign. Finally, the government’s agricultural scheme, appropriately named “command agriculture”, amounts to a $4 billion private piggy bank used to finance everything from private vehicles to dowries.

ZANU-PF cannot realistically be expected to reform a system that it not only profits from but on which its rule depends. Future reform has to dismantle the corrupt political economy, whilst also expanding the productive sector.

The only time in the last four decades there has been a serious attempt at reform was during the Government of National Unity between 2009 and 2013, when I served as the Minister of Finance. During this period, three critical actions were introduced.

One, it was recognised that the government could not spend what it did not have. We described this as the “eat what you kill” philosophy. This immediately provided confidence and clarity to foreign investors and our international partners. Two, we dollarised the economy, thereby ridding the country of the opportunities for arbitrage against the inflating Zimbabwean currency. Three, we opened up the economy thereby incentivising the private sector.

Without governance and transparency, the only investors we will get in Zimbabwe are cowboys and opportunistic traders, a mafia by another name. Without political change and the necessary will, reform will only amount to empty words. As I often say, it’s just putting lipstick on a crocodile.

Major political, institutional, and socio-economic reforms are required in Zimbabwe. To achieve the confidence required to boost the productive sector, the country requires a transitional mechanism to implement agreed reforms and track economic revival.

Political dialogue should open the way for these long overdue and much-needed changes.

Moreover, the opposition should be incorporated into the government. This is our only choice of a more positive future. Only the opposition has the credibility to create such change.

Partners interested in the plight of Zimbabwe’s people, and not just short-term profiteering, should urge Zimbabwe’s government to the negotiating table. A failure to do so will be measured in a loss of hope and a grave humanitarian crisis which can only be met by increased state repression.

The main opposition Movement for Democratic Change (MDC) is ready to play its part in Zimbabwe’s recovery. The ball is now in the court of ZANU-PF and its supporters, foreign and local.

On March 2, 2019, Alan Dershowitz said that his “accusers are Virginia Roberts and Sarah Ransome… I hereby accuse my false accusers of committing the felony of perjury and challenge them to sue me for defamation.” Most plain readings of this statement assumed he was daring them to put their facts on the table so he could disprove them. Apparently, what he actually wanted was to make a technical argument about the statute of limitations time-barring their claims.

After a detour into a motion to disqualify Virginia Roberts Guiffre’s counsel, Dershowitz has moved to dismiss the defamation claims.

On the one hand, it’s unfair to assume someone should waive an opportunity to squelch a lawsuit out of the gate when they think there’s a good faith motion to dismiss. On the other hand, at some point you have to put your money where your mouth is when you’re publicly calling on people to sue you so you can prove they’re wrong. Do you want your day in court or not?

So the primary argument Dershowitz offers for bouncing this case is that despite making a number of recent statements — including the explicit claim quoted above — Dershowitz says he’s been calling her a liar for years so the claim is time-barred because everything he’s saying now is part of the same “publication” from when he went on TV in 2015.

New York has a one-year statute of limitations and it follows a “single publication” standard, meaning that publishing a story once begins the limitations period and even if additional copies are made down the road, the period is not reset. That doesn’t hold for a republication — if the speaker is repeating the claim and “the second publication is intended to and does reach a new group” then the period is reset. Examples might be “a morning and evening edition[] of a newspaper” or “a rebroadcast of a television show.”

Dershowitz claims that his recent appearances to defend himself by calling Virginia Guiffre a liar should be considered a single publication of his calling her a liar years ago. But that really hinges on the idea that his recent statements were not — to quote from a case that he cites — “an attempt to reach a new audience that the statement’s prior dissemination did not encompass.” Except, he says the reason he’s been speaking about this recently stems from a new Miami Herald story that renewed speculation about the case. So he’s saying that new people have started believing these allegations and that’s why he needs to make these public claims in his defense which… would seem to prove that he’s intending to reach a new audience that was not reached with the prior dissemination.

The case he cites here is actually interesting since it held that new articles repeating the prior claims posted on an internet news site couldn’t be a republication because the material on an accessible internet board is presumptively broadcast to the universe, which makes sense. But does a TV appearance — that isn’t readily accessible to anyone just banging around the internet — get the same leeway? It would seem that the Restatement claim that a rebroadcast of a television show constitutes republication would prove that it doesn’t, but it’s an argument.

Dershowitz’s secondary argument is that the First Amendment’s protections for self-defense — especially for a public figure — shield him from defamation here. There’s a pretty good case to be made that if someone is accused of rape, they get to call their accuser a liar. More complicated is if one can start making specific allegations about the accuser being involved in an extortion plot run by her attorneys. That pushes the envelope a little further and whether or not it pushes it too far will be up to Judge Preska.

Let’s see what this case has in store for us next.

(Check out the whole motion on the next page.)

Earlier: Some (Tentative) Good News For Alan Dershowitz… And Some More Bad News
Dershowitz’s Motion To Disqualify Boies Schiller Immediately Dumped For Hilarious Reason
Harvard Law School’s Dershowitz Moves To Disqualify Boies Schiller In Sex Trafficking Case
Dershowitz Wanted A Trial Over Sex Trafficking Accusations — He’s Getting One

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.

We’re nearly midway through summer associate season, and on-campus interviews begin in about a month at law schools across the country for next year’s crop of summer associates. What better time to release Vault’s closely watched rankings for the best summer associate programs?

Hot on the heels of Vault’s rankings of the most prestigious law firms and the law firms with the best quality of life comes the career website’s ranking of the best summer associate programs in Biglaw. Junior associates (first- through third-year attorneys) who summered at their current firms were asked to rank their experiences on how much fun the program was and how well it prepared them for life at the firm through six different categories (attorney interactions, substantive assignments, training & mentoring, preparation for associate life, quality of events, and satisfaction with firm-sponsored social opportunities and social interactions). From those ratings, Vault the best summer associate programs in three categories: Attorney Interactions, Career Development, and Social Experiences. It shouldn’t come as a surprise that many of the firms that made the Top 10 list for having the best quality of life made the Top 10 for having the best summer associate program.

There was a huge amount of movement in the Top 10 this year. Which firms made the cut? Without any further ado, here are the Top 10 Firms With the Best Summer Associate Programs based on Vault’s Annual Associate Survey for 2020:

1. O’Melveny & Myers (no change)
2. Orrick, Herrington & Sutcliffe (+7)
3. Clifford Chance (US) (+5)
4. Akin Gump Strauss Hauer & Feld (+11)
5. Crowell & Moring (-2)
6. Thompson & Knight (not ranked; first time in Top 10)
7. Choate Hall & Stewart (+4)
8. Eversheds Sutherland (US) (-6)
9. White & Case (-3)
10. Williams & Connolly (+10)

O’Melveny, Orrick, Clifford Chance, and Choate Hall each made appearances in the Top 10 for firms with the best quality of life. Let’s give these firms a round of applause for keeping their attorneys happy from their days as summers through their days as junior associates. (We’re sure their salary raises didn’t hurt, either.)

Here are the Top 3 Best Summer Programs for Attorney Interactions:

1. Thompson & Knight
2. Kilpatrick Townsend & Stockton
3. O’Melveny & Myers

Here are the Top 3 Best Summer Programs for Career Development:

1. O’Melveny & Myers
2. Orrick, Herrington & Sutcliffe
3. Crowell & Moring

Here are the Top 3 Best Summer Programs for Social Experiences:

1. O’Melveny & Myers
2. Fried, Frank, Harris, Shriver & Jacobson
3. Thompson & Knight

Congratulations to all 50 of the Biglaw firms that made the latest edition of the Vault Best Summer Associate Program rankings. How did your firm do? Email us, text us at (646) 820-8477, or tweet us @atlblog to let us know how you feel.

Best Summer Associate Programs (2020) [Vault]

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.

CKR Law LLP is facing a new lawsuit, filed in New York state court yesterday, that alleges the firm allowed a “sexually hostile” environment in its New York office. Plaintiff Catherine Acosta was the former marketing director based in the firm’s New York office, and alleges she was subjected to repeated inappropriate comments that the firm was unwilling to do anything about.

According to the complaint, one attorney reached out to Acosta after work hours for a “chat” and asked “if she had any less professional pictures to share.” Additionally, Acosta alleges she was the recipient of inappropriate comments after her marriage to a same-sex partner. In one particularly galling alleged incident, an attorney commented on Acosta’s marriage asking “if she was done with men forever or if he could do anything to change her mind.”

As reported by Law360, as a result of these allegedly inappropriate interactions, Acosta sought permission to work remotely from the managing partner, Jeffery Rinde. Though that request was initially granted, the complaint alleges it was rescinded when it was revealed Acosta was aware of compromising information about Rinde:

Acosta, who says she suffers from anxiety, got permission from CKR managing partner Jeffrey A. Rinde to work from home after these purported incidents, her suit says. However, she says the firm’s and Rinde’s attitudes toward her abruptly changed after she told her assistant that security cameras had recorded Rinde and the assistant kissing in an elevator.

Ultimately, Acosta was let go from the firm, “allegedly due to her inability to work in the New York City office.” But as the complaint goes on to allege, her assistant, who took over Acosta’s position when she was fired, was allowed to work from home.

You can read the full complaint on the next page.

Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

Ed. note: This is part two of a two-part series on how law firms can address critical vulnerabilities in their security posture.  Part One focused on setting the stage for an external expert assessment and used a case study to examine physical security issues law firms should be examining.  Part Two will continue with the case study by addressing assessment techniques including attack simulations, social engineering and open source intelligence review.

A hostile threat environment that requires lawyers to critically consider how to adequately protect their clients’ communications in the digital age is something the ABA tackled head-on in ABA Formal Opinion 477 in May 2017 stating that cybersecurity recognizes a world where law enforcement discusses hacking and data loss in terms of “when and not if.”

Law firms are logical targets for hackers because they collect and store highly sensitive information about clients.  Small and medium-sized firms often struggle with ensuring they allocate proper attention to the electronic infrastructure in which to be productive and adequately protect data and communications.  Additionally, client data notwithstanding, law firms have their own data, business practices, intellectual property, and employee data to protect.  So it comes as no surprise that sophisticated hackers actively test the perimeters of law firms’ networks and cloud environments and are targeting employees to gain the fastest path into databases and other systems containing this valuable information.  What’s on the line: reputational damages, lawsuits, and risk of regulatory enforcement.

Outside experts can help law firms reduce the risk of a harmful and costly breach.  In part one, we discussed the benefit of physical security assessments.  Now let’s get into additional attack simulation exercises which can bring great value to uncovering and shoring up vulnerabilities.

Attack Simulations

Typically, law firms have invested a great deal of hours and funding into what they believe are strong enough security stacks to withstand hackers.  To create a truly resilient environment, however, it’s useful to vet this assessment against the realities of what sophisticated hackers can achieve.  Traditionally, adversaries approach exploitation of a target through social engineering, email compromise, public websites, or gaining physical access to a facility.

With a deep dive assessment that mimics a real-world attack by a malicious actor, an outside expert can demonstrate the ability to gain access to an office through a “red team” approach: this simply means that an outside team (the red team) will stage an attack against all potential attack vectors to evaluate the effectiveness of the firm’s security infrastructure and response capabilities.

Aside from attempting to compromise physical security assets such as badge reading systems and closed-circuit TV (CCTV) once inside the physical perimeter, an additional goal of a red team exercise within this context is typically to perform lateral movement within a network to other geographically disbursed offices, highlighting any vulnerabilities in network segmentation. Shared applications and resources between different global locations are prime targets within the internal network and pose unique threats to organizations with global locations.  These resources could range from file shares to intranet web pages, allowing unintended jump points between networks bypassing any segmentation between those systems.

Another tactic is to target key administrators with access to production systems and/or to attempt bypassing or compromising sensitive Security Operations Center (SOC) assets and tools.  This delivers a clear view of the SOC’s ability to properly monitor against risk and gauges the ability and response time of automated security technology alerts and IT personnel.

Finally, the red team will try to compromise internet-facing applications and network infrastructure including open ports and vulnerable services. They do this by performing credential stealing, executing two-factor authentication bypass, and applying other attack methodologies.

After these attack simulations are complete, the red team compiles a final report containing findings, precise remediation recommendations, and a gap analysis demonstrating areas for improvement.

Targeted Social Engineering Simulations

Another form of attack simulation is a highly tailored social engineering campaign directed at agreed-upon initial targets such as global help desk operations or other personnel who are typically on the front lines of inbound communications.

The primary objective of social engineering is to circumvent network defenses, leveraging an approach that targets trusted users to gain access to privileged information or resources.  Attackers often use social engineering to establish initial access and gather intelligence to prepare for a future remote attack.

Additional objectives of social engineering attack simulations include:

• Identify remote code execution vulnerabilities on workstations.
• Collect data on likelihood that your personnel will click on potentially malicious links or open emails yielding network credentials. This can be used to measure effectiveness of anti-spear phishing training.
• Bypass security controls, restrictions, and boundaries.
• Inform and prioritize risk mitigation and avoidance to prevent catastrophic effects from such attacks.

An important goal of these assessments is to determine a firm’s maturity in withstanding phishing attempts.  Broadly speaking, phishing denotes an adversary’s attempt to exploit a target by gaining entry (physical or electronic) by convincing employees or contractors to take an enabling action allowing entry or assets transfer to an attacker.  Phishing can take many forms including the following:

• Email/Chat Spearphishing
  • Emails impersonating fictitious entities which may contain malicious links, embedded malicious content, or attachments that contain malicious code.
  • The attack effort can include:
    • Establishing whether the email infrastructure is properly flagging spam.
    • Enticing users to click or execute malicious messages which ultimately would provide a hacker with access to a corporate endpoint.
    • Enticing high-level individuals (think: C-suite) to take actions more productive to the adversary because of the access and actions available to the high-level target (aka “whaling”).
    • Enticing targeted administrators to take enabling actions (aka “spearphishing”).
  • Phone Phishing
    • Phone calls in which operators attempt to elicit sensitive corporate data, reset a users’ password, or paired with email phishing, establish remote access to a user’s workstation through “pretexting,” which amounts to pretending to be someone else to obtain private information.
• Physical Phishing
  • Attempts to gain physical access to a corporate environment with the purpose of either collection of sensitive data, or installation of remote connectivity (see: physical security assessments).

Deploying the proper training, monitoring, email scanning/filtering, and policies designed to segment off critical assets can fend off even the most clever social engineering hackers. Understanding the capabilities of a firm’s people and systems is an important first step.

Open Source Intelligence Assessments

Through reviewing publicly available information on the internet, law firms can gain a better grasp of how hostile actors may be building profiles of their organizations.  Physical and digital vulnerabilities often begin with a small thread discovered online, such as in an employee’s social media postings or client files entrusted to a firm now being sold on the dark web.  Experts use a full suite of open source research tools and methodologies including social media to comprehensively identify personally identifiable information, leaked credentials, or breached data.  With an understanding of what hackers can learn about their executives, practices, clients, and physical assets online, firms can shore up their defenses and create a more secure perimeter around their critical assets.

No organization, law firms included, can fully reduce the risk of being a target of hacking.  The best approach is to understand the risk more comprehensively through sophisticated and tailored external assessments.  From there, detailed recommendations can direct internal resources to fix technical gaps.  The goal is not to extinguish the threat altogether, but to at least do so better than the next law firm.

Jennifer DeTrani is General Counsel and EVP of Nisos, a technology-enabled cybersecurity firm.  She co-founded a secure messaging platform, Wickr, where she served as General Counsel for five years.  You can connect with Jennifer on Wickr (dtrain), LinkedIn or by email at dtrain@nisos.com.

Commerce Secretary Wilbur Ross, presumably at the direction of President Donald Trump or shadow President Stephen Miller or former Confederate Attorney General Jeff Sessions, decided to add a citizenship question to the upcoming decennial Census. Their reasons were clearly and provably racist. Their intention, according to newly uncovered documents, was to suppress the count of non-citizens who would be afraid to fill out the form, in a way that would be “advantageous to Republicans and non-Hispanic Whites.”

Of course, that’s not why they said they were adding the question. White people who are about to do some racism rarely say “we’re fittin’ to do some racism.” Before Donald Trump was elected, plausible deniability was key to the white supremacist regime. Since Trump, they’ve dropped the “plausible” but still cherish “deniability.” All of Trump’s most racist programs and policies have come with a thin veneer of deniability. We call these reasons “pretexts.” Everybody knows Trump is really trying to ethnically cleanse the country of nonwhites, but his pretextual reason for allowing people to drown in a river is “border security.”

The stated reasons for the inclusion of the citizenship question were a cruel joke. According to Ross, the citizenship question was added to help nonwhites access their rights under the Voting Rights Act. That’s a complete lie, but the Trump administration doesn’t believe it has to tell the truth even when everybody knows its lying.

His supporters are in on the joke, and the media slavishly repeats the Trump administration’s pretextual reasons for their policies, and conservative courts latch onto these “race-neutral” reasons when they have enough votes to advance his white supremacist policies. Most famously, the Supreme Court allowed Trump’s Muslim Ban to go forward, for the entirely pretextual national security tropes. After that tragedy of a Supreme Court decision, why would the Trump administration ever feel constrained to make a truthful argument again?

We have been waiting for the Supreme Court, for Chief Justice John Roberts essentially, to finally reach his limit with the pretexts and simply acknowledge that he understands what Trump is doing. Nobody expects Roberts, a lifelong conservative with a nasty streak when it comes to nonwhites who have the gumption to try to vote, to change his ideological stripes just because an open bigot is advancing Roberts’s political agenda. But we have been waiting to see if there is some point at which John Roberts will refuse to rubberstamp lies from the Trump administration when he knows they’re lying.

That limit was finally reached today. In Department of Commerce v. New York, Roberts finally called the Trump administration out on its BS. His opinion reads like a man desperate to go along with the Trump administration, who at the end just couldn’t swallow one more lie. From the Roberts opinion:

That evidence showed that the Secretary was determined to reinstate a citizenship question from the time he entered office; instructed his staff to make it happen; waited while Commerce officials explored whether another agency would request census-based citizenship data; subsequently contacted the Attorney General himself to ask if DOJ would make the request; and adopted the Voting Rights Act rationale late in the process. In the District Court’s view, this evidence established that the Secretary had made up his mind to reinstate a citizenship question “well before” receiving DOJ’s request, and did so for reasons unknown but unrelated to the VRA. 351 F. Supp. 3d, at 660.

The Government, on the other hand, contends that there was nothing objectionable or even surprising in this. And we agree—to a point. It is hardly improper for an agency head to come into office with policy preferences and ideas, discuss them with affected parties, sound out other agencies for support, and work with staff attorneys to substantiate the legal basis for a preferred policy. The record here reflects the sometimes involved nature of Executive Branch decision-making, but no particular step in the process stands out as inappropriate or defective.

And yet, viewing the evidence as a whole, we share the District Court’s conviction that the decision to reinstate a citizenship question cannot be adequately explained in terms of DOJ’s request for improved citizenship data to better enforce the VRA. Several points, considered together, reveal a significant mismatch between the decision the Secretary made and the rationale he provided.

Remember, the Roberts court tried everything it could to cut off discovery into the real reasons Ross and the rest of the Trump administration decided to add this question. Roberts didn’t want to know. He didn’t want to be forced to look the Trump administration in the eye and see it for what it always has been. Roberts has rested his entire career on the basis of not knowing how things really are (I’ll get to his gerrymandering decision later today). The operative difference between the jurisprudence of John Roberts and that of former Chief Justice Roger Taney is that Roberts loves accepting the conservatives’ pretextual arguments while Taney had no need for them.

But here, he blinked. It would appear that the bald racism of documents found on Thomas B. Hofeller’s hard drive was just too naked for him to ignore. Roberts likes to say: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” This case would have forced him to say: “The way to stop discrimination on the basis of race is to discriminate on the basis of race and hope I don’t notice.” That was too much for him.

It’s far from a complete victory, because Roberts makes it very clear that nearly any other pretextual reason would be enough for Commerce to add the citizenship question. If Ross had come up with a slightly less obviously false reason for adding the citizenship question, Roberts would have let him add it. People forget, the Muslim Ban that Roberts approved was the administration’s third try at the Muslim Ban. The third Muslim Ban was itself a pretext and its true intentions were more directly explained in versions one and two. Roberts swallowed that pretext whole. Roberts is fine with giving the Trump administration multiple bites at the apple to get its bigotry in the right format.

What will frustrate the Trump administration going forward is not Roberts, it’s time. Roberts doesn’t want to wear a racist hat like the MAGA people; he likes the old-school hood that Republicans used to hand out. But it takes time to make those, and given that deadlines for printing the Census are coming up, the incompetent-on-a-good-day Trump administration might not have time to whitesplain this to Roberts’s satisfaction.

And there’s another problem. The case that came to the Supreme Court was only about whether the government’s actions in adding the citizenship question were arbitrary and capricious. Whether it was intentionally racially biased was not addressed by the Supreme Court, because the lower court decided that there wasn’t enough evidence to make that claim. But that was before the Hofeller documents. Now, U.S. District Judge George Hazel, who had previously ruled that those objecting to the citizenship question on equal protection grounds had not made their case, has agreed to re-open that question in light of the new evidence.

As with everything Trump, the more you dig, the more dirt you find. Even if the Commerce Department quickly comes up with new reasons for adding its racist question, the issue of whether the question is racist is back on the table.

Practically speaking, the citizenship question should not appear on the 2020 Census. But in many ways, the Trump administration has already scored a partial victory. Their goal has been to make nonwhites afraid to fill out the Census. No last-second Court ruling can diminish the fear and terror Trump has already put into immigrant and migrant communities.

But at least we now know that John Roberts has a limit. And if you stand up to a racist bully once, maybe you find the courage to do it again.

Department of Commerce v. New York [Supreme Court]

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.

According to Wolters Kluwer’s Future Ready Lawyer survey, the top challenges for corporate legal departments today include reducing and controlling outside legal costs, improving case and contract management, and automating routine tasks and leveraging technology in work processes.

I recently discussed this topic with Ali Butler, Deputy General Counsel at Wolters Kluwer. Ali was previously a partner at Mayer Brown LLP and has a lot of experience working within a law firm as well as within a corporate legal department. We had an interesting discussion about the impact of innovation from the perspective of the corporate legal department.

Technology Innovation

In-house legal departments are looking to technology solutions to help them become more efficient.  “At Wolters Kluwer, we created a technology committee to evaluate ways to leverage technology to better address the expanding legal needs of the business. Anything that maximizes efficiency and reduces the time we spend on administrative work allows us more time to focus on the substantive legal work where we add the most value.”

Most corporate legal departments deploy enterprise legal management solutions, which include eBilling and spend and matter management. Not only do these solutions streamline the review of legal billing by flagging invoice items that aren’t in line with the department’s outside counsel billing guidelines and allowing rejection of specific line items rather than the entire invoice — they also provide technology to manage legal matters from start to finish. “We are fortunate to be able to use our own enterprise legal management tool, which includes an AI-enabled bill review,” according to Ali. The added AI component enhances the analysis of outside counsel billing guidelines compliance.

The enterprise legal management solutions can also provide valuable metrics on outside counsel usage and spend. Having these metrics helps corporate legal departments in planning and budgeting, including evaluating the need for additional headcount. “Our enterprise legal management solution has the ability to deploy a workflow where in-house counsel can provide feedback about outside counsel which can then be used to guide discussions with their outside counsel about the relationship, including what is working and where there may be areas for improvement.”

Law firms also recognize the value of that feedback. “Obtaining candid feedback from clients is critical — it helps us to meet our clients’ expectations as to service delivery and value and to understand how we can better partner with them on budgeting, billing and other matters,” notes Jennifer Keating, a partner at Mayer Brown LLP.

Non-Technology Innovation

Non-technology innovation can complement technology innovations as corporate legal departments are under increasing pressure to control legal fees. “Many law firms try to raise their hourly rates every year,” Ali said. “As the hourly rates continue to climb at some firms, corporate legal departments look to alternative fee arrangements (such as fee caps, collars, portfolio fixed fee, etc.) or alternative legal service providers who can provide certain services more cost-effectively.”

While I don’t believe that alternative legal services providers can replace law firms, they do offer a more cost-effective alternative to law firms for routine work. “If you have a significant or complex matter or transaction, your corporate legal department will use a law firm (unless they have the ability to handle it in-house) that has lawyers who work in all of the practice areas needed for the transaction, such as benefits/ERISA, environmental, tax, and IP,” said Ali. “On the other hand, you might have routine work — such as licensing agreements or services agreements — that would not necessarily require the attention of a traditional law firm. For example, a software agreement with a modest license fee of $50K might be perfect for an alternative legal services provider, rather than paying $500-$700 an hour to an outside law firm to handle it.”

Ali noted that some law firms are competing with alternative legal service providers by opening offices in lower-cost geographies or having their own contract attorneys who bill out at a lower rate than an associate.

Ali offered some considerations that law firms should keep in mind to stay competitive as technology and innovation continue to shift the landscape for their corporate legal department clients.

Law firms’ use of innovation and technology: “Law firms have to embrace (or continue to embrace) innovation and technology to help streamline their own legal work or they risk becoming uncompetitive. This can include deploying AI-driven document review, contract automation solutions or working together with an alternative legal service provider. For example, having an alternative legal service provider do the contract review during due diligence and having the law firm handle the other aspects of the transaction.  A number of law firms we work with are already doing a lot in this area.”

A long-term view of the relationship: “It helps when our outside counsel doesn’t just see us as a transaction,” said Ali. “We want to hire firms that value long-term relationships. We want law firms that are solution-oriented and work with us to manage our costs — and we’re more likely to want to partner with those firms on future work because they’ve demonstrated that they understand the pressures we’re under.”

What do these in-house pressures mean for law firms? As technology and innovation continues to evolve the legal industry, there are new opportunities for law firms to identify ways to deliver value to their clients.

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.

One reason the American Bar Association recently yanked Thomas Jefferson School of Law’s accreditation was concerns about its current and anticipated financial resources.

The U.S. Department of Education under Secretary Betsy DeVos is apparently less worried about the San Diego law school’s fiscal situation.

In criticizing the ABA’s accreditation decision, which Thomas Jefferson plans to appeal, the school said it had strengthened its finances.

One example Thomas Jefferson gave was the Department of Education relieving it of having to post a $3.1 million letter of credit to the department. Interim Dean Linda Keller said the DOE took this step because of the school’s improved financial situation.

“This was done after assessing the audited financial records of the law school in accordance with federal regulations,” Dean Keller wrote in a recent email. “The DOE uses an objective test to determine a school’s composite score for financial responsibility. Ours was in excess of the required level.”

The DOE also removed Thomas Jefferson in March from its “Heightened Cash Monitoring” list that the school had been on since December 2015 due to financial responsibility concerns.

A DOE spokesman confirmed that a review of Thomas Jefferson’s audited financial statements for fiscal year 2018 resulted in “a passing financial composite score for that fiscal year.” As a result, the department released Thomas Jefferson from the letter of credit requirement and heightened cash monitoring earlier this year, he said.

The spokesman noted that the law school originally had to post the letter of credit in order to continue participating in the federal financial aid program. The requirement was instituted after a review of the school’s fiscal year 2017 audited financial statements, he said.

The $3.1 million letter of credit “represented 10 percent of the Title IV program funds received by the institution” during the most recently completed fiscal year, according to the DOE.

Letters of credit are financial instruments issued by a financial institution, typically a bank, on behalf of a school to the DOE.

“Funds from a letter of credit may be drawn in part or whole by the department to reimburse the department for student refunds, loan cancellation costs, and may be used with the institution’s agreement to cover the expense of teach-outs when an institution closes,” a DOE webpage states.

The National Student Legal Defense Network criticized the DOE’s actions involving Thomas Jefferson. In a Twitter thread, the network noted that one of the reasons the ABA had initially put Thomas Jefferson on probation in November 2017 was financial concerns.

“Almost 2 years later ABA reaffirms financial problems,” the student network tweeted. “Cue Betsy DeVos concluding the school can keep the $3.1 million insurance policy taxpayers have against a failing school!”

An ABA spokesman did not provide a comment on the DOE’s actions relative to Thomas Jefferson’s finances.

The law school could raise DOE’s new stance on its financial picture as part of its appeal of the ABA’s accreditation decision. Thomas Jefferson will remain accredited while the appeals process plays out.

In its statement calling the ABA’s accreditation action “capricious,” Thomas Jefferson also said the school has eliminated $42 million in debt in recent years. It was able to do so as part of transactions surrounding its move from a state-of-the-art $90 million facility to several floors in a downtown San Diego office building.

The smaller footprint has helped the school save millions of dollars compared to its lease in its old building, according to the dean.

Lyle Moran is a freelance writer in San Diego who handles both journalism and content writing projects. He previously reported for the Los Angeles Daily Journal, San Diego Daily Transcript, Associated Press, and Lowell Sun. He can be reached at lmoransun@gmail.com and found on Twitter @lylemoran.