Category: News Feeds

One of the advantages Republicans and the Federalist Society have when it comes to judicial appointments is that they have managed to turn their agenda-driven support of white supremacy into a guiding legal ideology. Originalism does a lot of work: it’s a form of indoctrination, it’s a purity test, it’s a euphemism, it’s a trap, and it’s a judicial outcome masquerading as a theory of mere interpretation. If Republicans were honest about the agenda behind originalism, people would reject it. If the Federalist Society admitted it was choosing judges solely on their willingness to retard the rights and equality of nonwhite people and women, they wouldn’t be treated as legitimate. But originalism functions like a long garment under which conservatives can smuggle in all sorts of nightmares.

The left has no counterpart. The left’s preference for viewing each case as an individual controversy, instead of some kind of ongoing ideological battle of Constitutional supremacy, defies the promotion of straight ideologues to the bench. Even when Democrats are in favor of pushing a specific ideology, the Democrats operate within a much wider ideological spectrum: a liberal ideologically committed to regulatory authority of the administrative state will fight a liberal ideologically committed to the advancement of civil rights, when those regulations are racist. There is no organizational fealty a progressive must pledge in order to be considered for a judicial opening. Democrats want to nominate “good” judges, whatever the hell that means. They don’t have to have a specific background, they don’t have to be indoctrinated by a specific group, they don’t have to have served their time in preferred positions, nobody cares about their race, color, or creed — they don’t even have to be particularly young.

Which is why Democrats fail. Conservatives strike the same racist and misogynist note, over and over again, while liberals are enamored by the diversity of the keyboard. Conservatives have a conniption when one of “theirs,” like John Roberts, doesn’t rule their way all the time, while liberals make excuses for Stephen Breyer. Republicans who do this work already know not only the next 10 people they want on the Supreme Court, but the next 10 people they want on every circuit court. Democrats… I mean if you asked the people running for the Democratic nomination right now who the next Democratic nominee should be to the Supreme Court, half of them would say “Merrick Garland,” and be surprised when progressive court watchers asked those candidates for their money back.

There is no liberal answer to the Federalist Society, there is no liberal answer to the Judicial Crisis Network; wealthy conservatives pour money into groups meant to win the courts for conservatives, while wealthy liberals pour money into their own presidential campaigns. There is no answer.

There have been lots of attempts to correct this losing asymmetry by groups of the left. Democratic politicians might be frustratingly unwilling to battle Republicans for the control of the courts, but groups like the American Constitution Society and Alliance for Justice have been trying to school politicians and the voting public about what a “good” judge should look like from the left. Today, Demand Justice — a group started by former Clinton campaign national press secretary Brian Fallon — is out with a new proposal that offers an alternative way to pick liberal judicial nominees. Their guiding principle? No Biglaw partners.

From Fallon and Demand Justice’s co-founder, Chris Kang, in their op-ed in The Atlantic:

Today the federal bench is wildly unrepresentative of the legal profession as a whole. Our organization—Demand Justice—has analyzed the professional backgrounds of all 175 circuit-court judges, who serve at the level just below the Supreme Court. It found that nearly 60 percent were once corporate-law partners.

This dynamic has created perverse professional incentives for young, progressive lawyers who possess even the slightest political ambitions. A career at a corporate firm already confers advantages in the form of wealth and social capital, but it has also become a politically safe way station for anyone nurturing hopes of a judicial appointment.

The next Democratic administration should make upending these professional incentives a priority. A career representing indigent defendants or working as a civil-rights lawyer at a public-interest organization should be an asset in progressive circles, not a liability. Republicans aggressively promote judicial nominees who have worked at right-wing advocacy organizations or who have advanced conservative causes, while Democrats unilaterally eschew the political fights that come with such picks. The next Democratic president must break this mold.

Focusing on a lawyer’s training is one way to do it, when imposing a universal ideology is not available. It is unquestionable that the Roberts’ Court has been the most “pro-business” Court of all time, with disastrous effects for worker’s rights and women’s rights. If you can’t say “we’re only going to support judges who support the rights of the underrepresented,” saying “we’re only going to support judges who haven’t made their careers by promoting the rights of the rich and powerful” feels like the next best thing.

I like this idea, way more than I would have a few years ago. Longtime readers of this blog know that somewhere deep inside of me lurks an unabashedly elitist prick. Prep school –> Ivy law school –> Biglaw –> circuit court appointment is a pathway that seemed not just standard, but more or less preferred to me, just a couple of years ago.

But… the Brett Kavanaugh fiasco did something to me. They hurt me. They changed me. They opened my eyes to a reality I was all too willing to overlook while ogling the gold-plated résumés of my peers. The reality is that legal elites will protect their own, no matter what, no matter the cost in blood and treasure to those who look to the courts as the first, last, and only chance at justice.

Long before Brett Kavanaugh was accused of attempted rape, his defense of sexual harasser Alex Kozinski was known. His argument that he didn’t know anything about Kozinski was a lie, and the legal elites were in the best possible position to call him out on that lie. In addition, he was a known political hack — his time working with Ken Starr alone proved that. And he perjured himself in front of Congress.

But elites from Ivy law professors to Biglaw attorneys defended him. Liberal elites. Oh sure, progressive elites “worried” about this absolute antipathy towards women and their reproductive rights, but they consistently told us that Kavanaugh was a “good guy.” Why? Because they went to an event with him and he didn’t shotgun a beer while playing a game of grab-ass? You didn’t need to believe that he tried to rape somebody (which I believe he did) to know that he was entirely unfit for the federal bench, much less the Supreme Court. The inability of powerful elites to see that is an indictment of the whole lot of them.

The entire culture of Biglaw and Ivy League education is how a guy like Brett Kavanaugh is allowed to happen. Telling all of these people that they have to sit on the sidelines for a term or two while we nominate judges who have not been doused by that culture seems like a fine start towards remaking the federal bench.

Now, there are some obvious problems with this approach. NYU Law professor Melissa Murray (who people should really listen to about all things), puts the obvious problem plainly:

Professor Murray goes on to point out that right now, students of color are fielding Biglaw offers, high-paying jobs that they’ve worked their butts off for that are also the only way that they can pay off their huge debts from law school. Many of these people will be accused of “selling out” by their own community, when the reality is that law school is so expensive, the government does so little to help offset the costs, and people of color so rarely have “Mommy and Daddy” pay off their education, that Biglaw is not just the best offer, but the only reasonable one.

Trust me, I’ve been there. It would be hypocritical of me to tell students of color to do anything other than “take the money,” just because I figured out five seconds ago that the culture of elitism kind of sucks.

But, I think there are aspects of this Demand Justice proposal that answer some of Professor Murray’s entirely legitimate criticisms. For starters, Demand Justice is defining “corporate lawyers” as Biglaw partners, not associates. I do think that there is a legitimate distinction that can be drawn between young people who hop in to make some cash and pay some debts, versus established lawyers who use Biglaw as a piggy-bank every time their party is out of favor in Washington. It is the people who are always trying to keep themselves in the good graces of corporate law, in case they ever want to cash in their chips, that are the problem Demand Justice is trying to solve for.

As a second point, encouraging ambitious people who have the financial stability to not go into Biglaw, to not go into Biglaw, isn’t the worst thing in the world. You should be able to spend your entire career as a public defender, and still be considered for a judicial appointment. You shouldn’t feel like if you don’t get your Biglaw stamp that your career is permanently hobbled. Remember, we have a whole generation of potentially brilliant lawyers who were not able to get into Biglaw, because they came out of school during the last recession. And, not for nothing, but we’re on the cusp of having another one. Making sure we value these alternative professional experiences is an important goal.

I reached out to Professor Murrary for some non-Twitter thoughts about these issues. She said:

I do not disagree with the premise of this proposal: that we need a broader understanding of the experiences that make for a federal judge. But this seems less like a temporal re-calibration, and more of a categorical exclusion of a particular group of people from federal judicial service. While I would be delighted to see more public defenders and union lawyers on the judiciary, I would worry about a proposal that excludes from the judicial pipeline the appointment of women and people of color who happen to be partners at law firms.

She added: “People of color are not Biglaw partners because we all love the Chamber of Commerce.”

These critiques track with my own experience in Biglaw. I didn’t love my clients, I loved being able to afford to help my mother out with her rent. But, as I read it, nothing that Demand Justice is saying suggests that Biglaw produces inherently bad judges, they’re saying that Biglaw is inherently overrepresented on the judiciary. That’s something I do think should be fixed. The next Democratic president is going to have a wealth of potential judges to choose from (IF. WE. TAKE BACK. THE SENATE!!!!). Telling Democrats to look at non-corporate types, as opposed to picking people who have been “vetted” by Cravath, strikes me as a good thing. It’s one way to fight back against the Republican effort to reshape the courts as a place for only white men with arch-conservative views.

Of course, if it were me, I’d have a slightly different unfair categorical ban for my judicial appointments: No career prosecutors. But that’s a battle for another day.

No More Corporate Lawyers on the Federal Bench [The Atlantic]

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.

Law school is the right time to start working to ensure that the career you pursue is at least morally defensible. You don’t necessarily have a moral obligation to devote your career to doing good. But you should at least avoid exacerbating evil. And it’s easier to do that if you think carefully about the issues involved now (when you still have a wide range of options), than if you wait until you are already enmeshed in a job that involves perpetrating injustice….

— Professor Ilya Somin of the George Mason University Antonin Scalia Law School, offering tidbits of important advice to incoming law students so they can make better use of their time spent in law school — and beyond.

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.

U.S. Attorney William McSwain already revealed himself to be wildly unprofessional and an embarrassment to his office when he used the recent Philadelphia shooting as an opportunity to bash District Attorney Larry Krasner. Now we can add that McSwain is also either completely clueless or beyond disingenuous.

McSwain blamed Krasner for alleged shooter Maurice Hill’s attack in a statement stringing together a barely coherent set of accusations about how not throwing the book at low-level drug crimes resulted in a guy shooting cops. To the extent the missive made a lick of sense, McSwain seemed to be arguing that Hill, a man with multiple prior arrests, was only on the streets and able to commit this crime because Krasner isn’t “tough” on crime.

Thanks to the reporting of the good folks over at The Appeal, we now know that if anyone is to blame for Hill being on the streets it’s… McSwain’s office:

That is indeed the question. We know, from recent and bizarre experience, just how easy it is for someone in the DOJ to look up federal informants. Did McSwain know that Hill was the beneficiary of years of sweetheart deals from McSwain’s own office, or is he so disengaged from the actual business of his office that he didn’t perform even basic due diligence on this guy before unleashing his rant?

Hill’s deals with the feds pre-date McSwain’s tenure, but that’s not much of a defense. When McSwain breached all protocol to try to blame local law enforcement for this attack, he had an opportunity to make sure his people weren’t the ones keeping Hill out there. Just chalk this up as another reason why the DOJ needs to address McSwain’s buffoonery by firing him immediately… for the institution’s own credibility.

Earlier: U.S. Attorney Launches Wildly Unprofessional Attack On Local District Attorney
DOJ Paralegal Fingering Snitches For Her Son’s Gang Would Pretty Much Sum Up Trump’s Crackerjack Operation

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.

Cheap, clean power ran irrigation pumps that kept the community’s wheat, maize and vegetable fields a sea of green even as climate change-fueled droughts parched the surrounding landscape.

But the verdant fields have attracted a new problem to Mashaba: herds of hungry elephants.

As drought makes grass and other fodder harder to find, elephants have begun invading the village’s tempting irrigated fields, destroying crops and irrigation canals and exasperating farmers.

“We have to stand guard in our fields all night from 6:30 pm till 3:30 in the morning. We beat pots, tins, pans, drums or anything that makes noise to chase away elephants,” Daniel Nyathi, a farmer in Mashaba, told the Thomson Reuters Foundation.

As well, “every night we make bonfires on the edge of our fields, shine torches and rev a tractor all night, hoping that might scare the elephants,” said Nyathi who heads the 42-hectare (104-acre) Rustlers Gorge irrigation project, which serves 2,800 local households.

According to Mashaba residents, up to 60 elephants now appear to see the village’s irrigated fields as one of their main sources of food.

Elephants have been an occasional problem in the village’s fields, especially since 2017, as conditions have grown drier, they said. But the invasions have intensified dramatically as the solar irrigation project has taken off, they said.

Win Sibanda, one of the Mashaba village leaders, said he feared the near-daily elephant invasions into the community’s fields mean farmers won’t get much of a harvest next month if the problem isn’t addressed.

Right now, “the only practical solution is for the farmers to keep guard and chase them out”, he said.

“If the elephants number less than five, villagers can easily deal with them. But the challenge is when the whole herd enters the field. No one dares provoke them because that is more dangerous,” he said.

LESS RAIN, MORE FIGHTS

As worsening droughts lead to more challenging conditions for farmers and wildlife in southern Africa, such confrontations are expected to become more problematic as irrigation projects pop up to help communities adapt to drier conditions.

Sithokozile Nyathi, 36, whose farm with her husband Daniel lies within the Rustlers Gorge irrigation project, said the village had been transformed into a “green belt” with the introduction of the solar mini-grid.

The $3.2 million solar project was funded by the European Union in conjunction with the OPEC Fund for International Development and Global Environment Facility as part of efforts to promote universal access to modern energy in rural areas.

The grid’s 400 solar panels power several irrigation projects, Mashaba’s primary school, a local clinic and a small business center with four shops and an energy kiosk, said Shepherd Masuka, a project officer with Practical Action, a development charity that supervised the project’s construction.

Sithokozile Nyathi said the system has allowed farmers to earn a steady income from their crops, rather than simply depending on increasingly unreliable rainfall.

“Each morning we walk 2 miles from our homesteads to the irrigation scheme to work the whole day in the fields,” she said.

But now farmers are having to work nights as well, just to try to keep elephants away, she said.

LOOKING FOR SOLUTIONS

To try to find a solution, residents are working with the Zimbabwe Parks and Wildlife Management Authority (ZimParks), which oversees the country’s wildlife.

Kwanele Manungo, who helps manage work by the authority in southern Zimbabwe, said a team of game rangers were dispatched to Mashaba in July to address the elephant problem.

The rangers advised digging one-meter-deep trenches around the irrigated fields and using a traditional technique of putting piles of smoldering cow dung along their perimeter.

Manungo said the team, which was in the area for a month, “ended up leaving the place because elephants did not come back”. Community members were advised to call again if they had further problems.

“In the worst scenario, we shoot down a leader of the menacing elephants or scare them off using firecrackers,” she said.

But Practical Action officials said more “lasting solutions” to elephant invasions of irrigated farmland needed to be worked out.

Tinashe Farawo, a spokesman for the Zimbabwe Parks and Wildlife Management Authority, said the authority sometimes runs short of government funding for its wildlife management programs and is forced to self-fund.

That can mean farmers seeking help have to spend their own money to transport and feed game rangers, he confirmed.

Zimbabwe made $2.7 million selling 90 elephants to China and Dubai between 2012 and 2018, in an effort to reduce the numbers and earn income, Farawo said.

“We believe in sustainable utilization of our resources, and these elephants must pay for their upkeep,” he said in a telephone interview with the Thomson Reuters Foundation.

According to ZimParks data, the country can accommodate about 55,000 elephants but now has about 85,000. The rising numbers are likely one driver of the increasing farm invasions, officials said.

Farawo said conflicts between people and animals had led to 200 people losing their lives in Zimbabwe over the past five years.

At a May elephant summit in Botswana, southern African countries whose land is part of the Kavango-Zambezi transfrontier conservation area – which includes parts of Botswana, Zimbabwe, Namibia and Zambia – said their countries are home to the largest population of African elephants.

Officials at the summit said they would coordinate efforts to survey elephant populations to monitor them.

They noted that as elephant numbers grow in the region, conflicts between the animals and people are increasing as a result of climate change pressures and increasing competition for limited resources.

Post published in: Agriculture

HARARE – Phelekezela Mphoko, a former deputy to ousted Zimbabwe president Robert Mugabe, was charged on Wednesday with criminal abuse of office, his lawyer said, in the latest move by the new anti-corruption commission.

The court freed Mphoko on bail. He denies all the charges, his lawyer Zibusiso Ncube said.

Mphoko lost his vice presidential post when a military coup forced Mugabe to resign in 2017 after 37 years in power and led to presidential elections won by longtime Mugabe associate Emmerson Mnangagwa.

Ncube said Mphoko was being accused of using his position to force police to release from their custody suspects who were facing corruption charges in 2016. The ex-vice president also faces a lesser charge of obstructing justice, Ncube said.

A new Zimbabwe Anti-Corruption Commission appointed in July was given the power to arrest suspects, but critics question whether it will be effective.

A previous anti-graft agency failed to tackle corruption among the political elite and many Zimbabweans believe those behind corruption are politically connected and may not be touched.

The commission last month charged a sitting cabinet minister, Prisca Mupfumira, with corruption involving $95 million. Mupfumira was early this month fired from her tourism ministry job.

Mupfumira was the first senior government official to be interrogated by the commission, which was appointed by Mnangagwa after he promised tough action against graft.

Mphoko could be jailed up to 15 years, with an option of paying a fine, if found guilty of criminal abuse of office.

He was granted 1,000 Zimbabwe dollars ($98) bail and ordered to surrender his passport with the court. He will return to court on September 4 when state prosecutors will decide whether they are ready to proceed to trial.

I observed a mock jury trial recently. Jurors were all over the place in their thinking. They were young and not-so young (I prefer that to “old as dirt”), employed, retired, and self-employed. Women, men, ethnically diverse. They agreed that there was liability, but not in the way I expected.

Some of them liked the case, some hated it. Some liked the witnesses, others said “no way.” I came away with my preconceived ideas about the case down the chute, and a new respect for the process.

I’ve always said in mediation that you never know what a jury is going to do, and that a so-so settlement in mediation is better than the uncertainty of handing your fate over to 12 people who couldn’t get out of jury duty and couldn’t care less about your case. What the parties and the attorneys value is often not what the jury values. We’ve seen this time and again in both criminal and civil cases, but it never hurts to have a refresher.

On another topic altogether, I start my fifth (!) year this month as an ATL columnist.  (Elie hasn’t kicked me to the curb yet, but I would guess he’s thought about it.) While I love having the chance to rant uninterrupted (and what lawyer doesn’t?), the best part has been emails from readers that have made this gig so worthwhile. I have received complimentary emails that force me to go through the door sideways until the swelling goes down; I have received emails telling me that I was wrong; and I have received emails adding something I have forgotten to include, rebuking me gently or not so.

The late poet Howard Nemerov said, “Write what you know. That should leave you with a lot of free time.” Taking that comment to heart, here are some reader thoughts about what I have written or should have written. My readers are so much smarter than I am.

In responding to my column about what to do while waiting for bar results, I suggested spending time observing in the courtroom. A retired court reporter reminded me of the importance of court reporters in the system and how lawyers, especially newbies, need to learn how to make a clear record. Point taken. A clear record is critical and that includes reading slowly from a document so that the reporter can take it down accurately and having a copy for the reporter so she can “type” it as it’s being read. Don’t turn your back on the reporter (reporters don’t have 360-degree hearing), enunciate, slow down (early on, one court reporter clocked me at more than 200 words per minute) and don’t talk over each other. One at a time, please. You would think that those things are elementary, but they’re not.

I’ve received lots of emails about discrimination, be it gender and/or age and/or pay and/or race, and how the profession is not stepping up to what it needs to do going forward. We’re more than willing to advocate for our clients, but for ourselves, not so much. Although we’re getting better at it, the profession still has a long way to go to reach goals of diversity, inclusion, and parity.

Readers have also asked whether it makes sense to become a lawyer, especially later in life, i.e., when the Age Discrimination in Employment Act kicks in. The sound you have heard is the thud of my forehead dropping on my desk. Reality bites. Starting law school after 40 is tough and passing the bar exam is tough, but what I think is the toughest of all is either getting a job (unless you have expertise in an area) or starting your own practice, often the default choice. Many aspiring lawyers have drunk the Perry Mason, LA Law, Boston Legal, The Practice, The Good Wife, Ally McBeal Kool-Aid without really thinking through the personal and financial sacrifices (student loan debt anyone?) that are involved, plus the rapidly changing nature of the profession itself.

Setting up your own practice is difficult at best, dispiriting, and even depressing at worst (I could think of other words, but then I would lose the alliteration.) People who want to start a legal career later in life face more odds than those who have graduated college, had a gap year or several, and then gone to law school. And if you’re talking about women over 50 undertaking a legal career, don’t get me started.

Comments about the California Bar Exam and its infamous cut score have been a perpetual favorite topic of reader emails. Suggestions have included lowering the cut score (a bunch of law school deans think that’s the way to go), ditching the rote memorization of the MBE (how many times has a client asked you to cite chapter and verse of the Rule Against Perpetuities?), and opinions about the anachronistic nature of the bar exam in today’s practice world. I haven’t been the only one writing about it.

Mental health concerns abound. Commenting on my recent column about a lawyer support group, one reader shared with me that he has been sober for 27 years (congratulations!) and he has found support groups very helpful. Some lawyers have shared with me very personal and painful stories about deaths by suicide, be they young lawyers or those who have practiced for years. It shouldn’t be this way and we need to make sure that even one more death is one too many. I have been honored by their candor.

And a big whoops and sincere apologies to one reader who asked for information about lawyer support groups in the Los Angeles area in the context of sharing with me some personal information after my column appeared about lawyer support groups. I intended to forward that email on to my host, but somehow, I deleted the email. AAAAARRGGH. If the person who wrote that email reads this, please email me again. I promise to forward it on this time without any technical glitches. Gmail is not perfect, and neither am I. So stipulated.

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

The Consumer Financial Protection Bureau is an agency of the U.S. government created in the wake of the financial crisis of 2007-08 with the explicit purpose of protecting consumers in the (from the?) financial services sector, and hopefully preventing the generational clusterf*ck that was the Great Recession from ever happening again. Of course, since the CFPB was doing good things that helped American society become better for almost everyone, the Trump administration has been doing just about everything in its power to ruin the CFPB, like it has for the other federal agencies.

Remember that time the Cuyahoga River was so choked with industrial debris that it began sprouting tongues of flame five stories high, causing even noted enemy of the common good Richard Nixon to recognize that the Environmental Protection Agency should be created? Well, Trump put anti-science and pro-moron Scott Pruitt in charge of the EPA. When Pruitt was finally forced out for using taxpayer dollars like his dad’s bar tab at the country club, Trump then stuck coal industry lobbyist Andrew Wheeler at the head of the EPA, who’s also been doing his best to make America’s rivers flammable again. Likewise, the Trump administration put Rick Perry, who famously recommended that the U.S. Department of Energy be eliminated, in charge of, you guessed it, the U.S. Department of Energy. The number of Trump administration goons who hate the agencies they have been selected to lead is literally too long to include in this article, but suffice it to say, I could go on at length.

Now, the Trump administration is applying the same consistent strategy of putting the fox in charge of the henhouse to the student loan division of the CFPB. The Dodd-Frank Act, which created the CFPB, named only a handful of specific positions. Among them was the CFPB Student Loan Ombudsman, whose job it is to protect student loan borrowers and to “prepare an annual report and make appropriate recommendations to the Secretary of the Treasury, the Director of the Consumer Financial Protection Bureau, the Secretary of Education, and Congress.” So, apparently, in Trump’s eyes, the perfect man for the job was student loan industry executive Robert Cameron.

Cameron’s prior position was with Pennsylvania Higher Education Assistance Agency, better known as FedLoan Servicing, and better-still known as the place you call so that you can wait on hold for an hour before having whatever problem you’re having with your student debt ignored. This organization has been repeatedly cited for poor industry practices, and is among the top three companies that the CFPB’s student loan division receives complaints about. It is responsible for the mishandling of the Public Service Loan Forgiveness Program — if you recall, that program was supposed to forgive student debt for those who worked in public service or nonprofit positions and made loan payments for 10 years. The program turned out to basically give people false hope and stick them with an insurmountable debt after luring them into low-paying but societally beneficial positions. When I wrote about the Public Service Loan Forgiveness Program this spring, at that point only 206 people in the entire country had actually received student loan debt forgiveness under the program, out of 41,221 who submitted applications to the program.

On top of being the place that tells you they put your debt in the wrong imaginary debt basket, so no, it won’t be forgiven, please continue to pay it off until you’re dead, Pennsylvania Higher Education Assistance Agency employees were given a “fail” rating on interactions with borrowers 11 percent of the time, according to the Department of Education. The student loan servicing industry average is four percent. “We’re ruining your life and being a dick about it too” isn’t the FedLoan Servicing corporate motto, but hey, I’m willing to let them use it.

Cameron had a job to do at FedLoan Servicing, and in all fairness to this guy, you can’t really blame him for doing it. You don’t blame the fox for being a fox, you blame the poulter who put him in charge of the chickens. Still, Cameron probably doesn’t belong in an important position within the agency that is supposed to stop people like him from doing the kinds of things that they did within the $1.5 trillion student loan market.

For most of our history, politicians, even Republicans, thought that the government could do big, meaningful things, and do them well. Richard Nixon believed that when he created the EPA. Theodore Roosevelt believed that when he destroyed the commercial monopolies that were then taking over segments of the American economy. Dwight Eisenhower believed it when he sponsored and signed the bill that created America’s interstate highway system. Yet, for the Trump administration, the only solution seems to be appointing the arsonist to be the fire marshal, and burning it all down.

Jonathan Wolf is a litigation associate at a midsize, full-service Minnesota firm. He also teaches as an adjunct writing professor at Mitchell Hamline School of Law, has written for a wide variety of publications, and makes it both his business and his pleasure to be financially and scientifically literate. Any views he expresses are probably pure gold, but are nonetheless solely his own and should not be attributed to any organization with which he is affiliated. He wouldn’t want to share the credit anyway. He can be reached at jon_wolf@hotmail.com.

As of August 1, 2019, hopeful parents in New Hampshire have reason to celebrate. That’s because Governor Chris Sununu signed into law SB279, a law expanding insurance coverage for fertility-related diagnosis, treatment, and preservation. Now not everyone has to work at Starbucks to get in vitro fertilization (IVF) benefits! Or at least not after the law’s effective date of January 1, 2020.

Twelve Years and Two Babies

I spoke to Catherine Tucker, a New Hampshire attorney specialized in assisted reproductive technology law. Tucker was one of the driving forces behind the new law. For her, Tucker explained, it all started 12 years ago when she herself hoped to have a child. She frustratingly underwent round after failed round of IVF. Ultimately, she was able to conceive (twins actually!). But she explained that she was one of the lucky ones. At the time, she was working for the State of New Hampshire and her health plan provided coverage for the multiple rounds of IVF. Tucker, however, was all too aware that the majority of the 1 in 6 couples in the state facing infertility were without insurance coverage that would have provided basic coverage for fertility diagnosis or treatment, much less IVF.

Tucker wanted to find a way to help others in this situation. She joined with individuals and organizations passionate about changing the law. These included fellow ART attorney Christine Hanisco, RESOLVE New England Executive Director Kate Weldon LeBlanc, and Fertility Within Reach’s Executive Director Davina Fankhauser, among others. Tucker then formed a working group to draft the bill and educate state legislators on the need for a law mandating that insurers provide fertility coverage as part of their plans. Tucker notes Boston IVF was also instrumental and deserves a special shout-out for all their efforts in helping get the word out about the bill.

While the group ultimately hoped that every New Hampshirite would have the coverage they needed, Tucker explained that certain compromises had to be made. The enacted law requires most employer-provided health insurance policies to provide coverage for infertility diagnosis, infertility treatments, and fertility preservation.

What Was Left On The Table?

The law, however, only applies to group insurance providers in the Granite State. It does not apply to individual policies offered through the marketplace. It also does not apply to “self-funded” health plans — only the federal government is entitled to make laws regulating self-funded plans. And while the group policy coverage includes IVF treatment that involves a couple’s own gametes or a donor’s, it does not include certain assisted reproductive technology protocols, most notably the transfer of an embryo to a gestational surrogate. Non-medical costs surrounding a donor or surrogacy arrangement are also not included.

Despite not including everyone or every treatment, Tucker reports that her working group is pleased with the ultimate content of the law.

Since When Did The “Live Free Or Die” State Go For Insurance Mandates?

Tucker explained that while perhaps counterintuitive, there is considerable evidence that a fertility mandate will save insurance companies, the state, and taxpayers money in the long run. Without the help of insurance, IVF can commonly run around $15,000 a round. That’s all out of pocket to a patient lacking coverage. Aside from being cost prohibitive for many, it has also been shown to lead infertility patients to make poor choices.

For example, when undergoing a round of IVF, patients are often faced with a decision as to how many embryos to transfer to achieve a successful pregnancy. Those without insurance coverage for IVF have a higher rate of choosing to transfer two or more embryos at once, with the hope that the greater number of embryos will increase the likelihood of pregnancy. Or, as some think of it, give them two (or more!) babies for the cost of one.

The problem is that twin and triplet pregnancies come with significant increased risks and increased costs, including high rates of pre-term births and associated complications. In fact, insurance carriers end up paying $105,000 on average for a twin pregnancy and almost half a million dollars (!) for a triplet pregnancy, versus approximately $20,000 for singleton pregnancy. The studies show that patients can make better choices (with better outcomes for everyone — including insurance carriers!) with fertility coverage.

Given the practical side of the law — saving money and supporting families — the bill received bipartisan support and passed the New Hampshire Senate unanimously.

The final result is that New Hampshire is the 17^th state in the country to pass insurance mandates for fertility treatment. Insurance companies and policymakers in the other 33 states may want to take a look at the numbers…as well as consider whether it’s the right thing to do for the growing number of individuals and families battling infertility.

Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.