Category: News Feeds

The future of the Affordable Care Act remains in limbo after the Supreme Court denied a motion to expedite its consideration of the health law’s future. The decision, announced on Tuesday, makes it unlikely that the court will hear the case before November’s elections.

In December, an appeals court ruled that the individual mandate was unconstitutional, partially affirming a Texas judge’s ruling that the entire ACA was unconstitutional. The appeals court did not decide what that means for the rest of the health law, sending the case back to the district court to determine if other portions of the ACA are unconstitutional. The case, Texas et al v U.S. et al, was originally filed in 2018 by 20 Republican-led states.

On January 5, California, Washington D.C. and 19 other Democratic-led states filed a petition for the Supreme Court to consider the case on an expedited basis. Normally, the Supreme Court wouldn’t consider hearing the case until March of 2020 at the earliest. With the expedited briefing, Democrats hoped the court would hear the case in the next term, preparing insurers for next year’s enrollment and bringing the topic to the forefront as Election Day approaches.

The states wrote that without a decision, individuals, businesses and states will face “crippling uncertainty” going into 2021.

Insurance trade group America’s Health Insurance Plans (AHIP) and 33 hospital associations also filed comment with the Supreme Court on the case. Their concern was not so much with the striking down of the individual mandate, as it was the uncertainty of the entire ACA’s future after the appeals court decided to remand the case back to the district court.

For example, AHIP wrote, it could affect hundreds of other measures that have nothing to do with the individual mandate, including requirements to provide preventive care at no out-of-pocket cost, guaranteed coverage for individuals with preexisting conditions, and funding for expanded Medicaid programs in 37 states.

“Invalidation of the ACA would wreak havoc on the health care system,” AHIP wrote. “The ACA is not a tapestry that unravels by pulling upon a single thread (i.e., the individual mandate). Rather, the ACA’s multitude of wide-ranging reforms … affect every health insurance market (not just the individual market) and every American with coverage (not just those who purchased coverage on the exchanges).”

Hospital associations added that the uncertainty may lead to slower adoption of new healthcare models, such as accountable care organizations, and will lead to bond rating downgrades that could affect hospitals’ ability to raise capital.

The Supreme Court will return for its next term in October.

Photo credit: Mykola Velychko, Getty Images

Managing the obligations enshrined in contracts is central to controlling risk in an organization. Obligations are legally binding commitments made by one party to another, and missing these commitments can lead to adverse financial and regulatory consequences, revenue leakage and damaged business relationships.

Legal departments must take the lead in ensuring that their companies are being proactive in fulfilling their contractual commitments to avoid these risks. 

Capabilities to discover, track and manage contractual obligations are necessary for companies to manage and reduce risk and get the most out of their contractual relationships. Yet like all things in business, such capabilities may be nonexistent or basic in some companies and very mature in others.

Here, we will discuss a model by which we can think about the maturity of obligation management. We summarize this obligation maturity model by its four steps: Ad-Hoc, Enabled, Regulated, and Optimized–or simply “AERO.”

With this model, legal departments can begin to think about how they can mature as an organization, and thus drive down risk and improve contract performance and relationships.

Why Adopt a Maturity Model like AERO

A business can improve only if it’s aware of where it stands and where it wishes to get to. A maturity model provides a framework for internal discussion and brainstorming. It also provides an opportunity to leverage the experience and expertise within the organization, and an impetus to prioritize change over the status quo. It helps the organization build toward its long-term goals.

Maturity models can at times be found wanting if they aren’t based on adequate evidence and weak analysis. So to come up with the AERO Obligation Maturity Model, we looked to harness our experience with millions of contracts and customers across every vertical to see how the best organizations evolve and enhance their obligations management capability. We have tried to distill that learning into a simple four-level maturity model that we hope will help organizations better manage their obligations, risks and opportunities.

Maturity Level 1: AD- HOC

The most basic level of obligation management is ad-hoc. At this maturity level companies are generally aware of their obligations but do not have an automated or comprehensive way to manage them.

Each contract requires special attention by highly skilled subject matter experts, making obligation management extremely expensive and inefficient. At the same time, there is no way for managers to gain a global view on how the organization as a whole is doing at managing obligations.

Indeed, we call this maturity level “ad hoc” because managers are left to reinvent their obligation management system with each new contract, with no shared best practices or procedures across the organization. The results are costly mistakes, damaged business relationships and poor use of time.

Maturity Level 2: Enabled

Companies that have matured to an Enabled level of obligation management have basic systems in place to identify and track contract obligations. For example, contract managers may pull obligations out of a contract and place them in a worksheet that helps them understand the milestones they have to meet to stay in compliance.

While this is a major improvement over the Ad-hoc stage, we still see many of the same problems. Extracting and tracking obligations is done on a contract-by-contract basis, which is extremely costly and time-intensive. While systems are in place to limit missed obligations, there is still no way for companies to gain a global view of outstanding obligations and model how well they are doing with fulfillment (cycle times, fulfillment rates, etc.) across the entire body of contracts.

 Maturity Level 3: Regulated

At the Regulated stage of obligation management, we start to see companies taking advantage of automated processes to enforce consistency in how they handle contracts and thereby maximize value and drive down risk. Best practices and procedures are “built-in” to the process so that contract managers aren’t reinventing the wheel with each new contract.

We also see manual workloads decrease while compliance and visibility increase. With the help of contract management software, companies at this maturity can identify obligations and have a comprehensive view of their outstanding commitments and fulfilled obligations. Anomalies and at-risk obligations are flagged for review so companies can proactively intervene before damage is done.

The result is less risk and better outcomes, achieved with less manual contract management, enabling contract managers to focus on more strategic initiatives.

Maturity Level 4: Optimized

At the pinnacle of the AERO model is a state in which companies are extending their Regulated contract management process into other systems and are running advanced analytics over the data for deeper insights into obligation fulfillment and the transactions that affect them. Management of the obligation’s entire lifecycle is automated and fully visible.

These companies typically take advantage of software that connects obligations to transactional systems like the ERP, SCM or HR systems to track obligation fulfillment in real time. They also put an emphasis on dashboards that model workflows so managers can understand how obligations are being fulfilled and identify areas for improvement. Complex dependencies become visualized and thus manageable. And as the full lifecycle of the obligations are captured, improvements can be made to future contract language.

Organization with Optimized obligation management use AI/Machine Learning models trained on terabytes of contract data that can help discover obligations and their relationships, and managing them to fulfillment, ensuring that transactions off the contracts adhere to these obligations.

On the ground this leads to optimized relationships with customers, suppliers and partners, bringing various parts of the business together; at an executive level, we see contract data become a barometer of enterprise risk and performance monitored by the c-suite and the board.

The Promise of Optimized Obligation Management

When we step back and consider what the progression up the AERO framework from Ad-Hoc to Optimized means, it can be summed up as: In an Ad-hoc stage, the contract is a static document that you have to constantly go back to in order for any value to be derived from it; in reality we know that contracts are often entirely forgotten until problems arise. With Optimized obligation management, the contract becomes the nerve center of the enterprise, a living document that acts as a single source of truth for a company’s commitments, risks, opportunities and performance.

While contracts are nearly as old as civilization itself, the ability to extract and manage obligations as discreet entities that enable transactions within other systems is a fairly recent phenomenon enabled by AI and computer science. We are only beginning to see the full potential of what a contract can do for a company if managed and optimized on a digital platform.

To discuss where your company falls in the AERO framework, please contact an Icertis contract management platform specialists today.

Is Chief Justice Roberts new in town? Has he been asleep for the past thirty years since House Minority Whip Newt Gingrich rebranded the opposition the “Democrat Party” and instructed his fellow Republicans to refer to them with terms like sick, pathetic, lie, anti-flag, traitors, radical, corrupt? Washington, D.C. is not a nice place on the best of days. And this is certainly not the best of days.

At the conclusion of 12 hours of senate impeachment hearings last night, the Chief Justice tut-tutted, “I think it is appropriate for me to admonish both the House managers and the President’s counsel in equal terms to remember that they are addressing the world’s greatest deliberative body.”

“One reason it has earned that title is because its members avoid speaking in a manner and using language that is not conducive to civil discourse.”

“In the 1905 Swayne trial, a senator objected when one of the managers used the word ‘pettifogg,’ and the presiding officer said the word ought not to have been used,” Roberts continued. “I don’t think we need to aspire to that high a standard, but I do think those addressing the Senate should remember where they are.”

As if he wasn’t addressing the body which refused to even hold a vote on Judge Merrick Garland’s nomination to the Supreme Court, only to entirely discard the judicial filibuster and senatorial blue slips to block home-state judges.

Justice Roberts’ admonition came after a particularly vituperative exchange between the House managers and Trump’s defense team. Judiciary Chair Jerry Nadler, accused Senate Republicans of “voting for a coverup” by preliminarily blocking former NSA John Bolton’s testimony, calling it, “A vote against an honest consideration of the evidence against the President. A vote against an honest trial. A vote against the United States.”

White House Counsel Pat Cipollone accused Nadler of self-aggrandizement, saying, “It’s about time we bring this power trip in for a landing,”  and later adding, “The only one who should be embarrassed, Mr. Nadler, is you. For the way you addressed this body. This is the United States Senate. You’re not in charge here.”

“The Senate is not on trial,” howled the president’s personal lawyer Jay Sekulow, because defending a constitutional vote is presumably easier than explaining away the illegal withholding of congressionally allocated defense aid until a foreign government agrees to slime your political rival. “The Constitution doesn’t allow what just took place.”

Historians may debate whether the rampant false statements of fact by the president’s lawyers or the outraged response by the House prosecutors was most inappropriate. But in the immediate aftermath, it’s the GOP who has seized on Roberts’ statement to pronounce themselves grievously injured by the rough-tongued rapscallions from the Democrat party.

“It was clear what the impetus for that was,” said Missouri Senator Josh Hawley, a former Roberts clerk. “It was Nadler getting up and calling the president’s counsel a bunch of liars — repeatedly calling them liars. Which is a terrible breach of courtroom decorum.”

“It was so insulting and outrageous it was a shock to all of us,” huffed Texas’s John Cornyn, who once described Trump’s call for four congresswomen of color to “go back and help fix the totally broken and crime-infested places from which they came” an “unforced error.”

“I’m not covering up anything, I’m exposing your hatred!” screeched Lindsey Graham, in a flop that would make Manu Ginobili blush.

And the pettifoggery continues apace today, with another day of marathon impeachment hearings. What ancient lingo will the Chief Justice resurrect for today’s admonition of those irreverent scallawags? Tune in after midnight for an edge-of-the-seat mild rebuke from Hizzoner!

Chief Justice Roberts admonishes impeachment lawyers, telling them to ‘remember where they are’ [WaPo]
John Roberts scolds legal teams after tense exchange: ‘Those addressing the Senate should remember where they are’ [CNN]

This morning, Tulsi Gabbard’s attorneys filed a lawsuit in the Southern District of New York alleging that the former Secretary of State had “smeared” Gabbard’s “political and personal reputation.” Clinton spokesman Nick Merrill, quoted in The Hill, said “that’s ridiculous.” Calling Hillary Tulsi’s, “political and personal rival” as opposed to someone who could barely point her out of a lineup might be ridiculous, but the crux of the suit — that Clinton tried to brand a woman as an agent of foreign power because she doesn’t tow the party line in an effort to discredit Gabbard’s political career — doesn’t seem like much of a stretch at all actually.

Gabbard’s political career was starcrossed out of the gate: a Democrat with an anti-LGBTQ past and a hawkishness on Islamic “terrorism” that veers a bit too close to racist anti-Muslim tropes for most of her party’s comfort. She also said impeachment would only improve Trump’s chance of reelection, which she’s probably right about but still isn’t winning her any career points. She is never going to be the party’s nominee at any level of the ticket and, at best, is carrying on a vanity campaign and at worst is trying to lock in enough name-recognition to achieve sideshow relevance as a third party candidate. Which of course is Clinton’s axe to grind because she gives fuel to the idea that third party candidates cost her the presidency, which conveniently ignores Jill Stein’s core voters from 2012 and the boom in Libertarian “Never Trumper” voters, neither of which were ever in play for her. Still, it’s a nicer story than blaming yourself for writing off whole states.

Back in October, Hillary appeared on a podcast and branded Representative Tulsi Gabbard (vis-à-vis a comparison to Stein) as a “Russian asset” — or at least in the process of being groomed to be such an asset.

She’s the favorite of the Russians, they have a bunch of sites and bots and other ways of supporting her so far, and that’s assuming Jill Stein will give it up, which she might not, because she’s also a Russian asset. Yeah, she’s a Russian asset, I mean totally. They know they can’t win without a third-party candidate.

It would be one thing to say Gabbard might be playing into Russia’s hands, but calling her an “asset” being “groomed” is troublingly McCarthyite. Russia certainly dallies in US elections and certainly deploys bots to create mischief wherever it can to bolster Donald Trump’s presidency because Putin perceives the doddering tool as a boon to Russia’s foreign policy aims. Note, that this doesn’t make Trump an “asset” — a term commonly understood in this context as an agent on the payroll of a foreign power — even if he is colloquially an “asset” in that he’s helpful to them. Clinton might claim that she only intended the latter meaning but don’t pee on my bed and use the pictures for Kompromat and tell me it’s raining.

The difference between those meanings may feel like a narrow rhetorical line, but running around branding people “Russian assets” is some real Alger Hiss stuff. Whether this lawsuit is an actionable claim or not, and the lawsuit faces plenty of hurdles ahead, these political attacks tying people to “light treason” is a practice that should be flagged so people stop doing it.

Gabbard is represented by Brian Dunne and based on his Avvo page you’d best not mess with him because he just might be Baby Yoda:

Goofy picture aside — and seriously there’s nothing wrong with lawyers having a little personality — Dunne released the following statement upon the filing of the complaint:

“Rep. Gabbard’s presidential campaign continues to gain momentum, but she has seen her political and personal reputation smeared and her candidacy intentionally damaged by Clinton’s malicious and demonstrably false remarks.”

And while the idea that her campaign continues to gain “momentum” may be the most demonstrably false remark of all, trying to tie a sitting congressperson to actively working for the Russians based on nothing is certainly not cool.

Gabbard suing Clinton for defamation over ‘Russian asset’ comments [The Hill]

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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.

When the employees of CG Blockchain learned their boss wasn’t who he said he was, and was instead a convicted Canadian hedge fund fraudster named Boaz Manor, they quit en masse. This seemed like quite a bit of an overreaction to Shaun MacDonald née Manor. After all, he said, if anyone asked him if he was Boaz Manor, he readily admitted it, and “people don’t have to disclose any kind of embarrassing or painful situations that they’ve encountered in the past, so long as it does not relate to their current job.” And in spite of his working in blockchain and cryptocurrency technologies, Manor/MacDonald was just a humble “product designer” and management consultant, so no need to worry about or even mentioned that ban from the securities industry. (Plus, are cryptos even securities anyway? No one seems to know, so why fret?)

When we parted back in the hazy late days of 2019, we were deep in the weeds, reviewing the depth and breadth of copyright protection for short literary works. In particular, we were examining the works claimed by songwriters who had asserted claims against pop maestros Taylor Swift and Lizzo.

The two songwriters who are suing Taylor Swift for infringement assert rights in the following: “Playas, they gonna play / And haters, they gonna hate.” A short work to be sure, and one that expresses an idea that is not particularly profound, But, as we know from Feist Publications, Inc. v. Rural Telephone Service Co., and its progeny, the standard for “originality” under the Copyright Act is minimal. Unlike patents, as the Supreme Court wrote, the “sine qua non of copyright […] is that the work is original to the author.” So, to be copyrightable, a work need not be novel or unique; it just needs not be copied from another author and evince at least an extremely low amount of creativity. Verily, almost any ingenuity qualifies, no matter how “crude, humble, or obvious.”

The Ninth Circuit acknowledged as much in the Swift case, finding that plaintiffs’ material met the “extremely low” bar required for protection. This accords with decisions reached by other courts. In OG Int’l, Ltd. v. Ubisoft Entm’t, for example, the court held that even stick figures could qualify for copyright protection. So, when considering how many words are needed to cross the line from “short phrase” — which is not protectable — to a “short literary work” – which is protectable — there are a number of guiding principles. In Phillips v. Murdock, the court analyzed the phrase “Wisdom Bible of God,” and found it to be too short and too rote to be protectable. This phrase, notably, was used as the title for a book, which weakened the claim given the code’s prohibition on title protection, and simply combined words routinely used to describe the work at issue.

Contrast that with the Eight Circuit’s decision in Applied Innovations, Inc. v. Regents of the Univ. of Minnesota, which addressed a series of short test statements used in educational settings. The court found that these test statements were protectable because while they were “short, simple, declarative sentences,” they were “not merely fragmentary words and phrases within the meaning of 37 C.F.R. § 202.1(a).” The court found these short statements protectable even though some were revisions of prior works, because they constituted “distinguishable” variations of the earlier material.

The Second Circuit’s approach, as seen in Salinger v. Random House, Inc., delineated what is protectable from what is not by noting that “a cliche or an “ordinary” word-combination by itself will frequently fail to demonstrate even the “minimum level of creativity necessary for copyright protection,” but such protection is available for the “association, presentation, and combination of the ideas and thought which go to make up the [author’s] literary composition.” This counsels that short phrases can be protectable depending not just on the words but the presentation of expression and the author’s analysis and emphasis.

This case, it should be said, reverses a finding of “fair use” by noted fair use maximalist Judge Pierre Leval back when he was a district court judge. The court notes that Judge Leval’s fair use finding was erroneous because it failed to recognize that while and “ordinary phrase may enjoy no protection as such […] its use in a sequence of expressive words does not cause the entire passage to lose protection.” Thus, while “the “ordinary” phrase may be quoted without fear of infringement, a copier may not quote or paraphrase the sequence of creative expression that includes such a phrase.

Swift’s case has now been sent back to the district court for discovery and further development of the record, which will likely include depositions ventilating how the plaintiff songwriters and Swift’s team developed the competing player-hater songs.

The case against Lizzo (at least the one we will be discussing) will not reach the discovery stage or even the courthouse. She had a massive hit with Truth Hurts, which topped the Billboard Hot 100 list for many weeks running. The most oft-quoted line from that song is its opener: “Just took a DNA test, turns out I’m 100 percent that bitch.” The problem, though, is that Lizzo 100 percent stole that line (allegedly) from a tweet written by British singer Mina Lioness. After initially denying that the line had been copied from Lioness, Lizzo eventually changed her tune and reached a deal to provide credit and compensation to the original creator of the line.

This phrase, like the phrase in the Swift case, is likely creative enough to be protectable and provides one of the more compelling moments in the song. Short, punchy, and memorable, one can easily see a jury finding the lines to have value and be within the ambit of copyright. And one can easily see why settlement would be the preferred course.

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Scott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and writes and speaks regularly on copyright issues. He can be reached at scott@copyrightLA.com, and you can follow his law firm on Instagram: @veniceartlaw.

It’s 2020. Did you hear Barbara Walters announce it?

This year is the 100th anniversary of women winning the right to vote, and it was anything but a slam dunk. Showing my ignorance, which I do quite a bit, I had no idea that Tennessee was the deciding state as to whether the 19th Amendment for women’s suffrage would succeed or fail. Yes, we are divided today, but that’s really nothing new. Read this book (I reviewed it for HeadButler.com) and you will understand that divisiveness is not a new concept in American politics. Not surprisingly, not every woman was in favor of giving women the vote; see any parallels to today’s battles? One hundred years ago and today are closer than we would like to think.

I shudder to think what the fight would have been like had social media been around. In fact, I wonder if the term “antisocial media” makes more sense in these days of vitriolic, vituperative “discourse.”

Are you a member of the “clean desk” club?  I marvel at attorneys who are able to keep their workspaces clean, like working on only one file at a time.   Most litigators, especially in house, that I have known or know now do not fall into that august group.

One thing that irritated me about the television show The Good Wife was the clutter-free appearances of attorney offices, especially litigation associates whose spaces should have been drowning in paper. While I can appreciate the Zen concept of clutter-free, Zen and litigation just don’t seem to mesh, at least not for me. If they do for you, please tell me how. For me, the problem with Marie Kondo-izing my office would be the inability to find what I am looking for after the purge.

My office was full of boxes of discovery production (in the days before CDs and, then, third-party vendors). Briefs to be written, pleadings to be filed, and the like. Since I was in house, clients would routinely call or drop by with questions that took up time that I had promised to devote to a litigation matter. However, I rationalized that the time spent with a client could mean one less claim, one less lawsuit, always a happy thought. We never lacked for work in house. Some client was always getting into trouble; that was a given.

Do you know that one of my favorite words, “dinosaur” doesn’t translate into Zulu? Stay with me here. A scholar who works on decolonizing language that has untranslatable words suggests “ancient animal.”

Whether you are an “ancient animal” or a “dinosaur,” Carolyn Elefant’s recent post should prompt all of us of a certain age to heed the calls for the profession to change, sooner rather than later (wishful thinking there). It should be “do not go gentle into that good night” (remember the Dylan Thomas poem) It’s time for us old farts (can I say that?) to move us forward after years of tiny incremental changes. At this point in our careers, we should feel free to suggest what works, criticize what doesn’t, and how to make the next decade better.

I am all for disruption, and I agree with Elefant’s take that it’s time for women to stop worshiping at the feet of Biglaw and start their own practices. After all the years of trying to achieve parity in Biglaw, it’s time to stop, stop right now, and disabuse ourselves of any notion of equality and equal pay. It’s time to stop trying to twist ourselves into pretzels.

Men have ruled the roost and it’s time to take a slingshot (or something stronger) to their crowing. As Elefant says we need to stop looking at women owned law firms as a fallback when women are passed over for partnership; we need to see women owned firms for what they are: legitimate career choices, and perhaps even better ones, at whatever stage in the career such a choice is made. It shouldn’t be regarded as “loser, loser,” but rather “winner, winner.”

Elefant says that it is the dinosaurs aka ancient animals who can make lasting changes, be the risk takers, the trail blazers, the mouthpieces; at this point, what do we have to lose? If our dinosaur legacy can be one of positive changes for clients, the profession, and access to justice, then sign me up. Let’s hear the Twenties roar. Now, where and how to begin?

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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.

In 2015, a same-sex female couple in Indiana tragically lost their twin babies during a premature childbirth. But in a bizarre application of Indiana law, while both parents were permitted to be named on the children’s death certificates, one parent — the parent who was not genetically related to the children — was denied the right to be listed on the children’s birth certificates. The couple challenged the Indiana laws that were at play, joining several other same-sex couples in the litigation. Eventually, the couples won an injunction in federal district court.

Indiana appealed to the U.S. Court of Appeals for the Seventh Circuit in 2017. On appeal, the Indiana Attorney General’s office argued that state law requires that the biological parents of a child must be listed on the child’s birth certificate. In other words, the right procedure for a same-sex female couple would be to list a sperm donor on the original birth certificate as the “father.” And then, go through an adoption procedure for the nongenetically related mother. Once that adoption was completed, the couple could request a reissued birth certificate. Oh that’s all? Actually, that’s quite a lot of red tape! And confusingly, the same standards apparently did not apply to an Indiana death certificate.

What Is Marital Presumption And What If The State Discriminates As To Who Gets The Presumption?

The plaintiffs argued that Indiana law was being applied in a discriminatory manner. For instance, Indiana law provided a presumption that any man married to a woman giving birth was presumably the father — the biological father — of the baby. That was true even if the couple had used a sperm donor in order to have a child. But Indiana declined to apply that same presumption when a woman was married to a woman. So a heterosexual couple using a sperm donor avoided quite a few headaches that a same-sex female couple had to overcome, in order to reach the same legal position as parents.

The Indiana attorney general argued that the state’s laws were not discriminatory, since all couples were being treated the same. Every woman giving birth should know that when filling out the “father” portion of the birth certificate under Indiana law, the law required her to write the information for the “biological” father –- whether he be an anonymous sperm donor or other –- and not necessarily her spouse. The attorney general further argued that if a woman were to write her husband, and he was not the biological father, then her husband would not have any parental rights to the child. Of course, this argument obfuscates the underlying issue at stake — that the marital presumption only applies to heterosexual couples, and that the state is only objecting when same-sex couples list both parents on the birth certificate.

But, But … Obergefell And Pavan

Last week, the Seventh Circuit FINALLY ruled in the case known as Henderson v. Box … two and half years after arguments before the court, and just at the three-year mark after the case was appealed in 2017. In a victory for same-sex parents throughout Indiana, the appeals court ruled in favor of the parents. The judges on the panel were Flaum, Easterbook, and Sykes; Ford, Reagan, and George W. Bush appointees, respectively.

The court acknowledged that, yes, a man listed on a birth certificate, upon contest in Indiana, can be shown not to have parental rights to the child. However, the court pointed out that even with a “bursting-bubble presumption” –- one that vanishes as soon as it is contested — the presumption has consequences for parental rights. Unless the presumption is, in fact, contested, the husband is deemed the father (regardless of biological parent status), with full parental rights and parental duties, in a way that both women in a female-female marriage are not.

The court noted that the spouse of the woman giving birth may, indeed, be the biological mother of the child. One set of the plaintiffs in the lawsuit are an example of this. The couple went through “reciprocal IVF” — where one spouse gestationally carried and gave birth to the child, and the other, through an egg retrieval and in vitro fertilization, was genetically related to the child.

Case closed.

Of course, this should have been an easy case all along, and resolved much sooner. We already know from SCOTUS rulings in Obergefell and a subsequent cased called Pavan that same-sex couples are entitled to receive the same “constellation of benefits” as different-sex couples. That includes parental rights. So if a man married to a woman gets the presumption of parenthood, a woman married to a woman, or a man married to a man, must receive the same presumption. Equally. Indeed, the Court’s opinion was a breezy 10 pages explaining this rationale.

Good Work. But In Less Helpful News …

Nice work to the court coming to a sound decision as to the plaintiffs’ rights to equal treatment under the law. If you are going to take 32 months to write a 10-page decision, you definitely want to get it right.

Of course, in less helpful news, the court specifically noted that the question as to “all-male” couples was “expressly left open for resolution by the legislature or in some future suit.” The court also made clear it was not ruling on any parental rights that a biological father — such as a sperm donor — might have to the child of a same-sex female couple. So all you donors out there, keep your eyes open for future similar cases.

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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.

When it comes to litigation, law schools generally funnel students into larger, defense-oriented firms. These firms offer steady paychecks — all the better to pay your monthly debt bill, my dear — and a tried and true path. But there is another side to the “v” and it often involves better opportunities and more rewarding work. Joe and Elie chat with Edelson PC about the tech-oriented plaintiff and class action firm’s work from protecting biometric privacy rights to addressing sexual misconduct in youth sports with partner Chris Dore and associates Aaron Lawson and Sydney Janzen.

Here at Above the Law, we make it a habit to cover whenever a Biglaw firm expands its parental leave. The move is a growing trend to be sure, and the expanded programs are regularly offered now as gender neutral and without a primary caregiver stipulation. This is good news we should — and are! — celebrating. But we also hope to build the pressure and shame on the firms whose policies and entrenched in the past.

Anyway, on to the good news!

Yesterday, Kramer Levin announced some big changes to their parental leave policy. The firm’s policy — which it should be noted applies to all employees, not just lawyers — will allow new parents, regardless of parenting role, to take 12 weeks’ paid leave. This is on top of any disability leave. And the policy applies to births, adoptions and foster care placements of a child.

Kudos to the firm!

With more and more firms stepping up, expanded, gender neutral leave may start to feel de rigueur, and that’s a good thing. But we should also remember it’s an important step, one experts say will help ameliorate the gender pay gap. And that’s good news we can all get behind.

Check out the firm’s complete policy below.

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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).