Newly Merged Megafirm Slashes Partner Pay To Be ‘Prudent’ During Pandemic

(Image via Getty)

If you thought working at a Biglaw firm during a pandemic was difficult because it’s forced the majority of the office into a work-from-home environment, imagine working at a Biglaw megafirm that merged just weeks before the crisis began. It’s an uncertain time for everyone, but there’s even more uncertainty when a newly combined firm is just starting to get its footing when disaster strikes.

This is what’s happening at Faegre Drinker Biddle & Reath, the firm that was formed after Faegre Baker Daniels finalized its merger with Drinker Biddle & Reath on February 1. If you recall, the prospective Am Law 50 firm with more than 1,300 lawyers was one of the very first to close its doors over coronavirus concerns.

How is Faegre Drinker proceeding amid all of the salary cuts, furloughs, and layoffs that have come about at peer firms due to the global health crisis? The firm’s partners are reportedly taking a rather “sizable” hit for the team:

Faegre Drinker Biddle & Reath has deferred its equity partner distributions by one-third for the second quarter in an effort to be “prudent and conservative” during the ongoing COVID-19 pandemic, the firm said.

It is also monitoring the expenses generated by its workforce of more than 1,300 lawyers, consultants and professionals located across 22 offices, said co-chairs Andrew Kassner and Tom Froehle.

“It’s inevitable if it impacts our clients, it’ll impact the law firms. Everything has to be on the table as we plan going forward over the second quarter and third quarter and beyond,” Kassner said. He initially described it as being a cut in partner distributions, but then emphasized the firm was deferring those distributions: “It’s just a deferral. It’s all a matter of timing.”

Best of luck to Faegre Drinker in the months ahead. It sounds like the firm is doing right by its employees, which will hopefully lead to its success in the future.

If your firm or organization is slashing salaries, closing its doors, or reducing the ranks of its lawyers or staff, whether through open layoffs, stealth layoffs, or voluntary buyouts, please don’t hesitate to let us know. Our vast network of tipsters is part of what makes Above the Law thrive. You can email us or text us (646-820-8477).

If you’d like to sign up for ATL’s Layoff Alerts, please scroll down and enter your email address in the box below this post. If you previously signed up for the layoff alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each layoff, salary cut, or furlough announcement that we publish.


Staci ZaretskyStaci 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.

Reflections At 13 Years Sober

(Photo via Brian Cuban)

On April 8, I celebrated my abstinence-based, 13 years in long-term recovery from alcohol, cocaine, and bulimia (Yes, males develop eating disorders).

I reflect with mixed feelings as it also falls on what would be the 94th birthday of my father whose passing 18 months ago is still fairly raw and painful.

Of course, my recovery anniversary will always fall on his birthday, and there will always be tears for that, but his passing seems to hit especially hard as I sit at home with millions of others in the heart of the trauma, uncertainly, and anxiety wrapped around the COVID-19 pandemic.

I think that some of my angst also correlates to suddenly being hyperaware of my mortality, churning toward 60 and on the cusp of the COVID-19 “high-risk” age demographic. Wasn’t it just yesterday that I was 18? Where the hell did the years ago? The irony is that I can’t remember many of them in the haze of drugs and alcohol.

I do remember my father’s role in my recovery. The memory of walking over to his place fresh off my second trip to a local psychiatric hospital after a drug- and alcohol-induced blackout is one that remains vivid and sometimes rebroadcasts in high definition in my dreams.

That morning, early April 2007, I stood at his door, ashamed, guilty, and broken. He had no idea that I struggled with drugs and alcohol. I justified my silence so as not to be a burden him in his golden years.

I lurked outside his apartment door for five minutes, crying and almost going home. I finally knocked. He answered the door, and as usual, was ecstatic to see his middle son. As usual, he offered me something to eat. As usual, he asked if I needed any money. It didn’t matter what my financial status was. He asked.

That morning, I only wanted his love, which I received every moment of every day from the time I was born.

We sat on his couch. He knew something was wrong. I began crying again. Over the course of an hour, I unloaded decades of pain. Things I kept from him because I loved him. Because I did not want to burden him. Because I did not want to see his disappointment in me. I did not want to see his pain over my failures in life. That’s what I told myself.

He held me. He cried with me. Then he said the one thing that defined everything he had taught his sons growing up.

Brian, I love you. Move in with me, and we will get through this together.

I lived with him for a week while I attended my 12-step meetings and shuttled between his place and mine to take care of my pets.

My father, Norton, of the greatest generation. My father gave me the greatest gift. The gift of a father talking to his son and letting him know he is loved. My father, without knowing it, allowed me to take another step in recovery, beginning the process of self-love and allowing myself to accept it.

I hope he is smiling down at my milestone and as soon as the stay-at -home order is lifted, I will head on over to his resting place, his new home, and tell him about it. Ironically, it is also, walking distance.


Brian Cuban (@bcuban) is The Addicted Lawyer. Brian is the author of the Amazon best-selling book, The Addicted Lawyer: Tales Of The Bar, Booze, Blow & Redemption (affiliate link). A graduate of the University of Pittsburgh School of Law, he somehow made it through as an alcoholic then added cocaine to his résumé as a practicing attorney. He went into recovery April 8, 2007. He left the practice of law and now writes and speaks on recovery topics, not only for the legal profession, but on recovery in general. He can be reached at brian@addictedlawyer.com.

Executive And Partner Salaries Are On The Chopping Block At This Am Law 200 Firm

As more and more Biglaw firms announce their COVID-19 austerity measures, it’s tempting to lump all cost-cutting together but there are important distinctions to be had. There is a big difference in asking a secretary to take a 10 percent pay cut as your first move, versus furloughing wide swaths of staff, versus slashing partner compensation. The latest firm to announce cuts is making sure the top of the firm is being cut from first.

Husch Blackwell, a firm knocking on the Am Law 100’s door (they come in at the 101st spot), is also making cost-cutting measures to keep cash a-flowin’ during these rough economic times. But unlike other firms that have taken an across the board approach to the cuts, at least for now, those at the top of the law firm food chain are the ones impacted. Equity partner draws were cut by 15 percent and all managing directors and c-level executives had their salaries cut by 10 percent.

A firm spokesperson confirmed the cuts and said, “Like all companies, we continue to monitor the pandemic’s impact on our business and that of our clients.”

At least the firm seems to be making the cuts from the top first. You can read the full firmwide email announcing the cuts on the next page.

If your firm or organization is slashing salaries, closing its doors, or reducing the ranks of its lawyers or staff, whether through open layoffs, stealth layoffs, or voluntary buyouts, please don’t hesitate to let us know. Our vast network of tipsters is part of what makes Above the Law thrive. You can email us or text us (646-820-8477).

If you’d like to sign up for ATL’s Layoff Alerts, please scroll down and enter your email address in the box below this post. If you previously signed up for the layoff alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each layoff, salary cut, or furlough announcement that we publish.


headshotKathryn 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).

Am Law 100 Firm Cuts Salaries, Offers Unpaid Leave, Cancels Summer Program With No Pay, No Guarantee Of Employment

(Image via Getty)

Biglaw firms continue to roll out cost-cutting measures, and much like the social distancing and isolation that have become part and parcel of our everyday lives due to the coronavirus pandemic, there seems to be no end in sight. From salary cuts to furloughs to layoffs, law firms across the country are doing their damndest to keep their heads above water amid the economic upheaval that’s been brought about by the COVID-19 outbreak.

We’ve received word that yet another Am Law 100 firm is trying to save on cash by having employees share in its financial pain. Ogletree currently places at #73 in the latest Am Law 100 ranking, and sources tell us that the firm decided to cut both salaries and workweek hours for its staff, with some going as far to say their salaries have been halved. We’ve also been told that while the firm has approved special COVID pay for some, when that runs out, they’ll be on unpaid leave (with paid benefits through May 31). It sounds like this is just a polite way of saying these employees have been furloughed. Here’s an excerpt from a memo we received:

A rather distraught source had this to say about what’s happening at the firm:

In my department, I’m working only two days a week and pulling from a firm-funded COVID leave fund to make up my pay. But once that runs out next week, I have to use Paid Time or Sick Leave. There is no guarantee that I will even be able to work the two days I am now by the end of the month. I have been told I will have to apply for unemployment at that point.

On top of the matters affecting staff members at the firm, Ogletree has canceled its 2020 summer associate program. The 36 law students who were supposed to work at the firm this summer will not receive any of the compensation that they were relying upon, and sources tell us that unlike other firms, Ogletree has not guaranteed future employment — only hope of such offers “when we emerge from the crisis.”

Last, but not least, sources claim the firm has allegedly laid off attorneys in one of its Texas offices. We are unable to confirm these reports at this time.

We reached out to the firm several times for comment, but have yet to hear back.

If your firm or organization is slashing salaries, closing its doors, or reducing the ranks of its lawyers or staff, whether through open layoffs, stealth layoffs, or voluntary buyouts, please don’t hesitate to let us know. Our vast network of tipsters is part of what makes Above the Law thrive. You can email us or text us (646-820-8477).

If you’d like to sign up for ATL’s Layoff Alerts, please scroll down and enter your email address in the box below this post. If you previously signed up for the layoff alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each layoff, salary cut, or furlough announcement that we publish.


Staci ZaretskyStaci 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.

Falwell’s Liberty University Pockets Fees After Pretending To Open Dorms, Suit Alleges

Remember last month when Jerry Falwell, Jr. was all over Fox insisting that he was going to bring students back to Liberty for in-person classes during a pandemic?

Turns out … not so much. Apparently Falwell invited the student body to return from spring break (with their germs!) on March 20 for a “modified” schedule of on-campus learning. And by “modified,” he meant they were welcome to sit in their dorm rooms and use the WiFi to “attend” class, which transitioned to an all-online format on March 23.

Liberty purported to continue offering residential and to-go meal services, although it sent multiple conflicting emails to students both “encouraging you to stay home” while simultaneously not endorsing “any particular action” with respect to campus housing. So if students wanted to hunker down in Lynchburg and Zoom from their dorm rooms while subsisting on takeout from the dining hall, they were theoretically free to do it.

In reality, the only way Liberty could colorably maintain student safety was if the vast majority of enrollees stayed home with their families, effectively subsidizing the handful of students who took the school up on its “offer” to socially distance in the abandoned dorms. Which is exactly what happened, of course.

But Jerry Falwell is a generous man, so he decided to make it right with the kids. If they declared their intention not to return to the dorms by March 28, he would offer them a $1,000 housing credit toward next year’s fees for any student who chooses to return. Heck, graduating seniors could even take the $1,000 off their bills for spring. Sound good?

Well, apparently NOT. Which is why his school just got hit with a class action lawsuit filed by students who claim the school ripped them off for tuition and fees. Because the $1,000 housing credit did nothing to offset the meal plan, health insurance, student activity fees for shuttered gyms and libraries, parking charges, or various course fees associated with its Divinity, Osteopathic Medicine and (ABA accredited) Law Schools.

The case, captioned Student A v. Liberty University, Inc. was filed anonymously in the U.S. District Court for Western District of Virginia by a student who claims a colorable fear of retaliation should their identity be revealed.

Plaintiff is concerned about negative treatment from the University that could come in the form of negative treatment in the classroom or possibly even expulsion. Liberty’s President, Mr. Falwell, has already shown his willingness to use social media, for which he has a large following, to criticize and invite scorn upon anyone who criticizes him, Liberty, or Liberty’s actions regarding the COVID-19 pandemic. Liberty’s Senior Vice President of Communications contacted one student, and involved that student’s employer, who spoke out against the University and, in the student’s words, “chided” him for his comments. Liberty has further shown its willingness to retaliate against anyone who criticizes Liberty’s COVID-19 response by seeking and obtaining arrest warrants against members of the media who participated in stories critical of Liberty.

Case in point, here’s the esteemed Mr. Falwell calling the parent of three Liberty students a “dummy.”

The suit claims breach of contract, unjust enrichment, and conversion, accusing the school of pretextually keeping the dorms “open” as flimsy cover to pocket students’ meal and residential fees.

Liberty University is, in a very real sense, profiting from the COVID-19 pandemic, keeping its campus and campus services “open” as a pretext to retain Plaintiffs and the other Class members’ room, board, and campus fees, despite no longer having to incur the full cost of providing those services, all the while putting students’ finances and health at risk.

It also alleges that the school may be eligible for up to $15 million in stimulus funds, and is thus double dipping to profit off the pandemic. Which is a scurrilous allegation to level at a pious moral beacon who threatens expulsion for students caught drinking alcohol and then falsely accused a photographer of doctoring multiple images that showed him drinking in a crowded nightclub!

AHEM.

Student A v. Liberty University, Inc. [Complaint via Buzzfeed]


Elizabeth Dye (@5DollarFeminist) lives in Baltimore where she writes about law and politics.

In Minor Jurisprudential Miracle, Someone Is Actually Charged For Lying In A Family Law Case

Mercifully, most of my work these days is in business litigation, environmental litigation, and appeals. But as a young lawyer, I cut my teeth in family law. My first solo trial was actually a divorce case. In those days, I developed a useful little canned speech. I still pull it out in the occasional family law case that I take on as a favor to someone or as pro bono work when presented with a particularly compelling sob story. Feel free to steal this if it helps your practice:

Client: How can [he/she] get up on the stand and just lie like that? I thought there were perjury laws. I thought being under oath meant something. This is not what I expected the court system to be like.

Me: You know how often I hear this from my clients after court about the other party lying under oath? Every single time. And believe it or not, [he/she] is over there talking to [his/her] lawyer right now and saying the exact same thing about you.

Client: What do you mean? I told the truth!

Me: When two people witness an event, each remembers it differently, and the memories actually change over time. You have the version you remember, there is the version [he/she] remembers, and then if there had been a video camera in the room, that would be a totally different third version. Both of you are probably telling the truth in your own minds. If you want to waste your time talking to law enforcement about a perjury prosecution, go for it, but you don’t want to pay me to be involved in that. Don’t worry though, I made [him/her] look like an idiot on cross-examination, and that’s what matters for our purposes.

That made sense to people. Witnesses in family law cases take the oath, but prosecutions for breaking it seemed about as real to me as Leprechauns.

Every once in a while, though, you catch the glimmer of a rainbow on the horizon, and think maybe, just for a second, there’s a Leprechaun sitting at the end of it. Almost a year ago, while NASA astronaut Anne McClain was floating around on the International Space Station and going through a bitter divorce, her estranged wife Summer Worden accused her of wrongfully accessing Worden’s bank account online from space. Like in every family law case, these accusations got blown way out of proportion, and Worden filed a complaint with the Federal Trade Commission accusing McClain of identity theft. Worden’s family also got involved for some reason (rarely a good idea in marital dissolutions — the family is usually more vindictive and less stable than the principal) and lodged a similar complaint with NASA’s Office of Inspector General.

This drama got a lot of press. The New York Times touted it as perhaps “the first allegation of criminal wrongdoing in space.” But it turns out this was all just the regular, old, ground kind of crime.

An indictment unsealed last week revealed that Worden has been charged with two counts of making false statements to federal authorities, and is facing up to five years in prison on each of the counts as well as a fine of up to $250,000. Specifically, Worden stands accused of lying about when she opened the account that she claimed McClain wrongfully accessed and about when she reset her login credentials (McClain claimed all along that she was simply accessing a shared account to make sure the couple’s finances were in order using the same login credentials she had used during their entire relationship). Worden also allegedly made a false statement to NASA’s Office of Inspector General while being interviewed.

So, there doesn’t seem to be a space crime here, but this case is remarkable for another reason: someone is actually getting charged for lying in a family law case. Are the alleged lies any worse or any more egregious than those that arise in every family law case ever? Absolutely not. But when you escalate your family squabble into outer space by involving two federal agencies, well, you’re kind of asking for it.

This astronaut-adjacent federal indictment notwithstanding, criminal consequences for lying in a family law case are extremely rare. Still, you shouldn’t be willing to bet five years of your life (or, you know, the well-being of your children) that your self-serving recollection of reality is indisputably the right one. Because it never is.


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.

Yet Another Am Law 200 Firm Is Cutting Salaries Because This Madness Will Never End

You ever feel like you’re trapped in a dystopian version of Groundhog’s Day? Every day — hell, even the weekends — has blurred together in a kind of awful sameness. Only the smallest details change which is how you know time is, in fact, passing, no matter how slow it seems.

Your friendly Above the Law editor feels that as well. Every day we report on more Biglaw firms that find it necessary to cut something — layoffs, furloughs, and associate salary cuts — and it’s what passes for Biglaw normal these days. Only the names of the firms seem to change, which is how you know just how massive COVID-19 austerity measures have been in the industry.

Anyway, the latest firm to announce salary cuts is Hinshaw & Culbertson. The firm notched $208,549,000 in 2018 gross revenue which makes them 140 on the Am Law 200. Hinshaw has decided to cut salaries by 15 percent across the firm, for all employees making more than $55,000. This measure is to begin on April 30, 2020, and is to continue through August, subject to “constant review.”  They’ve also halted retirement savings plan matching. Plus mid-year reviews and salary adjustments, which include promotions of senior associates to partner, have been delayed, likely until January 2021.

You can read the firmwide email announcing the cuts on the next page.

We reached out to the firm for comment, but have yet to hear back.

If your firm or organization is slashing salaries, closing its doors, or reducing the ranks of its lawyers or staff, whether through open layoffs, stealth layoffs, or voluntary buyouts, please don’t hesitate to let us know. Our vast network of tipsters is part of what makes Above the Law thrive. You can email us or text us (646-820-8477).

If you’d like to sign up for ATL’s Layoff Alerts, please scroll down and enter your email address in the box below this post. If you previously signed up for the layoff alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each layoff, salary cut, or furlough announcement that we publish.


headshotKathryn 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).

First Black Woman To Graduate From Harvard Law Dies From Coronavirus Complications

(Image via Getty)

We have some incredibly unfortunate news from New York, where a woman who overcame historic obstacles to succeed in the world of elite legal academia passed away due to complications of coronavirus.

Lila A. Fenwick, 87, was the first black woman to graduate from Harvard Law School. She graduated from Harvard Law in 1956 with a handful of other women, just one year before Ruth Bader Ginsburg started as a first-year student at the school. While there, Fenwick was subjected to “a particularly virulent form of racism and sexism.” Her New York Times obituary details her career:

“I knew I was going to be a lawyer when I was a little girl,” she told the Harvard Law Bulletin in 2000. “It never occurred to me that there were going to be any obstacles.” …

After law school, [Fenwick] attended the London School of Economics.

In the 1960s, Ms. Fenwick worked in what was then the Division of Human Rights at the United Nations, said Bertrand Ramcharan, a former acting United Nations High Commissioner for Human Rights. She was a specialist on studies about gender, racial and religious discrimination; the protection of minorities and indigenous populations; and the right to emigrate from oppressive countries, he said.

“She was so elegant, a lady in the lovely, old fashioned, full sense of that word,” Professor Patricia J. Williams, a 1975 graduate of Harvard Law said. When Williams was working as one of the first black female professors at Columbia Law in the early 1990s, Fenwick audited one of her courses. “We talked about the loneliness, what it took to be in a world where you were always different, always the other and never assumed to be part of the power elite.”

We here at Above the Law would like to extend our sincere condolences to Lila Fenwick’s family, friends, and colleagues during this difficult time.

Lila Fenwick, Who Broke a Barrier at Harvard Law, Dies at 87 [New York Times]


Staci ZaretskyStaci 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.

UCLA Law School Calls For Tolerance, So Obviously Professor Blows That Up With Childish, Racist Tirade

This story is very much about the juxtaposition of grown-ups and children. The good news and bad news for students at the UCLA School of Law is that both are members of the faculty.

To recap, when Professor Stephen Bainbridge went to Twitter to tell the world that he suspects his Chinese students gave him COVID, a contention he based upon… nothing, the folks from APILSA wrote a detailed response garnering, at this writing, over 450 signatures. With a controversy like this brewing on her watch, Dean Jennifer Mnookin sent a statement to students and faculty attempting to strike a tone of tolerance and understanding. Professor Bainbridge has publicly said of his remarks that, “Put bluntly, they were stupid and insensitive,” and Dean Mnookin acknowledged this as an important step in the institution’s ongoing mission:

And that is work that we can and must undertake collectively. To be sure, it is also important to recognize that there is already much we can be proud of about our community and in our learning environment. I see daily the way that compassion and empathy couple with rigorous intellectual engagement. I see students working ardently to learn and to lead while holding on to their deep sense of justice. I see faculty caring about our students as both learners and as individuals. I see students from all over the globe who enrich our collective learning and help to broaden our worldview. And I see a community that is meaningfully diverse along virtually every dimension, and a school where students from backgrounds traditionally underrepresented in the legal profession are succeeding, flourishing and leading, engaged in powerful advocacy both within our school and in the world beyond.

This is what a grown-up does. The response may not resolve everyone’s concerns — apologies are important, but are only the beginning of the hard work of rebuilding trust — but it recognizes that the institution understands the value of getting to that point.

Dean Mnookin’s statement also addressed in passing, as the APILSA letter raised, that the school is only a few weeks removed from a controversy over Professor Eugene Volokh’s commitment to dropping racial epithets in class, despite being asked by students not to. The dean’s mention merely provided context and explicitly acknowledged both Volokh’s right to continue to do this and that students and, indeed, other faculty are right to recognize this as offensive and to push back against it. All in all, it was a very measured, mature statement.

So, with the inevitability of Thanos, Volokh took to his forum with Reason magazine — America’s foremost publication to jerk off to if you’re a 15-year-old white suburban kid with deep thoughts about affirmative action — to pen “UCLA Law Dean Apologizes for My Having Accurately Quoted the Word ‘******’ in Discussing a Case,” except he doesn’t deploy asterisks. Befitting an infantile rant, the subtitle of the work is “I, however, do not apologize.”

Because there is no world beyond him and his grievances.

Volokh rattles off how he’s an equal opportunity quoter of the cornucopia of slurs available in the cases he teaches and then offers his five arguments for never apologizing — let alone stopping — even when it would cost him nothing and would benefit those he lords over in a power relationship greatly. We’ll address each in turn, but the short-version is “because he can.”

First, the law school is part of a university: And by this he means it has “The right (I think the duty, but at least the right) to accurately present and discuss the facts of the world around us.” This is specious. It’s a failure of this duty if he taught these cases claiming that the defendants said “nothing in particular,” thus scrubbing any potential racial animus from the case and leaving it a confusing shell. That would be an abdication of presenting the facts of the world around us. But on the contrary, presenting the case as, “the defendants shouted a racial epithet” or “the defendants used the n-word while walking down a path” provides the class an entirely accurate picture of the facts.

It’s so ridiculously condescending to pretend students would be at a TOTAL LOSS to understand what’s going on in a case if “I, Professor Whitesington, don’t take my shot to gratuitously use the n-word in class even though we all read the case and we all know what happened and saying it again adds nothing to the educational exercise!”

They’re in law school. They can follow the plot just fine.

Another reason is that, once a rule is set forth… people will naturally assume that this reflects a broader principle: One of my favorite law school moments involved a professor pushing us to explore capital punishment by asking, “If heinousness is a justification as you say, would you support expanding the death penalty to particularly violent, serial rapists?” The student responded by offering the sort of slippery slope concerns Volokh does here and the professor, visibly frustrated, responded with, “Well, in this hypothetical, the slippery slope stops at violent serial rapists so now you can go ahead and actually answer my question.”

This is about using of the n-word in class (and, actually, it’s not even that — it was about “using the n-word after being asked not to” which is what made it a deliberate kick in the face than just using it — but Volokh doesn’t seem to see that important distinction in this piece so we’ll meet his arguments on his terms). And while the other terms Volokh worries about getting canceled next probably don’t need to be superfluously bandied about either, let’s assume arguendo that they do. Maybe, someday, cultural norms will shift to make it commonly accepted to insert specific euphemisms for these other slurs. And when that day comes, we’ll do that because when that day comes it means everyone in the educational exchange will fully understand what transpired without repeating the slur again.

Beyond this, a good deal of history and of crime is much more painful than mere racial hostility: Ah, the venerable “sticks and stones” defense. Only in the arrested adolescence of libertarianism can someone make this argument with a straight-face. To address Volokh’s specific example, genocide is the ceiling of unacceptable stuff, not the floor.

In this section, Volokh provides an anecdote about a moot court competition covering the First Amendment and threats where students wanted to remove a case about cross-burning from the field of discussion, despite it being the key precedent involved. And, yes, this would have been a ridiculous outcome because the students couldn’t have properly held the argument without addressing it. But the bigger question is… why did this have to be the topic of the moot court at all? Not to brag, but the body of American constitutional law has given us a whole lot of material to use for challenging students to develop their practical skills.

Moreover, law schools are training people to become lawyers. Lawyers have to deal with facts as they are, regardless of how unpleasant those facts may be: They do and… they do. We also deal with murder in law school and we manage to talk about it without acting it out on a volunteer from class — even if there’s definitely one kid that we’d like to see cold-called on that one. You, Volokh, not getting to satisfy your prurient interest in using taboo words doesn’t mean the students haven’t read the material and understand the subject. In fact, law schools are also about training lawyers to communicate and paint pictures with their personal word choice. The point is, discussing legal concepts doesn’t require literal reenactment, and if students can’t hold a discussion about a case without flinging epithets around then the school has failed.

He then points out that Eleanor Holmes Norton cowrote a brief that uses the word in full, so if you had “but black people get to use that word” on your argument Bingo sheet, congratulations.

Indeed, the implicit message of the claim that black law students, in particular, need to be protected from hearing cases that contain the word… because they find it so painful or offensive or even traumatic, is that young black lawyers will likewise be sharply disturbed by hearing the word in the everyday reality of their practices: Thankfully, Eugene Volokh is here to help young black lawyers learn that the n-word exists. Doubtless they’ve never ever heard that term in their lives up until they walked into his lecture. It is truly important work that he’s doing teaching them that the first 20 or so years of their lives were a cake walk but now they are going to have to deal with racism.

No. The argument is not that “young black lawyers will likewise be sharply disturbed by hearing the word in the everyday reality of their practices,” a straw argument of almost comical dimensions. It’s that they don’t think a law school class needs to be the place for a bunch of people to gleefully use racial epithets. We don’t necessarily use live ammo in every military training exercise either. These attorneys are more than comfortable handling an epithet in the real world, they just don’t understand why the professor has got to bring it in here when they’re more than capable of discussing the legal issues in this academic space without resorting to it.

The whole “jeremiad for the n-word” drips with the passive racism that comes with being so self-absorbed that the experience of others doesn’t matter. To be fair, Volokh certainly doesn’t see any of this running through his words. But the grand conceit of the libertarian worldview, that there is nothing rational but what is intentional — that the only effect of a person’s action is what they intended and any other impact is just someone else’s flawed understanding — is not a neutral endeavor. Sure, Volokh did not set out to write something racist, but the reality of white supremacy is that it’s almost always enforced by people downright oblivious to it.

Building an intellectual cocoon to justify doing whatever one wants whenever one wants, by necessity, relies on ignoring the realities of racial injustice. It’s a glitch in that Matrix that they just can’t see. But it’s there.

And it’s something that grown-ups are able to see.

Earlier: Law School Professor Muses That His Chinese Students Spread Coronavirus
Prominent Law School Professor Drops The N-Word After Specifically Being Asked Not To Do So


HeadshotJoe 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.

Should Insurance Cover IVF? The Centennial State Joins The Growing Crowd That Says Yes

After qualifying in judo for the 2004 Olympics in Greece, her family’s ancestral home, a shoulder injury ended Christina Yannetsos’s martial arts career. She decided to head to medical school to make a difference for others. After residency, Dr. Yannetsos moved back to Colorado, where she had trained for the Olympics, to work as an Emergency Room doctor. She met the love of her life, Gabe, married him, and was excited to start a family.

Unfortunately, Yannetsos was surprised to find that she was among the one in four female physicians (25%!) that experience infertility. That’s higher than the normal, already high, rate for the general population, which is 1 in 8. Yannetsos was further surprised that treatment for her diagnosed medical condition was not covered by her health insurance and instead would cost her and her spouse tens of thousands of dollars, if not more, out of pocket. Yannetsos opted to change jobs, seeking an employer that had a health insurance plan that would provide fertility coverage. Think about that. Even a medical doctor wanted to ensure that her health insurance was adequate before beginning fertility treatments.

Not one to stand by as others struggled, Yannetsos was determined to make a change for all Coloradans. She started reaching out to advocates in other states and organizations like RESOLVE: The National Infertility Association, and uniting passionate voices within Colorado on social media. She joined forces with the newly formed nonprofit Colorado Fertility Advocates, with others like Colorado local Crystal Wilson, who had successfully advocated on the national level for fertility benefits for wounded veterans, as well as fertility professionals: reproductive endocrinologist Dr. Althea O’Shaughnessy, psychologist Dr. Alison Wilson, egg donation and surrogacy agency owner Angela Bevill, surrogacy agency owner Jennifer White, attorney Judith Hoechst, and yours truly.

In moving the issue forward, Colorado Fertility Advocates partnered with RESOLVE, the Alliance for Fertility Preservation, and their fellow Building Families Coalition members — the American Society for Reproductive Medicine, EMD Serono, and Ferring Pharmaceuticals — and with strong local support from organizations, including the Colorado Women’s Bar Association and the LGBTQ+ advocacy group One Colorado. And they found champion sponsors in Colorado State Representatives Kerry Tipper and Leslie Herod.

Fast forward a little over a year later, to April 1, 2020 — and not as an April Fool’s joke — Colorado Governor Jared Polis signed into law HB20-1158, The Colorado Building Families Act, a bill to improve fertility care access in Colorado. Despite COVID-19 taking over all things everywhere, Polis squeezed in the signing and added Colorado to the list, along with 17 other states, that have fertility insurance laws.

What Does The New Law Do?

The newly minted law scheduled to take effect in January 2022 requires insurance policies under Colorado law — by contrast to those under federal law, such as ERISA plans — to cover fertility diagnosis, medically necessary preservation, and treatment. These policies are required to treat fertility medical services the same as other covered medical services and cannot charge differently for copays or deductibles.

LGBTQ+ Inclusive

Moreover, the bill broadly defines “infertility” to include: (i) the failure to impregnate or conceive; (ii) a person’s inability to reproduce either as an individual or with the person’s partner; or (iii) a licensed physician’s finding based on a patient’s medical, social, and reproductive, history, age, physical findings, or diagnostic testing. The bill’s language rejects exclusive and outdated definitions based strictly on age and heterosexual relationships, and includes coverage for those in the LGBTQ+ community.

Religious Exemption; Three Rounds Of IVF

After passing the Colorado House of Representatives, the Senate process involved some negotiation and compromise, resulting in the addition of a religious exemption available to employers, as well as a reduction in the number of completed egg retrievals covered from four down to three, with unlimited embryo transfers — the final number in the new law.

A New Insurance Mandate?

What about the ACA/Obamacare? Well, not to get in the weeds too much, but talks with the Governor before the bill passed resulted in the addition of a provision stating that should the benefits provided by the law be deemed a new mandate under the Affordable Care Act (ACA), and require defrayal of costs at the expense of the State of Colorado, then the law would not go into effect for the small group and individual insurance markets, but would still apply to the large group market. The good news, however, is that proponents of the bill do not expect the law to be deemed a “new” mandate — since there’s already a weaker mandate that this law expands — meaning that this issue probably won’t arise.

Just The Start

Over a million Coloradans have policies falling under Colorado law, who will soon have fertility benefits. However, Yannetsos sees this as just the beginning. “My senator told me he was voting against this bill because it helps only a percentage of people. In response, I explained that we have to start somewhere, and I am confident others will see the positive impact it has on families and the overall improvement of access to quality healthcare. I am hopeful that Colorado will lead by example and self-funded employers [those under federal law] will see the benefit to their employees and our community and take initiative to make changes as well. Colorado hopes to lead by example in that every American has access to the same benefit.”

During State Legislative hearings on the bill, a few legislators expressed concerns that inclusion of fertility coverage would increase healthcare costs. RESOLVE’s Chief Engagement Officer testified in support of the bill, as she has done in other states, explaining that … AKSHUALLY … studies support the opposite conclusion. A lack of fertility coverage has shown to *increase* costs as a result of patients making different, costlier medical decisions, such as waiting longer for treatment and opting for multiple embryo transfers. Multiple embryo transfers mean higher rates of multiple births (twins and triplets), with increased medical risks to the children and mother as well as greater costs to the medical system overall.

The new law is a big win for Colorado and those needing help growing their families. Crystal Wilson explained, “I could not be more proud of Colorado for being the 18th state with fertility coverage, 12th with IVF coverage, and 10th with fertility preservation coverage!” Congratulations, Colorado!


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.