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When you cut away all the pseudo-intellectual originalism crap, there are essentially two theories of Constitutional interpretation when it comes to gun violence in America.

Theory A: We are a brutish, violent people, and the Second Amendment, as written, provides no relief from our evil nature. The Constitution is soaked in the blood of our children and, absent amendment, it textually demands that more blood be sacrificed in the name of our murderous culture. No right to life or happiness can overcome the rights of the gun or the bullet as codified in our most sacred laws.

Theory B: EVERY OTHER INDUSTRIALIZED NATION IN THE WORLD HAS FIGURED OUT A BETTER WAY TO DEAL WITH THIS! There’s nothing in the Constitution, including the Second Amendment, that requires us to be actively dumber than the rest of the modern world. FOR THE LOVE OF CHRIST, WE CAN DO SOMETHING.

The people who subscribe to Theory B are gaining momentum. After every mass shooting, the number of people who believe that our current Constitutional structure allows for some action on gun control and regulation grows. Universal background checks is an overwhelmingly popular position. Polls show that 85 percent of Americans support “red flag laws,” which allow family members to petition that a gun should be taken away from a person who appears to be a danger to themselves and others. The Second Amendment’s right to bear arms is not absolute, and we all know it’s not absolute (go try to buy a decommissioned M1 Abrams tank if you don’t believe me). Clearly, there are many regulations we can enact that would start the process of declawing our violent society, and those regulations would not interfere with your Constitutional right to own a weapon that took approximately 10 to 15 seconds to reload after every shot.

Unfortunately, the people who subscribe to Theory B are underrepresented on our nation’s courts. This has been the work of the Federalist Society generally, and Mitch McConnell specifically. They have worked to stack the courts with hardcore originalists who subscribe to Theory A.

So much of what McConnell and the FedSoc have done has been to address the fact that their positions are wildly unpopular and manifestly against the small “d” democratic arc of history. They are losing the intellectual battle on guns, just as they’ve lost the intellectual battle on women’s rights, civil rights, gay and lesbian rights, and voting rights. They know that as the Baby Boomer generation finally and mercifully dies off, many of their white male supremacist theories will die with them, and be rejected at the ballot box. And so their plan has been to infuse the courts, the one anti-democratic branch of government, with people who will prevent the progress of society long after people like Mitch McConnell and Donald Trump are gone.

On Slate, Mark Joseph Stern explains how dire the situation is:

The GOP may have no plan to stop mass shootings, but it does have a plan to ensure that Democrats can’t stop them, either.

To understand the dynamic here, it’s important to remember that the Supreme Court’s Second Amendment decisions have been fairly narrow. In 2008’s District of Columbia v. Heller, the court ruled that the amendment protects law-abiding individuals’ right to keep handguns in the home for self-defense. In 2010’s McDonald v. Chicago, the court held that this right applies against state and local governments. Thus, the Constitution prevents the government from outlawing the possession of a handgun in the home. Under current precedent, the Second Amendment poses no threat to the vast majority of proposed gun regulations.

Try as it might, the National Rifle Association and its allies have failed to persuade the Supreme Court to go any further. The court has declined to hear challenges to a ban on assault weapons, a requirement that guns be stored in a lockbox, a prohibition on concealed carry, and a mandatory waiting period between firearm purchases. A majority of the justices have simply refused to expand Heller and McDonald to curb Americans’ ability to protect themselves from the gun massacres that plague us today.

Trump’s judges are desperate to change that.

We are looking at federal courts, from the Supreme Court on down, that will try to make it easier for people to access deadly weapons, at the very time that overwhelming majorities want to restrict access.

Preventing federal action on gun control is the key to allowing these mass shootings to continue ad infinitum. It doesn’t matter if California has strict gun control laws if a white domestic terrorist can buy his arsenal in Nevada. What happens in Vegas most definitely does not stay in Vegas when it comes to gun reform.

It is because of the relentless efforts of Republicans and conservatives when it comes to promoting conservative judges, including all the “Never Trump” conservatives who now pretend to give a s**t, that I myself have now come to subscribe to Theory A. Our Constitution, as currently interpreted by courts controlled by Republicans, is a blood-soaked invitation to continued mass murder. As long as conservatives can hide behind the Second Amendment, the killings will continue.

The founders didn’t get slavery right, and they didn’t get women right, and they didn’t get guns right. Nobody’s perfect, least of all wealthy white people from the 1700s. How many more people have to die before we can admit they made a mistake?

The answer, obviously, is many more — scarcely imaginable more. So many more people will be violently gunned down while Republicans act like there’s nothing we can do about it.

Senate Republicans Are Quietly Advancing a Radical Gun Plan [Slate]

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.

The #MeToo era has its share of celebrity star power behind it, both as supporters and victims willing to share their stories. And while that support can’t be undervalued, Emma Watson has gone a step further, taking a key role in launching a hotline to provide women with legal advice on sexual misconduct.

The expert guidance is supplied by legal charity Rights of Women, whose female volunteers and employment lawyers will offer callers guidance on what behaviour constitutes sexual harassment, how to bring a claim at an employment tribunal, as well advice on settlement and non-disclosure agreements (NDAs).

NDAs are one of the thorniest issues in sexual misconduct cases because they’ve been used for years to stifle victims from going public. Even if the agreement isn’t worth the paper it’s printed on, women can be intimidated by the risk of landing on the wrong side of a hefty liquidated damages award. With most misconduct arising from a power imbalance, adding lawyers to one end of the scale only makes it worse.

Watson focused on the importance of providing sound legal advice as a resource for women:

Understanding what your rights are, how you can assert them, and the choices you have if you’ve experienced harassment, is such a vital part of creating safe workplaces for everyone, and this advice line is such a huge development in ensuring that all women are supported, wherever we work.

Think of legal advice as your own Patronus. It’s a lot cooler than an otter anyway.

Harry Potter star Emma Watson launches #MeToo legal advice helpline [Legal Cheek]

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.

Technology makes the legal profession go round for associates, but the second quarter of 2019 saw a dip in investments to just $122 million. For reference, in the first quarter, the legal tech sector saw disclosed funding of $400 million.

On a normal day, this would be especially concerning, but when you recall that half of Q1’s $400 million figure was reserved for just one transaction (Onit’s $200 million investment from K1 Investment
Management), it’s a little less worrisome. Nevertheless, legal tech was still quite a lively sector in the second quarter, with major mergers and acquisitions making more headlines than PE or venture funding.

But will Q2’s drop affect predictions that legal tech would beat $1 billion in funding in 2019? Click here to see a fascinating report from Bloomberg Law on all of the important legal tech funding and M&A news that you may have missed.

“And I looked, and behold a Palin horse.”

I confess that I really thought we’d fully banished Sarah Palin to the dustbin of history. The right-wing found fresher and, almost hard to believe, crazier avatars to prattle during cable news hits. Her political career was over and unless she joined her kids in debasing herself for a dancing competition show or something, she would exist only as a tale half-remembered of the time when John McCain self-destructed on a national stage.

But Sarah’s back! Thanks to the Second Circuit, her lawsuit against the New York Times is back on after being dismissed two years ago by Judge Rakoff. Palin sued the Times for defamation for insinuating that when she put up a map with crosshairs on politicians like, for example, Gabby Giffords — who was subsequently shot — that such rhetoric is fueling violence. If that sounds like clearly protected opinion, you’d be right. But the Second Circuit decided we needed to beat this dead horse for a bit longer.

“At bottom, it is plain from the record that the district court found Bennet a credible witness, and that the district court’s crediting his testimony impermissibly anchored the district court’s own negative view of the plausibility of Palin’s allegations,” [Judge John] Walker wrote today.

Essentially, the court determined that at the motion to dismiss stage, Rakoff erred in taking Times editor James Bennet’s testimony into account that the paper edited itself as soon as it appeared that the Giffords shooter wasn’t inspired directly by Palin’s ad copy. It would take an exceptional dullard to read the Times without realizing that the connection between Palin and the shooter that it described had much more to do with increasingly militarizing partisan rhetoric as opposed to some suggestion that Sarah Palin is calling in hits like Mike Corleone, but the Second Circuit determined that exceptional dullards are some of the Times’ most loyal readers:

“We agree with the district court that a reasonable reader could view the challenged statements as factual, namely that Palin, through her political action committee, was directly linked to the Loughner shooting,” the opinion states. “The social media backlash that precipitated the correction further suggests that the Times’ readers perceived the false statements as fact‐based.”

The stupid… it hurts. This is not a good day for the Times, which is still reeling from its hare-brained decision to headline the paper with “Trump Urges Unity Vs. Racism” based on a Maggie Haberman and Michael Crowley story. In defense of the editorial staff, given the authors I’d have assumed that headline would fit to the T.

Anyway, this Second Circuit decision is likely just a speedbump for the Times. Palin faces an uphill battle now that she’s cleared the motion to dismiss stage. Still, we’re going to have to hear about Sarah Palin for longer, which is a sad development for an America with dangerously low stockpiles of Alaska jokes.

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.

Back in May, Above the Law partnered with CPA Global and The Blickstein Group to publish findings from the first-ever demographic study of the rapidly developing IP operations profession. More recently, we enjoyed a conversation with Sam Wiley and Annya Dushine of CPA Global’s Intellectual Property Solutions Group. Between them, Sam and Annya bring extraordinarily deep background to their roles at CPA Global, combining experience with the U.S. Patent Office, corporate legal departments, technology vendors, various law firms, tech startups, consultancies, and more.  Our wide-ranging discussion touched on the basic goals of the burgeoning IP operations discipline, major challenges, future trends for IP Ops professionals, and even some insight for anyone considering the field. The following is condensed and edited for clarity.

Aligning the Four Pillars of IP Operations

Sam Wiley: IP operations comprises the people, processes, technology, and data that allow for the successful execution of an IP strategy. So, if you’re a corporation that wants to defend your product lines from patent threats or make sure that you’re able to license out technology to business partners, none of that can happen without all four of these components operating in the background. For us, that is the core of IP operations.

Annya Dushine: A lot of organizations just don’t know where to start. They don’t know what their problems are, so they blame one problem. As you begin to peel back the layers and really understand operations, there’s more to the story.  For example, a company might believe that their technology is broken. And so that’s really the root of all the problems. Or they look at organizational structure and they say that’s what’s creating all of our challenges. Yet it is really all of those four pillars — people, processes, technology, and data — that really need to be properly aligned to improve the overall performance of IP operations. And so it’s important to understand where they complement each other and they need to evolve together.

Trendspotting: Outsourcing Up

Annya: Increasingly, we’re noticing outsourced service teams. Organizations are starting to outsource a lot of their docketing, patent drafting, and back-office work, and they are realizing a lot of benefits, including the obvious cost savings. We are seeing best-practice sharing: making sure they have the right people with the right training and skillset to be able to manage the work. Thus allowing in-house resources to focus on more substantive activities, more valuable tasks. So we’re seeing a lot of organizations outsource a lot of the operational work.

Sam: A big part of our role in the solutions team is to help law firms and companies understand how to build workflows that don’t disrupt their business while taking advantage of the cost savings and efficiencies of outsourcing.  The other side of that coin is probably automation. So AI, machine learning, all of those things are going to be playing a more prominent role. We advise our clients to start thinking about these topics right now.

No Single Approach to Measuring Success

Sam: [Key performance indicators] are something the industry is sort of struggling with right now. The traditional KPIs were, on the one hand, simplistic, but on the other hand, easy to understand: the number of errors made, or missed deadlines, or some real basic cost savings. We’re really working with our clients to find more advanced KPIs, moving towards intermediate things like, “what were the hard dollars or man-hours saved by outsourcing or automation?”  Then, there’s a more advanced stage, where we ask, ”Did our patent quality go up, or are we more successful in our litigations?” I think that’s the kind of the Holy Grail of KPIs and we’re trying to help our clients get to that point. 

Annya: No approach is one-size-fits-all because it depends on the organization’s priorities or challenges. Some actually believe staff retention might be a really crucial metric for them as opposed to data quality or innovation efforts.  

I spent two days with a big — enormous — plumbing company. And we talked about metrics, and the head of their IP group actually mentioned, “We want to make sure our staff remain happy. This is a family-owned business. This is really important to us.”  Obviously they’re looking at products and tying those back into innovation efforts and how much they’re spending, but at the same time they want to keep their employees happy. And they want to make sure that they retain their staff and that’s a measurement of success for them. 

Sam: For some law firms and other organizations, it’s not going to make sense to have those extremely advanced metrics. They need to get started somewhere and there are different maturity stages that different organizations are in where it simply makes more sense to track simpler KPIs. But I think overall the trend is going to be toward more meaningful data points and not necessarily just tracking basic information.

IP Ops Careers Defining Themselves

Sam:  I think we need to do a better job of understanding what the core traits of a successful IP ops leader are. Once we do that, more people from diverse educational or career backgrounds will be moving up through the ranks. The same thing applies to the number of women in the field. As a profession, the majority of the people who are in the rank-and-file are women. We should see that leading into the management as well.

I think if we were more realistic about what really makes a great IP ops person, I think we will see more of those paraprofessionals and finance people, and non-JDs, and non-engineers. They’ll be moving up to the manager roles because we’ll be a little more realistic about what the important skill sets are.

Annya: I started in a law firm setting, then I went to corporate, then consulting. Now I work for CPA Global, a vendor. Don’t be afraid to sort of jump around. Spend some time at the IP boutique or at a law firm where you’re going to get really disciplined training. Then go into a big corporation, or maybe work for an IP vendor. Get that exposure to different business models on different practices because that really will help gain experience, knowledge, make connections in the industry, and then really help you to figure out where you’re happiest. 

Sam:  If you find yourself in IP ops, it’s typically after you’ve tried a couple other things. I’ve noticed common traits of people who seem to really succeed. That kind of person with a lot of attention to detail, who really cares about workmanship. A really good IP ops person is almost like a tradesperson — a really good woodworker. They just won’t go home until the data’s just right. 

If it wasn’t already clear, Biglaw firms should now know they must offer excellent parental leave policies in order to stay competitive with their peer firms. We continue to see more and more firms offering their attorneys generous paid leave, and the programs are increasingly gender neutral and offered without a primary caregiver stipulation.

The latest Am Law 200 firm increasing its parental leave is Benesch. The firm’s plan had always been gender neutral, but today it announced its adoption of a reportedly industry-leading 20 weeks of fully paid leave for new parents, up from 12 weeks of paid leave, plus the ability to take an additional six weeks of leave without pay. (We believe a handful of firms may offer a few more weeks of fully paid, gender-neutral parental leave.)

Liz Gillmore, Benesch’s Chief Human Resources Officer, noted that the firm’s new policy is designed to support attorneys as they attempt to balance their career with parenthood:

We are thrilled to roll out our new parental leave policy. It is directly aligned with our unwavering commitment to support our team and their families. As Benesch’s exponential growth across the country continues, we need to be flexible and supportive for our attorneys. We believe this is the longest paid parental leave in the law firm world and we are proud to be leading the industry.

Kudos to Benesch on its new parental leave benefits. Firms stepping up their family-friendly policies is something we’ll continue to pay attention to — particularly as we head into recruiting season. Hopefully your firm is changing its ways when it comes to important policies like parental leave. Please let us know when it happens.

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.

The United Nations Economic Commission for Africa (ECA) is working with Zimbabwe to see how they can significantly reduce road casualties in the southern African nation so it can serve as an example for the rest of the region.

A team from the UN is in the country to review and assess the country’s performance on road safety.

In remarks during the launch of the Road Safety Performance Review for Zimbabwe, which was accompanied by a two-day workshop to review the road safety situation in the country, Soteri Gatera of the Industrialization and Infrastructure Section of the ECA said accelerating road safety action was crucial not only for Zimbabwe but Africa as a whole.

“The road safety performance review aims to assist Zimbabwe in strengthening her road safety management capacities and improving her national road safety record,” said Mr. Soteri.

“We have to work to avoid a case of unintended consequences whereby the story of Zimbabwe’s economic growth – with accompanying infrastructure development and increased car ownership – is eroded by increased road accidents and deaths. Even a single death on the road is simply unacceptable.”

According to the Traffic Safety Council of Zimbabwe (TSCZ), over US$ 460 million is spent annually on road traffic accidents, with an average of 40,000 accidents being recorded annually.

At least 15,000 people are injured and almost 2,000 killed every year in road traffic accidents, says the TSCZ.

In 2018, the country recorded a total of 1,517 fatal road traffic accidents compared to 1,325 in 2016 of which 90 percent were attributed to human error, including speeding, misjudgement, drinking and driving and recklessness.

“Although there is a strong foundation in place, Zimbabwe urgently needs to scale-up efforts. We need to move towards action and implementation,” said Mr. Soteri.

The global Decade of Action for Road Safety and sustainable development goal target to halve the number of fatalities by 2020 is an ambitious goal, he said.

“However, after conducting the road safety performance reviews in some few African countries, we are convinced that Zimbabwe can make the biggest strides towards that goal. Fortunately, we know the solutions,” added Mr. Soteri.

“We need safer roads and infrastructure, safer vehicles, safer road user behaviour, better legislation, stronger enforcement, improved post-crash care as well as better means to evaluate and monitor progress through availability of quality data.”

He said a whole UN team, through the UN Special Envoy for Road Safety, was in Zimbabwe to join hands with Zimbabwe to;

• To update the regulatory framework to include international and regional recommendations through the accession to the UN Road Safety Conventions. This includes acceding to the African Road Safety Charter and African Trans-Highway Agreement.

• Consider the transposition of these legal instruments onto the national Road Safety Act

• Strengthen the National Road Safety Council so that it is able to perform the functions it should as a Lead Road Safety Agency.

• Establish the road crash database.

• Ensure national wide coverage of the vehicle inspections program

• Roll out the national curriculum for drivers training and strengthen the drivers testing regime. Enforcement and education in schools are also key to improving driver and road user behaviours.

• Roll out the National Road Safety Audit Manual to ensure that roads are built for the benefit of all road users.

• Establish the Emergency Medical Service Policy in line with internationally recommended guidelines, such as by ones developed by the WHO to give road crash victims the best chance of survival.

“We know that solid data will help us identify risks, address them and monitor our progress.  The crash database will help achieve coordinated data collection and management, which is a critical issue across the continent,” said Mr. Soteri as he applauded Harare for its commitment to road safety.

TSCZ Director Obio Chinyere said the review was important in helping the country to reduce the road carnage.

“The envoy will look at the five pillars which the road safety is anchored on and they will give recommendations on their findings, and it will be up to us to decide on the course of action concerning their recommendations,” he said.

Road Safety is a global challenge with an estimated 1.2 million people dying every year as a result of road crashes. At least 50 million people are injured globally in road crashes annually.

Road crashes have a disproportionately high toll in Africa compared to other regions of the world. In this regard, the risk of death from road traffic injury is 26.6 per 100,000 in Africa compared to 17.0 for South-East Asia, the world average of 17.5 and 9.3 per 100,000 in Europe.

Mr. Soteri said road crashes have economic implications estimated to be an equivalent of up to 5 percent of GDP in low-and middle-income countries.

“This suggests that a significant share of investment in roads is lost through road crashes,” he said, adding there is evidence that the road safety situation in some African countries may be getting worse, not improving, contrary to the objective of the African Road Safety Action Plan 2011-2020, which is to half the number of deaths on the continents roads by 2020.

Post published in: Featured

FILE PHOTO: Residents collect water at night from an electric-powered borehole, as the country faces 18-hour daily power cuts, in a suburb of Harare, Zimbabwe, July 30, 2019. REUTERS/Philimon Bulawayo

The southern African nation has endured 18-hour daily power cuts since May as a result of a prolonged drought that has reduced output at its largest hydro plant and aging coal-fired generators that keep breaking down.

Foreign power companies also stopped supplying Zimbabwe with electricity in 2017 after the country failed to pay its bills, although Zimbabwe resumed limited imports of 300 MW a month last week.

George Guvamatanga, secretary for the ministry of finance, told business leaders in Harare that Zimbabwe had agreed to make weekly payments to clear its debt to a regional power utility, which would start providing at least 400 MW of electricity a month, starting from this week.

That would take total imports to 700 MW a month.

Guvamatanga did not name the supplier. Zimbabwe typically buys electricity from South Africa’s Eskom and Hydro Cahora Bassa of Mozambique.

Zimbabwe owes more than $70 million to Eskom and Hydro Cahora Bassa of Mozambique for past power supplies.

“I think the arrangement that we have put in place now on electricity should hopefully guarantee us increased supply from tomorrow or Wednesday,” Guvamatanga said.

“Working with the mining sector we have been able to ring-fence adequate resources to pay for at least 400 megawatts of electricity a month.”

Power shortages, along with drought and a severe dollar crunch, will result in the economy shrinking this year, the finance minister said last week.

Energy and Power Development Minister Fortune Chasi was in South Africa at the end of July to try negotiate for a power deal with Eskom. He did not immediately respond to calls and messages on his mobile phone on Monday.

Eskom, which is itself struggling to meet South Africa’s electricity needs, had no immediate comment.

The government said last week that power utility ZESA Holdings was accessing 300 MW during off-peak hours from the Southern African Power Pool, a regional industry collaboration linking up national grids.

Guvamatanga said for now Zimbabwe would have to rely on electricity imports, which required foreign currency that is in short supply.

Last week finance minister Mthuli Ncube announced a three-fold increase in electricity tariffs, as the government seeks to raise more funds for power generation.

Post published in: Featured

The demonstration will be held in the capital, Harare, on August 16, Movement for Democratic Change National Organising Secretary Amos Chibaya said in an application filed to the police August 5.

The party listed 12 reasons it said protest action is necessary, including state corruption and shortages of power and fuel.

Zimbabwe has recently suffered load shedding – where there are power cuts of up to 18 hours and shortages of everything from bread to motor fuel.

People are receiving food aid in cities for the first time and a drought has necessitated the import of hundreds of thousands of tons of corn.

Zimbabwe’s finance minister responded to the country’s worsening economic crisis last week by blacking out inflation statistics for the next six months, boosting the price of the little power that’s available five-fold and admitting what the International Monetary Fund told him in April: the economy will contract for the first time since 2008.

At the same time he spoke of fiscal surpluses and a relaxation in local ownership requirements for the key platinum industry.

Meanwhile Zimbabwe expects its power situation to improve from today after its government said it had reached payment plans with key foreign suppliers.

The country mainly imports electricity from Eskom in South Africa and from the Cahora Bassa hydroelectric generation station in Mozambique.

Zimbabwe started implementing rotational load shedding in May, due to a combination of low water levels at Kariba Dam’s hydroelectric power plant, generation constraints at ageing power stations and limited foreign imports. It has been struggling to pay for power imports as it faces a crippling power deficit of roughly 950MW.

Post published in: Business