Category: News Feeds

Kamala Harris is in a bit of a sticky situation.

The presidential hopeful has publicly come out in opposition to mandatory arbitration agreements. Indeed, she joined Senator Richard Blumenthal urging JPMorgan Chase to eliminate forced arbitration, saying at the time:

“One of the fundamental principles of our democracy is that everyone should get their day in court. Forced arbitration deprives Americans of that basic right.”

And that’s a great, liberal stance to take! Unfortunately for the senator, DLA Piper feels very, very differently. See DLA is where Harris’s husband, Douglas Emhoff, is a partner. And the firm’s stance on mandatory arbitration has been in the news lately — a partner at DLA, Vanina Guerrero, alleges the co-managing partner of the firm’s Silicon Valley office, Louis Lehot, repeatedly sexually assaulted her, beginning shortly after she began working for the firm in 2018. Last week Guerrero penned an open letter asking the firm to release her from their forced arbitration agreement so she’d be free to pursue her claims in open court. The firm has yet to respond to Guerrero’s request to be let out of the mandatory arbitration agreement, saying only that they are aware of the allegations against Lehot and are investigating.

Indeed, DLA Piper has defended their use of mandatory arbitration before. When law school student activists organized a #DumpDLA campaign over their arbitration stance, the firm put out a fluffy statement defending arbitration conflating the benefits some people get from arbitration as an option and ignoring the harms of forcing all their employees to use that as their exclusive mechanism for dispute resolution. Their stance didn’t waiver amidst protests against mandatory arbitration outside of their office.

All of which sets the stage for the latest move. Guerrero’s attorney, Jeanne Christensen partner at Wigdor, wrote an open letter to Harris asking her to condemn the use of mandatory arbitration agreements at DLA Piper:

I am sure you would agree that silencing women through forced arbitration must end. No female employee, including a new partner, would knowingly agree to waive her right to our court system for claims involving sexual assault, battery or rape. Given your profile as a candidate for the Democratic nominee for President of the United States, you are in a unique position to condemn the actions of DLA Piper and make clear that mandatory arbitration must stop. We, therefore, urge you to publicly support the notion that all women who work at DLA Piper deserve to hear allegations about unlawful sexual conduct by male employees.

And, you have to give it to Christensen, this is a smart play. Legally, they don’t have a way into court unless DLA waives the arbitration agreement. So turning up the pressure on the firm is really their best bet, and using a high profile partner and his higher profile spouse to do so keeps the conversation about sexual assault and mandatory arbitration going and gives it the widest possible audience.

Now some have argued it isn’t fair to hold Harris responsible for the actions of her husband and his firm. But Harris willingly waded into the mandatory arbitration waters when JP Morgan Chase was doing it. Why wouldn’t it be okay to now ask Harris if her stance on mandatory arbitration is universal or if it stops when her family gets some tangential benefit from the agreement. And here’s the thing, she can (and, hopefully, will) condemn DLA — no one has to agree with their spouse 100 percent of the time and with their spouse’s law firm even less of the time. But asking Harris this question to better get a sense of the contours of her position on mandatory arbitration agreements is more than a fair question for someone who wants to be president.

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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).

Attorneys know there is usually more work than time in most days. That’s just how it is when you are staffed to provide legal services, but not marketing, office administration, accounting, or any of the other responsibilities that larger law firms can delegate to dedicated personnel. This is more than just an inconvenient fact of life. It’s a potential fatal flaw, because administrative duties pull attorneys away from profitable work, thus dragging down a firm’s efficiency and putting its overall viability at risk.

“Efficiency” can be defined as the time it takes to complete a given task. In a law firm context, it pertains to the time and effort needed to carry a matter from intake to paid invoice. Obviously, the more efficient this process, the better a firm’s bottom line. And yet, an overwhelming majority of firms have ignored streamlining this area of their operations.

In the 2019 State of U.S. Small Law Firms Report from the Thomson Reuters Legal Executive Institute, 72 percent of the 300 respondents said spending too much time on administrative tasks was at least a “moderate” challenge. That’s up two percent from the previous year. While it’s a small uptick, it shows that firms failed to make headway on this challenge. Not only that, it is becoming more of a problem.

That point is underscored by how small law firms define “success.” Seventy-six percent say it’s based on overall profits. By clogging a lawyer’s day with non-billable work, inefficiency corrodes profits, and dilutes the most important measure of success for many firms.

If any further proof is needed, consider these three areas where a lack of efficiency creates serious structural problems:

Client dissatisfaction: In the era of on-demand entertainment and restaurant-to-door delivery service, is it any wonder clients want results immediately? That may not be possible, of course, but it’s still true that a lawyer who is not able to operate efficiently cannot attend to client matters quickly. The less time a lawyer has to spend on non-client work, the more quickly any given billable task can be handled.

Lower-quality work product: Quality legal work demands focus, and that’s hard to do when you’re dealing with issues other than practicing law. The attorney who focuses primarily on his clients’ matters produces a much higher quality finished product that leads to happier, more loyal customers.

Attorney burnout: Burnout is a tremendous issue for the legal profession. For lawyers at small firms, a major cause is trying to do everything alone. When “everything” includes too much non-billable work, lawyers become exhausted performing tasks that don’t bring in any money. That is inefficiency at its worst.

In the end, no small law firm attorney needs another thing on his or her plate. Efficiency is worthy of special consideration, however. Because, in its absence, the prospect of ultimate failure increases.

Download the white paper to learn more.

While Gideon Gono, the former governor of the Reserve Bank of Zimbabwe, claimed hyperinflation in Zimbabwe peaked at 2.2 million percent, Bloomberg estimates it was closer to 500 billion percent

Imagine clean tap water running just once a week, or half the population struggling to rustle up a single meal every day. This, according to Eddie Cross, an MP for Bulawayo South and founding member of the opposition Movement for Democratic Change (MDC) party, is the reality of a “period of harsh austerity” in Zimbabwe that “has [drastically] reduced living standards”.

These tough conditions show little sign of letting up, with the country sinking deeper into an economic crisis that has drawn comparisons to 2008, when GDP growth in Zimbabwe fell to -17.7 percent (see Fig 1) and the currency was devalued to such an extent that a wheelbarrow full of notes wouldn’t even buy a loaf of bread.

In the aftermath of the 2008 hyperinflationary crisis, the country’s leaders were able to agree on a power-sharing arrangement that allowed Zimbabwe to emerge with some semblance of hope. This time round, with the nation’s ruling party refusing to relinquish control or acknowledge the depths of the crisis, no solutions – international or domestic – are forthcoming. Rather, the country seems doomed to sink deeper into a financial depression that will have devastating consequences for its citizens and could take decades to recover from.

Rocky Rhodes
In its short history as a unified country, Zimbabwe has seen its fair share of economic hardship. The area of land that makes up modern-day Zimbabwe had been home to various tribal communities for centuries before it was demarcated in its current form in the 1890s by imperialist Cecil Rhodes and the British South Africa Company. The new state, which was named Southern Rhodesia in honour of its coloniser, remained under the control of the UK until 1965, when it declared itself independent. The following 15 years would be defined by a brutal civil war, which pitted the white colonialist minority government against black guerrilla forces led by, among others, future Zimbabwean Prime Minister Robert Mugabe.

Zimbabwe seems doomed to sink deeper into a financial depression that will have devastating consequences for its citizens

Peace was achieved in the early 1980s, facilitating Zimbabwe’s emergence as an economic star. The country’s GDP grew by an average 5.2 percent during that decade, thanks to an extensive programme of public spending – notably on education and healthcare facilities. In 1992, a study by the World Bank found that more than 500 health centres had been built across the country in the preceding 12 years, while enrolment in secondary schools had increased by 902 percent between 1980 and 1990. For all intents and purposes, the country was well on its way to becoming mythologised as a great African success story.

Mugabe’s administration, however, made a series of poor decisions that impeded the country’s economic ascendance. The first was the manner in which the early 1980s investment drive was carried out. As a fledgling independent nation, Zimbabwe did not have the necessary productivity to support such high spending, so while the new societal infrastructure improved the quality of life for Zimbabwe’s citizens, it also meant the country racked up a significant budget deficit, leaving it extremely short on emergency funds.

The government’s second misstep came in 1998, when it chose to weigh in on the conflict in the neighbouring Democratic Republic of the Congo (DRC). Not only did the cost of this intervention drain what little remained of Zimbabwe’s bank reserves, it also alienated the country from the international community – in 1999, both the World Bank and the IMF suspended their aid provision due to an unwillingness to fund Zimbabwe’s military spending in the DRC. Three years later, the country was suspended from the Commonwealth and subjected to sanctions by both the US and EU amid allegations of political corruption. This isolation decimated Zimbabwe’s agricultural sector, which accounted for around 12.6 percent of GDP at the time.

“Zimbabwe was an agrarian industrial country, with emphasis on the word ‘industrial’,” Stephen Chan, a professor of international relations at SOAS University of London, told World Finance. “It was regarded as extremely hi-tech, growing food for modern international markets.” The application of sanctions, however, severely dampened exports. The industry was further crippled by a drought in 2003, which destroyed the meagre subsistence agriculture that remained and left 70 percent of Zimbabwe’s citizens living below the bread line.

Sick notes
Over the following five years, the country descended deeper into economic crisis. Inflation reached 1,000 percent in 2006 – leading the World Bank to declare Zimbabwe the fastest-shrinking economy outside of a war zone – and the government’s attempts to stop prices from skyrocketing were ineffectual, to say the least. While Gideon Gono, the former governor of the Reserve Bank of Zimbabwe, claimed hyperinflation peaked at 2.2 million percent in July 2008, Bloomberg estimates it was closer to 500 billion percent – a figure that Chan described as “metaphysical”. He added: “You couldn’t offer beggars anything in the street, because they’d just throw it away. It was meaningless. You’d have entire alleyways just full of worthless notes.”

Chan’s vivid image symbolises a wider truth: currency has always been at the heart of Zimbabwe’s economic troubles. In the 1980s and 1990s, as the country remained in relative infancy, one of the most vital tasks for Mugabe’s administration was to ensure the Zimbabwean dollar retained its value in order to support macroeconomic stability. It failed dismally for two reasons: first, it showed an inability to create and maintain national industries that would offer underlying productive value, and second, it proved itself too willing to devalue the currency, which, in turn, caused a greater international PR problem.

The destructive impact of the government’s failure was borne out most clearly in the hyperinflation crisis, but the repercussions continue to this day. In 2009, then finance minister Tendai Biti, who was part of an emergency government of national unity, implemented a recovery plan centred on the adoption of the US dollar as legal tender. While this succeeded in curbing hyperinflation at the time, it has subsequently caused significant issues when it comes to obtaining foreign currency – particularly given the rest of the world’s reluctance to lend to Zimbabwe, which stems from the country’s failure to prove that it has learned its fiscal lesson. “What has come home to roost very recently is that [Zimbabwe] really has no way of sourcing any more dollars,” Chan told World Finance. “No one will lend to [it] anymore, because there never really was a viable repayment plan.”

The government has not been entirely oblivious to these shortages and has, over the past few years, attempted to introduce various currency policies, each with little success. In 2016, bond notes and coins that would purportedly mirror the value of the US dollar were introduced, but they rapidly lost value when citizens realised they had no inherent worth and were not widely accepted as payment. In June 2019, the government – now led by President Emmerson Mnangagwa following the ousting of Mugabe in a military coup in 2017 – went a step further and attempted to introduce an entirely new currency. The RTGS dollar – the first iteration of Zimbabwe’s sovereign currency since 2008 – prevents citizens from using foreign currencies such as the US dollar and pound sterling as legal tender.

In August 2019, Zimbabwean Foreign Minister Sibusiso Moyo claimed that introducing the new currency had stabilised the economy, but with the government refusing to publish inflation data until February 2020, it’s difficult to know whether there’s much truth in his statement. Chan is unconvinced: “There was no real choice because of the lack of US dollars, but there’s no productive value [in the new currency] to pay for imports, so wholesalers are just going to charge more and more money for things.” In other words, the government’s reluctance to reveal inflation information smacks of a cover-up – it does not want to reveal to the world exactly how much of a failure its initiative was with regards to curbing inflation.

Trouble ahead
Anecdotal evidence emerging from Zimbabwe does little to suggest the government has averted an economic crisis. As of June, fuel prices had been hiked to such an extent that the average daily commute costs as much as $20, while 18-hour blackouts have become commonplace in Zimbabwe’s capital, Harare. According to the World Food Programme, an estimated two million people are facing drought-induced starvation, while the same number have no access to clean water.

The current scarcities pose an immediate threat to life for some of Zimbabwe’s citizens, but there are also deeper and more wide-reaching disasters on the horizon, particularly with regards to shortages in HIV and AIDS medication. According to the UN, the country has one of the highest prevalences of HIV in sub-Saharan Africa, with an estimated 12.7 percent of the population living with the disease in 2018. This figure has fallen dramatically from its peak in the early 2000s – thanks, in part, to increased awareness of transition methods and behavioural changes such as the use of condoms. Access to antiretroviral treatment (ART) has also improved as a result of a government programme that started to be rolled out in 2003.

According to the UN, 84 percent of those living with HIV in Zimbabwe were able to access ART in 2018. Within this group, 70 percent were provided with medication by the Global Fund to Fight AIDS, Tuberculosis and Malaria, a multinational organisation that provides grants to nations where HIV is prevalent. In order to unlock these grants, however, governments must contribute a certain percentage of the cost; in Zimbabwe’s case, its leaders must pay $24.2m between 2018 and 2021 to gain access to the full $483m grant.

As a result of the financial troubles currently afflicting the country, the Zimbabwean Government was unable to contribute the $6m sum required in July to unlock the Global Fund’s latest instalment. Consequently, access to ART for HIV patients has been severely restricted, with some being issued a two weeks’ supply at a time rather than the requisite three months, and others being given expired drugs.

“You’ve got the makings of a second stage of the pandemic [of the 1980s],” Chan said. If HIV sufferers cannot gain access to the life-saving medication needed to control their symptoms, cases of AIDS are likely to surge. Infection rates may also rise, as sufferers will not be visiting clinics to collect medication and, as a result, will not be offered condoms at the same time.

In 2016, bond notes and coins that would purportedly mirror the value of the US dollar were introduced, but they rapidly lost value when citizens realised they had no inherent worth and were not widely accepted as payment

Mine for the taking
Of course, not all of Zimbabwe’s citizens are suffering. “There’s an oligarchic class made up of elite governmental and military figures – or those related to such people – who have insulated themselves by some recourse to corrupt means,” Chan explained. Members of this class, which established itself during Mugabe’s reign and has gone unchallenged by Mnangagwa, reportedly enriched themselves through a combination of bribery, overvalued government contracts and the illegal seizure and sale of illegitimate property.

“Transparency International estimates that $100bn has disappeared from the Zimbabwean economy [as a result of corruption],” Cross told World Finance. “The military has been a major beneficiary and has fought to protect its privileged position [under Mnangagwa].” What’s more, this corruption is not the sort that offers a silver lining in the form of job creation or productive value. “Corrupt monies circulated within can be beneficial, even if not always traceable,” Chan said. “But when it’s taken out of the system – or spent on non-productive luxuries, as is largely the case in Zimbabwe – no good is done.”

The diamond market has proven a particularly popular breeding ground for corruption, with a 2008 cable (leaked in 2010) from the US Embassy in Zimbabwe calling the sector “one of the dirtiest” in a “country filled with corrupt schemes”. In 2006, Zimbabwe became a diamond hotbed overnight following the excavation of the Marange diamond fields, which were regarded at the time as the richest natural source of the gems to be discovered for more than a century.

It was hoped initially that the government would utilise the funds derived from mining to reduce the country’s budget deficit; in practice, though, profits have been concentrated in the hands of a select few political and military officials. According to the 2008 cable, these include Gono and former vice president Joice Mujuru, both of whom were accused of skimming hundreds of thousands of dollars a month in illegitimate profits from gem sales. Both Gono and Mujuru denied these allegations.

The Marange diamond fields were also reported to be the site of a torture camp run by the Zimbabwe National Army, the existence of which was revealed in 2011 by the BBC’s Panorama series. Victims told the broadcaster they had been subjected to beatings, sexual assault and dog maulings at the hands of the soldiers there, none of whom are known to have faced repercussions for their actions.

With the government paralysed by a crisis of its own creation, Zimbabwe’s citizens have been left to weather the storm alone

Military impunity remains a significant issue in Zimbabwe today. Not only does this reinforce the existence of corruption, it also creates a culture of fear and violence, robbing citizens of their right to peaceful protest. In January 2019, when trade unions led a work stoppage following a 150 percent hike in fuel prices, security forces shot dead 17 people and raped at least 17 women, according to Human Rights Watch.

No way out
Given the endemic nature of corruption, the dire economic situation and looming public health crisis, the outlook for Zimbabwe is bleak. The most pressing challenge remains the restoration of some kind of economic stability, but with other countries unwilling to offer budgetary support loans and national industry at a standstill, the government will be hard-pressed to drum up any sort of funding soon. Even if it did stumble upon some miraculous money tree, the notes growing on its branches would either be entirely worthless or not accepted as legal tender in accordance with current monetary policy. What’s more, given the level of corruption at the uppermost levels of government, it’s highly unlikely that any new funds would be directed to the sectors suffering critical shortages. Instead, they would find themselves lining the pockets of the well connected.

With the government paralysed by a crisis of its own creation, Zimbabwe’s citizens have been left to weather the storm alone – a nigh impossible task given the absolute lack of basic societal infrastructure. Even the informal economy, which has historically proven extremely resilient in Zimbabwe, is floundering. Last year, in a bid to maintain some sort of viable currency regime, a number of small operators began establishing a grassroots virtual economy, using mobile cash to pay for goods and services. However, this was quickly quashed by the country’s conservative-leaning finance minister, Mthuli Ncube, who introduced a two percent tax on transactions that priced out low-earning citizens.

In a functioning democratic society, the clear response to such an abject failure in economic policy would be to vote out the politicians responsible. In Zimbabwe, though, this is not an option given the monopoly held by Mnangagwa’s party, the Zimbabwe African National Union Patriotic Front (ZANU-PF). Even if there were to be an election, the likelihood of the results being manipulated is extremely high. What’s more, ZANU-PF’s main opposition, the MDC, is by no means squeaky clean, having experienced its own corruption scandals in recent years. “If you’re looking at democratic solutions for the future, then Zimbabwe is currently between a rock and a hard place,” Chan told World Finance.

The one glimmer of light at the end of the tunnel is Zimbabwe’s negotiations with the IMF regarding a bailout programme, which remain at an early stage. However, the IMF is highly unlikely to green-light any loans until Zimbabwe pays off its debts to other lenders, such as the World Bank. Even if loan agreements can be reached, the country will pay a high price for financial assistance. “Terrible austerities have to come and the poorest people will be hit the hardest,” Chan said. This would likely lead to further civil unrest, again culminating in military violence.

As it currently stands, Zimbabwe is a ticking time bomb. With domestic options exhausted, international intervention is crucial to supporting and sustaining the lives of its citizens. If the country is allowed to collapse entirely, the implications will stretch well beyond Zimbabwean borders, leaving the rest of the world to pick up the humanitarian and economic pieces for decades to come.

Hopes that Zimbabwe’s economy would quickly rebound under President Emmerson Mnangagwa, who took over after the late Robert Mugabe was deposed in a coup in November 2017, have faded fast as citizens grapple with soaring inflation which has eroded earnings and savings.

The national treasury said in a pre-budget planning document that Zimbabwe’s economic problems were being compounded by shortages of foreign currency, fuel and electricity.

“The economy is, therefore, projected to underperform by as much as -3% to -6% in 2019,” the document said, adding that the economy was expected to grow 4.6% next year.

Zimbabwe’s economy is grappling with its worst crisis in a decade, with triple-digit inflation, rolling power cuts and shortages of U.S. dollars, medicines and fuel which have revived memories of the 2008 hyperinflation under Mugabe.

The treasury said the month-on-month inflation rate was projected to fall to around 10% by December this year before easing to 2.3% at the end of 2020.

The government had kept spending in check, the treasury said, and is expecting a budget deficit of up to 4% of GDP this year.

Post published in: Business

Dentons, a global behemoth just coming off major expansions in South Korea and Africa, set its sights on America, launching Operation Golden Spike and picking up two new firms and coverage in a even more markets.

Bingham Greenebaum brings 176 lawyers in Indianapolis (and a couple of smaller Indiana cities), Cincinnati, and Louisville and Lexington. Cohen & Grigsby is adding 140-plus in Pittsburgh, Harrisburg, and Naples, Florida.

The expansion brings another 300 attorneys under the Dentons umbrella which would sound like a lot to any firm other than Dentons, where 300 lawyers is a rounding error. Not that Dentons intends to stop at 300 new lawyers. American Lawyer reports that Dentons is talking to two more firms this week and another four by Thanksgiving.

Most interesting about this expansion is its unique character. It’s not so much a merger as it is a completely new animal. The tie-up involves the a “dual partnership,” allowing the firms to carry on while their partners also become Dentons partners. The theory is that betting on firms that are already successful doing what they’re doing is better than trying to recast a winning culture. But how do people get paid?

The economics are based on the premise that half of a firm’s profit, or margin, derives from originating the work. When different firms under the Dentons U.S. umbrella share work, in a process that will be guided by the leaders of the firm’s national practice groups, the firm that brought in the client will earn half the margin, while the firm handling the matter will earn the other half.

When all is said and done, Dentons aims to have 1,100 attorneys in the U.S.

“Clients are seeking seamless service and one-stop shopping,” said Dentons global CEO Elliott Portnoy. “They simply can’t get that today in all of the markets that matter to their business in the U.S.”

Once again, the leadership at Dentons seems to understand the business model of a lot of prolific businesses and while they may object to being compared to Applebees or Starbucks, in reality they’re following the precise business philosophy that made those institutions into massive successes. The secret to any company with multiple outposts is providing a marker of familiar quality in a new landscape. When a Dentons client in New York needs an attorney anywhere from Lexington to London, they now know who to call to get the same service they’re accustomed to.

We talk a lot about client loyalty is on the decline, but don’t really dig into why. Clients may not see the value proposition in blindly sticking with the firms that used to handle all their business but that’s not necessarily an indication that the client wants to be juggling multiple firms, just that they’re no longer asking hard questions about what firm is offering them the best fit. Dentons seems to understand that offering truly global coverage for markets large and small offers clients something that others don’t… and a new avenue to locking up a client’s whole range of business.

Dentons Combines With Two US Firms in One Go, Launching New American Strategy [American Lawyer]

Earlier: Biglaw Chair Slams The Traditional Law Firm Model
Massive Law Firm To Become Even More Massiver
Ever-Growing Dentons Has Expansion Down To A Science

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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.

Last week, a couple of remarkable events happened in a Texas courtroom. First, despite being allowed to invoke the castle doctrine, a jury convicted former police officer Amber Guyger of murder for wrongly entering the apartment of Botham Jean and shooting him as he ate a bowl of ice cream on his couch. Even in such cases where the officer is clearly in the wrong, convictions are rare to come by. Possibly even more remarkable was that during Guyger’s sentencing, the brother of the victim, Brandt Jean, not only forgave his brother’s killer but also embraced her. Brandt’s act of forgiveness has received wide praise, however, the 10-year sentence imposed by the judge on Guyger for a murder conviction received immediate widespread condemnation.

It might seem hard to argue with the critics of the judge who imposed Guyger’s sentence. After all, if the circumstances had been reversed it is difficult to see any judge physically embracing a cop killer with such reckless disregard for life the way this judge embraced Guyger. This judge even gave Guyger her personal bible. Such personal favor towards certain convicted murderers by a court is nevertheless a reflection of the amount of personal discretion state and federal judges possess in sentencing. One could claim that such deference is a good thing, but the stats demonstrate the exact opposite is true and that personal bias dominates the process.

The level of deference to judges even allows for outcomes in sentencing that juries expressly rejected. For example, five years ago the U.S. Supreme Court denied cert in Jones v. United States, a case where despite being acquitted by the jury, a judge nevertheless sentenced a defendant for the more serious crime.  The sentencing practice in the Jones case, where judges exercise discretion to increase sentences based on conduct for which a defendant has been acquitted by a jury is called “acquitted conduct” and if it sounds unbelievable to you, it’s because it should be. Encouragingly, U.S. Senators Dick Durbin (D-Ill.) and Chuck Grassley (R-Iowa), the lead sponsors of the landmark First Step Act, have introduced the Prohibiting Punishment of Acquitted Conduct Act of 2019 that would end “acquitted conduct” sentencing. However, just like the First Step Act, I expect this legislation to be opposed by the same lying, disingenuous, tough-on-crime voices.

Although the tough-on-crime position has dominated our criminal justice system for centuries, it is remarkable that it has enjoyed so much influence despite the fact that it does not match the wishes of survivors/victims of violent crime. Recently, Michelle Alexander addressed the discrepancy between the often-harsh system of sentencing and the more lenient wishes of victims who prefer intervention and rehabilitation rather than prison. The reason that victims often reject long prison sentences when given the option is simple, per the Alexander piece:

This is not because survivors, as a group, are especially merciful. To the contrary, they’re pragmatic. They know the criminal justice system will almost certainly fail to deliver what they want and need most to overcome their pain and trauma. More than 95 percent of cases end in plea bargains negotiated by lawyers behind the scenes. Given the system’s design, survivors know the system cannot be trusted to validate their suffering, give them answers or even a meaningful opportunity to be heard. Nor can it be trusted to keep them or others safe.

In fact, many victims find that incarceration actually makes them feel less safe. They worry that others will be angry with them for reporting the crime and retaliate, or fear what will happen when the person eventually returns home. Many believe, for good reason, that incarceration will likely make the person worse, not better — a frightening prospect when they’re likely to encounter the person again when they’re back in the neighborhood.

Of course, Alexander agrees that “[s]ome people do need to be separated in order to keep others safe.” However, Alexander demonstrates that not only does our system of locking people up on such a massive scale make us less safe, it also fails to take accountability seriously:

Our criminal injustice system lets people off the hook, as they aren’t obligated to answer the victims’ questions, listen to them, honor their pain, express genuine remorse, or do what they can to repair the harm they’ve done. They’re not required to take steps to heal themselves or address their own trauma, so they’re less likely to harm others in the future. The only thing prison requires is that people stay in their cages and somehow endure the isolation and violence of captivity. Prison deprives everyone concerned — victims and those who have caused harm, as well as impacted families and communities — the opportunity to heal, honor their own humanity, and to break cycles of violence that have destroyed far too many lives.

In other words, a key element of what sentencing should be about, accountability, is entirely missing from our system. It therefore seems clear that in order to create a safer, more accountable society, we have to rely less on personally distributed “mercy” from being locked in a cage and exposed to more violence and instead focus on more pragmatic solutions victims regularly prefer.

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Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.

What does the future hold for the legal profession? Nobody knows for sure, of course — but that doesn’t mean we shouldn’t be thinking about it. To the contrary, lawyers who want to succeed today should be thinking about what law and legal practice will look like tomorrow. And law schools, the institutions responsible for training the lawyers of the future, must be thinking about what the legal landscape will look like — and how they can best prepare their students for it.

It’s promising news, then, that more than 30 law schools have launched innovation centers. We have been covering this emerging (and encouraging) trend here at Above the Law for quite some time, and we expect (and hope) it will continue.

The latest entrant into the field has an especially impressive approach — and we’d expect nothing less from one of the nation’s top law schools (according to both Above the Law and U.S. News). It takes a holistic, interdisciplinary approach to innovation, not narrowly focused on legal tech (wonderful as legal tech might be), and it boasts involvement from some of the most innovative individuals in the entire legal profession.

Today, the University of Pennsylvania Law School announced the launch of its new Future of the Profession Initiative. As explained in Penn Law’s press release, “The Initiative will ‘Teach, Lead, and Transform,’ by examining new ways law schools can adopt a holistic vision for the formation of lawyers – both during law school and throughout their careers.”

What does the Initiative include? It’s an ambitious offering. Just at launch — expect it to grow and expand in the years ahead — the Initiative will feature a “Five-Year-Out Academy,” to support the career development of Penn Law graduates entering a pivotal stage of their careers; a Dean’s Innovation Prize competition, to reward and encourage exceptional ideas for innovating in legal service delivery; a “Future of the Profession” symposium, to bring together thought leaders from the legal sector and other industries; an entrepreneurs-in-residence program; and the launch of a podcast featuring conversations about change.

What prompted the launch of the Initiative? As Dean Ted Ruger explained, “Change in the legal field is accelerating as technology evolves, new entrants join the industry, the practice of law becomes more globalized, regulatory frameworks governing lawyers shift, and attorneys approach their careers differently. As a result, law school applicants, students, and graduates are thinking in new ways about how they imagine their careers, underscoring the need for a solution that promotes innovation, thought leadership, and enhanced interdisciplinary education and engagement.”

The Initiative’s mission therefore includes, but is not limited to, legal tech. It will look at legal tech, and innovation in law more generally, with an eye towards advancing such crucial goals as bridging the justice gap and promoting lawyer well-being (which Penn Law, to its credit, already integrates into its Professional Responsibility curriculum).

To be sure, many other law school innovation centers take a similar approach. As Dan Linna, current Director of Law and Technology Initiatives at Northwestern Law and former Director of LegalRnD at Michigan State, explained to me last year in ATL’s Law2020 podcast, the potential for legal tech to address the justice gulf is vast.

So what makes Penn Law’s initiative stand out? To my mind, what generally fuels success in both law and tech: the talent.

The Initiative will be led by Jennifer Leonard, Penn Law’s new Chief Innovation Officer — how many law schools have CIOs? (answer: not enough) — and the first Executive Director of the Future of the Profession Initiative. Leonard has a background that seems tailor-made for her new role.

As a 2004 graduate of Penn Law who has been a faculty member and administrator at the school since 2013, Leonard knows the institution well and is intimately familiar with all of its existing work in the innovation space. Prior to returning to Penn Law, she clerked for the Pennsylvania Supreme Court, worked as a litigation associate at Montgomery McCracken, and served as Chief of Staff in the City of Philadelphia’s Law Department — experience in government and private practice that gives her a firsthand understanding of the challenges and opportunities facing lawyers today.

I interviewed Jen Leonard yesterday about the Initiative, and she couldn’t be more excited: “It’s fun, it’s collaborative, it’s new, and I can’t think of something I’d rather be doing than this.”

Leonard has been thinking about innovation in law and education for years now — certainly since she returned to Penn Law in 2013, but even before then, dating back to her time in practice. So when Dean Ruger asked her to lead a task force in innovation and entrepreneurship in the spring of 2018, she jumped at the opportunity, and the Initiative grew out of the task force’s work.

Leonard will be supported by a Board of Advisors that’s a veritable Murderers’ Row of legal leaders and innovators: Legal Services Corporation President Jim Sandman L’76, Dechert partner and former Philadelphia City Solicitor Sozi Tulante, ProBono Net’s Claudia Johnson L’97, LawVision CEO Susan R. Lambreth L’83, EY Managing Director Joe Borstein L’05, Hunton Andrews Kurth CFO Madhav Srinivasan WG ’89, Burford Capital Managing Director David Perla L’94, and award-winning legal innovator Aaron Katzel L’97.

All are Penn alumni themselves except for Sozi Tulante — a Harvard Law grad, and a longtime Lecturer in Law at Penn — and many of them should be familiar to Above the Law readers. Joe Borstein and David Perla are longtime contributors to ATL, and almost all of the others have been mentioned in these pages for their pioneering work in the innovation space.

I spoke yesterday about the Initiative with Joe Borstein, whom I’ve known for years — before his time as an ATL columnist and going all the way back to his days at Pangea3, when he and David Perla were revolutionizing ediscovery and legal managed services — and he couldn’t contain his excitement.

“Penn is the ultimate interdisciplinary school, with a world-class law school, business school, medical school, programs in economics and psychology — and when it comes to integrating innovation across disciplines, there’s no one equal to Penn,” he said. He described himself and his fellow board members as “like kids in a candy store, excited to have the backing of an institution like Penn as we use innovation to improve the practice and profession of law.”

Congratulations to Penn Law on the launch of the Future of the Profession Initiative. Predicting the future is notoriously difficult, but I’m willing to bet that the Initiative will be a smashing success.

Penn Law Announces New ‘Future of the Profession Initiative’ Focused on Legal Education Innovation, Profession-Wide Thought Leadership
[Penn Law (press release)]

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David Lat, the founding editor of Above the Law, is a writer, speaker, and legal recruiter at Lateral Link, where he is a managing director in the New York office. David’s book, Supreme Ambitions: A Novel (2014), was described by the New York Times as “the most buzzed-about novel of the year” among legal elites. David previously worked as a federal prosecutor, a litigation associate at Wachtell Lipton, and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@laterallink.com.

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The abduction of Peter Magombeyi, 26, the leader of Zimbabwe’s doctors, who was masterminding a strike for better pay and improved working conditions, brought the country’s crumbling health sector to a standstill. He was only found five days later, dumped in the bush some 40 km northwest of the capital, Harare, bruised and disorientated from days of abuse.

Just before Magombeyi was abducted, he had literally been walking with his back firmly to the wall and sleeping with one eye wide open as he was receiving threatening messages from unknown people on his phone over the deadlock between the broke government and the underpaid doctors.

That he was found alive was a real miracle to many because in the past none of those that have gone missing for more than a day have been found alive, if found at all. Even most of his colleagues who took to the streets daily to protest against his abduction had started referring to him – in their songs and slogans – using terms reserved only for the dead.

Magombeyi is the latest of the more than 50 Zimbabwean opposition and human rights activists who, since the beginning of the year, have been kidnapped from their homes in the middle of the night by armed men and tortured. Not a single suspect has been apprehended by security agents in connection with these kidnappings. This has left Zimbabweans, who are bitterly divided along unforgiving political fault lines, to accuse and counter-accuse each other of being behind these crimes.

The opposition and the international community blame the government, while the ruling ZANU-PF party and government officials blame it on the opposition that they accuse of working with the United States and other Western powers to pursue a regime change agenda.

There is no love lost between President Emmerson Mnangagwa’s government and the opposition and civil society organisations (CSOs). The main opposition Movement for Democratic Change (MDC) rejected the outcome of the July 2018 elections and continues to challenge Mnangagwa’s legitimacy, while for his part Mnangagwa has threatened to go after those individuals and organisations that he accuses of trying to destabilise his government.

Since the spate of abductions started, Mnangagwa and his government and ruling party officials have taken turns to accuse the victims of faking the attacks.

“Government is disturbed by the growing trend of politically motivated false abductions in the country which are calculated to put government in negative light,” Mnangagwa said in a state address on September 20.

“Such political trickery, which in fact amounts to terrorism, will not take our country forward. New measures might have to be formulated to deal with this new threat and to severely punish those responsible for such subterfuges,” threatened Mnangagwa, who has a reputation for ruthlessness built over the more than four decades that he was Robert Mugabe’s enforcer.

Mnangagwa and his government are not just in denial, but they are also in denial about being in denial, as one moment they claim the abductions are staged, and the next they blame the same abductions they don’t acknowledge on the opposition or on a “third force” that they say is bent on tarnishing the government.

A state terror campaign?

Despite these strident denials victims have harrowing tales to share. Magombeyi, the latest victim, had to seek treatment in neighbouring South Africa for suspected liver poisoning and brain damage. Some, like Tatenda Mombeyarara, are now disabled, while others are suffering from the psychological effects of their traumatic experience.

This prompted Amnesty International to conclude that a atate-sanctioned crackdown against human rights defenders, activists, civil society leaders and members of the opposition, including abductions and torture, is underway in Zimbabwe.

“We are witnessing a violent crackdown on activists and civil society leaders, with authorities using some of the brutal tactics seen under the government of Robert Mugabe,” said Muleya Mwananyanda, Amnesty International’s Deputy Regional Director for Southern Africa. “Instead of listening to protestors’ concerns about the economy, the authorities have used torture and abduction to crush dissent and instil fear.”

Dewa Mavhinga, Human Rights Watch Southern Africa Director, told TRT World in an interview that all indications are pointing to state actors being behind these violations.

“The matter of abductions is straightforward – the abductions are real, and from the look of things, elements within the state may be complicit in them because of three reasons,” explained Mavhinga.

“One. Since the beginning of the year, all those abducted and tortured have been known government critics, activists, or trade union leaders challenging the government to offer better wages for teachers, ordinary workers, or doctors.

“Two. Those who have been abducting people are armed men, often with military-grade weapons like AK47 rifles, and speaking with government authority about dealing with elements threatening national security.

“And three, of all these abductions, despite clear evidence that could easily lead to arrests, like threats issued via registered mobile phone numbers, there has not been a single arrest – suggesting the police are deliberating inactive when it comes to investigating abductions and arresting those behind them.”

Mavhinga added: “The motive of abductions is clearly to strike fear into the hearts of all government critics, and to prevent people from organising protests against the Mnangagwa government.”

Jestina Mukoko, a survivor of abduction and torture by state goons, concurred with Mavhinga that the crimes have all the hallmarks of state involvement.

“Abductions are not new to the system,” Mukoko told TRT World. “It is a tactic that has been used over the years, even in the government of former president Mugabe, the objective being to silence dissent and muzzle anything that goes against the system.”

Tatenda Mombeyarara points to his x-rays from his hospital bed in Harare, Thursday, Aug, 23, 2019, showing his injuries. A wave of abductions, torture and arrests in Zimbabwe are targeting opposition activists and other government critics. (AP)

Are the abductions staged?

However, others see the abductions as the work of the opposition that is determined to discredit the new leadership. They accuse the opposition and their cahoots in the CSOs of conniving to stage these abductions in the hope of gleaning international sympathy and, more importantly, the lifeblood financial support that usually accompanies that sympathy.

Critics say the country’s protracted crises in Zimbabwe have spawned some wily career activists that know how to make rich pickings in the name of fighting for democracy and human rights.

 “The big question is, what does the current government gain by abducting the medical doctor [Magombeyi] at such a time when they are trying to clean up their own image?” asked opposition member Linda Masarira.

“Who stands to benefit from these so-called abductions? The MDC of course! If they abduct one of their own and put them in a safe house somewhere, they are going to get donor funds and buttress their narrative that there are gross human rights violations in Zimbabwe and then the US will probably apply more sanctions to Zimbabwe, and then they rejoice as they always do.

“The MDC should move away from politics of setting a bad narrative about our country and must start pushing for politics of issues. They want to grab power at all cost and are prepared to smear the country’s image just so that the current [government] finds it difficult to attract solidarity from other nations and investment from abroad. It is very bad and shameful,” Masarira added.

Accusations of this nature make victims of abductions like Mukoko, who was held incommunicado and tortured for a record 21 days, very sad.

“I don’t buy the issue of faking abductions… for what?” she asked when TRT World posed the question to her. “People continue to talk about money, but where is the money? In 2008 when I was abducted the manner in which the others were abducted was not identical to how I was abducted. I have not read a manual of abductions which might be reason for people to say because this did not happen therefore [it is] fake.”

Is a ‘third force’ responsible?

Yet others, including Foreign Affairs and International Trade Minister, Sibusiso Moyo, blame the crimes on what they see as a ‘third force‘. A statement issued by his ministry said it was curious that most of these high-profile abduction cases only take place in the run-up to international events.

“It is still fresh in our minds that towards the SADC Summit in Tanzania last month [August], the country was gripped with numerous abductions of our citizens by people whose aim we can only believe was to tarnish the image of the country regionally, continentally and internationally,” Moyo said. “We have no doubt that the latest abduction of Dr Peter Magombeyi was meant to coincide with the visit to Zimbabwe by the United Nations Special Rapporteur on the Rights to Freedom of Peaceful Assembly and Association.”

The Special Rapporteur, Clement Nyaletsossi Voule, was due in the country until September 27 on a fact-finding mission. The 74th session of the United Nations General Assembly was also about to start in New York.

Who could this ‘third force’ be? Could it be some unhappy members of the faction of the ruling ZANU-PF and its military sympathisers that were sidelined when Mnangagwa came to power after the November 2017 coup? In the run-up to last year’s elections, a bomb went off at Mnangagwa’s campaign rally in the country’s second largest city of Bulawayo, narrowly missing him, killing two of his bodyguards instead. He blamed it on enemies from within.

Local media reports suggest that there is a serious fall-out between Mnangagwa and his deputy, Constantino Chiwenga, the general that masterminded the military invention that brought the former to power, over sharing of the spoils of the coup. Chiwenga is currently hospitalised in China where he is reportedly fighting for his life following a suspected poisoning, reportedly by his colleagues. Moyo, the Foreign Affairs Minister – the army general that announced the coup – also narrowly survived another poisoning attempt last year. This infighting has raised serious questions about the enemies that Mnangagwa’s government is facing from within.

Mnangagwa and his predecessor Mugabe, who died in Singapore in early September, had become sworn enemies following a nasty fall-out over the succession issue that resulted in Mnangagwa being expelled from both the ruling party and the government. This prompted him to enlist the military to stage a spectacular comeback that saw the late former strongman being permanently consigned to the dustbin of history.

Since the coup that brought him to power, Mnangagwa has been alienated from many of his former colleagues, both within the ruling ZANU-PF party and the military. He has been hunting and haunting several former senior members of the ruling party that belonged to a faction that supported Mugabe’s wife, Grace, to take over from the aged former leader. Many of these former heavyweights that were fiercely loyal to Mugabe, fled into exile while those that have remained in the country are regularly arrested in what is widely seen as persecution by prosecution.

Abductions are not new in Zimbabwe. Some people like Eddison Sithole, who were abducted during the country’s 1970s decolonisation war that ended 40 years ago were never found. Activist Itai Dzamara was abducted from his home in 2015 and has not been seen since. In 2008, the remains of Tonderai Ndira’s remains were found in the bush several days after his abduction. Thousands of villagers who were abducted from their homes in during Gukurahundi genocide in the mid-1980s were never found.

Post published in: Featured

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