The Faculty Lounge

The Shortlisting of Phyllis Schlafly

This post is part of a series about my new book Shortlisted: Women in the Shadows of the Supreme Court, co-authored with Hannah Brenner Johnson. The first post offered an overview of the book. The second shed some light on how we found the women profiled in the book. The third examined what it means to be "shortlisted." And now I turn to a shortlisting featured in the new FX show "Mrs. America."

Are you watching “Mrs. America”? If not, you should, if for no other reason than to enjoy the star-studded cast that includes Cate Blanchett as Phyllis Schlafly, Niecy Nash as Flo Kennedy, Rose Byrne as Gloria Steinem, Uzo Aduba as Shirley Chisholm, Tracey Ullman as Betty Friedan, Margo Martindale as Bella Abzug, and more. As my University of Houston colleague, the historian Leandra Zarnow, recently wrote in the Washington Post:

Covid-19 has denied political junkies the daily twists and turns of a typical presidential race, and left Americans scrambling for entertainment. This has helped turn the FX show “Mrs. America,” currently streaming on Hulu, into the latest quarantine hit. “Mrs. America” resurrects the dramatic final chapter of the protracted battle to secure an Equal Rights Amendment to the Constitution, first introduced in 1923. It carries viewers from the heady moment when the ERA passed both houses of Congress in 1972 through the unexpected failure to ratify the amendment by a 1982 deadline. Conservative crusader Phyllis Schlafly is the figure driving “Mrs. America.” Creator Dahvi Waller dreamed up the show thinking former secretary of state Hillary Clinton would be well established in the West Wing by the time it aired, and a show about Schlafly would be a study of a vanishing force in U.S. politics. Clinton’s unexpected loss, however, created a series in which the anti-hero is the conqueror.

The series reminds us of forgotten moments in the women’s rights movement and illustrates how the politics of the 1970s are still very much at play today. Spoiler alert—you might not want to keep reading if you haven’t seen the series finale yet. (Otherwise, continue on to read about a shortlisting of Schlafly and to see some gems I uncovered while researching presidential archives.)

Request for Law Professor Signatories to Letter Urging Release of Immigrant Detainees

From Professor Priya Gupta (Southwestern):

In light of the COVID-19 pandemic and the risks that it presents to the detained in particular, several colleagues and I have written an open letter to the Department of Homeland Security urging the release of immigrant detainees. (As you are likely aware, several courts have already issued orders to release detainees in light of the actual or future outbreak of the virus in immigration detention facilities.)

We welcome your signature, and we would be grateful if you would distribute the link below and the attached letter to your colleagues & networks.

We would like all signatures by midnight EST on Friday, April 17 so that we can distribute the letter to DHS, ICE, and CBP on Monday, April 20.

The letter is here.

The signature form is here

Please note that this letter is intended to be signed by professors, researchers, and educators affiliated with a law school based in the United States.

 

Executing a Last Will and Testament During a Pandemic

Traditionally, a valid will must be:

(1) in writing;

(2) signed by the testator (or in the testator's name by another at the testator's request and in the testator's conscious presence); and

(3) either (A) signed by two individuals each of whom witnessed the signing of the will or the testator's acknowledgment of the testator's signature, or (B) acknowledged before a notary public.  So says Uniform Probate Code § 2-502. 

In states that have not adopted the UPC, holographic wills may or may not be allowed. In four states--Nevada, Indiana, Arizona, and Florida--electronic wills are permitted--but not necessarily with remote witnessing (such as by webcam). The recently-approved Uniform Electronic Wills Act leaves it to the adopting state to decide whether a witness's "electronic presence" will suffice for the purpose of witnessing a will.

In a jurisdiction like New York that does not permit holographic wills (except in the rarest of circumstances) and does not allow notarized wills, how is a person supposed to execute a valid will in an era of social distancing? I suppose the testator could meet up with friends in a city park, all the while maintaining appropriate six-foot distance, and then conduct a traditional will ceremony.

Here's another idea, which probably only works for people who live in houses or in apartments with windows viewable from another apartment or from the sidewalk:

• The testator arranges with the neighbors that the testator will go to the neighbor's yard;
• Two neighbors come to a window, or a front door with a glass pane.
• The testator gets close to the window, holds up the will, and signs it while the neighbors are watching;
• The testator says, "This is my will. I have read it and understood it. It disposes my property in accordance with my wishes. I would like you to sign your names as witnesses."
• The testator pushes the will through the mail slot or slips the will under the door.
• The two neighbors retrieve the will from the mail slot.
• The two neighbors go back to the door or window. While the witnesses watch each other and while the testator is watching, each witness signs as a witness.
• The witnesses push the will back out to the testator through the mail slot or under the door.

I think it works. The ceremony is unusual, but it should meet either the "line of sight" test or the "conscious presence" test for witnesses. H/T Ellen Aprill.  Am I missing anything?

To make it easier for people to execute wills during this pandemic, Governor Cuomo should issue an emergency order allowing remote witnessing of wills. Remote notarization is temporarily allowed in New York. The inability to update a will a real problem that can be fixed relatively easily. To be sure, this pandemic likely will push many states to adopt electronic wills statutes with remote witnessing, once legislatures are back in session. In the meantime, remote witnessing should be permitted.

 

Guest Post by Professor Francine Lipman on CARES Act and Recovery Rebate Tax Credit

The following is a guest post by Professor Francine Lipman (UNLV).

The CARES Act was just signed into law, including a number of individual income tax provisions. Here are some details on the Recovery Rebate Tax Credit:

Who qualifies for the 2020 Recovery Rebate Tax Credit? 

All adults who have a valid Social Security number authorizing work who are not claimed as a dependent on another's tax return (for 2020). One exception to this general rule is if a married couple files jointly and one of the spouses is a member of the Armed Forces, then only one of the spouses has to have a valid Social Security number that authorizes work.

 

All children, grandchildren, brothers, sisters, stepbrothers, stepsisters, nieces, and nephews who live with the adult as a member of their household in the US for more than one-half of the year and who are under age 17 with a valid Social Security number authorizing work (as of December 31, 2020) ("qualifying children")(no limit to the number of "qualifying children").

 

How Much Will I Receive?

• Adults will receive $1,200 per qualifying individual ($2,400 for married filing jointly).
• Adults who have "qualifying children" (as described above) will receive an additional $500 each, without limitation.
• Adults who are claimed as a dependent on another's tax return will not receive a Recovery Rebate Tax Credit.

Talking About Black Lives Matter and #MeToo

In April, 2019, the Wisconsin Journal of Gender, Law & Society sponsored a symposium on "Race-Ing Justice, En-Gendering Power: Black Lives Matter and the Role of Intersectional Legal Analysis in the Twenty-First Century." Instead of preparing individual papers for publication, the speakers at the symposium collaborated on a joint essay--written in a conversational style--that both captures and extends salient portions of the symposium discussion. The essay--written by Linda Greene (Wisconsin), Lolita Buckner Inniss (SMU), Mehrsa Baradaran (UC Irvine), Noa Ben-Asher (Pace), Bennett Capers (Brooklyn), Osamudia James (Miami), Keisha Lindsay (Wisconsin, Political Science & Gender and Women's Studies) and me is now available on SSRN.

Here is the abstract:

This essay explores the apparent differences and similarities between the Black Lives Matter and the #MeToo movements. In April 2019, the Wisconsin Journal of Gender, Law and Society hosted a symposium entitled “Race-Ing Justice, En-Gendering Power: Black Lives Matter and the Role of Intersectional Legal Analysis in the Twenty-First Century.” That program facilitated examination of the historical antecedents, cultural contexts, methods, and goals of these linked equality movements. Conversations continued among the symposium participants long after the end of the official program. In this essay, the symposium’s speakers memorialize their robust conversations and also dive more deeply into the phenomena, implications, and future of Black Lives Matter and #MeToo.

This essay organizes around internal and external spatial metaphors and makes five schematic moves. First, internal considerations ground comparisons of the definitions, goals, and ideas of success employed by or applied to Black Lives Matter and #MeToo. Second, external concerns inspire questions about whether both movements may be better understood through the lens of intersectionality, and relatedly, what challenges these movements pose for an intersectional analysis. Third, a meta-internal framework invites inquiry into how the movements shape the daily work of scholars, teachers, lawyers, and community activists. Fourth, a dialectical external-internal frame drives questions about the movements’ effects on law and popular culture, and the reciprocal effects between those external influences and the movements themselves. Returning to an external, even forward-looking, approach, we ask what the next steps are for both movements. This five-part taxonomy frames the inquiry into where the Black Lives Matter and #MeToo movements are located individually, but also where they are co-located, and, perhaps most importantly, where they are going.

The full essay is available here.

New Study on the State of the Entry-Level Law-Jobs Market and its Implications (Part IV: What the Current State and Likely Future of the Law-Jobs Market Means for the Legal Academy)

This is the fourth in a series of what I originally intended to be four posts springboarding off my new study of the entry-level Law-Jobs Market.  I’m now planning a fifth (and if that’s what you have to look forward to, you have my sympathy).  The full paper is available here.  Part I laid out the current state of the job market, and you can find it here.  Part II was about “JD Advantage” placements, and you can find that here.  Part III made some predictions about where entry-level hiring is headed in the foreseeable future, and that one is here.

In the first post in this series, I showed you that the entry-level Law-Jobs market appears to have finally leveled out after a decade-long decline, but that the number of entry-level Law Jobs is now 25.7% lower than it was in 2007, and at levels not seen since the early 1990s.  The proportion of the graduating class getting a Law Job (the Law-Jobs Ratio) has recovered, but that’s only because of the crash in the number of people attending law school.  In short, there are way fewer entry-level Law Jobs than there were ten years ago, but even fewer people graduating from law school.  In the third post, I predicted that while the long, steep decline in entry-level hiring is probably over, the steady and rapid growth in the job market that preceded it for at least thirty years is not likely to return anytime soon.  Instead, we have reset to a new, more modest entry-level job market about 25% smaller than the one we had in 2007, one likely to show, on average, only gradual growth of perhaps 1%-2% per year.

So what does this mean for the legal academy?  I offer my reflections after the jump.

Baltimore Law Clinic Students Work for Menstrual Equity for Maryland State Prisoners

Congress passed the Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act (the "First Step Act") earlier in December,  prior to the government shut-down. The criminal justice bill, supported by President Trump, includes some modest reforms to increase rehabilitation programs in prison and reduce some prison sentences (see a simplified explanation here). One of the lesser-known provisions of the First Step Act is the requirement that federal prisons provide menstrual hygiene products to prisoners. Given that the US has a tremendously high incarceration rate for women (see here), it's surprising -- or maybe not -- that the federal prisons did not have an obligation to make these products available to women.

Prior to the success of the federal legislation, students at the University of Baltimore's Bronfein Family Law Clinic, working under the guidance of Professor Margaret Johnson, had been hard at work trying to persuade the Maryland State Legislature to provide menstrual hygiene products to those incarcerated in state jails and prisons. The student-attorneys wrote about their work. Here is an excerpt:

We and other clinic student attorneys jumped into action because the provision of menstrual products is a basic human right for those who menstruate. The student attorneys, in conjunction with RJI and past residents of Maryland prisons, provided both written and oral testimony to the Maryland General Assembly in February 2018 in support of the proposed bill.

In support of our testimony, we conducted a national survey of the fifty states’ and the District of Columbia’s laws regarding menstrual products for persons in correctional facilities. When we first conducted our study in February 2018, we found that only eighteen states had any provision identifying the issue of providing menstrual products to inmates. Of those eighteen states, eleven states required the facility to provide inmates with these products whereas the other seven states did not specify how inmates would access the products; of those eleven, only two specifically required that those products be provided at no cost. Of the eighteen states, nine states required the state to provide menstrual products only upon demand so they were not freely available. Two states provided unspecified access to menstrual products.

The bill unanimously passed the Maryland House and the Senate and on April 24, 2018, Governor Hogan signed the bill into law. As of October 1, 2018, Maryland correctional facilities are required legally to have a written policy and sufficient supply of free menstrual products.

With this new law, Maryland became a leader in the country with this initiative of making menstrual products available, at no cost, and with unfettered access. This fall, the Clinic student attorneys have filed multiple public information act requests with each Maryland county facility to obtain their policies to ensure compliance with this new law. We have also drafted a model policy to provide to the facilities should they need assistance.

Still over half the US states do not provide access to these products. I'll bet the students at Baltimore have some wisdom they could share!

Russia’s Response to the DNC Lawsuit

In a very interesting filing, the Russian Federation has formally responded to the DNC lawsuit that seeks millions of dollars in damages for Moscow’s hack of the Democrats’ computer system during the 2016 election. On behalf of the Russian defendants in the case, the Russian Ministry of Justice filed a Statement of Immunity last week with Judge John Koeltl of the U.S. District Court for the Southern District of New York.

Although the Russian Federation insists the filing does not constitute a formal appearance in the case, the Statement of Immunity essentially constitutes a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. The filing also invokes the political question doctrine, raises a Rule 12(b)(3) venue issue, and even works in a 12(b)(6) reference to the strict pleading standard articulated in Bell Atlantic v. Twombly and Ashcroft v. Iqbal.

The cornerstone of the Russian Federation’s defense is the Foreign Sovereign Immunities Act, 26 U.S.C. § 1604. Relying on the FSIA, the Statement of Immunity urges the District Court to dismiss the case sua sponte on jurisdictional grounds. Here is an excerpt:

Active Measures

My movie recommendation for the weekend is “Active Measures,” a new documentary by Jack Bryan. The title refers to the Russian government’s use of covert warfare against its adversaries, especially in the United States but also in Britain, Estonia, Georgia, and Ukraine.

The film’s focus is on the three-decade-long financial relationship between Donald Trump and Russia, which Bryan argues is the key to understanding the connection between Moscow and the Trump campaign during the 2016 election. The documentary is riveting, fast-paced, and includes interviews with John McCain, Hillary Clinton, Evan McMullin, Michael McFaul, and many others. It is available on Amazon Prime and the movie trailer for Active Measures is available here.

On a related note, the Justice Department on Wednesday filed yet another indictment of Russian military intelligence officers. Here is a copy of the latest indictment, which charges 7 GRU officers with conducting “persistent and sophisticated cyber criminal intrusions” that targeted American, Canadian, and European entities for hacking and disinformation campaigns. According to the Justice Department, the Russian government attacked a range of western institutions, including the U.S. Anti-Doping Agency and the Organisation for the Prohibition of Chemical Weapons. Interestingly, the Justice Department filed the indictment in the Western District of Pennsylvania, which reflects the expansion of the Russia investigation beyond the Special Counsel’s office to include a number of U.S. Attorneys’ offices. 

Here is FBI Director Christopher Wray’s statement regarding the most recent Justice Department indictment of Russian government officials:

“The actions of these seven hackers, all working as officials for the Russian government, were criminal, retaliatory, and damaging to innocent victims and the United States’ economy, as well as to world organizations. Their actions extended beyond borders, but so did the FBI’s investigation. We worked closely with our international partners to identify the actors and disrupt their criminal campaign - and today, we are sending this message: The FBI will not permit any government, group, or individual to threaten our people, our country, or our partners. We will work tirelessly to find them, stop them, and bring them to justice.”

And here is a link to the Justice Department page that includes all of the indictments filed thus far by Special Counsel Robert Mueller’s office in its investigation of Russian interference in the 2016 presidential election. 

Was Michael Cohen’s Secret Taping of his Then-Client Donald Trump Improper?

Once again current events provide us opportunities for ethical reflection.  Much in the news these days is Michael Cohen’s tape-recording of phone calls with his then-client, then-candidate Donald Trump, with one such tape apparently about the payments that Trump might make to “our friend” David Pecker (yes, Virginia, that really is his name) and the National Enquirer to acquire Playboy model Karen McDougal’s rights to her story of her earlier affair with Trump.  There is spirited disputation whether the recording documents criminal behavior on Trump’s part, a question I leave mostly to others.  Today I’ll focus on the tape and the lawyer who made it, and explore the eternally recurring (and often wildly informative) question “Can he do that?”

The President has tweeted (argh, so little good ever follows those words) that Cohen’s taping is both “totally unheard of and perhaps illegal.”  Anything to that?  I’ll discuss it in all the excruciating detail you deserve after the jump.

Sources, Methods, and Mueller’s Investigation

Special Counsel Robert Mueller filed charges against 12 Russian military intelligence officers on Friday for hacking the Democratic Party’s computer networks. The indictment is available here on the Justice Department’s website. 

In compelling detail, the indictment reveals how the Russian government engaged in a massive campaign to steal the Democrats’ computer files and then “stage releases of the stolen documents to interfere with the 2016 U.S. presidential election.”

The details are eye-catching, particularly the elaborate measures that the GRU—the premier Russian Military Intelligence agency—took to cover its tracks. For example, paragraph 58 alleges that the Russians “used bitcoin when purchasing servers, registering domains, and otherwise making payments in furtherance of [the election] hacking activity.” Paragraph 59 reveals additional methods the GRU adopted to escape detection:

“To further avoid creating a centralized paper trail of all of their purchases, the Conspirators purchased infrastructure using hundreds of different email accounts, in some cases using a new account for each purchase. The Conspirators used fictitious names and addresses in order to obscure their identities and their links to Russia and the Russian government.”

The GRU’s effort to conceal its role in the 2016 election failed. The indictment identifies the 12 defendants with extraordinary precision, including their names, many of their ranks, and even the location of the buildings where they worked in Moscow.

But the remarkably detailed charges raise a serious concern of their own: has the indictment itself potentially compromised the American intelligence community’s sources and methods? If so, why would Mueller take that risk? 

Cocky (TM) Situation Heats Up

I recently posted about a romance author who had registered the term "Cocky" for a series of books relating to the exploits of the Cocker Brothers. That registration garnered a lot of criticism from the publishing community. Both the Romance Writers of America (RWA) and the Authors Guild become involved in subsequent legal battles surrounding the mark. On June 1, the District Court of the Southern District of N.Y. struck down an application for a TRO and a preliminary injunction made by the registrant of the mark against the editor of a romance short story anthology entitled "Cocktales" and another romance author who used a similar term in his title. The court noted that it was a weak mark at best and that purchasers of romance titles were not likely to be confused by the similar terms used in different titles by different authors. The mark remains registered and several cancellation petitions are still pending, but at least the ruling has given competing authors some comfort. The Guardian covered the story here. 

(And I'm aware that any mention of this story opens the field for all kinds of puns, so have at it ...)

A Glimpse at the Future of BigLaw

Recently New York behemoth Weil Gotshal & Manges announced that it was “shortening its partnership track” from 9½ to 7½ years.  Commentators have responded skeptically (law-firm consultant David Barnard of Blaqwell doubts whether the approach will improve overall associate retention; Vivia Chen says “all this just sounds too peachy to be true”). 

I think the doubters are wrong, and that while Weil’s “partnership track” change (I’ll explain the reason for the scare quotes later) may not be that big a deal by itself, the reasons for it that the firm has plausibly articulated and their broader implications mark important evolutionary developments that we can expect to become more widespread in the industry. 

As part of the great educational machine that manufactures new lawyers, we law teachers should want to know whether any of this is good for the young lawyers entering BigLaw.  Our students will naturally want to know as well.  As I’ll explain after the jump, the answer is yes and no, but the no is mainly a function of the economic environment to which all BigLaw firms must react these days (and thus isn’t really a result of any law-firm policy or policy change), and the yes is important and being largely overlooked.

Romero

Pope Francis announced on Saturday that Archbishop Oscar Romero will be canonized as a Roman Catholic saint this fall. 

The story of Archbishop Romero is one of the most important in Central American history. He was shot and killed on March 24, 1980 as he celebrated Mass at the Chapel of the Hospital de la Divina Providencia in San Salvador, the capital of El Salvador.

That "Cocky" Trademark

For anyone interested in the use of trademarks in the publishing industry, an interesting situation is emerging in the romance writers' area. This week romance author Faleena Hopkins was granted a registered trademark in a stylized version of the word "Cocky" for her romance series which includes the word in the title of each of her books. Apparently she then sent takedown notices to Amazon to ask them to remove from sale other romance books with the word in their titles and also sent letters to independent romance authors asking them to change their titles. The Romance Writers of America has apparently engaged an IP attorney to investigate the matter and there is at least one cancellation petition floating around at the moment. A number of legal issues are raised here including whether the registration should have been granted in the first place, although, in theory, there's no objection to registering a mark that relates to a book series, as opposed to a title of a single book. It's also important to understand that registration is not the same as owning the mark - it gives benefits to the registrant but it's of course possible to claim an unregistered mark as valid. So even if the registration is cancelled, there may be questions as to whether there's a valid unregistered mark in play. There's a useful summary of the situation and relevant legal issues here.

Morality Clauses in Publishing Agreements

Of possible interest to those concerned with free speech and free flow of ideas in publishing are recent moves in the  industry to insert "morality clauses" into publishing contracts to effectively allow publishers to cancel book contracts if the author includes content or engages in conduct deemed to be "immoral". The moves have largely come out of concerns associated with the #MeToo movement but also can cover speech considered to be politically unsuitable for publication. This recent Publishers Weekly piece outlines some of the measures being taken by publishers and associated concerns in the industry.

Monkeys and Copyright

For anyone who has been following the copyright litigation involving the infamous "monkey selfie", the 9th Circuit Court of Appeals this week seems to have brought the matter to a close for now, ruling (after relevant parties reached a settlement) that animals cannot hold copyrights under U.S. copyright law, a proposition that no copyright lawyer probably ever doubted.

PETA had been pursuing the action on behalf of the macaque monkey who had used freelance photographer David Slater's camera to take selfies which became an Internet sensation among other things.

Earlier chapters in the litigation had focused on whether Slater himself could claim copyright given that he was not the person who actually took the photographs, but the case took a turn into the more abstract question as to whether the monkey could claim copyright. That question seems for now to have been put to rest. It's certainly been an interesting case to follow, and it likely has ramifications for questions about digital technology in terms of claiming copyright in works made by machines and other technological devices. It's typically been accepted that U.S. copyright law requires the efforts of a human creator in order to claim copyright, but questions have arisen about whether machines programmed by humans meet that definition. Creations by animals have been regarded as a related issue.

A summary of this week's decision is available here.

More Adventures in Ethics, Now with Porn Stars: Trump Lawyer Seizes the Moral and Ethical Low Ground by Appearing to Claim He Committed Disciplinary Violations and Possibly Felonies

Current events have favored us with another rash of ethics questions.  These are more difficult analytically than they are from the standpoint of plain old common sense, but they bear examining if only to explode, hopefully once and for all, the persistent and pernicious myth that legal ethics is a dry and abstract endeavor.  I shall not sleep (at least not well) until you share my appreciation for this glorious subject.  (H/T Above the Law (here and here) which beat me to the punch on some of these questions.)

The setup:  Porn star Stormy Daniels, née Stephanie Clifford, is rumored to have had an affair with Donald Trump in 2006, around the time his third (and for the time being current) wife, Melania, gave birth to their son, Barron.  The affair was first aired publicly in 2011 on an internet celebrity website named (appropriately enough) “The Dirty.”  The Dirty took down its post under threat of legal action by a lawyer claiming to represent Ms. Daniels.  The lawyer’s demand letter reportedly objected to the website’s purportedly commercial use of Daniels’ name and likeness, but did not contend that the story was false.

The story next resurfaced in The Smoking Gun shortly before the 2016 Presidential election.  At that point, a longtime lawyer for Donald Trump and the Trump Organization, Michael Cohen, used a Delaware LLC he had just formed to pay Ms. Daniels $130,000.  The Wall Street Journal reported in January of this year that the payment was made and accepted as part of a written nondisclosure agreement forbidding Ms. Daniels from discussing the issue further.  (The Journal also reported that both Mr. Trump and Mr. Cohen denied that Trump had had sexual relations with Ms. Daniels, and that Cohen reportedly sent the Journal “a two-paragraph statement by email addressed ‘TO WHOM IT MAY CONCERN’ and signed by ‘Stormy Daniels’ denying that she had a ‘sexual and/or romantic affair’ with Mr. Trump,” and further denying “[r]umors that I have received hush money from Donald Trump.”  With characteristic deadpan, the Journal further reported that after it had published its first story on the issue a few days before, “several media organizations said Ms. Clifford or her manager discussed the alleged sexual encounter with them in the weeks before the 2016 election.”)

Then, responding to a complaint filed by Common Cause, the Federal Election Commission began investigating whether Ms. Daniels was illegally paid with Trump Campaign money.  And the mainstream press began wondering if the President had paid hush money on the eve of a hotly contested election to hide a tryst with a porn star undertaken while his wife was shortly post-partum.  Ugly.

This week, Mr. Cohen has favored us with reassurances that nothing was amiss, because he had given Ms. Daniels $130,000 of his own money in the “transaction” (to use his word) that bought her silence.  Cohen was quoted in the New York Times insisting that “[n]either the Trump Organization nor the Trump campaign was a party to the transaction with Ms. Clifford, and neither reimbursed me for the payment, either directly or indirectly.”  (The lawyerly reader will observe that this artful phrasing does not specifically deny that Mr. Trump personally or a Trump supporter provided the money, nor is it inconsistent with anyone having promised to make the payment up to Cohen in some way in the future, nor does it deny that Trump advised, directed, or requested the transaction.)  Cohen reportedly refused to say why he had made the payment, whether or not Trump knew he had done so at the time, or whether Cohen had also made similar payments to others.

And now to top it all off, Ms. Daniels’ manager announced on February 14 that Cohen’s public statements appearing in the Times, as well as reports Cohen is “shopping a book” that touches on the story, have terminated the nondisclosure agreement, so “[e]verything is off now, and Stormy is going to tell her story.”

But let’s remember, my friends, that this is a legal ethics story, so let’s get to the juicy parts.  That will require us to consider some criminal and election law as well.  A good deal is not yet known factually, and we can only hope that the truth will out, and soon.  In the meantime let’s hypothesize based on what we do know.  We'll do that after the jump.

Perspectives on the Judge’s Comments at Larry Nasser’s Sentencing

Once again the headlines bring us subtle ethics questions, this time in judicial ethics.  Carissa Hessick has a very thoughtful discussion over at Prawfsblawg of the issues raised by some of Michigan Judge Rosemarie Aquilina’s comments during Larry Nasser’s sentencing hearing.  As everyone knows, Dr. Nasser pleaded guilty to multiple counts of sexual assault after molesting scores of girls and young women, many of them elite athletes, over the course of many years while pretending to provide them medical treatment.  In particular, there has been widespread debate over the propriety of Judge Aquilina’s remark, made in the middle of the proceedings:

Our Constitution does not allow for cruel and unusual punishment.  If it did, I have to say, I might allow what he did to all of these beautiful souls—these young women in their childhood—I would allow someone or many people to do to him what he did to others.

As Prof. Hessick observes, “[t]his is a remarkable statement by a judge, but this is also a remarkable case.”  She contends that the statement was nevertheless improper, for the reason that it contravenes the judge’s public role and image as a “neutral arbiter” during sentencing.  (She also concludes that current law may offer no remedy for the impropriety other than public criticism, but does not clearly suggest whether she thinks it should.)

Prof. Hessick rejects the notion that the judge’s proper role encompasses expressing “the people’s outrage” at sentencing, arguing that this job is the prosecution’s alone.  She points out, quite correctly, that acting as a voice of public disapprobation is hard to reconcile with the principle of judicial ethics enjoining impartiality in “all duties of judicial office.”  This is an important point, and it makes the issue difficult. But as discussed below, I think she gives the point undue weight and scope.  I discuss why after the jump.

More Adventures In Ethics: Did David Boies Cross Any Ethical Lines In His Work For Harvey Weinstein?

Another legal ethics issue in the headlines!  This one has everything—a rich and powerful sexual predator, secret agents, the New York Times and, most exhilarating of all, nuanced conflict of interest, confidentiality, and ethical supervision questions.  I am agog.

Some background.  At this point, we’ve all heard a great deal of horrific stuff about Harvey Weinstein, the prominent film producer to whom dozens of women have now ascribed countless acts of sexual harassment, sexual assault, and outright rape over decades.  Weinstein had a broad armamentarium he reportedly deployed to intimidate and silence his victims, from power and influence in the entertainment industry to teams of skilled and well-connected lawyers who would litigate or threaten legal action, and then document tightly drawn settlements buying peace and a whole lot of quiet.  Weinstein’s tactics worked:  Despite industry winks and whispers, the dam he built held back most of the accumulating waves of accusation for some thirty years, until the New York Times and The New Yorker broke the story last month, and years of pent-up bilge flooded out to drown Weinstein’s public image and career.

Now Ronan Farrow’s continuing investigative coverage in The New Yorker (Times story here) reports that another of Weinstein’s tools of coercion was high-powered private investigators.  These investigators were paid large sums to ascertain potential accusers’ intentions, catch them in infelicities or inconsistencies, and just plain dig up dirt that could be used to discredit them if they came forward.  Sometimes the investigators plied their trade by lying to their targets about who they were and what they were doing, and ingratiating themselves to reap or record unguarded emails or statements.  Kroll International and smaller organizations called Black Cube and PSOPS were agencies Weinstein and his lawyers used on more than one occasion.

Superstar litigator David Boies now finds himself sweating uncomfortably in a spotlight he shares with Weinstein, having been what law.com calls his “longtime legal adviser.”  Exactly what Boies and his firm have done over the years for Weinstein is not clear.  The contract by which the Boies Firm engaged Black Cube for Weinstein’s benefit earlier this year (available on The New Yorker website here) specifically states that it supersedes a 2014 written agreement between Black Cube and the Boies Firm, “acting on behalf of the [same] Client,” so it appears that the Boies Firm has engaged Black Cube for Weinstein’s benefit before.  Whether that prior engagement concerned other predations on Weinstein’s part is uncertain, but Boies reportedly donated $10,000 to Manhattan DA Cyrus Vance’s re-election campaign in 2015 shortly after Vance decided not to prosecute Weinstein on sexual assault charges then being asserted by an Italian model.  (Both Boies and Vance deny any connection between the two events.) 

More recently, as the turbid waters of accusation spread, Boies represented Weinstein in negotiations to keep his job and board seat at The Weinstein Company.  (The Board removed him.)   At the time (last month), Boies publicly described the scope of his engagement, asserting that he would not be representing Weinstein in any litigation against The Weinstein Company (which he also represented), or assisting celebrity trial lawyer Charles Harder (who represented Hulk Hogan in the invasion of privacy case that broke Gawker) in a $50 million libel case Weinstein was threatening against the New York Times for reporting the first wave of harassment and assault accusations.  (That case was never filed.)  Nor, he added, would he be involved in addressing “the subject matter of various news stories,” apparently referring to articles published after the Times’ ground-breaking story in early October.

In retrospect, that last qualification appears carefully formulated.  For as the Times is now reporting (here), in July of this year Boies’ firm had retained Black Cube on Weinstein’s behalf, hiring them for what the contract Boies signed stated were the “primary objectives” of providing “intelligence which will help the client’s efforts to completely stop the publication of a new negative article in a leading NY Newspaper” (which Farrow identifies as the Times) and obtaining content from a book that was to include “harmful, negative information on and about the client” (which Farrow identifies as being written by actress Rose McGowan, who has accused Weinstein of raping her).  Even more surprising, Boies and his firm were representing the Times in another, unrelated matter at the time.

Upon learning of the Boies Firm’s role, the Times quickly and summarily terminated them, issuing a strikingly strong statement accusing the firm of “secretly work[ing] to stop our reporting on Harvey Weinstein at the same time as the firm’s lawyers were representing us in other matters.”  The Times asserted that it “considered this intolerable conduct, a grave betrayal of trust, and a breach of the basic professional standards that all lawyers are required to observe.”  It vowed to “pursue appropriate remedies.”  Ouch.

It’s not hard to see how the Times would consider secret machinations by the paper’s own outside counsel to “stop our reporting” on a front-page story “intolerable conduct” and a “grave betrayal of trust.”  But is it, as the Times also asserted, “a breach of the basic professional standards that all lawyers are required to observe”?  Of course, it doesn’t have to have been a violation of the Rules of Professional Conduct to be intolerably disloyal to the Times.  Certainly it was knuckleheaded client relations with a marquee client, the optics are hideous, and in all events the paper was free to jettison the Boies Firm whether or not it violated any formal Rule or legal standard.  But did it?

That turns out to be a harder question than you might think.  I’ll explain why after the jump.