The Faculty Lounge

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. 

A Resurgence of Interest in Public-Interest Lawyering?

For years, changes in the number of LSAT takers have reliably foreshadowed changes in the number of law-school applicants and applications.  The number of applicants to law school has fallen nearly 40% since 2010, and since 2010 the number of LSATs administered has fallen in rough proportion. 

So many of us were surprised when the June 2017 administration of the LSAT, traditionally the kickoff to the application season, attracted about 20% more test-takers than last year; registrations for the September administration are similarly up 12% over last year.  No obvious explanation presented itself:  Conventional wisdom (which still appears to be basically right) dictated that applications had fallen because potential applicants had eventually appreciated in greater and greater numbers that the market for entry-level law jobs had shrunk consistently and substantially since its high-water mark in 2007.  Rationally, they stayed away in droves.  The number of law jobs obtained by the class of 2016 within 10 months after graduation was flat (actually, slightly lower) again this year.  (The proportion of the class that got law jobs was up slightly, simply because the number of graduates is falling in direct proportion to the falling number of students who started law school three or four years before.  With fewer graduates fishing for the same number of jobs, a slightly greater proportion of them managed to hook one.  Of course, these improved chances will continue only so long as law-school census stays low.)

A recent survey of LSAT takers (see also here) suggests at least a partial explanation:  Nearly a quarter of those surveyed said that Donald Trump’s presidency was the single most important reason they were considering law school.  Over half (52%) said that Trump’s presidency and recent events such as the Charlottesville protests had moderately or strongly influenced their decision to apply to law school as well as the type of law they intended to practice. 

Wow.  Some thoughts about this development after the jump:

Joe Arpaio’s Pardon as a Problem in Remedies

My Lounge colleague Steve Lubet recently discussed in this space the op-eds published elsewhere by Martin Redish and Noah Feldman concerning President Trump’s pardon of former Maricopa County Sheriff Joe Arpaio.  Arpaio was found to be violating the Constitution by having his deputies conduct “saturation patrols” in which anyone who looked Hispanic was stopped and detained pending an immigration status check, and those believed to be undocumented were arrested and incarcerated.  Enjoined by a federal court to stop these practices, he refused to comply for at least a year and a half, and publicly boasted about it.

Arpaio was recently found guilty of a criminal contempt of the federal court’s injunction, subjecting him to up to six months’ imprisonment and fines.  That is the crime for which the President has pardoned him, stating publicly that Arpaio “kept Arizona safe” and that he was “convicted for doing his job.”

Prof. Feldman argues that this was a precipitous abuse of the President’s pardon power that could support an article of impeachment.  Prof. Redish goes further, arguing that the pardon of a criminal contempt of a federal-court injunction restraining constitutional violations by a public official should be considered beyond the pardon power the Constitution grants, essentially because it violates the separation of powers by invading the inherent power of the federal courts to enforce their own orders and the Constitution itself. 

Without discounting the horror that many have experienced at what the President did and why he says he did it, and leaving aside the political fallout that may result, I’d like to examine Prof. Redish’s creative and thoughtful argument as a problem in Remedies, and consider what recourse may now be left.   I’ll do just that after the jump:

More on Use of Titles by Former Judges

My fellow Lounge Lizard Steve Lubet recently offered two very thoughtful posts (here and here) on the circumstances under which it ought to be considered inappropriate for retired judges to use their former titles.  Steve’s comments were prompted by “Judge” Andrew Napolitano’s allegations on Fox News that British intelligence services had colluded with the Obama Administration in wire surveillance of the Trump Campaign.  As Steve pointed out, Napolitano’s own website (JudgeNap.com) and bio are stuffed with references to his former job, Fox News refers to him as a “senior judicial analyst,” and Napolitano reportedly insisted that Fox make his television set resemble a judge’s chambers.  “Judge” Napolitano once sat on a trial court bench in New Jersey, but hasn’t been a judge for over twenty years; even Fox News could not stand by his bizarre and unsubstantiated pronouncements concerning the alleged wire “tapp.”  In case you’ve forgotten, President Trump initially justified his wire-tapping allegations by saying “All we did was quote a certain very talented legal mind who was the one responsible for saying that on television.”

I offered a Comment to Prof. Lubet’s second piece, which he asked me to post “above the line” so the discussion could continue.  Of course, I couldn’t manage to do that without messing with my Comment, so here you have a somewhat (all right, considerably) elaborated version, with thanks to Steve for getting the conversation started on what is, to my mind at least, a surprisingly nuanced and difficult question.

I’d like to suggest that there are at least two related but distinct questions worth thinking about:  (1) when it’s OK (or not OK) to use the title of a former office, and particularly a former judicial office; and (2) when the norm should be a positive proscription enforced by process and remedies, and when its violation should be condemned merely (and I use that word advisedly) as a breach of convention or decorum.  In order to address both, we might start by considering why we care.  I can think of two or three reasons, depending on how you break them down, and I’ll work my way through them and their possible implications after the jump.

USF Building Renamed Because of Anti-Asian Racism of its Namesake

In what may be a first, the University of San Francisco has renamed a residence hall because of the anti-Asian views of its namesake. Last week USF removed the name of James Phelan, a former mayor of San Francisco, U.S. Senator, and USF alumnus.  Phelan was among the leaders of the Japanese exclusion movement that swept California after 1905, and famously ran for reelection to the Senate in 1920 under the slogan, "Keep California White." That has not happened: the matriculating class this year at Phelan’s alma mater is 27.9% white. USF President Paul Fitzgerald, S.J. expressed no desire to scrub Phelan from USF’s history, and sees a continuing relevance in his story: “Phelan used xenophobia to gain political office . . . It’s important that our community recognizes that the temptation to run campaigns built on racism and fear of immigration, which was typical of Phelan’s era, continues to exist around the world today.”

CRISPR in Agriculture: An overview of the gene-edited food that probably isn't a GMO

On Monday of this week, TIME announced its 2016 Person of the Year shortlist. Many of the names were unsurprising: Donald Trump, Hillary Clinton, Simone Biles, and Beyoncé Knowles all seem to make sense. One entry in particular, however, seemed like a bit of an outlier -- the CRISPR Scientists. As outlined in TIME's announcement: 

These scientists have developed a groundbreaking new technology that can edit DNA, a technique that has the potential to transform science and the human experience, as it could be used to find and remove mutations responsible for incurable diseases.

I've been following this technology for a little while, so when the announcement was released, I immediately wondered how it would impact everything else happening in the food law arena right now and in the future.

CRISPR, the shorthand reference for "clustered regularly interspaced short palindromic repeats" (pronounced crisper), has been touted as a technology that has the potential to quite literally change the world. Scientists believe it can be used for everything from potentially curing cancer, to saving the lives of children who are allergic to vaccinations, to de-extinction of the wooly mammoth.

On Measuring the National Mood

I stared unseeingly at my television screen until four o’clock Wednesday morning, long after Donald Trump gave his very conventional and conciliatory victory speech and all the talking heads went off the air.  Sure I’m worried about the future.  But what left me cotton-mouthed and agog that night was how surprised I was at how surprised I was. 

I cannot fathom how I could have failed to understand so many of my fellow Americans so badly.  Of course I knew that Trump had millions of followers, but like a lot of us who pull on our smarty pants every morning, I felt quite sure that it was just a vocal and angry if better-than-usually-organized minority—you know, those hillbillies J.D. Vance elegizes, and some Rust Belt denizens too passive to extract themselves from the exhaust pipe of history.  (And for some of our all-too-literal commenters, let me make explicit that this description is meant to mock and exaggerate attitudes that I think were lurking quietly in many predictions of yesterday’s election.  My point here is that it’s foolish to judge what you don’t yet understand.  Once you understand it, sure, judge all you like, and I intend to.  But first you have to know and respect it as real.)  To be sure, I had help from the mainstream media and an entire industry of professionals who make it their business to explicate and quantify the national mood.  But I accept the error, and the humbling that fairly accompanies it, as my own.

What I really want to know is not so much how Trump won as how all us folks who pride ourselves on knowing what we’re talking about got it so wrong.  These days, the pros not only give us a conventional margin of error (e.g., Hillary up by 4 plus or minus 2 points), but an outcome prediction with a probability or reliability assessment.  For example, the New York Times said on Election Day that Hillary had an 85% chance of winning.  Literally what that meant was that there was roughly a 1-in-6 chance they were wrong.  Now maybe Trump's chances really were the odds of rolling a die once and getting a snake-eye.  I doubt we'll ever know, but I’d bet that by election day a more effective assessment of the national mood would have suggested a much greater likelihood of Trump's winning, something a lot closer to even.  Nate Silver more cautiously handicapped it at 70-30.  Even that doesn't seem to capture it.

Because really it's not that much like predicting what a rolled die will show.  It's an assessment of how confident you are in your methods.  The pollsters and algorithmiacs systematically overestimated their confidence in their methods, or at least I’d bet they did.  They didn't know what they didn't know, and couldn't quantify their uncertainty because they didn't know what they might be missing.  The result was a surprise not because it was some random stroke of fate, like a winning lottery ticket, but because as hard as we looked at everything we just didn’t see some very pervasive and important stuff that was demonstrably there.

So what happened?  What identifiable and measurable phenomena went unidentified and unmeasured?  And why?

--Bernie

Lola Wage-and-Hour Document Review Case Settles; Vexing Questions About What Constitutes “The Practice of Law” Persist

Lola v. Skadden Arps has settled (reports here and here).  Lola is a wage-and-hour case with wide implications for the legal profession.  To recap (see my previous post on the Second Circuit’s recent decision here), David Lola, a lawyer licensed to practice in California, took a job as a document reviewer for Skadden Arps in a large MDL venued in a federal court in Ohio.  He was placed in that position with Skadden by a staffing agency, Tower Legal Staffing.  (Tower Legal provides attorneys and paralegals to law firms on a contract basis, and thus remained Lola’s direct employer during his period of service to Skadden.)  Lola spent 14 months reviewing documents in North Carolina for the case; his Complaint alleged he typically worked 45-55 hours per week.  He was paid $25 per hour, without overtime.

After the engagement ended, Lola sued Skadden and Tower Legal in a Fair Labor Standards Act “collective action,” which is the FLSA’s statutory version of a class action (see 29 U.S.C. § 216(b)).  Lola claimed that he and all those similarly situated were entitled to time-and-a-half for work in excess of 40 hours per week. 

The FLSA exempts from overtime requirements any “employee employed in a bona fide professional capacity,” including “any employee who is the holder of a valid license . . . permitting the practice of law . . . and is actually engaged in the practice thereof . . . .”  29 C.F.R. § 541.304.  Skadden and Tower Legal argued that Lola’s document review responsibilities constituted “the practice of law” within the meaning of the FLSA and supporting regulations, and he therefore was exempt from overtime pay. 

Lola admitted that he was licensed to practice (the fact that it was in a jurisdiction with no connection to any aspect of his work doesn’t matter under the FLSA), so the wage-and-hour question boiled down to whether or not he was “actually engaged” in the “practice of law.”  Lola alleged that his responsibilities as a document reviewer were completely mechanical and devoid of judgment—that he was given a list of key words and names and told to “code” documents in a specified way if those words or names appeared in the document.  Period.  On a motion to dismiss (where these allegations had to be taken as true), the District Court found that these activities constituted “the practice of law.”  The Second Circuit reversed, finding that work that ministerial and rudimentary did not comprise the practice of law, though more typical document review work requiring “a modicum of judgment” likely would.  (As related in my earlier post, most document review jobs do involve some degree of judgment in determining documents’ responsiveness to a request or potentially privileged status, judgments that a fair reading of the appellate opinion suggests would qualify as “the practice of law” under the standard the decision articulates.  The Second Circuit agreed with the District Court that the FLSA borrows the law of the state governing the services at issue to determine whether they qualify as “the practice of law,” which in this case was North Carolina, though North Carolina’s definition is typical in most respects.)  The case was remanded to determine whether Lola’s job required him to be the automaton he alleged.

I'll address the settlement and what it does and doesn't tell us about the future after the jump.

The Law School Industry - Institutional Considerations for Military Veterans

From movies to policy debates, veterans are a perennial image in the American psyche. At the law school, the most notable presence of the military are recruiting officers (e.g., JAG), and to a lesser extent, student organizations (e.g., student veterans organizations, military justice societies) and the occasional veteran clinic. There is, however, no comprehensive in-depth study of how law schools accommodate veterans or how various institutional platforms operate (in the next few months, I will post an excel-based study mapping all these initiatives at law schools with some brief comments). While researching this topic and speaking with student veteran groups, military personnel and therapists, certain themes have emerged that might provide law school administrations with some guide for developing 'best practices' towards students serving or having served in the military. 

The core challenge seems to be that there tends to be a lack of awareness by law school admission offices about the psychological and social challenges that veterans face, in civilian life or at school in particular. Below is a brief list of some common blind spots and potential reforms.