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TEXTE 1United StatesMay 14th 2020 editionMay 14th 2020WASHINGTON, DC“Where’s my Roy Cohn?” William Barr’s Justice DepartmentThe misrule of lawDonald Trump has found his Roy Cohn, alasPresident Donald Trump asked in early 2017, after Jeff Sessions, his first attorney-general, recused himself from the probe into Russian election-meddling. Mr Sessions explained that, since he was involved with the campaign, he should not be involved in any campaign investigation.Mr Trump had no patience for such qualms. He wanted a man who would serve his interests as the legendarily fierce Cohn, a private lawyer in New York, had done—and as he believed Robert Kennedy had done for his brother John, and Eric Holder had done for Barack Obama. In William Barr (pictured behind the president), Mr Sessions’s replacement, Mr Trump seems to have found what he sought.The attorney-general is America’s top law-enforcement officer, presiding over the Department of Justice (doj). Partly by statute, but mostly by norm and practice, both the?doj?and its boss, particularly since Watergate, maintain a degree of independence from the president, unlike other cabinet departments. This independence is not absolute, nor could it be when the president appoints, and can fire, the attorney-general, his two top deputies, those leading the department’s divisions and the prosecutors heading each of the 93?us?attorneys’ offices around America and its territories.To some extent, every president’s?doj?reflects his policy preferences and priorities. Mr Obama’s vigorously pushed to expand voting rights and civil-rights protections, for instance, and George W. Bush’s filed more briefs favouring religious liberty than Mr Obama’s.But the department also defends settled federal law, and its career lawyers pride themselves on defending statutes they may disagree with politically. Mr Obama’s?doj, for instance, backed the Defence of Marriage Act, which defined marriage as a union between a man and a woman, even though Mr Obama had called for its repeal. Mr Sessions upended this norm: his?doj?refused to back the Affordable Care Act’s constitutionality. A former department lawyer says this reversal was “unheard of”.Since Watergate, most attorneys-general and the department’s civil servants have jealously guarded their remove from politics. As a veteran of its civil-rights division explains, “Most of the people who work there, and it’s true of me too, believe in the mission of representing the United States. We believe that justice should be carried out even-handedly. That’s what it means to have a democracy.” During her confirmation hearings Loretta Lynch, Mr Obama’s second attorney-general, repeatedly promised independence. Griffin Bell, Jimmy Carter’s first—and the first truly post-Watergate one—screened all communication from the White House “to insure that any improper attempts to influence a decision” did not reach senior officials.Mr Trump brushes aside such niceties. “I have an Article 2,” he has said, referring to the constitution’s article which vests executive power in the president, “where I have the right to do whatever I want as president.” Norms and judicial precedent disagree. But Mr Barr has long held a similarly maximalist view of executive power.Months before his appointment he wrote a memo to Rod Rosenstein, then the deputy attorney-general, explaining that the probe into Russian meddling “cannot provide a legitimate basis for interrogating the president,” because, in Mr Barr’s view, “the President alone constitutes the Executive branch,” has “all-encompassing” authority over federal law enforcement and cannot commit obstruction of justice through the lawful exercise of his power—such as firing an official involved in an investigation into presidential misconduct.Since taking over, Mr Barr has stated that the Russia probe was “one of the greatest travesties in American history,” launched “without any basis…to sabotage the presidency.” The?doj’s independent inspector-general found the investigation justified, and executed without bias. That did not mollify Mr Barr, who has assigned John Durham, a federal prosecutor, to look into its (well-established) origins.He has intervened to press for a lighter sentence for Roger Stone, a Trump campaign adviser convicted of witness-tampering and lying to Congress. On May 7th he dropped a case against Michael Flynn, Mr Trump’s former national security adviser. The?doj?argued that it could not “prove its case beyond a reasonable doubt”—despite the fact that Mr Flynn had pleaded guilty and accepted responsibility in open court for lying to federal investigators. But his unusual move has encountered unusual resistance: the sentencing judge has appointed a former prosecutor to oppose the?doj’s motion, and may even be mulling a perjury charge against Mr Flynn.Enemies, bewareBoth of those decisions by Mr Barr prompted?doj?lawyers to withdraw from the cases they helped prosecute. Mr Trump is now pushing an “Obamagate” theory that Mr Obama and his vice-president, Joe Biden, orchestrated the Russia investigation to hobble him.Many worry that the next step will be using the?doj?to pursue Mr Trump’s enemies. More than 2,000 former employees have signed a letter calling on Mr Barr to resign, and for Congress to censure him for his “repeated assaults on the rule of law”. The civil-rights-department veteran says that morale has plummeted. “People I talk to [at the?doj] feel like the institution is being damaged…The notion that government lawyers act in a non-partisan way to enforce the law is being assaulted.” Such damage is much easier done than undone.?■TEXTE 2Making a meritocracyA judge finds there is nothing wrong with Harvard admissionsThat is unlikely to be where the matter endsUnited StatesOct 5th 2019 editionThe world’s most prestigious universities are primarily in two countries: America and Britain. Strangely, though, the more aristocratic, less meritocratic system of admissions is found not in the country with a House of Lords and a hereditary monarchy, but in the land of rugged individualism. The American system is under attack, however. In a closely watched case that began in 2014, a group of Asian-American students are suing Harvard, claiming discrimination relative to whites. This has shed light on the inner workings of the admissions process, which has been tightly guarded by Harvard.Many of the disclosures, such as the preferential treatment given to mostly white and wealthy “legacy students” (those with relatives who attended the university), look embarrassing. Yet on October 1st a federal judge in Boston ruled in the university’s favour. This will be merely the prologue to a protracted legal battle.Most of the interest in the case stems from the possibility that it could up-end the system of affirmative action for “under-represented racial minorities” (chiefly blacks and Hispanics) at elite American universities. This certainly seems to be the goal of Edward Blum, the conservative legal activist funding the case, who has brought other high-profile challenges to the reigning system. The Supreme Court has previously held that universities may engage in affirmative action—though it bans quotas—in the interests of promoting a racially diverse body of students. Mr Blum’s aim is plainly to appeal the case all the way to the highest court. His previous attempt, over admissions to the University of Texas, was narrowly decided by the Supreme Court in 2016, before President Donald Trump appointed two new conservative justices, Neil Gorsuch and Brett Kavanaugh.The most interesting thing that has come out of court documents is detail on the programme of affirmative action for wealthy students maintained by Harvard and other universities of its stature. A recent working paper by three economists, one of whom was an expert witness for the plaintiffs, shows that 43% of white students attending received some sort of preferential treatment in admissions (because they were legacies, recruited athletes, on the “dean’s interest list” or the children of faculty). They estimate that most of these would not have got in otherwise.The boost for these applicants is as high as the one given to blacks. Asian-Americans, who receive the fewest admissions preferences, are squeezed as a result. A white student who is in the middle of the pack academically, but has legacy status, has a higher chance of getting in than a typical Asian applicant in the top tenth.Race-conscious admissions programmes are constitutionally valid only if they are the least obtrusive means to attain diversity. Allison Burroughs, the judge in the case, acknowledged that removing the preferences would increase the number of non-white students. But she concluded they could still remain because “Harvard would be far less competitive in Ivy League intercollegiate sports, which would adversely impact Harvard and the student experience” and that top-notch faculty may not join without a promised leg-up for their progeny. (Never mind that sailing competitions are not the central focus of university life; and a few academics may still want to work at the place.) Judge Burroughs displayed a remarkable level of deference to the university’s argument. The Supreme Court, should the case make it there, probably will not.?■TEXTE 3Vitrix ludorumThe battle over trans athletes in American schools heats upInclusivity bumps up against fairnessUnited States Sep 3rd 2020WASHINGTON, DCEsmee silverman feels unusually nervous about the prospect of trying out for her high-school girls’ tennis team this autumn. That is not surprising: last year, she played for the boys’ team. For the past ten months the 18-year-old has been taking a combination of oestrogen and testosterone blockers as she transitions to becoming a woman. “It’s a big emotional shift going from one team to another,” she says, adding that she expects it to be made easier by the kindness she has been shown by girls her age.Ms Silverman is fortunate to live in Massachusetts, where transgender students can play sports as the gender with which they identify. Policies on this vary from state to state. While more than a dozen have introduced guidelines like those in Massachusetts, which also allow trans students to shower and change with members of their chosen gender, 11 states have policies that prevent this. Some say birth certificates are the final arbiters of sex; others, that transgender students must first have had gender reassignment surgery (which is generally restricted to over-18-year-olds). As an increasing number of teenagers reject the sex they are born with, these clashing approaches are sparking court cases.In Idaho, the American Civil Liberties Union is battling a statewide law that bans transgender women and girls from female sports teams. They are representing Lindsay Hecox, a transgender woman who was denied a chance to join the women’s cross-country team at Boise State University. Last month, a federal judge issued a temporary injunction on that law.In Connecticut, three female high-school athletes are challenging the policy of the state’s interscholastic athletic conference, which allows transgender girls to compete against females. They argue that it violates Title IX, a law passed to protect equal educational opportunities for the sexes, including in sports. In March the civil-rights division of the Department of Education said it did violate Title ix.These cases highlight the often irreconcilable nature of transgender rights and women’s rights. Those opposed to the inclusion of transgender women in women’s sports argue that it is unfair to allow people who have gone through puberty as men, and who tend to be bigger, stronger and faster, to compete against women.Connecticut offers a vivid example of this. Since 2017 two transgender athletes—biological males who identify as women—have between them won 15 state championships that were once held by nine different girls. When they started racing as girls they had not begun hormone treatment. But research suggests that even those who have gone through testosterone suppression retain advantages of strength and muscle mass. “It is so demoralising, running for second place,” says 16-year-old Alanna Smith, a highly competitive sprinter and one of the girls challenging the state policy. “I worry that women are going to become spectators of their own sports.” Transgender boys, meanwhile, often attest that it becomes easier to compete against males once they have had “top surgery” (a mastectomy) and taken testosterone.Yet transgender activists argue that the law should regard transgender men and women as members of the gender with which they identify. They say it is discriminatory to exclude transgender women from women’s sports as well as deeply hurtful, especially for those at school. “This debate frames these high-schoolers as Olympians,” says A.T. Furuya, the youth programmes manager at glsen, which campaigns for the rights of lgbt school students. Furuya, a former high-school sports coach and one of a handful of people in America to have obtained “non-binary” as their legally designated gender, adds that “These are kids who just want to play.”American exceptionalismA similar debate is raging across the rich world. World Rugby, which currently follows the International Olympic Committee guidelines that allow transgender athletes to compete in women’s events if their testosterone levels are below a certain level, is considering banning trans women from the women’s game. That is partly because of fears that transgender women players could injure their teammates.Strikingly absent from the discussion in America are women’s groups standing on the women’s side of the issue. Instead, many long-established women’s groups have aligned themselves with the transgender movement. “Transgender girls are girls and transgender women are women,” reads a statement from several rights groups in Connecticut, including the state chapter of Planned Parenthood. “They are not and should not be referred to as boys or men, biological or otherwise”.Doriane Coleman, a law professor at Duke University, observes that it is “extremely difficult” to get the support of any civil-rights group for an agenda that does not include trans women in its definition of women. That is why the female athletes in both Connecticut and Idaho are represented by the same conservative Christian organisation, the Alliance Defending Freedom (adf). (Ms Coleman points out that the adf also has first-class lawyers.) In Britain, by contrast, the battle to preserve women’s spaces, from lavatories to prisons, is largely being fought by feminists.The fact that progressives appear to have largely ceded this issue to conservatives reflects the way such issues have become polarised in America. In many countries, those who suggest that the law should not regard trans women as women in all respects are denounced as transphobic; in America, such attacks are particularly aggressive. Though polls suggest that a majority of Americans believe that trans women should not play in women’s sports teams, this is a view that is rarely heard publicly.“Our discussion about this topic is insane—you can’t talk about it at all,” says Natasha Chart, a board member of Women’s Liberation Front, which describes itself as a “radical feminist organisation”. “You face so much social opprobrium for speaking out that people don’t want to touch it.”How will the courts adjudicate? A landmark ruling on lgbt rights by the Supreme Court may offer a clue. In June, America’s highest court ruled in Bostock v Clayton County that gay, lesbian and transgender people were protected under Title VII of the Civil Rights Act, which bars discrimination in employment because of sex. That has raised the question of whether this reasoning could also be applied to Title IX.Several lower courts have suggested it could. In August the judge who issued a temporary injunction on Idaho’s ban on trans athletes in women’s teams, cited Bostock. The same month, a federal appeals court ruled that school policies that forbid transgender students to use the lavatory of their gender identity violate the law. That judge said Bostock had guided his evaluation of claims under Title IX, because Congress had intended it and Title VII to be interpreted similarly.Yet in Bostock, the Supreme Court explicitly said it was ruling only on discrimination in employment; it was not attempting to address “bathrooms, locker rooms, or anything else of the kind”. This qualification suggested that the justices expect to consider such questions in the future. However the courts in Connecticut and Idaho rule, the issue seems likely to end up at the Supreme Court. ■TEXTE 4LGBT rightsAmerica’s Supreme Court protects LGBT workers against discriminationA momentous 6-3 rulingUnited StatesJun 18th 2020 editionNEW YORKWhen anthony kennedy retired in 2018, gay-rights supporters fretted over the loss of a justice who had anchored four expansions of gay and lesbian rights. With his replacement by the more conservative Brett Kavanaugh, and President Donald Trump’s appointment of Neil Gorsuch 18 months earlier, lgbt activists worried the progress would come to a halt. On June 15th the Supreme Court allayed those fears with a momentous decision that protects gay and transgender people against discrimination in the workplace.By a 6-3 margin, the court ruled that Title VII of the Civil Rights Act of 1964—a provision that bars discrimination “because of” a number of characteristics including “sex”—prohibits firing or disfavouring workers on the basis of their sexual orientation or gender identity. The majority view was penned by Justice Gorsuch.Roughly half of America’s states have laws of their own protecting gay and trans workers; the rest do not. So until the latest decision, known as Bostock v Clayton County, an employee in much of America could legally marry a member of the same sex over the weekend and be legally sacked for being gay when returning to work. Now some 8.1m lgbt workers across America will enjoy federal protection from discrimination when they clock in.At the oral arguments last October, Justice Gorsuch leaned towards the lgbt plaintiffs’ view. But he feared that a win for them might herald “massive social upheaval”. Now, as author of the majority opinion (attracting the votes of Chief Justice John Roberts and the four more liberal justices), his worries seem to have vanished. “Sex plays a necessary and undisguisable role” in an employer’s decision to fire a worker for being gay or transgender, he wrote, and that is “exactly what Title VII forbids”.The matter was simple, he contended, involving “the straightforward application of legal terms with plain and settled meanings”. A host of Supreme Court precedents stand for the same principle. These include discrimination against mothers, sexual harassment against men and other types of workplace bias Congress may not have contemplated in 1964. No one might have imagined back then that Title VII would prohibit a boss from firing gay or trans workers because of their identity, but “major initiatives” like a civil-rights law often have “unexpected consequences”.Justice Kavanaugh wrote a dissent admonishing the majority for legislating from the bench. “[W]e are judges,” he wrote, “not members of Congress.” For the more vituperative Justice Samuel Alito (joined in dissent by Justice Clarence Thomas), the “radical” result in Bostock is based on “preposterous” reasoning. Although the majority invokes the late Justice Antonin Scalia’s teaching that judges should pay heed only to the words of a statute, Justice Alito wrote, “no one should be fooled” by the ruling. Justice Gorsuch’s opinion is “like a pirate ship” sailing “under a textualist flag” but silently “updat[ing] old statutes so that they better reflect the current values of society”.What are the broader implications of the ruling for lgbt rights? It depends whom you ask. Justice Gorsuch left open whether employers with religious objections to the gender identity or sexuality of their workers may one day claim an exemption from anti-discrimination laws. But his erstwhile concern about social upheaval is nowhere to be found in the majority opinion. Bostock is just about workplace rights, he wrote, not “sex-segregated bathrooms, locker rooms and dress codes”. The court does not “prejudge” these questions.Justice Alito’s 54-page jeremiad berated the majority for failing to grapple with the potential implications. Many federal laws bar sex discrimination, and the majority’s “brusque refusal” to contemplate how they will be altered by the Bostock ruling is “irresponsible”. What about transgender employees challenging health plans that “do not cover costly sex-reassignment surgery”? Or women who have suffered sexual assault, for whom viewing “the anatomy of a male in a confined and sensitive location such as a bathroom or locker room can cause serious psychological harm”? Or a transgender person’s desire to compete in a sporting “competition previously reserved for members of one biological sex”?Religious conservatives who helped elect Mr Trump and were cheered by his Supreme Court picks are shocked by Justice Gorsuch’s defection from the cause. Their dismay may do little to soften evangelicals’ support for Mr Trump in November, but the decision to stand up for gay and trans rights may undermine several of his administration’s policies targeting lgbt people. A recently announced regulatory change allowing doctors to deny health care to trans people under the Affordable Care Act is now under a cloud, as are moves to allow adoption agencies to shut out same-sex couples and let school districts discriminate against trans students.For now, Bostock seems bound to serve conservatives with an example of two justices playing against type to burnish the image of the Supreme Court as a fair-minded tribunal. Chief Justice Roberts is particularly keen to rescue justices from the charge that they are merely politicians in robes. In 1989 Scalia joined the liberal side of the court to strike down a law banning flag-burning. That was his exhibit a of how his jurisprudence was rooted in law, not personal ideology. Justice Gorsuch, Scalia’s successor, now has a similar landmark. ■TEXTE 5 Measures for Justice brings about reform by traveling the country to record criminal justice dataFebruary 1, 2020, 2:30 am CSTBy?Jason TasheaAfter finishing law school at Stanford University and clerking at the Atlanta-based 11th U.S. Circuit Court of Appeals, Amy Bach spent her time sitting in the back of county courtrooms, listening and taking notes.What she witnessed was a mess. She saw one judge set bail rates much higher than his colleagues, and she came across a local prosecutor who hadn’t brought a domestic violence charge in over 20 years. She also met many defendants who pleaded guilty even though their lawyers didn’t know the facts of their cases.But she could only show others these problems when she could find them, which was a challenge in a system without data.“I really learned what justice looked like in big cities and small corners of this country,” says Bach, 51, who worked as a freelance journalist at the time.She brought these individual stories of wrongdoing together in her book Ordinary Injustice, published in 2009. Not just a collection of woe, the book was a call to action for a new system of oversight built on data and performance metrics.“In the absence of metrics, each single flawed case can be put down to he-said, she-said mismanagement,” she wrote. While acknowledging that metrics aren’t a panacea, she added: “They are the tools we need to ask for the courts we deserve.”In 2011, Bach took herself up on her proposal and founded Measures for Justice. While starting as a team of two contractors without funding, the Rochester, New York-based nonprofit employs 40 people today. Together, they travel the country unearthing, cleaning and publishing county-level criminal justice data in what they hope will be each of America’s 3,141 boroughs, counties, independent cities, parishes and the District of Columbia.“I found her idea really interesting, and I very quickly understood what she was trying to accomplish,” says Bill Ackman, co-trustee of Pershing Square Foundation, which provided a donation of $3 million in 2014. “Just by making the data available, she could change the world.”How they do itIn 2017, the organization released data from its first six states through its online portal: Florida, North Carolina, Pennsylvania, Utah, Washington and Wisconsin. While the data available varied from state to state, it included the time it took to resolve a felony case, the use of jail beds and the length of prison sentences. The organization expects to release another 14 states’ data by the end of 2020.To make this work possible, the organization has amassed a cohort of data scientists, criminologists, software developers and researchers. With a strong sense of mission and Bach’s energy, the organization has attracted those from within and outside of the world of criminal justice.The organization’s director of operations, Samantha Silver, 45, has an executive MBA and previously worked in marketing before joining the organization as a consultant in 2011. She had not worked in criminal justice. By contrast, Mikaela Rabinowitz, 40, joined in 2018 and is currently the director of national engagement and field operations after a decade working in criminal justice system evaluation and advocacy.“Across both of those jobs, one of the critical challenges that I saw was a lack of data,” Rabinowitz says. Measures for Justice “felt like exactly what was needed.”Gipsy Escobar, 45, started to moonlight at Measures for Justice in 2012 while keeping her tenure track professorship at Loyola University Chicago. “What really made me leave academia to join MFJ was the immediacy of the impact that we could have,” she says as the current director of innovation research.The organization’s zeal is not only winning over employees, but criminal justice stakeholders as well.“They’re very passionate about bringing transparency and good data to the criminal justice system,” says Jeff Reisig, the elected prosecutor for Yolo County, California. “I could hear it in their voices.”Reisig, who has spent more than two decades in the prosecutor’s office, is excited about Measures for Justice’s potential to clean up the state’s data situation and improve criminal justice reform.“The reality then—and frankly the reality still now—is that data in California is very fragmented, it’s not comprehensive,” he says, adding that there’s no central repository where someone can track a case. “When it comes to criminal justice data in California, I feel like we’re still driving a horse and buggy.”Since having embraced more aggressive criminal justice reform in 2014, California has recategorized some nonviolent felonies as misdemeanors, curtailed the use of adult charging of youth offenders, legalized marijuana and greatly curtailed the use of cash bail, which will be put to a public vote in November 2020.Reisig says that without better data, “a lot of these reforms are shooting into the wind, hoping these things work.”The situation may be changing, however.Last fall, the state passed a law that will improve access to criminal justice data and establish new reporting requirements across the criminal justice system. The jump-off for this law was a report from Stanford University on the lack of criminal justice data in the state and a similar, successful legislative effort in Florida.Measures for Justice was central to both.In Florida, legislators realized the gap in the state’s criminal justice data and passed a first-of-its-kind law in 2018 that will lead to the collection of about 140 data points across the criminal justice continuum—from arrest to release—standardize that data across the state and publish it online.“I never expected the Florida legislation,” Bach says. But she’s embraced the new angle to their work, because “this is clearly where the puck is going and where people want to play.”Now, the conservative legislative agenda-setting organization the American Legislative Exchange Council has published model legislation based on the Florida law, and the criminal justice reform committee at the nonpartisan Uniform Law Commission is considering the topic for further review. As of the fall, a half-dozen other states are looking to pass similar legislation, Escobar says.Bach and her team expect that as more data becomes available, people will build new tools that can provide insights to journalists, policymakers and criminal justice system stakeholders like courts, defense lawyers and prosecutors.Meanwhile, as the organization barrels ahead, Silver says that its rapid success comes down to the people involved.“Our team and leadership, we are much more than the sum of its parts. We have an amazing ability to challenge each other in a healthy way and strive for excellence,” she says. “We’ve been quite successful because of that.”This article first appeared in the February-March 2020 issue of the ABA Journal under the headline “Data Mining: Measures for Justice is bringing about reform by traveling the country to discover, disseminate and distribute criminal justice data”.TEXTE 6Suing a cruise line? There are a boatload of challenges unique to the industryBY?JENNY B. DAVISJUNE 1, 2020, 12:00 AM CDTNestled between a colorful tangle of waterslide tubes and a wave-generating surfing simulator, the enormous yellow orb of the Sky Pad rose from the deck of Royal Caribbean’s Mariner of the Seas cruise ship like a “go” button waiting to be pressed.The Sky Pad combined trampoline bouncing with bungee jumping, allowing those who entered its cavernous circular structure to defy gravity with every bounce. Optional virtual reality headsets let guests smash and speed through simulated candy landscapes and futuristic city streets while they jumped. The Sky Pad was just one of many high-octane attractions Royal Caribbean added to its 3,800-plus passenger Mariner of the Seas ocean liner during its $120 million makeover in 2018.Casey Holladay remembers seeing a Royal Caribbean TV commercial promoting the new Sky Pad ride. An avid outdoorsman and sports enthusiast, Holladay, then age 25, recalled to an NBC 6 Miami news team that seeing the commercial made him excited to try this “awesome experience in the sky” during an upcoming Royal Caribbean cruise to the Bahamas with his girlfriend. And that’s exactly what he set out to do after they boarded the Mariner of the Seas in February 2019.Holladay’s Sky Pad experience started off just as awesome as he had imagined. With his girlfriend recording him on her phone from the deck, Holladay bounced, twisted and soared against a background of clear blue sky. Suddenly, however, the unthinkable happened: The bungee cords holding Holladay snapped and spiraled away from him, sending him into a 20-foot free fall to the deck below.An accident last year on the Sky Pad attraction on the Mariner of the Seas cruise ship (above) prompted a $10 million personal injury lawsuit against Royal Caribbean. Photo by MyLoupe/Universal Images Group via Getty Images; Jim Rassol/Sun Sentinel/Tribune News Service; Nora Tam/South China Morning Post via Getty Images“I just felt the momentum release from my body that I wasn’t being held by anything anymore,” he told the news reporter. “All I really remember was the hit, and the noise, and then the fear.”The fall caused Holladay to shatter his pelvis, and he sustained other injuries. He was hospitalized for nine days, had surgery and sustained permanent injuries that will require follow-up care for years, says his lawyer, Miami’s Brett Rivkind of Rivkind Margulies & Rivkind.Holladay is suing Royal Caribbean for $10 million. Royal Caribbean did not return an email for comment, but in its answer to the lawsuit, the company denied liability and has requested a jury trial.Holladay isn’t the only cruise ship passenger to have a dream vacation turn into a nightmare. In 2019 alone, heart-wrenching news reports involving cruise ships included the death of a toddler who fell out of an open ship window to the concrete dock below during a family cruise to Puerto Rico; an alcohol-fueled brawl on a cruise of Norwegian fjords that caused multiple injuries; the alleged rape of a 17-year-old British girl during a Mediterranean cruise; and the death of an Australian man who went overboard during a Caribbean cruise with his family.But tragedies don’t just happen on board. Cruise ship passengers can be injured, attacked or killed on land, too, during shore excursions sold by the cruise lines that take place while the cruise ship is docked in a port.Excursions can range from exclusive parties and island bus tours to extreme adventures such as parasailing, hang gliding and bungee jumping. Cruise ships have been sued in connection with a party held at a local bar that left a cruise ship passenger a tetraplegic, a deadly crash involving a tour bus filled with cruise ship passengers, and a fatal midair zip line collision between a husband and wife on their honeymoon cruise.But when a cruise ship departs from a U.S. port, federal maritime law generally applies. Under maritime law, tort liability for injuries, illnesses and death is anchored by basic principles of negligence law requiring a duty to protect against a particular harm, a breach of that duty, proximate cause between the breach and the harm, and actual harm. But that’s where plaintiffs lawyers say the basic legal theories end and the complications begin.Bringing a case against an ocean cruise line is challenging. Together, the industry’s big three—Carnival Corp., Royal Caribbean Cruises and Norwegian Cruise Line Holdings— carried nearly 80% of all ocean cruise passengers, according to a 2018 report. Plaintiffs lawyers say these cases are highly specific and highly specialized, governed by myriad legal standards and subject to investigative challenges. It’s an area so unique, they say, that it’s easy for a novice lawyer to make an honest mistake that can permanently sink an otherwise meritorious case.“There are different standards of proof, shorter statutes of limitations and more opportunities to get yourself in trouble,” says Deborah J. Gander, a partner at Colson Hicks Eidson in Coral Gables, Florida.Deborah J. Gander: “There are different standards of proof, shorter statutes of limitations and more opportunities to get yourself in trouble.” Courtesy of Colson Hicks EidsonTonya J. Meister of Meister Law Firm in Miami agrees. “If you don’t know what you’re doing,” warns Meister, who is board-certified by the Florida Bar in maritime law, “you’re going to harm your client and make bad law.”Carnival, Royal Caribbean, Norwegian and Princess Cruises (acquired in 2003 by Carnival) did not respond to repeated requests for comment on this story.Laws and limitationsThe cruise industry is international. Ships are registered under flags of foreign countries and operated by companies incorporated in other foreign countries. Passengers and crew hail from points around the world and travel together to all points in between. So how do plaintiffs lawyers know where to file a lawsuit involving a cruise ship departing from an American port? It’s actually pretty simple: They look at the passenger’s cruise ticket.All ocean cruise passenger tickets contain pages of fine print making up an extensive contract limiting the cruise line’s liability for everything from lost luggage to class action lawsuits. Included in this extensive laundry list of restrictions and responsibilities is a forum selection clause requiring all civil suits against the cruise line to be brought in a particular court. Booking the cruise and paying for the ticket is considered the passenger’s consent to the terms of the contract.Tickets issued by Carnival, Royal Caribbean and Norwegian require passengers to file any civil case in the Southern District of Florida, a venue that encompasses Miami-Dade County. The reason, Gander says, is obvious: “While the major cruise lines are incorporated outside of the country, every executive of every major cruise line is headquartered in Miami, so it’s really a home-field advantage for these corporations.”It may seem unfair to require plaintiffs to bring their lawsuits in a forum chosen by the defendant, especially when the forum choice was clearly made for the convenience of a defendant corporation rather than the convenience of an aggrieved person, who most likely lives far away. Nevertheless, the U.S. Supreme Court has upheld cruise line forum selection clauses, most recently in the 1991 case Carnival Cruise Lines Inc. v. Shute. In that case, the high court ruled that the choice of Florida as a forum is not fundamentally unfair, and that the chosen Florida forum would neither deter passengers from pursuing a legitimate claim nor deprive them of access to a competent court.The cruise passenger ticket also imposes its own statute of limitations on passenger claims. Maritime law generally provides a three-year statute of limitations for tort actions. When the tort involves a cruise ship, however, the passenger ticket terminology typically reduces the statute of limitations to just one year, with a notice requirement set at six months. As with the forum selection clause, courts have consistently upheld the validity of such restrictions where they are clearly stated and passengers have had the opportunity to read them, regardless of whether they have actually done so.Plaintiffs lawyers say the law doesn’t make their job easy. Michael Winkleman of Miami’s Lipcon, Margulies, Alsina & Winkleman says the requirement to file within one year can complicate damages calculations such as determining the total amount of medical bills or assessing the extent of lasting injury. “Sometimes, we just have to file the case while the plaintiff is still undergoing medical treatment or recovering,” he says.Meister says she’s even seen instances where the shortened statute of limitations has precluded cases entirely. The most common scenario is a passenger who’s injured on a cruise ship and decides to consult a local personal injury lawyer back home who doesn’t know about the shortened filing window. “I get a lot of phone calls from unfortunate souls who thought they had a regular injury claim and didn’t know they needed to give written notice within six months and file a suit in federal court within a year,” she says. “There’s nothing I can do to help them—they’ve blown it.”Building a caseWhen bringing a cruise ship personal injury case, lawyers say it’s not just the law that’s different, it’s the investigative approach, too.“When you have a car accident or a fall in a supermarket, you can easily just go down and investigate the scene,” Winkleman says. “But I can’t just go walk onto a cruise ship: I have to get clearance to have access, and generally that doesn’t happen unless I have already filed the lawsuit.”Although Winkleman is based in Miami, it doesn’t necessarily mean the cruise ships he wants to inspect are there, too. Which means he must go wherever the ship is currently docked to be able to conduct his onboard investigation.Michael Winkleman: “Sometimes, we just have to file the case while the plaintiff is still undergoing medical treatment or recovering.” Photo courtesy of Lipcon, Margulies, Alsina & WinklemanInterviewing witnesses poses additional challenges, especially if the witnesses also happen to be crew members, Winkleman says. “The dynamic is, you have a lot of crew members from Third World countries where they would be making $1 a day, but on a cruise ship, they make $100 a day, so they are going to say whatever they have to in order to keep their jobs. Even the security guards have an interest in protecting the company—it’s an immediate adversarial relationship.”But the challenges don’t disappear even when crew members cooperate, Rivkind says. Scheduling depositions of cruise ship employees can be especially challenging, he says, “because they’re on cruise ships that are moving from port to port.”While the hurdles are many, Ira H. Leesfield, a partner at Miami’s Leesfield Scolero, points out one significant advantage when it comes to proving a case: cameras. “There are surveillance cameras everywhere on cruise ships,” he says. “A lot of times, we get the judge to force the surveillance, and we’ll have the incident right there on tape.”There’s also digital data that can help a lawyer make a case, says Miami solo Robert L. Gardana, who has chaired the Florida Bar’s Admiralty Law Committee and served as chair of the admiralty law committee of the ABA’s Tort and Trial Lawyer Insurance Practice Section. Data from a ship’s GPS and automatic identification system—a maritime tracking system that shows the location of nearby vessels—can be critical, he says.But Gardana stresses the importance of old-school document sleuthing, too, via the Freedom of Information Act request. Topping his must-request list: the FD-302 form used by FBI agents to summarize and make notes on interviews they conduct. “Often, the FD-302 form can help piece the puzzle together,” he says.Investigating cases of sexual assault on cruise ships also has gotten easier thanks to the passage of the Cruise Vessel Security and Safety Act of 2010. The act established standards for crime scene preservation and required medical exams for victims that include evaluating the patient for trauma and preserving medical evidence. It also created an online database of cruise ship incident reports to make crime statistics accessible to the general public. Prior to 2010, foreign-flagged cruise lines were not required to report sexual or physical assaults to any U.S. government agency.The importance of such statistics was recently reinforced in K.T. v. Royal Caribbean Cruises Ltd. In this case, a minor female alleged she was gang raped in 2015 by a group of men who plied her with alcohol served by ship bartenders. She became “obviously drunk, disoriented” and “unstable” in full view of crew members and those monitoring security cameras. The July 2019 opinion by the Atlanta-based 11th U.S. Circuit Court of Appeals, written by Chief Judge Ed Carnes for a three-judge panel, reversed the lower court’s dismissal of the case for failure to state a claim for negligence in failing to warn cruise ship passengers of the danger of sexual assault and failing to take action to prevent the assault.But Carnes didn’t stop there. He also wrote a special concurrence to his own opinion where he took judicial notice of the Department of Transportation cruise line incident reports compiled pursuant to the Cruise Vessel Safety and Security Act of 2010 that included incidents that occurred on past Royal Caribbean cruises. “It would be absurd to suggest that a multibillion-dollar business like Royal Caribbean was not aware of congressional reports about the problem of sexual assault aboard its cruise ships,” he wrote.Winkleman, who represents K.T., believes the opinion “provides a critical clarification of the law that cruise ships do have a duty to warn passengers of the risk of rape.”Royal Caribbean did not respond to a request for comment on the case.Restrictions on recoveryWhen it comes to damages for deaths, plaintiffs lawyers are united in their frustration with the Death on the High Seas Act, an admiralty law that governs the who, the how and the how much when a death occurs during a cruise beyond U.S. territorial waters.Signed into law by President Woodrow Wilson in 1920, DOHSA was originally intended to benefit widows and dependents of seamen who died while working on ships in international waters as a result of negligence, a wrongful act or unseaworthiness.DOHSA applies to transportation passenger deaths that occur 3 or more nautical miles from the shore of the United States or in a foreign country. For cruise ship passengers, it is the exclusive applicable law, preempting both state law and maritime common law.But DOHSA significantly restricts the amount and type of recovery that a decedent’s family can receive, no matter the amount of pain or suffering or the level of negligence or egregious conduct that caused the death. DOHSA only allows a family to recover pecuniary losses like funeral expenses, medical expenses and loss of inheritance.Nonpecuniary losses such as the loss of care, comfort and companionship are specifically prohibited. That means there is no opportunity to recover for emotional distress, mental anguish, grief or the loss of consortium. DOHSA also prohibits any compensation for pain and suffering the decedent experienced before dying.“One would think a death case would be a high-value case, but if it’s a death on the high seas, the claim can be worth peanuts,” Meister says.Tonya J. Meister: “One would think a death case would be a high-value case, but if it’s a death on the high seas, the claim can be worth peanuts.” Photo by Eileen EscardaBut DOHSA is even more restrictive in its application to pecuniary recovery, Meister explains, because it calls for a different calculation for the value of life than is common in death cases on land and in territorial waters. Instead of simply calculating the loss of earnings, DOHSA calculations are based on the loss of net accumulation.“It’s not what the total of what you were expected to earn over your estimated lifespan; it’s what you would have had left after you spent down your earnings,” she says.If the passenger who dies is an older retired person who does not happen to be financially supporting anyone, Winkleman says that recovery could very well be limited to just funeral expenses.Meister points out that it is possible to recover for emotional distress under DOHSA if the decedent’s spouse, child or parent was in the “zone of danger” when the death occurred. Merely witnessing a loved one die is not enough, she says, even if the situation is horrific, such as in the case of a medical emergency or an accident during an excursion. Rather, the claimant must be imperiled by the same danger or the same situation that causes the death of the loved one. “If you don’t have that, you don’t have a case,” she says.In 2000, Congress acknowledged that DOHSA’s pre-World War II-era compensation model was outdated and amended it to allow for nonpecuniary recovery and to extend the jurisdiction from 3 to 12 miles off the country’s shore. Unfortunately for cruise ship passengers, however, the amendment applies only to commercial aviation passengers—a direct result, many plaintiffs say, of cruise industry influence.“Any time there’s an effort to provide any fix, the pocketbook opens up,” Winkleman says. “They spend millions trying to keep DOHSA on the books, which, in my opinion, is money very well spent.”In April 2019, U.S. Sen. Deb Fischer (R-Neb.) introduced a bill called Hammer’s Law to extend DOHSA’s updated provisions to cruise ship passengers.The name is in honor of Christy and Larry Hammer, who died in a fire that broke out in their cabin during a riverboat cruise in Peru. A subsequent report from the Peruvian navy found multiple incidents of negligence by the cruise company, according to the senator’s press release.The bill has a long road to becoming law, but precedent does not bode well for its success. The proposed Cruise Passenger Protection Act of 2017, which would have provided similar relief by requiring a uniform application of DOHSA, died in subcommittee at the close of 2018.“Do I think it’s likely that it will be amended? I’m not holding my breath waiting,” Davies says. “The cruise lines are a powerful lobbying group against change, and the lobby group for change—the families of deceased passengers—is less organized and less powerful.”As a result of DOHSA’s rigid restrictions, plaintiffs lawyers say they’ve been forced to turn away meritorious cases because the recovery wouldn’t be enough to justify the time and resources necessary to bring a claim.“The genesis of this law was to promote American maritime commerce, not to give a ‘get out of jail card’ to the cruise lines,” Winkleman says. “This law is a nightmare, and it shouldn’t be on the books anymore.”Despite the restrictions, plaintiffs lawyers say they’re willing to rise to the challenge on behalf of their clients, and that’s what makes it worth it.“The cruise lines fight very hard, they have very smart lawyers both in-house and as outside counsel, and they don’t pay money to get rid of cases,” Meister says. “We try a lot of cases, and we settle a lot of cases; it just depends on the circumstances. In my experience, most cases settle, but I am always 100% ready for trial.”See also: Coronavirus on board: Lawyer’s parents were trapped on a contaminated cruise shipThis article appeared in the June/July 2020 issue of the ABA Journal under the headline: “Rough Seas: Plaintiffs attorneys suing cruise lines must navigate a boatload of challenges unique to the industry.”CorrectionIn print and initial online versions of "Rough Seas," June-July, Robert L. Gardana should have been identified as a past chair of the Admiralty and Maritime Law Committee of the ABA’s Tort and Trial Lawyer Insurance Practice Section.The Journal regrets the error.Jenny B. Davis, a former practicing lawyer, is a freelance writer based in Fort Worth, Texas.TEXTE 7Will the COVID-19 pandemic fundamentally remake the legal industry?BY LYLE MORANAUGUST 1, 2020, 12:00 AM CDTIn late February, the University of Pennsylvania Carey Law School held a Law 2030 conference focused on the myriad challenges the legal profession was likely to face in the next decade and how it could adapt to combat them.Soon after, the spread of deadly COVID-19 forced law firms and the justice system to rapidly evolve in ways that conferencegoers had predicted would take years to come to fruition.Shelter-in-place orders and social distancing guidelines necessitated that an industry known for being slow to embrace technology quickly shift to remote working and use the tools needed to do so effectively. Courts also furiously worked to implement videoconferencing and other electronic solutions to keep providing forums for litigants to resolve disputes amid courthouse closures and the suspension of jury trials.The legal profession endeavored to comply with the various pandemic-related requirements while encountering the beginning of what is likely to be a prolonged economic downturn due to much of global commerce screeching to a halt.This confluence of events sparked some legal industry observers to predict that the many technological changes being adopted will persist beyond COVID-19, as will the utilization of remote working. Meanwhile, others have suggested the widespread upheaval will provide fuel for state reviews of whether to open up the legal marketplace to alternative business structures and nonlawyer practitioners.Big promises, mixed resultsOf course, many people made similar prognostications a decade ago, when it seemed the Great Recession would fundamentally and radically transform the legal industry. Ultimately, experts suggest such large-scale changes were only partially achieved.Predictions that the U.S. would join Australia and the United Kingdom in permitting alternative business structures in the law did not come true. The American Bar Association’s Commission on Ethics 20/20 carefully studied whether to recommend revisions to the ABA policy prohibiting nonlawyer ownership of law firms, but ultimately decided against doing so amid opposition from many in the industry.?However, law firms’ approach to client billing was one area of major reform sparked by the last significant economic downturn, says Susan Hackett, the former longtime general counsel of the Association of Corporate Counsel. Firms started to shift toward billing clients based on the value of the services they were providing, rather than just by the hour, a trend driven in part by clients seeking to cut back their legal expenses and exert more control over their matters.The legal industry also began to embrace technologies that made some attorney work more efficient, allowing lawyers to spend more time on higher-level tasks. “It brought people to the table to look at doing things differently who had never thought they would sit at that table before,” says Hackett, now CEO of Legal Executive Leadership.Kent Zimmermann, a consultant at Zeughauser Group who advises law firm leaders, agrees some firms responded to the trying financial times by permanently altering their approach to billing and technology utilization. But others only revised their business model to weather the recession and felt the reforms would not serve them well economically in the long run. That’s why he says the Great Recession’s impact on legal was ultimately mixed.?“I do think many firms kind of snapped back to doing things the way they did before the financial crisis, but I think some others found religion and the benefits to be worth continuing,” Zimmermann says.‘Forced experimentation’Zimmermann and Jennifer Leonard, who heads Penn Law’s Future of the Profession Initiative, are among the legal professionals who think the COVID-19 pandemic will produce greater transformative effects.They both note that while the Great Recession was a substantial shock to the economic system, COVID-19 has resulted in the sudden upheaval of society at large. This includes changing how members of the public can access the court system or connect with a lawyer.“It is really fundamentally disrupting overnight every single component of the legal system, and that is very different than 2008-2009,” says Leonard, who is also Penn Law’s chief innovation officer. “I think it creates enormous opportunities for changing many of the ways we work as lawyers, the ways we provide legal services to our clients and also the ways the justice system as a whole works.”?In the short term, Leonard says the pandemic has resulted in massive “forced experimentation.”?For instance, COVID-19 prompted law firms to quickly adopt technology more common in some other business sectors in order to allow attorneys and staff to work remotely. Video and audioconferencing tools, particularly Zoom, are being used widely for a variety of purposes. These include firm and client meetings, as well as webinars.Firms have also been utilizing videoconferencing technology to conduct litigation in a remote fashion. Littler Mendelson, a global law firm representing employers, produced training videos to help its attorneys who have needed to conduct depositions, mediations and witness preparation via video.?Scott A. Forman, a Miami-based Littler shareholder, says he expects remote litigation will continue beyond COVID-19. “I anticipate that folks who were resistant to remote meetings and feeling that everything needed to be in person, including depositions, that that resistance will dissipate as time goes on and people get used to this new normal,” Forman says.Tools that make it easy for lawyers at a firm to collaborate while working from home also have gained traction. Dave Kinsey, whose Phoenix-based Total Networks assists law firms and other businesses with their technology needs, points to the rise in popularity of Microsoft Teams. It permits attorneys to send instant messages to one another, share files and edit documents at the same time as colleagues. Microsoft Teams also permits lawyers to conduct video and voice calls. “I think law firms have come a long way in wanting to be very tech-savvy,” says Kinsey, president and owner of Total Networks.Shift to the cloudPerhaps unsurprisingly, the pandemic also prompted more law firms to move their operations to the cloud, something forward-thinking legal outfits like international firm Rimon Law did long agoMichael Moradzadeh, founding partner and CEO of Rimon Law, says “it’s reckless in some ways” for a law firm not to be cloud-based in a climate where remote working is essential. He and others expect more firms will move to the cloud in the months to come.“I think this painful experience will push a lot of people to ask, ‘Why aren’t we in the cloud?’” says Moradzadeh, who is based in Silicon Valley. “The argument that it is not secure is just outdated at this point.”“I have a feeling we are going to see the removal of a lot of servers that are still in some small-to-midsize firms because of this,” adds Adriana Linares, a New Orleans-based legal technology consultant.She says there are also a number of legal technology service providers who have yet to move to the cloud, making it more difficult for lawyers utilizing their software to effectively work remotely. Examples of such tools she highlights are estate planning, real estate closing and litigation support software. “I hope those companies start to develop cloud-based services based on feedback from their clients, or I hope their clients develop alternatives in case this ever happens again,” says Linares, owner of LawTech Partners and the San Diego County Bar Association’s technology and practice management adviser.Teleworking won’t go awayExperts also think widespread remote working itself will remain common in the legal industry beyond COVID-19. One reason they predict this development is because firms’ quick transition to having almost all lawyers and staff work off-site was smoother than anticipated.A Loeb Leadership survey of law firm leaders this spring found that 98% of the 136 respondents reported at least a moderate amount of success in rapidly moving their employees to a home office, with 77% of respondents saying they have been highly successful.“It is hard to put the genie back in the bottle if you have been running a business successfully for two to three months with every staff member out of the office,” said Ben Allgrove, a London-based Baker McKenzie partner, during an interview in the spring.The initial economic impact of the coronavirus, which prompted firms to begin layoffs and furloughs, also has given legal services providers seeking to cut costs an incentive to have more employees work remotely so they can reduce their physical footprints.Zimmermann notes that real estate is normally a law firm’s second-largest expense behind lawyer compensation, and he says he has spoken to several law firm managing partners and chairs who say they think their firms will occupy less real estate moving forward, perhaps materially less. “There was already some movement in that direction, but I think this will accelerate momentum toward less big corner offices [and] more flexible arrangements in more firms for more people,” Zimmermann says.Additionally, Bill Karns, co-founder of Karns & Karns in Los Angeles, believes firms that remain supportive of remote working after the pandemic will have an advantage in recruiting. “Employees are going to want to go to law firms that allow them to work from home a day a week or two days a week,” he says.Regulatory reform effortsMeanwhile, the rapid spread of COVID-19 came amid several states’ efforts to overhaul regulation of the legal industry with the primary goal of strengthening access to justice. Task forces launched by supreme courts or state bars in several U.S. jurisdictions have examined how to make it easier for technology-driven legal services providers to operate and whether to eliminate prohibitions regarding nonlawyer ownership of law firms. Regulatory reform supporters say they believe the coronavirus and its aftermath will create additional momentum for such efforts because the many legal issues associated with COVID-19 will further exacerbate the justice gap.“I think the demand for legal services will rise, and at the same time I think the ability of lawyers to sustain their practices under the current models are going to be crippling in some cases,” says Jayne Reardon, executive director of the Illinois Supreme Court Commission on Professionalism.She and Scott Bales, the former chief justice of the Arizona Supreme Court, say the pandemic has also highlighted the essential role technology plays in broadening access to justice.For example, legal innovators have worked in recent months to develop mobile applications that allow members of the public to remotely submit court forms. Legal technologists also have created tools to help consumers and businesses determine if they are eligible for benefits included in the coronavirus-related federal stimulus legislation signed into law.Bales, now the executive director of the Institute for the Advancement of the American Legal System, says restrictions on who can own law firms have historically inhibited technological advances by limiting the investment needed for testing out innovative approaches to delivering legal services.“I think, over time, opening up the provision of services by entities where lawyers can combine in ownership with nonlawyers has the greatest potential for technological changes and bringing capital into the legal services industry in a more direct way than is now occurring,” Bales says.A similar argument was made in a white paper the Stanford Center on the Legal Profession released in late April, highlighting what it says would be the many benefits of reforming ABA Model Rule of Professional Conduct 5.4, which prohibits nonlawyers from owning or investing in law firms.Utah is the state that appears closest to broadly opening up its legal marketplace. In late April, the Utah Supreme Court proposed a series of wide-ranging regulatory reforms that included permitting nonlawyers to own or invest in law firms. The court planned to decide how to proceed on its proposals after receiving public comments through July 23. “This pandemic has highlighted the need for regulatory reform,” Utah Supreme Court Justice Constandinos “Deno” Himonas says.Meanwhile, sandbox proposals from applicants who believe they could provide low-cost or no-cost legal services addressing issues stemming from COVID-19 were to be considered for expedited approval.?Himonas says this provision was included in light of the pandemic creating significant demand for legal services in a variety of practice areas, including those where litigants are often self-represented.TEXTE 8Courts streaming videoJudicial leaders throughout the U.S. also have helped courts join the broader legal industry in quickly expanding their use of technology in response to COVID-19.In early April, the Texas Supreme Court for the first time livestreamed an oral argument session in which the lawyers and some of the justices appeared remotely.?Meanwhile, the state’s trial courts held video-powered hearings in more than 160,000 civil and criminal cases from late March to mid-June, according to David Slayton, administrative director of Texas’ Office of Court Administration. Texas Supreme Court Chief Justice Nathan L. Hecht says this speedy adoption of technology would have been unimaginable prior to the COVID-19 outbreak.“I know if we had tried to get trial courts in Texas to videoconference more, we would be working at it for years before we made any discernible progress,” Hecht says.By mid-June, more than 40 state supreme courts had responded to in-person arguments being canceled by holding remote hearings, according to Fix the Court.While the report said federal courts were not as quick to adapt, it noted that several U.S. appeals courts had permitted livestreaming by mid-April. Additionally, the U.S. Supreme Court livestreamed oral arguments for the first time in May using teleconference technology.Fix the Court reported that more than 880,000 people clicked on the audio feed of the arguments in President Donald Trump’s tax records case, and the organization conducted a poll that found 70% of respondents would like the live audio to continue post-pandemic.In a June letter addressed to Chief Justice John Roberts, ABA President Judy Perry Martinez encouraged the Supreme Court to continue livestreaming oral arguments during the upcoming October term.Hecht, who is also president of the Conference of Chief Justices, expresses confidence videostreaming technology will be used in Texas courts even after the current pandemic. He predicts other states will likely do the same because of the benefits the technology provides lawyers and court personnel who live in geographically large states or rural areas.For example, an April videoconference of his court’s oral arguments saved lawyers in a case from having to make a roughly 1,200-mile round-trip trek from El Paso to Austin for a brief appearance. Additionally, Hecht says tech platforms have greater incentive now to make their tools easier for courts to use. “With the whole American justice system running downhill toward these changes, the pressure on the industry to improve the platforms to meet the needs of the justice system is going to be enormous,” he says.COVID-19 also has prompted courts to expand their use of e-filing, e-service and online dispute software, among other tools. The pandemic sparked Michigan to work to more quickly to expand statewide an online dispute resolution service for some civil disputes and small claims matters, Michigan Supreme Court Chief Justice Bridget Mary McCormack says. She envisions courts across the country will pursue such technological innovations beyond the near term.“You need to get to the tipping point before something sticks,” McCormack says. “That tipping point is coming very quickly.”See also: ABA’s Practice Forward group will help lawyers navigate rapidly changing professionThis story was originally published in the August/September 2020 issue of the ABA Journal under the headline: “Business as [Un]usual: Will the COVID-19 pandemic fundamentally remake the legal industry?”TEXTE 9Activists are fighting new voter suppression tactics in courtAUGUST 1, 2020, 2:00 AM CDTFlashbacks to Russian interference in the 2016 election loom large over November’s presidential contest. But a threat more insidious than foreign meddling has long been operating within U.S. borders: voter suppression.A study on the 2018 midterm elections by the Center for American Progress, a nonpartisan policy institute, reported “severe voter suppression” in states with highly competitive races, including Florida, Georgia, Texas and North Dakota.This year marks two major milestones in United States voting history—the 150th anniversary of the passage of the 15th Amendment, which gave African Americans the right to vote, and the 50th anniversary of the Voting Rights Act Amendments of 1970, which abolished literacy tests and other methods of disenfranchising voters.But despite these legislative achievements, it wasn’t long until end runs were made around voter protection laws, and those efforts are alive and well, election law attorneys and voting rights advocates say.Today there are a variety of methods of suppression: onerous voter registration rules, voter purges, photo ID requirements, misinformation, harassment, poll closures, shortened voting hours and days, long lines and a perennial favorite—gerrymandering. Many modern practices, voting rights advocates say, are just creative ways of accomplishing the same goal.Taking away the votePoll taxes have long been illegal, but their specter cropped up in 2019, shortly after Florida passed Amendment 4 to its state constitution. The measure extended the vote to ex-felons, but the state soon tacked on a debilitating condition: Returning citizens would first have to pay any outstanding fines and fees, regardless of their financial ability to do so. Voting rights advocates branded the requirement a modern-day poll tax, and in February the Atlanta-based 11th Circuit unanimously agreed, finding the law unconstitutional, a determination affirmed by the trial court on remand.Florida’s governor appealed and in July was granted an en banc rehearing by the 11th Circuit, which has become one of the most conservative appellate courts in the nation after judicial appointments by President Donald Trump. The Aug. 11 hearing date and uncertainty about how quickly the court will rule jeopardizes voting rights restoration for Florida’s returning citizens.Purging voter rolls is another tried-and-true method of suppression. The method is less overt, with discriminatory purges often cloaked in an alleged need to “update.” The Brennan Center for Justice at New York University School of Law found that between 2016 and 2018, 17 million people were stripped of their status as registered voters.Purges operate under the guise of fraud prevention, a purpose few would oppose were it true. However, Anderson contends claims of endemic fraud are “a lie perpetrated to justify voter suppression.” In the last decade, 25 states used the fear of voting fraud to enact laws that make it harder for people to vote.This year, an unforeseen pandemic injected a potentially lethal dose of fear into the voting process and opened the door for another wave of voter suppression. COVID-19 has heightened the demand for mail-in voting, which advocates hope will increase participation, and which Republicans claim will increase voter fraud.Wisconsin became ground zero for post-COVID-19 voting rights when the state held its April primary, the final contested Democratic presidential primary of 2020. Mail-in voting offered protection from exposure, but thousands of Wisconsin voters did not receive absentee ballots before the deadline. Desperate legal and political maneuvers to extend the deadline, change the election date and suspend in-person voting all failed. At the 11th hour, the U.S. Supreme Court ruled against an extension for absentee voting, and thousands of Wisconsin voters braved long lines and the coronavirus to cast their ballots.“Wisconsin put voters in a coronavirus firing squad,” Anderson says. “Their choice was, ‘I can vote and die, or I can stay home and live.’”Democratic National Committee chairman Tom Perez, in an April interview on MSNBC’s?PoliticsNation, called the Wisconsin debacle “voter suppression on steroids.”?In light of the pandemic, voting rights activists have called for states to hold all elections by mail, as do Colorado, Hawaii, Oregon, Utah and Washington. In those states, a ballot is automatically mailed to every registered voter at least two weeks before the voting deadline. In about two-thirds of the states, voters can request a mail-in ballot without providing any justification.Voter fraud is a favorite Twitter topic for President Trump, who opposes mail-in voting even though he cast an absentee ballot in the Florida primary. On April 8, Trump tweeted that “Democrats are clamoring” for mail-in voting and claimed the practice “doesn’t work out well for Republicans.”?He went further in a pair of May 20 tweets. After Michigan Secretary of State Jocelyn Benson announced all 7.7 million Michigan voters would receive absentee ballot applications for both the August primary and the November general election, Trump tweeted that she was doing so “illegally” and threatened to halt federal funding to the state. Hours later, Trump threatened to “hold up funds” to Nevada, which had sent out absentee ballots for its June 9 primary election.Legal challengesSome voter suppression methods cut a wide swath, while others are leveled at specific minority groups.A 2016 opinion by the Richmond, Virginia-based 4th U.S. Circuit Court of Appeals,?North Carolina State Conference of the NAACP v. Patrick L. McCrory, invalidated a North Carolina law that required voters to show photo ID at the polls.The judge said the law had been adopted with “discriminatory intent” and that its provisions “target African Americans with almost surgical precision.”But the appeals court ruling didn’t put the matter to rest. North Carolina passed a voter ID law put on the ballot in 2018, and more lawsuits followed. In 2019 and 2020, federal and state courts issued preliminary injunctions blocking implementation of the law, which activists expect will remain in place through the November elections.The most profound legal blow to voting rights in the modern era came seven years ago in the U.S. Supreme Court case?Shelby County v. Holder, which Anderson says “gutted” the Voting Rights Act. She notes that two hours after the ruling came out, Texas implemented a strict voter ID law, and Alabama followed within a few months. “These legislators wrote the laws based on the types of identification that minority voters typically do not have,” she adds.The?Shelby?ruling allows voting districts with documented track records of racial discrimination to change voting requirements without first obtaining approval from the Civil Rights Division of the U.S. Department of Justice (a policy known as preclearance) or petitioning the U.S. District Court for the District of Columbia, as previously required under the act.?Voting rights advocates strongly condemn Shelby for eliminating oversight and disingenuously declaring racism a relic of the past. Since the court’s ruling, about half the states passed laws targeting minority voting rights.“Where we are now has me seething and frustrated because none of this had to be,” says Anderson, who considers Shelby as wrongly decided as?Plessy v. Ferguson. She says the 2013 opinion written by Chief Justice John G. Roberts Jr. “reshaped the legal and political landscape of America” in detrimental ways.Vanita Gupta, president and CEO of the Leadership Conference on Civil & Human Rights, says that during her tenure in the Obama administration, “We were dealing with the devastating blow of Shelby, but the tools we had were diminished significantly. The Civil Rights Division [of the DOJ] was trying to be on top of protecting voting rights around the country. The states enacted restrictive voter ID laws. We engaged in litigation to stop the tide of racially discriminatory policies enacted in the states. It was a very active docket.”Today, she says, “The Justice Department has halted a lot of its voting rights enforcement and has been MIA in the area of elections and voter rights.” She points to a Supreme Court brief filed by the government in?Husted v. A. Philip Randolph Institute. “The DOJ argued that it should be easier for states to purge registered voters from their rolls—reversing not only its long-standing legal interpretation, but also the position it had taken in the lower courts in that case.”But even in the wake of?Shelby, there are some glimmers of hope for voting equality. The Voting Rights Advancement Act of 2019 passed the House in December and is pending before the Senate Judiciary Committee. It is not expected to go for a floor vote this year, but it may pass if Democrats regain control of the Senate in November. The bill would establish new criteria to fill the preclearance gap Shelby left in the Voting Rights Act.Myrna Perez, director of the voting rights and elections program at the Brennan Center for Justice, testified before Congress in September 2019 on restoring the Voting Rights Act, calling it “the engine of voting equality in our nation.”Targeting the marginsMarginalized and vulnerable populations can be stealth targets for voter suppression. Residency requirements have been a perpetually vexing issue for Native Americans because reservations typically do not have streets with numbered homes.At its midyear meeting in February, the ABA House of Delegates passed two resolutions urging states to remove voting barriers for Native Americans and Alaska Natives. One recommended changes in residency requirements that would make it easier for voters without street addresses to use alternative forms of ID to register. The same month, North Dakota agreed to a binding consent decree ensuring Native Americans can vote without an ID that shows a residential address.Jacqueline De Leon, who is a member of the Isleta Pueblo and the ABA Standing Committee on Election Law, says voting rights violations for Native Americans are underreported. A staff attorney for the Native American Rights Fund in Boulder, Colorado, she testified in February before the Committee on House Administration’s Subcommittee on Elections in a hearing on barriers facing Native American voters.De Leon notes that Washington state has its own Native American voting rights act. It permits a tribe to designate one building per precinct that voters can use as a residential address. At that location, voters can register to vote and can pick up or drop off a ballot. The bill received bipartisan support, even from high-ranking Republican officials such as Washington’s secretary of state.“It’s a good solution to break the logistical challenges” for those who do not have a post office in their community, she says. “The Native American vote can influence elections on the margin, especially when they’re close. So the [voter suppression] tactics are stronger there.”Even the physical conditions of a polling place can be enough to give Native Americans the clear message that even if their vote is legally protected, it isn’t particularly welcome. De Leon recalls that a few years ago in South Dakota, a polling location in a largely Native American precinct was made from a “repurposed chicken coop.” Chicken feathers were scattered all over the floor, and there was no bathroom. “The voters felt disrespected,” she says.Other situations can only be perceived as threatening, says De Leon, who has witnessed “poll workers staring at Native American voters while the sheriff is outside, visibly fingering his gun.”Protecting the votePhoenix criminal defense attorney Adrian Fontes was similarly alarmed when he drove past a polling location in a largely Latino precinct on the day of Arizona’s March 2016 primary. Fontes saw what struck him as a thinly veiled attempt at voter suppression: a legion of steely-eyed police officers positioned at intervals throughout a line of voters that stretched block after block. Nearly five hours later, some of the same people were still in line.“Not in my town,” he vowed to himself. “This is not America.”Fontes, who resides in what he calls “the Trumpiest county in this country” had a busy law practice when he threw his hat in the ring for county recorder, the office that oversees elections in Maricopa County. To his shock—and just about everyone else’s—he won.Fontes enacted election policy reforms that vastly impacted Maricopa County, which, with nearly 4.5 million residents, is the fourth most populous county in the United States. In its 2018 elections, 40 “vote anywhere” centers—locations where any registered voter can cast a ballot, no matter where they live in the county—opened, and tens of thousands of previously denied voters were added to the rolls.?A study by political science professors at Dartmouth College and the University of Florida found that African Americans and Latinos in Florida who voted by mail were twice as likely to have their ballots rejected as white voters. Despite this fact, mail-in voting is gaining momentum.But it’s not a panacea—absentee ballot measures have boosted voter participation in some states but not in others.Court challenges are pending in Florida and other states where voters have to pay their own postage—including some mail-in ballots that require more than one 55-cent stamp. That may not seem unreasonable for the electorate at large, but it can be a bar for low-income voters or those who live in remote locations where stamps are not easily obtainable.In California, Oregon and Washington, however, state election officials are legally required to include prepaid postage on ballots, and in April the American Civil Liberties Union filed a complaint on behalf of Black Voters Matter challenging Georgia’s refusal to provide prepaid postage for ballots.Georgia already faced allegations of voter suppression and mail-in irregularities after the 2018 gubernatorial election.Attorney Stacey Abrams, a Democrat, narrowly lost her bid for the governor’s seat to Republican Brian Kemp, who by virtue of his then-position as Georgia’s secretary of state was in charge of overseeing the election. Calling Kemp an “architect of voter suppression,” Abrams lost the election by less than 55,000 votes (1.4 percentage points) and attributed it to the closure of polling locations in minority neighborhoods, rejection of absentee ballots and purging of voter rolls.Stakes ramping upAnderson foresees heightened attacks on voting rights in the November election. She expects some of it will be aimed at voting blocs that have not until recently been considered a threat. “College students are on today’s voter hit list, too,” she says.Students tend to be liberal and favor the Democratic Party, according to a 2019 survey by the Institute of Politics at Harvard University’s Kennedy School of Government.Results showed that 45% of college students ages 18-24 identified as Democrats, 29% as independents and 24% as Republicans.Texas, New Hampshire, Wisconsin and North Carolina have been trailblazers in efforts to quash the student vote. Tactics have included requiring out-of-state students to have in-state drivers licenses to register, inconveniencing students by removing ballot locations from college campuses and gerrymandering.Some states throw up significant obstacles to inhibit out-of-state college students from voting where they live for school, including arduous proof of residency requirements, a move activists call de facto gerrymandering.A particularly egregious case of gerrymandering came to light in a 2019 redistricting that split the historically Black North Carolina A&T State University between two congressional districts, diluting the students’ voting power.?A September 2019 study by Tufts University showed a sharp spike in voter participation among students. The number of eligible students who cast ballots doubled in the last midterm elections (from 19% in 2014 to 40% in 2018).So if campus engagement remains high, the student voting bloc may have a significant impact on the November elections. Its potential effect, and that of other voting groups on the radar, however, hangs in the balance with the success or failure of voter suppression efforts.?This story was originally published in the August-September 2020 issue of the?ABA Journal?under the headline: “Blocking the Vote: Activists are fighting new voter suppression tactics in court.”Darlene Ricker, a legal affairs writer and book editor based in Lexington, Kentucky, is a former staff writer and editor for the Boston Globe and the Los Angeles Times.TEXTE 10Free speech or censorship? Social media litigation is a hot legal battlegroundBY?DAVID L. HUDSON JR.The now-retired U.S. Supreme Court Justice Anthony Kennedy, in an opinion on a 2017 First Amendment case, called the cyber age a revolution of historic proportions, noting that “we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be.”?Kennedy said cyberspace, and social media in particular, was among the “most important places ... for the exchange of views.” He compared the internet to a public forum, akin to a public street or park. Although Justice Samuel A. Alito concurred in the opinion, he also chastised Kennedy for his “undisciplined dicta” and “unnecessary rhetoric.”?But Kennedy’s lofty language in?Packingham v. North Carolina?accurately observed that the greatest battleground for free expression both nationally and globally occurs online with social media. “That language reflects Justice Kennedy’s long-standing view that the public forum doctrine should not remain frozen in time, limited to protecting public squares and public parks, while new forums for public debate go unprotected,” explains free-speech expert Kevin O’Neill, a professor at Cleveland-Marshall School of Law. “It will be interesting to see whether today’s judges respond to his call.”?This hot battleground raises serious concerns about the future of free speech, including attempts at censorship by government actors critical of comments on social media, the shifting standards of private platforms to censor online expression and the rise of hate and extremist speech in the digital world.The ABA, recognizing the urgency and timeliness of these issues, has chosen “Free Speech, Free Press, Free Society” for this year’s Law Day theme. ABA President Bob Carlson notes that these themes have dominated public discourse and debate ERNMENT BLOCKINGOne issue involves government officials blocking or removing critical comments online. In a sense, this violates the core First Amendment principle that individuals have the right to criticize government officials. In the landmark free-press/libel decision?New York Times Co. v. Sullivan?(1964), Justice William Brennan wrote that there is a “profound national commitment that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”More recently, the case of?Knight First Amendment Institute for Columbia University v. Trump?presents these issues in pristine form. President Donald Trump and a staffer named Donald Scavino were accused of violating the First Amendment by blocking several people from Trump’s engine of self-expression, his personal Twitter account, @realDonaldTrump. The plaintiffs’ tweets were not vulgar, but they criticized the president and his policies. For example, one of the plaintiffs was blocked after tweeting: “To be fair, you didn’t win the WH: Russia won it for you.”?In May 2018, Judge Naomi Reice Buchwald of the U.S. District Court for the Southern District of New York ruled that the president violated the blocked users’ First Amendment rights by engaging in impermissible viewpoint discrimination. She reasoned that while Twitter is a private company, Trump and his staffer exercised government control over the content of the tweets by blocking users who criticized the president in the interactive space on Twitter. The judge determined that this interactive space was a designated public forum and that the president could not discriminate against speakers because of their viewpoints.?The government appealed the decision to the New York City-based 2nd U.S. Circuit Court of Appeals. In its appellate brief, the government argues that the district court decision is “fundamentally misconceived” in part because “the @realDonaldTrump account belongs to Donald Trump in his personal capacity and is subject to his personal control, not the control of the government.” In other words, the government contends that Trump’s Twitter feed is not the speech of the government and thus not subject to First Amendment dictates.?On the other hand, the Knight First Amendment Institute at Columbia contends that the interactive space on Twitter, where individuals can tweet responses to the president’s expression, represent a designated public forum—a space the government has intentionally opened up for the expression of views. The Knight Institute contends that Trump and Scavino violated the most fundamental of all free-speech principles: that the government cannot engage in viewpoint discrimination of private speakers.?“The case is a game-changer for both free speech and the right to petition the government,” says Clay Calvert, director of the Marion B. Brechner First Amendment Project in the University of Florida College of Journalism and Communications. “The district court’s ruling highlights not only the importance of online social media platforms’ forums for interacting with government officials, but also confirms that when government officials use nongovernment entities like Twitter to comment on policy and personnel matters, the First Amendment comes into play.”?“I think it is potentially very important,” agrees constitutional law expert Erwin Chemerinsky, dean of the University of California at Berkeley School of Law and a contributor to the?ABA Journal. “It is not just about Trump, but ultimately about government officials at all levels to exclude those who disagree with them from important media of communications.”?The decision is important also because there are countless disputes involving state and local government officials who have blocked users or removed comments that are critical of them. In April 2018, Maryland Gov. Larry Hogan agreed to a settlement with the American Civil Liberties Union of Maryland in a federal lawsuit over the blocking of those who criticized him from his Facebook page.?Under the settlement, the government admitted no liability but did agree to a new social media policy and the creation of a new “Constituent Message Page” that allows individuals to post their political expression, even if critical.?The blocking of critical speakers from Twitter feeds or comment pages on government pages is far from the only First Amendment issue on social media. The internet has led to a cottage industry of defamation lawsuits arising from intemperate online expression. For example, a federal district court in California recently reasoned that the president did not defame Stormy Daniels, an adult film actress who claimed she engaged in an intimate relationship with Trump in 2006. Daniels, whose real name is Stephanie Clifford, says that in 2011 she faced threats from an unknown man who said she must leave Trump alone. Daniels worked with a sketch artist to produce a picture of the man after Trump was elected president. Trump tweeted: “A sketch years later about a nonexistent man. A total con job, playing the Fake News Media for Fools (but they know)!” Daniels sued the president for defaming her, but the U.S. District Court for the Central District of California in?Clifford v. Trump?(2018) dismissed the suit, explaining that Trump had engaged in protected rhetorical hyperbole rather than protected speech.PRIVATE CENSORSHIP?Much of the censorship on social media does not emanate directly from the government. Often, the censorship comes from social media companies that police content pursuant to their own terms-of-service agreements. Outcries of political censorship abound. Recent controversies include radio show provocateur Alex Jones being removed from Facebook, YouTube and Apple for engaging in hateful speech; Facebook at least temporarily removing a newspaper’s online postings of sections of the Declaration of Independence; and uneven or inconsistent application of hate speech removal policies.?President Trump entered the arena—via Twitter as he usually does—accusing Google of censoring more conservative speech. He tweeted: “Google & others are suppressing voices of Conservatives and hiding information and news that is good. They are controlling what we can & cannot see. This is a very serious situation-will be addressed!”?Evelyn Aswad, a law professor at the University of Oklahoma, notes that “American social media giants have chosen to move away from their initial First Amendment inclinations for a variety of reasons, including pressure from European authorities as well as advertisers and others to ‘clean up’ their platforms.”?Positions taken by the European Union are influential because social media companies operate on a global scale, reaching millions of users living in EU countries. University of Maryland law professor Danielle Keats Citron explains that it’s difficult to determine empirically the extent of censorship there. “What I can say is that the more companies use algorithms to filter hate speech and the more the European Union pressures companies to produce results in 24 hours or less, the more censorship creep is likely,” explains Citron, who wrote the 2018 Notre Dame Law Review article “Extremist Speech, Compelled Conformity, and Censorship Creep.”“Given what we do know about the bluntness of algorithms coupled with vague definitions, the more speech we will see filtered and removed,” Citron adds. “That speech will likely include critiques of hate speech and dissenting speech. That is my worry.”?Yale Law School professor Jack M. Balkin explains that free speech law in the 21st century is no longer “dualist,” consisting of a territorial government as the censor and a private individual or group of individuals as the speaker. In the 21st century, free speech is what he terms a “triangle” in his 2018?Columbia Law Review?essay “Free Speech is a Triangle.” This world consists of at least three categories of speakers: nation-states, internet infrastructure companies and a variety of individual speakers.?A key concern among many is that social media companies, because they are operating on a global scale, will censor material based on the requirements of those countries that censor the most, countries that certainly don’t protect freedom of speech like the United States. “As companies alter speech rules and speech operations in a wholesale way (rather than retail via country), then the strictest regime prevails,” Citron explains. “This is a considerable threat to free expression.”?“What concerns me is that we entrust a few unaccountable and self-interested tech companies to govern online discourse,” says University of Detroit Mercy law professor Kyle Langvardt, who wrote “Regulating Online Content Moderation” for the?Georgetown Law Journal?in 2018. “It seems obvious to me that this is an unacceptable way for a liberal society to do business.”One possible response in the United States—with its tradition of protecting a greater deal of speech than other countries—is to hold these online platforms to First Amendment standards. Given Justice Kennedy’s language about the importance of cyberspace as a vast public forum—the question becomes whether the First Amendment could be applied to limit the censorial actions of private companies.?A significant hurdle to this is the state action doctrine, a key concept in constitutional law. The U.S. Supreme Court explained in the?Civil Rights Cases?(1883) that the 14th Amendment limits “state action” and not “individual invasion of individual rights.” In other words, the Constitution and the Bill of Rights limit the actions of governmental actors, not private actors.?Last year, a federal district court in Texas articulated the traditional view and ruled in?Nyabwa v. Facebook?that a private individual could not maintain a free-speech lawsuit against Facebook, writing: “the First Amendment governs only governmental limitations on speech.”?However, at times, the U.S. Supreme Court has stretched the state action doctrine. Perhaps most famously, the court ruled in?Marsh v. Alabama?(1946) that a privately owned company town was subject to First Amendment principles even though it was technically private. “Ownership does not always mean absolute dominion,” wrote Justice Hugo Black in recognizing the free-speech rights of a Jehovah’s Witness to distribute literature on the company-owned streets. “The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.”?Could a court expand on the?Marsh v. Alabama?ruling and modify the state-action doctrine to hold a social media entity like Facebook to First Amendment constraints? Most legal experts view this as unlikely.“At least as things currently stand, it is unlikely any court would see platforms as being fully state actors, at least for the purposes of the First Amendment,” says St. John’s University law professor Kate Klonick, author of the 2018?Harvard Law Review?article “The New Governors: The People, Rules, and Processes Governing Online Speech.”Klonick says that?Marsh v. Alabama?is the high-water mark. “While the court recently found in dicta that social media spaces were akin to the ‘public square,’ and access to them could not be blocked by the state, that’s still a far cry from saying Facebook or Twitter or Google are stepping fully into the role of the state and thus should be held to a First Amendment standard,” she says.?O’Neill says that though the days of “company towns” are long gone, it might be possible to invoke the old “governmental function” doctrine to establish the social media giants as state actors as social media becomes more and more pervasive. “But courts have long been reluctant to expand the exceptions to the state action doctrine, so I’m doubtful about this,” he says.Langvardt explains that even if constitutional doctrine were modified to reach such a result, it would not be practical given the realities of online speech. “In any case, I’m not sure that calling Facebook a state actor would help all that much,” he says. “Content moderation moves much faster than traditional governmental censorship, and I doubt that courts are constitutionally equipped to keep up.”?Social media companies should base their speech policies on the protections in Article 19 of the International Covenant on Civil and Political Rights, Aswad argues. “For companies to avoid infringing on international freedom of expression protections, a three-part test should be met: (1) companies should make sure their speech codes are not vague and (2) companies should select the least-intrusive means of (3) achieving legitimate public interest objectives when infringing on speech.”POLICING HATE-FILLED CONTENT?If such private entities are not subject to First Amendment constraints, what should be the obligation of social media platforms when it comes to regulating private expression, particularly expression that advocates hate or includes calls for violence??These issues are becoming more important, particularly as there is an increase in hate and extremist speech on the internet.“While I don’t believe any hard numbers exist, with an ever-increasing increase of available online platforms, it seems very likely that hate speech has risen significantly over the past decade,” says Shannon Martinez, program manager for Free Radicals Project, a group that provides support for those seeking to leave hate groups. “The internet is the main recruiting ground for most of today’s violence and hate-based groups.”?While comprehensive data may be difficult to nail down, some groups have documented rises in internet hate speech during the last presidential campaign and in the month following. The Anti-Defamation League reported that from Aug. 1, 2015, through July 31, 2016, there were more than 2.6 million tweets it considered anti-Semitic, with nearly 20,000 of them aimed at journalists. And after the 2016 election, the Southern Poverty Law Center compiled data from more than 1,800 extremist Twitter accounts and noted a rise in anti-Muslim images and memes between Nov. 8 and Dec. 8. Twitter later suspended some of those accounts.Martinez believes that more should be done to address hate speech. “In America, however, we do not have laws which govern or define hate speech?per se,” Martinez explains. “I believe that we should challenge ourselves to re-examine what we classify as harm or violence-inducing speech. Currently, we rely heavily on private tech companies to implement and uphold terms-of-service agreements to take down hate speech; however, this leaves vast swaths of the web completely unfiltered and unrestricted.”?Under the First Amendment, hate speech is a form of protected speech unless it crosses the line into narrow unprotected categories of speech, such as true threats, incitement to imminent lawless action, or fighting words. Controversy abounds over what actually constitutes hate speech. In her recent book,?Hate: Why We Should Resist It with Free Speech, Not Censorship, Nadine Strossen writes that hate speech “has no single legal definition, and in our popular discourse it has been used loosely to demonize a wide array of disfavored views.”?The classic First Amendment response is the counterspeech doctrine traced to Justice Louis Brandeis’ concurring opinion in?Whitney v. California?(1927) in which he wrote that the preferred remedy to harmful expression is “more speech, not enforced silence.” But many worry that the counter-speech doctrine is sometimes inadequate to address online hate. “I think counter-speech is important, but often not enough,” Chemerinsky says. “If the speech crosses the line of true threats or harassment or incitement, then action can be taken and sometimes must be taken.”?However, others believe that having the government intervene would lead to more problems. “Policing hate speech online should be left to private entities like Facebook and Twitter to better enforce their own terms of use and service,” Calvert says. “They need to do more.”“Ideally from a pro-free speech perspective, social media companies—much like private universities—would aspire to comport with First Amendment principles, and at a minimum not discriminate against political speech based on viewpoint,” Calvert explains. “Realistically, however, these are for-profit businesses that privilege profits and their own financial gains above constitutional goals.”?But this raises the question of whether such private entities will do more to respect freedom of expression and regulate the type of speech that perhaps does need to be removed. “There is no one-size-fits-all answer to this question because these platforms operate differently and with different commitments to a transparent process for users,” says Suzanne Nossel, CEO of PEN America, a human rights and First Amendment advocacy organization for writers. “But we are concerned about the discretion that exists at the hands of these platforms, and we advocate for greater transparency for the public to understand how Facebook, Twitter, Instagram, etc., make decisions that affect their individual online expression.”?Langvardt says that the most likely path would be for Congress to step in and create some sort of administrative-like system that would handle online censorship issues and complaints. But even that will present a First Amendment problem of another sort—that private online platforms have their own First Amendment rights of editorial discretion. “These platforms see themselves as the New York Times, and content moderation as a form of editing,” explains Langvardt. “I think this is a perverse position for the country’s pre-eminent censors to take, but there it is.”?“The queasy answer is that the very largest platforms should be subject to some kind of ongoing administrative oversight of their censorship practices,” Langvardt says. “It’s an ugly solution, but I think our society will eventually wind up there if we continue to care about free speech.”?What is clear is that Kennedy was correct when he talked about the importance of the cyber age on free expression. “The online world and social media have drastically changed the way we engage with each other and how we consume information,” Nossel says. “The law will necessarily begin setting boundaries to define acceptable forms of online expression, and it’s already doing that to some degree.”?TEXTE 11Catch and Kill: Can tabloids hide behind the First Amendment?BY REBECCA BEYEROne Sunday morning in February of last year, Paul S. Ryan, an attorney at Common Cause, a grassroots organization that works to uphold democratic principles, got up early, as he regularly does, and read through the latest news. When he came to a story in the?New York Times?he had been following, he drank some coffee, ate breakfast with his wife and young son, and went to work.?Ryan, who is Common Cause’s vice president of policy and litigation, does not regularly work on weekends. But the?Times?story had new details in an evolving scandal in which the company that owns the National Enquirer had paid $150,000 to former Playboy model Karen McDougal to buy the rights to a story about her affair with Donald Trump before he became president. The company, American Media Inc., never had any intention of running the story. Instead, at the direction of David Pecker, AMI’s chairman, president and CEO—and a longtime friend of Trump’s—the company wanted to make sure no one else could run the story. Buying a story specifically to suppress it is known in the tabloid world as “catch and kill.”Ryan had been keeping up with news about the deal, which took place in August 2016 and was first revealed by the Wall Street Journal in the days before the presidential election. In particular, he wondered if the payment might eventually be traced back to the Trump campaign. That Sunday, Feb. 18, 2018, journalists at the?New York Times?did exactly that, reporting in a story headlined “Tools of Trump’s Fixer: Payouts, Intimidation and the Tabloids,” that Trump’s lawyer—Michael Cohen—had been involved in the?National Enquirer’s transaction with McDougal. If that were true, Ryan thought the payment likely violated the Federal Election Campaign Act, which prohibits corporate contributions to candidates for federal office, including “in-kind” contributions made on behalf of, or “in consultation, cooperation, or concert with” someone. The act also requires that any contributions be reported to the Federal Election Commission.“Voters have a right to know who is spending money to influence their vote on Election Day,” Ryan says. “Here we had a $150,000 payment to influence voters by keeping away from voters information voters would undoubtedly find interesting within two months of a presidential general election in coordination with a presidential candidate.”Ryan stayed at his Washington, D.C., office for several hours that Sunday drafting complaints against AMI, Trump and the Trump campaign for the Department of Justice and the FEC. He continued to work on the complaints the next day, even though his offices—and the federal government’s—were closed for Presidents Day.?That Monday, he ran the drafts by his boss, Common Cause President Karen Hobert Flynn, and a colleague who had previously worked at the FEC. Then, as is required for any litigation initiated by Common Cause, he sought approval from the litigation committee of the organization’s national board. He sent an email requesting approval at 11:57 a.m. At 11:59 a.m., he got his first yes. Four others came in by 1:36 p.m. The last committee member asked a few clarifying questions, and after receiving Ryan’s answers gave the greenlight at 4:14 p.m.“The only time we do a phone call is if there’s some disagreement,” Ryan explains. “But here, there was none. I just got a bunch of quick approval emails.”The next day, Feb. 20, Common Cause filed the complaints. The organization has several other cases on its docket, but the AMI/McDougal cases have captivated the nation’s attention, not only because of the parties involved—a president and a Playboy playmate—but because of the historic clash between two of the most basic principles of democracy: a free press and fair elections.?TALE AS OLD AS TIMEShady journalism is probably as old as the profession. Like any other job performed by humans, it is vulnerable to corruption. Reports of publishers squelching stories for reasons that have nothing to do with the news are easy to find. In the early 1900s, Col. William d’Alton Mann, a Civil War hero, was known for blackmailing wealthy individuals who did not want him to print embarrassing stories about them in his weekly magazine, Town Topics. In the 1950s, Confidential magazine killed salacious stories about certain celebrities in exchange for sensational stories about other celebrities, according to a law review article by University of Buffalo School of Law professor Samantha Barbas. Upon the request of one major studio, for instance, the publication agreed not to print articles about Rock Hudson’s sexuality, running instead the jail record of actor Rory Calhoun. Around the same time, Drew Pearson, a well-known Washington, D.C., columnist, apparently held back stories on the promise of political support for policies or people he believed in.t’s harder to know how long catch and kill—the tactic at the heart of the Common Cause complaints—has been around. By its very definition, the public isn’t supposed to hear about such deals or the stories they seek to squash. Some historians who study journalism say they hadn’t heard of the term—or much about the practice—before the AMI/McDougal case came to light.“If you did a search of books published about the press in the late 20th century, boy, I don’t think you’re going to see that phrase,” says Tom Leonard, a professor emeritus at the University of California at Berkeley Graduate School of Journalism, who has written about the development of American media. “It was a new phrase to me.”Some experts have suggested the practice—at least in the United States—is limited to tabloids such as the National Enquirer, particularly under Pecker’s direction.?And, in fact, deals that sound very similar to McDougal’s took place at the magazine with Pecker at the helm when Arnold Schwarzenegger was running for governor of California in 2003.?In August of that year, as Schwarzenegger was negotiating a consulting deal with AMI, the company paid $20,000 to a woman in exchange for her confidentiality about an alleged affair she had with the candidate over a number of years. Later, AMI reportedly paid $1,000 to silence a friend of the woman’s who also knew about the affair and $2,000 for a Playboy video reportedly depicting Schwarzenegger grabbing a scantily clad woman. According to Los Angeles Times stories about the deals, the company never sought additional information about the affair—even though it had published a cover piece about the relationship two years earlier—and didn’t mention the video, either. One Los Angeles Times article about the deals described them as the “David Pecker Project.”Author Laurence Leamer, who wrote a book about Schwarzenegger and a column for the Los Angeles Times describing the AMI deal on his behalf, characterized the payoffs as the start of catch-and-kill arrangements of this kind.“That’s where it all began,” he says of the Schwarzenegger example. “Certainly, people kill stories and are paid off to kill stories, but this specific practice, that pattern began with Pecker. Before Pecker took over, the National Enquirer had a kind of rude integrity. I don’t think they would have done that in the earlier era.”Stu Zakim, who was senior vice president of corporate communications at AMI from 2004 to 2006, agrees that the practice of buying stories to suppress them was “David Pecker-specific.”“It was really about collecting favors,” he says. As in, “we won’t do this story in exchange for you helping us” in some other way.In the McDougal deal—and in other actions, including regularly using the National Enquirer to attack Hillary Clinton in the lead-up to the 2016 election—what Pecker was really buying, Zakim says, was future “access to the White House.” According to a New York Times report, Pecker may have cashed in on his favor in the summer of 2017 when he visited Trump at the White House with someone who in turn had access to Saudi Crown Prince Mohammed bin Salman, where Pecker apparently hoped to do business. AMI followed up with a nearly 100-page glossy magazine about Saudi Arabia in the spring of 2018.“What media owner wouldn’t give their eyetooth to have that kind of access to the president?” Zakim asks.?An attorney for AMI referred inquiries about the McDougal deal to a company spokesperson, who did not respond to multiple requests for comment. Cohen pleaded guilty in August to campaign finance law violations stemming from the transaction, and in December, he was sentenced to three years in prison for those and other crimes. (Cohen’s original plea agreement refers to the National Enquirer, Trump, McDougal and Pecker as “Magazine-1,” “Individual-1,” “Woman-1” and “Chairman-1,” respectively.) Although AMI previously claimed in a lawsuit by McDougal that it had merely exercised its “editorial discretion not to publish” her story, the company later admitted in a non-prosecution agreement with the U.S. Attorney’s Office for the Southern District of New York that it had made the deal “in concert with a candidate’s presidential campaign … to suppress the woman’s story so as to prevent it from influencing the election.”?First Amendment scholars and veteran journalists agree catch and kill is unethical and scoff at the notion that it might be considered journalism. The National Enquirer regularly pays for stories, a practice that makes many mainstream journalists squeamish. For example, the magazine broke several stories about O.J. Simpson and reported on an affair Democratic presidential candidate John Edwards had well before any mainstream media did, in part by paying for scoops. But with the McDougal catch-and-kill agreement, the publication paid not to run a story.“If that’s not the opposite of journalism, it’s certainly very close,” says Theodore J. Boutrous Jr., a partner at Gibson, Dunn & Crutcher who represented McDougal in the early stages of her lawsuit against AMI. The case settled in April 2018.?Gene Policinski, the CEO of the Freedom Forum Institute and the First Amendment Center, agrees.?“The free press is not for journalists to know something and not tell the public,” he says. “The whole point—the reason the founders protected this right so strongly—is that they saw the benefit of the press acting as a surrogate for everyone else.”Still, it’s not at all clear that catch and kill is necessarily illegal. What matters is the context: If a magazine pays a source to suppress a negative story about a celebrity, that’s sleazy; if someone at the magazine later uses that story to extort the celebrity, that’s probably illegal.?Which could be the case in Pecker’s latest contretemps: the alleged extortion of Jeff Bezos, Amazon founder and owner of the Washington Post. The world’s richest man claims Pecker threatened to publish graphic selfies unless Bezos agreed to publicly state that the Enquirer had no political motivation for running a multipage exposé of Bezos’ extramarital affair. Bezos alleges Pecker used catch-and-kill tactics against him out of political animus related to Pecker’s friendship with the president. Since running for office, Trump has routinely bashed Bezos and the Post for what he considers negative coverage.While the Bezos case could affect Pecker’s plea deal with prosecutors, if investigators determine extortion, the McDougal case implicates a host of other legal considerations—campaign finance laws in particular.“This was all about keeping McDougal quiet in the context of the election,” says Common Cause’s Ryan. “That’s what made this an obvious campaign finance law violation to me.”One possible defense to any charge of campaign finance violations in the AMI/McDougal deal would come from the Federal Election Campaign Act’s distinction between campaign expenses and “personal use” expenses. (Edwards went with the personal use defense when he was unsuccessfully prosecuted for alleged in-kind contributions made to the woman with whom he had an affair.) Cohen and AMI both have admitted the McDougal payment’s “principal purpose” was to prevent McDougal’s story from influencing the election.FECA also includes a built-in carve-out for the media so that the press can report on political stories or candidates and publish opinion pieces or editorials without fear of running afoul of prosecutors. The law exempts “any cost incurred in covering or carrying a news story, commentary, or editorial” unless the entity in question is owned by a political party, committee or candidate.?Ryan attempts to pre-empt AMI’s potential use of this exemption in his complaints to the DOJ and FEC, writing that “there is reason to believe” that the media company’s payment to McDougal “was not for the distribution of any ‘news story, commentary, or editorial,’ was not for any ‘legitimate press function,’ and therefore was not covered by the so-called ‘press exemption’ to the definition of ‘expenditure.’ ”??“Particularly on these facts, the catch-and-kill payment was not a payment by a media company to cover or distribute a news story,” he says. “It was a payment for the opposite purpose: to kill a news story.”There won’t be definitive answers on these questions anytime soon, although some were addressed during a panel discussion in February about catch and kill at the ABA’s Forum on Communications Law. AMI raised the press exemption defense in its response to McDougal’s lawsuit, in the form of an anti-SLAPP, or Strategic Lawsuit Against Public Participation, motion claiming a First Amendment right not to publish articles.?But a settlement in that case and the company’s non-prosecution agreement in Cohen’s criminal case mean the defense won’t be tested in court.?Experts are divided on whether the government could have successfully proven a campaign finance violation against a media company or its publisher on the AMI/McDougal facts. They are also divided on whether the government should have even tried. Would such a prosecution have been merely a one-off effort to hold one specific man (Pecker) accountable for his actions to benefit another specific man (Trump) during a political campaign? Or would it be a step down a road that eventually leads to a whittling away of the First Amendment?Boutrous, a prominent media attorney and constitutional law expert, says he is “sympathetic” to concerns about “chipping away at the First Amendment.” But he says he believes the AMI case could have been prosecuted and that any precedent it set would be confined to its unique circumstances. “This is so extraordinary—it’s so contrary to fundamental First Amendment values. It’s so different than anything news organizations do—that pursuing civil or criminal claims in this context, particularly under these specific facts, does not threaten to blow up or even undermine in the least the First Amendment,” he says.?Richard L. Hasen, a professor at the University of California, Irvine School of Law and an expert in campaign finance regulation, agrees, saying such a prosecution would not be “going down the slippery slope” toward narrowing press freedoms.?“I haven’t spoken to any journalist who actually engages in catch and kill, and it doesn’t sound like the sort of thing journalists would want to do,” he says. “Journalists are not typically going to be thinking: ‘I really want to pay money to get some stories that I’ll never publish.’ I don’t think those who protect the freedom of the press are going to cry if the National Enquirer is found liable for not publishing a story.”But others are not so sure. Bradley A. Smith, a former FEC chairman and founder of the Institute for Free Speech, says the AMI/McDougal case would be “the easy case if you want to penetrate the press exemption.” He cautions against doing so because of the possibility that other, harder cases might then be pursued.“If you’re going to have a press exemption to these laws, you kind of have to have a press exemption,” says Smith, now a professor at Capital University Law School. “The press exemption is lost if every time the press does something, you can file a complaint and do an investigation into their motives. That’s why I would be very loath to move on this.”Kathleen Culver, director of the Center for Journalism Ethics at the University of Wisconsin-Madison, says codifying journalism ethics in case law would be dangerous for the profession. “We should be very concerned about the power that cedes to the government,” she says. “A lot of people would like to see the government sanction the press, but that flies in the face of free expression guarantees.”Culver says our constitutional system of a free press may “allow for bad actors,” but it also allows for editorial decisions like the ones made by the New York Times and Washington Post to publish stories about the Pentagon Papers. In that case, she says, “critical information was revealed because of that freedom.”Policinski says the court of public opinion and the profession itself are better suited to deal with ethical lapses like catch and kill, and Culver agrees.?“Part of the reason we know about this practice is because other reporters broke the story,” she says. “It’s journalism itself that’s highlighting this problem.”THE NEW NORMALTEXTE 12Volkswagen: Where were the lawyers?October 13, 2015, 9:05 am CDTBy?Paul LippeWith Volkswagen reeling from one of the worst corporate scandals of our time, let’s consider the same question asked of Enron and other similar debacles: Where were the lawyers?According to the New York Times, Volkswagen said that 11 million of its diesel cars worldwide were equipped with software that was used to cheat on emissions tests.Volkswagen’s conduct is quite egregious, a concerted fraud around the core value proposition of “clean diesel.” Somebody at Volkswagen deliberately conspired to manipulate tests run by a multitude of government agencies to mask emissions. No wonder the potential consequences for Volkswagen are severe.By contrast—see the GM Internal Investigation Report (PDF)—in the GM scandal, a single engineer made a bad (at least in hindsight) design decision to use a cheaper ignition switch, which shut off when bumped in moving cars. This was compounded because the airbags didn’t deploy when the ignition switch was off (a different engineering decision, maybe bad, maybe not). Then the switch engineer approved a redesigned switch without telling anybody (good design decision, bad communications decision), which meant that the problem stopped in newer cars, so GM had trouble reproducing it when reported in older cars.So GM got condemned not so much for the original poor design decision, as for failure to respond properly to what I’ll call “correlated anomalies.” The GM general counsel, Michael Millikin, was, as they say, thrown under the bus.One tenet of the New Normal is that we’ve moved into a world of transparency where any improper action is almost certain to be revealed over time. So most of these shortcuts are unwise before they are unethical. But what most litigation and enforcement actions reveal is that most companies are relatively less transparent to themselves—the bad actions are not obvious when occurring, only in hindsight. And while most legal regimes attribute bad actions to the enterprise as a whole, the practical reality is the “company” may not really know. It’s the responsibility of lawyers to bridge that gap.Which leads to the iconic DieselGate question: What did Volkswagen’s lawyers know, and when did they know it? Perhaps there are seven possibilities:? The Volkswagen engineers who devised and implemented the emissions test manipulation explained what they were doing to Volkswagen’s in-house lawyers and got a green light. This seems quite unlikely. 2 percent.? The Volkswagen engineers explained what they were doing to Volkswagen’s in-house lawyers, the lawyers told them not to do it, but the engineers did it anyway. This seems even more unlikely. 1 percent.? The Volkswagen engineers discussed what they were doing with Volkswagen’s in-house lawyers in a vague way that the lawyers didn’t really understand, and the lawyers did not explicitly object. Now we’re more into the realm of the possible. Call it 12 percent.? The Volkswagen engineers included in their plan a deliberate effort to hide what they were doing from Volkswagen’s in-house lawyers. I’m going to put this back into the low probability column. Possible, call it 10 percent.? The Volkswagen engineers neither discussed with nor hid what they were doing from Volkswagen’s in-house lawyers, and the in-house lawyers didn’t realize what was going on. Most likely, maybe 50 percent.? The Volkswagen engineers neither discussed with nor hid what they were doing from Volkswagen’s in-house lawyers, and the in-house lawyers didn’t ask the engineers any questions, even though they were nervous, and created some record of their concern. Call this “Don’t Ask, Don’t Tell.” Remember that everyone knew that “clean diesel” was a very hard engineering challenge, and Volkswagen had manipulated emissions tests before, so it is not crazy to think the lawyers should have thought affirmatively about this question. Maybe 20 percent.? The Volkswagen engineers, together with the in-house lawyers, came up with a justification for why what they were doing was OK, and got a green light from an outside law firm. As unlikely as it may seem, I’ll call this 5 percent, because the outside firm may have had incomplete information and may have viewed its role as “providing support” to Volkswagen’s actions.If my handicapping is reasonably correct, then most of the literature around the role of lawyers and their ethical duty is pretty irrelevant, because it assumes that management tees up questions for lawyers and then lawyers offer sage and ethical counsel, which in the aggregate reduces risk.The real question is “were the lawyers engaged enough in the business to know what was going on?” If they were, it seems certain that they could have prevented this manipulation from occurring.So how can lawyers truly be effective in managing risk?Maybe spend less time broadly claiming to reduce risk, and more time really understanding the business and the sources of risk. Skilled lawyers can combine the roles of a trusted problem solver with independent judgment and integrated understanding, working with the people making risk-based decisions. Since these kind of corporate shortcuts almost always result in disaster in a transparent world, it’s just common sense and enlightened self-interest that any manager can apply to avoid them. It doesn’t require a distinctive notion of professional formation to, as the president says, “don’t do stupid stuff,” and it may be that a lot of our self-definition around professional norms reduces the chance of being appropriately engaged.In Volkswagen, not knowing was just as bad as knowing and acquiescing. Maybe we should start talking about a duty to know what’s going on.Paul Lippe is the CEO of the Legal OnRamp, a Silicon Valley-based initiative founded in cooperation with Cisco Systems to improve legal quality and efficiency through collaboration, automation and process re-engineering.TEXTE 132 law schools dinged for bar pass standard are now found to be in complianceBY STEPHANIE FRANCIS WARDOf the 10 law schools to receive public notice in May that they were out of compliance with Standard 316, Florida Coastal School of Law and the University of the District of Columbia David A. Clarke School of Law are the first to demonstrate compliance.The council of the ABA’s Section of Legal Education and Admissions to the Bar tightened up the standard in May 2019. As written, it requires at least 75% of a law school’s graduates who sat for a bar exam to pass within two years of graduation—for this year, the council looked at 2017 graduates. Law schools with pass rates below the threshold, however, can demonstrate compliance with the standard if they have locked-in pass rates at or above 75% for 2018 or 2019 graduates, Bill Adams, managing director of ABA accreditation and legal education, told the ABA Journal in June.Florida Coastal’s two-year bar passage rate for 2017 was 67.29%, according to ABA data. In May, Peter Goplerud, Florida Coastal’s president and dean, told the Journal that 75% of its 2018 graduates had passed a bar exam, and the 2019 cohort was on track for compliance.“We are pleased that the council of the Section of Legal Education and Admissions to the Bar of the ABA has determined that we are in compliance with its bar pass standard. This is welcome and expected news as we embark on a new school year at Coastal Law,” Goplerud told the Journal Monday in an email.For UDC, a historically Black public university, its bar passage rate for 2017 graduates was 64.06%, according to ABA data. Renée McDonald Hutchins, the law school’s dean, told the ABA Journal the class of 2018 has a two-year bar passage rate of 75.3%, and its class of 2019 is showing progress toward a 75% pass rate. She also claims the law school made various improvements, including how classes are taught and how students are assessed.Besides demonstrating compliance with Standard 316, the August council finding determined the law school is in compliance with Standards 501(b) and Interpretation 501-1, which deal with admissions policies and practices.“UDC Law is very pleased by the council’s finding. As one of six HBCU law schools—a school founded on principles of social justice and diversification of the profession—we take seriously our obligation to provide students with a quality education that will enable them to pass the bar exam,” Hutchins told the Journal in an email.In other news, the council on Monday posted notice that Texas Southern University Thurgood Marshall School of Law, another HBCU, is in compliance with Standard 501(a), which requires schools adopt, publish and adhere to sound admission policies. It follows a May 2020 council finding that the law school was not in compliance with the standard.The news comes a few weeks after Edward Rene, Texas Southern’s former assistant dean of law school admissions, was charged with theft by a public servant, for allegedly stealing almost $74,000 from the school. Rene is accused of giving students tuition scholarships with excess funds and directing them to write checks, cashier’s checks or money orders for the overage made payable to himself. The alleged crimes are said to have taken place between August 2017 and September 2019.“I believe in the law school’s mission. I am excited about the future of the law school now that this challenge has been overcome,” Joan R. M. Bullock, the law school’s dean, told the ABA Journal in an email.Updated Aug. 26 at 7:09 a.m. to add a response from Renée McDonald Hutchins.TEXTE 14Harvard Law student sues for spring 2020 tuition; some lawyers doubt he will prevailBY?STEPHANIE FRANCIS WARDAnnual tuition at Harvard Law School is $65,875, and a student there thinks he should get at least some of that back.Thanks to COVID-19, the Ivy League institution, with one of the largest endowments in the country, switched to online classes in?March. With the school’s?June announcement?that the fall 2020 term will be online, Abraham Barkhordar, a rising 2L at Harvard, has filed a suit demanding that tuition should be discounted.Barkhordar’s?lawsuit?was filed June 22 in the U.S. District Court for the District of Massachusetts. It alleges breach of contract, unjust enrichment and conversion. According to a?news releasehe’s represented by two law firms, Hagens Berman Sobol Shapiro and Burns Charest, and the lawsuit is seeking class-action status.Civil litigators aren’t so sure about the merits of the lawsuit and wonder if it will make it past summary judgment. While universities are expected to teach students, courts generally don’t weigh in how the education is delivered, and it would be hard to argue the plaintiff didn’t get at least something of value from the spring semester, say some lawyers.“If students want a full refund, I think the law schools will fight and have good grounds. Many already had online courses, and we’re always experimenting in education,” says Joseph Devlin, a contracts professor at Massachusetts School of Law Andover.Things might be different if a school charged less for online credits before the coronavirus pandemic, he adds. In that situation, students could make the argument they should be charged less, since their courses were not entirely taught in person.“If I’m a vacuum cleaner salesman and I sell you the higher priced vacuum, but we don’t have it in stock and I get you another vacuum, I can’t charge you the higher price. Of course that isn’t fair,” Devlin explains.Hagens Berman, one of the firms representing Barkhordar, has filed similar lawsuits against other universities, according to then news release, including the University of Southern California, George Washington University and Emory University.According to Kaytie Pickett, a civil litigation partner with Jones Walker, Harvard’s circumstances might make them a less compelling defendant. “I think some plaintiffs may be more sympathetic than others when a school has a large endowment and isn’t struggling financially. That’s not a legal argument, but it’s a persuasive argument,” says Pickett.Barkhordar’s lawsuit argued Harvard’s transition to online learning led to him experiencing a decrease in the quality and academic rigor of his education. Making an argument about the quality of education could be difficult, and it would need to be specific, according to Pickett, who is based in Jackson, Mississippi.“You could argue, ‘We were promised a class size of less than 40 people, in a class with in-person instruction, and we were promised a certain amount of office hours with professors.’ That might form a basis of having a reasonable expectation that the school is promising in-person instruction,” she says.Harvard University told the ABA Journal that it does not comment on pending litigation. On a?FAQ page?about the decision, the law school explained that it will not go through with an earlier plan to raise 2020-2021 tuition, while pointing out that it has increased financial aid.The FAQ page also claimed the law school’s operating costs haven’t changed much with online classes.Some lawyers interviewed by the ABA Journal wondered whether, going forward, universities will put no-suit or mandatory arbitration clauses in admissions contracts. That’s extremely unlikely because a U.S. Department of Education?regulation?prohibits predispute mandatory arbitration clauses for schools that receive Direct Loan funding, says T. Warren Jackson.A Los Angeles mediator and arbitrator, Jackson is also a Harvard Law graduate and parent. His son, Evan Jackson, is a rising third-year student at the law school.“It was a bit of a fire drill. You do the best you can to adjust,” says Jackson, adding that the university has refunded what he paid for his son’s campus housing.“That’s a no-brainer,” says Jackson, a former senior vice president and associate general counsel at DIRECTV. He doesn’t expect a tuition refund, and he thinks a breach of contract argument would be tough to get past summary judgment.The law school promised to provide students with an education, Jackson adds, but it made no promises about which professors they would have, which books would be used or what the professors’ pedagogical outlooks would be.“Schools don’t say, ‘Your class is being taught by a superstar professor, therefore, I am charging you a premium,’” he says, adding that most, if not all, law schools switched to online classes in March due to public health concerns.“How do you then argue the school deviated from what the expectation should be?” Jackson asks. “It would be different if the schools shut down and didn’t reimburse people.”TEXTE 15Skadden is latest firm to announce layoffs; experts say more law firms will followBY DEBRA CASSENS WEISSAs several law firms announced layoffs this week, consultants warned of more bloodletting ahead. One consultant spoke of overcapacity among nonequity partners. Others said staff members are at risk as lawyers working at home are becoming more self-sufficient. and Law360 have stories.Altman Weil principal Eric Seeger told that he has spoken with about three dozen managing partners in the last month, and all are reviewing staffing “with the intention of a head count reduction.”Another consultant, Peter Zeughauser of the Zeughauser Group, told Law360 that law firms are moving resources to strong practice areas and cutting in areas of underproductivity. The thinking at law firms, he said, is “they might as well take their medicine now since the partners are already expecting a tough year.”The goal of slimming down is to protect compensation of rainmaking partners and prevent their poaching, according to .The latest law firm to announce layoffs is Skadden, Arps, Slate, Meagher & Flom, report Above the Law and . The firm is laying off just under 4% of its professional staff across its U.S. offices, a spokesperson said Thursday.Above the Law also reported Thursday that Nixon Peabody plans to lay off some furloughed staff members, even as other furloughed staffers and lawyers were returning to work. The plans were revealed in a confidential memo that also announced that full salaries would be restored for many staff members.Three other law firms also announced layoffs this week. They are:? Baker McKenzie is laying off 6% of its workforce in the United States, Canada and Mexico. Those laid off include lawyers, other timekeepers and business professionals. (, Bloomberg Law, Above the Law, Thomson Reuters Legal)? Davis Wright is laying off 39 staff members who had been furloughed. The staff members were in office services, legal assistance and other administrative positions. (, Bloomberg Law, Thomson Reuters Legal)? Venable is laying off some furloughed employees, as well as some other professional staff members. The firm did not disclose numbers. (Above the Law)Some consultants said the cuts are long overdue.“Law firms had more staff than they needed even prior to COVID,” Seeger told . It’s an “appropriate business reaction.”TEXTE 16ABC's 'The Last Defense,' Monday morning quarterbacks and the practice of lawBY ADAM BANNERAUGUST 27, 2020, 9:36 AM CDTEvery attorney has faced the proverbial Monday morning quarterback at some point. If you’ve never heard the term before, it usually indicates a person who critiques an event, situation or decision after the fact.Although the catchphrase comes from sports, it is applicable to the law as well. When it happens, you hope those questioning your choices are merely looking out for the best interests of all involved. They care, and they want to see justice served—whatever their definition might be.Sometimes that Monday morning quarterback comes in the form of a prosecutor trying to call question on how you are handling your client’s defense and what negotiations are fair and realistic. Sometimes it’s a client’s family member berating you for what you should or shouldn’t be doing. Sometimes it’s the clients themselves telling you the law and how it should apply to their facts.However, sometimes—as rare as it may be—those Monday morning quarterbacks are actual professional quarterbacks. Look no further than the ongoing saga of Julius Jones for a perfect example.The case of Julius JonesBack in 2018, the ABC docuseries?The Last Defense?profiled Jones’ Oklahoma County death penalty case. Oklahoma charged Jones with first-degree murder in 1999, and he was sentenced to death in 2002.At the time of the allegations, Jones was a young Black man charged with killing a white businessman in a predominantly white suburb of Oklahoma City. The businessman was killed during an alleged carjacking, but the deceased’s sister survived and became an eyewitness against Jones. Although her description was somewhat vague, she was able to distinctly recall a red bandana she associated with the culprit.Local law enforcement investigated the incident and spoke with many informants who eventually led them to Christopher Jordan, whom they suspected to be the driver of the carjackers’ vehicle. Jordan named Jones as the shooter. Upon further investigation, law enforcement found the suspected murder weapon and a red bandana at Jones’ parents’ home. The state charged Jordan and Jones as co-defendants.Jordan negotiated a plea deal that kept him from receiving the death penalty in exchange for his testimony against Jones at trial. However, as?The Last Defense?shows, there were arguable errors committed at trial, along with pertinent facts—such as Jordan admitting to police (before the discovery of the gun and bandana) he had slept at the Jones residence the night after the shooting—that were never put before the jury.Subsequent to his death sentence, Jones has faced roadblock after roadblock on his journey to overturn his conviction. All of his state-level appeals and post-conviction applications have been exhausted. The U.S. Supreme Court denied Jones’ petition for writ of certiorari. As of now, Jones’ only hope is for the Oklahoma Pardon and Parole Board to make a recommendation to Oklahoma Gov. Kevin Stitt for a commutation of Jones’ death sentence.Monday morning quarterbacksOn May 28, Cleveland Browns quarterback Baker Mayfield?sent a letter?to Stitt. In the letter, he noted that “based on my personal review, the errors and shortcomings in Julius’ trial have been well-documented and are too numerous to be listed in this letter.” He then lists a few issues he may have gathered from?The Last Defense; after all, the potential errors are all aspects that I (and many others) have previously discussed while analyzing the series.Then on Aug. 6, Dallas Cowboys quarterback Dak Prescott?sent his own letter?to Stitt regarding Jones’ commutation. Much like Mayfield, Prescott wrote that “after reviewing the facts of the Julius Jones case, I firmly believe the wrong person is being punished for this terrible crime; furthermore, an evaluation of the process that led to Mr. Jones’ conviction raises serious legal and ethical concerns.”I’m in no way an “expert” on Jones’ case. Honestly, though, I’m likely more educated regarding the ins and outs than your average attorney uninvolved in the litigation. Every week, I practice law in the courthouse where Jones was convicted. I’ve worked alongside the defense attorneys who represented him. I’ve tried cases against one of the prosecutors who prosecuted him.Still, my familiarity goes further than just knowing the players. I’ve researched the case. In fact, back in October 2018, I?wrote an in-depth column?about Jones’ trial. I discussed developments in the case through?a follow-up column?in April 2019. I’ve corresponded with Amani Martin, the director of?The Last Defense?episodes detailing Jones’ trial. I haven’t read all of the appellate filings, but I have read some.Consequently, I feel adequately informed to the point where I’m comfortable giving my opinion, and it should mean something to someone. It at least carries the weight of an attorney who has spent more than a decade dedicating his life to criminal defense, who has actually looked into the minutia of the case and the people involved.I don’t believe that is the case for Mayfield or Prescott.I agree with their sentiment. I, too, think Jones’ sentence should be commuted from death. But I have two very valid reasons for that: I don’t believe in or support the death penalty; and in my mind, there are arguable issues with some of the evidence, and that—compounded with potential racist jurors—casts doubt on a jury verdict. But again, that’s my mind. Other legal practitioners will have varying opinions.What constitutes a ‘review’?Now, I don’t want to be cast in the wrong light here. I’m an alumnus of the University of Oklahoma and a Mayfield fan. The same thing goes for Prescott: I’m a lifelong Dallas Cowboys fan, and I think Prescott’s one of the top 10 quarterbacks in the NFL. Hell, I have multiple Dak Prescott jerseys in my closet. I applaud both men every week during the football season. I applaud them outside of football season when I hear or read about the good things they do for their community or charitable organizations.And I applaud them now for using their platform to try and bring light to a cause very much worth fighting for. I’m not of the school that athletes should “stick to sports.” Still, it strikes me wrong when both of these individuals—with no legal education or experience—make appeals for a man’s life based on their “review” of a case that has been litigated through the lower court and appellate systems for over two decades.I worry that their review consists of nothing more than watching?The Last Defense?or some other televised account of the case. Remember: In order to tell a compelling story of innocence, you have to leave out the compelling evidence of guilt. That is in no way an indictment of Jones; it’s simply the reality of the way these docuseries are often presented.Mayfield and Prescott aren’t the only professional athletes who have sent letters to Stitt on Jones’ behalf. NBA stars with ties to Oklahoma, such as Blake Griffin (Detroit Pistons), Trae Young (Atlanta Falcons), Buddy Hield (Sacramento Kings) and Russell Westbrook (Houston Rockets), have written to the governor as well. Likewise, I applaud these men for their activism. Some might say a letter isn’t enough, but this late in the process, it might be the only option.Regardless, the court of public opinion must be careful with what they review as it applies to a criminal case. As I’ve mentioned many times before in this column, the true-crime genre can be both beneficial and detrimental to the public’s perception of the law. The product definitely has its place and purpose, but it should never act as a substitute for actual investigation into all the facts and real learned legal analysis.TEXTE 17Not all litigation analytics products are created equalBY SEAN LA ROQUE-DOHERTYAUGUST 1, 2020, 1:00 AM CDTLitigation analytics products provide lawyers with critical insights into courts, judges, lawyers and litigants. It is valuable information to know that opposing counsel successfully motioned to dismiss 10 personal injury cases from a federal district court, four of which were decided by the presiding judge. But what if your research missed two motions to dismiss before the same judge that opposing counsel lost? Have you deprived a client of adequate representation?When lawyers use litigation analytics, they expect software to deliver accurate and comprehensive results on a variety of litigation-related matters. A recent study conducted by law librarians, however, dashed those expectations.At ’s Legalweek Legaltech conference in New York City in February, Diana Koppang, director of research and competitive intelligence at Neal, Gerber & Eisenberg; and Jeremy Sullivan, manager of competitive intelligence and analytics at DLA Piper, presented findings from a 2019 study (updated in 2020) by 27 academic and law firm librarians comparing the answers of federal litigation analytics products to a set of real-world questions. The study defined litigation analytics as the marriage of docket analytics and semantic analytics.Docket analytics allows researchers and attorneys to monitor and assess judicial profiles of prior decisions, motion times to resolution, win-loss rates, and other data that can help predict future outcomes to advise clients and determine case strategies. Semantic analytics derives from the words and phrases in judicial decisions. The analysis matches language with data point analytics, such as grant and dismissal rates.The study focused on data from federal district courts reported by analytics platforms, not dockets platforms per se. The platforms evaluated were from Bloomberg Law, Fastcase (Docket Alarm’s Analytics Workbench), Docket Navigator, LexisNexis Legal & Professional (Lexis Context, Lex Machina) and Thomson Reuters (Monitor Suite and Westlaw Edge).Real-world questions“There were no pie-in-the-sky questions to try and break the platforms,” Koppang said at the conference. The testers brought real-world problems to the study from lawyers with clients in or contemplating litigation. For example: “How many motions to dismiss for failure to state a claim have been filed in [U.S. District Court for the Southern District of California] Judge Janis Sammartino’s court, and what percentage of those were granted?” But when the librarians tallied up the 16 questions and answers, it was clear that the platforms were not made equal.For instance, when presented with the question “In how many [patent] cases has Irell & Manella appeared in front of Judge Richard Andrews in the District of Delaware?” and a date range beginning Jan. 1, 2007 (see results in chart above), no two vendors had the same answer.Bloomberg Law found none, while Monitor Suite and Docket Alarm found five and six cases, respectively. Docket Navigator found 14 cases, Lex Machina found 13.Westlaw Edge ultimately found 11, but testers had to start their search with the court, then filter on the firm and judge. When the research began with the firm and judge, Westlaw Edge found nothing. It found three cases when the search started with a patent and filtered on the firm name.To verify the answers, the study presented the same queries in a docket search and performed a manual review.Bloomberg Law, Docket Alarm,Lexis Context, Monitor Suite and Westlaw Edge claim coverage for all civil NOS codes. Coverage for Docket Navigator and Lex Machina, however, is limited by case types or NOS codes. If a civil case includes a claim that fits a vendor’s coverage area but the NOS code does not reflect it, the vendor might not export the case from PACER.In addition to the NOS limitation, the study identified other PACER problems, including spelling errors or typos in attorney and firm names and incorrect attribution of attorneys to firms after lateral moves or acquisitions. New firms or attorneys may replace or substitute for original counsel or appear pro hac vice. Depending on the product, “law firms may not get counted for pro hac vice,” Sander says.Platforms beg to differPlatforms differ in many ways, including federal court coverage, update frequency, data normalization, quality control, search options and analytical features. All the products cover federal district courts; and most products, except for Lex Machina, include data on federal courts of appeal. Only Docket Alarm, Lexis Context and Monitor Suite cover federal bankruptcy courts.How frequently vendors update PACER data can matter. “The time case data is pulled can change the accuracy of it,” Sullivan said during the Legaltech session. Most vendors update PACER daily, but Bloomberg Law and Docket Alarm can refresh case data on user demand or specification.Vendors have various methods to implement authority control for things such as spelling and normalizing data on attorney, company, firm and judge names, among other things. All the vendors engage in some aspect of human review or quality control, whether they monitor the system for error correction or perform random audits to check for accuracy. But Docket Navigator uses legal editors to curate litigation data for patent, antitrust, copyright and trademark cases by hand, and it does not use algorithms to populate data fields.Vendors apply different tagging and grouping schemes to PACER data, leading to differences in search options and other platform functions. All the platforms can search by attorney, firm and district court judge. But searching by bankruptcy, magistrate and other judges is spotty, as is searching by party name, be it a company or an individual.Docket Alarm and Lex Machinahave the most comparison tools, including judges, jurisdictions, law firms and parties. All the products analyze motion outcomes for motions to dismiss and summary judgment, but only Bloomberg Law, Docket Alarm and Westlaw Edge analyze appeal outcomes. Note that analytics products are continually updating their software and analytics. Depending on the coverage, product innovation begets competition among the various platforms.TakeawaysThe study was not conceived as a contest and did not aim to find a winner.From a high-level view, the law librarians’ study found that analytics research is different from case law research, and that vendors must provide transparency, training and guidance to use these systems properly. When combined with research from other platforms, such as company databases and docketing systems, analytics platforms generate the best results.This article first appeared in the August-September 2020 issue of the ABA Journal under the headline “Not So Predictable: Analytics products offer different results depending on data sources, quality and the types of analytics and reports they provide.”TEXTE18'Good English' always has been a path to the legal professionBY?BRYAN A. GARNERShould schoolchildren be taught standard English grammar? The traditional view, of course, is yes. The standard form of the language—sometimes referred to as standard written English—has been thought to have a leveling influence on society. In any English-speaking country, it characterizes what it is to be educated. It’s what lawyers learn. It’s available to everyone who cares to learn it, and it prevents people from being condemned to speak only the regional or class dialect into which they’re born. Most of us are born into some type of dialect.The contrary position is we shouldn’t insist people learn standard written English. Instead, we should teach everyone to be tolerant of regional and class dialects—not just accents but dialects. An accent has to do with how you pronounce words. Dialect has to do with word choice and sentence construction. Saying?schedule?in the British as opposed to the American way is a question of accent. Saying?it don’t make no difference?is a question of dialect, the standard form being?it doesn’t make any difference.?Historically, the standard form of any language involves questions of political might: The dialect of the powerful people in a given country becomes the standard form, whether we’re talking about English, French, Mandarin, Swahili, Thai or Vietnamese. The standard form of a language is always a “prestige dialect,” and most people don’t think of it as dialect at all (even though it really is one of several varieties). Literature grows up around the standard, and it becomes a sophisticated, nuanced means of communication.?Jane Hodson, a British English professor at the University of Sheffield, insists children shouldn’t be taught a standard language. In a May 2016 post on the Conversation website, Hodson claimed there is little purpose in learning standard English grammar. She acknowledged that formal grammar is necessary for formal writing and for improving one’s writing in a range of styles, but she argued that basic grammar is acquired from birth as an innate part of natural language and that “learning about grammar is about acquiring abstract terminology and a set of nitpicking (and occasionally outdated or simply invented) rules about ‘correct’ grammar.” All this, she says, discourages children’s interest in English.Such arguments have been on the rise since the 1950s, but now they’re really taking hold. Hodson attacked the 18th-century grammarian Robert Lowth for introducing “the idea that incorrect grammar was a terrible social stigma” when he wrote in his preface to Short Introduction to English Grammar, “The principal design of a grammar of any language is to teach us to express ourselves with propriety in that language.”Lowth’s statement seems pretty anodyne, on the whole, especially for aspiring lawyers who seek to do well on the LSAT. That test requires analytical reasoning, reading comprehension and puzzle-solving skills—but it also has a writing section. It’s still thought to be a good predictor of success in law school on the whole, and so there’s no realistic replacement in sight.But the basic debate is an important one for us all to consider, and maybe society is moving toward a middle position. On the one hand, we’re more tolerant than ever of linguistic differences, and people on the whole seem to accept dialectal differences. We hear them on television, and today (unlike decades ago), a TV debate in which someone overtly corrects another’s language is all but unthinkable. On the other hand, “good English” is something we admire upon encountering it. One telling point is that even the defenders of dialect mount their defenses in the pristine form of standard English.Should we insist children learn standard English? As someone who has spent most of his career writing about standard English and what it entails, I think so—as you might well predict. It’s a pathway to the professions, and it always has been. I say that as someone who grew up speaking the regional dialect of the Texas Panhandle. But by age 16, I had learned standard English. Justice Clarence Thomas surmounted a greater obstacle: In an interview some years ago, he told me he hadn’t become comfortable with standard English until he was 21.The perennial question is how to teach standard English without denigrating the speech of children’s parents. That demands of teachers a knowledge of language and dialect, a humane attitude toward young pupils and an ability to correct children in a way that doesn’t humiliate. It also demands a great deal of persistence and time.Remember, though, that the lawyers of tomorrow are kids today.The last time national standards were suggested for English grammar or usage was 1974. A University of Wisconsin linguist, Robert C. Pooley, had the backing of the National Council of Teachers of English when he wrote The Teaching of English Usage. He recommended a gradual approach to having students learn standard English.In elementary school, children were to be taught to avoid ain’t; I don’t have no; improper uses of past-tense verbs (not he begun, he seen, he come, he drunk); improper uses of past participles (not have began, have saw, have went, have wrote); disagreement between subject and verb (not we was, you was, they was); improper uses of pronouns in the subject position (not him and me went, Jane and me saw); and nonstandard possessive pronouns (not hisself, theirselves). Teachers were to abstain from teaching nuances beyond these types of things.In middle school, children were to be taught to avoid those same things but also improper pronouns in the object position (not please give it to Sarah or I or let him or I do it); nonstandard inflections or lack of inflections (not he ask me to do it); slightly nuanced problems in subject-verb agreement (not one of the books are lost); and double negatives (not I don’t have nothing to do).In high school, the level of difficulty was to increase. Students were to learn a mastery of pronouns (I and we as subjects, me and us as objects); the correct use of common irregular verbs such as buy-bought-bought, drink-drank-drunk, see-saw-seen, sink-sank-sunk, take-took-taken; correct use of there is and there are according to whether the complement is singular or plural; the omission of at after where (never where is it at?); the distinction between good as adjective and well as adverb, as well as that of their antonyms (I played well, never I played good; I feel bad for him, never I feel badly for him).The idea was that whatever the child might hear at home, school might be the means for inculcating standard English. Professor Pooley was sophisticated, though: He understood the best way to teach a child standard English is to arouse an ambition—a desire to be influential in the world. Without that desire, the teaching would never take root.Did Pooley’s standards ever become established in American education? It’s hard to say they did. Since the book was published in 1974, the trend has been toward toleration and acceptance—and therefore discomfort with normative teaching of English. Whether this attitude amounts to progress or retrogression is a matter of debate. Whether it helps people along or hinders them is a matter yet to be known.This article appeared in the June/July 2020 issue of the ABA Journal under the headline: “Standard English: Good or bad? ‘Good English’ always has been a path to the legal profession.”TEXTE19No Country for Rural Lawyers: Small-town attorneys still find it hard to thriveBY WENDY DAVISFEBRUARY 1, 2020, 12:00 AM CSTWhen Brian Lohse graduated from Drake University Law School in 1995, he went to work at a small practice in Lee County, a rural area of Illinois.As a general practitioner, Lohse says he handled “everything under the sun,” ranging from traffic tickets to real estate, from divorces to assisting with a murder trial.?He says he liked the work, but between student loans and household expenses, he couldn’t make ends meet on his small-town salary. At three years out of law school, Lohse was only making $27,000 a year.?“It just became economically unfeasible for us to continue,” he says. “I would have liked to have stayed there. If the finances had been there, we probably would have.”Instead, he moved to Iowa and took a job with an insurance company in Des Moines, working in the claims department. Within three months, his salary had jumped to $33,000.Fast forward to September of 2012, when Lohse’s fortunes took a turn no one could have anticipated: He and his wife won a $202.1 million Powerball jackpot, totaling about $91 million after taxes.Lohse and his wife used some of the proceeds to create the Lohse Family Foundation, which donates to a slew of causes. Among other recipients was his alma mater, Drake University Law School, which recently created the Rural Access to Justice Initiative aimed at addressing the well-documented shortage of rural attorneys.Lohse pledged to donate $75,000 a year for at least five years to the program.?“Drake Law School let us know about the Rural Access to Justice Initiative that they had created,” says Lohse, who was elected in 2018 to the Iowa House of Representatives. “We knew we wanted to be a part of it.”The program, which launched in 2018, is one of many efforts underway throughout the country aimed at addressing an attorney shortfall in rural America. Nearly 20% of the country’s residents live in rural areas, but only 2% of attorneys nationwide practice in rural areas or small towns, according to a 2014 study published in the?South Dakota Law Review. Some rural counties have no lawyers at all. In Nebraska, for example, 11 of the state’s 93 counties lack any attorneys, according to the Nebraska State Bar Association.The situation is only expected to worsen in the near future, given that many lawyers in less-populated counties are approaching retirement age and no younger attorneys have moved in to replace them.In New York state, for instance, a survey of 900 rural lawyers found that 74.3% were 45 or older, and more than 46% said they planned to retire within 10 years, according to an April 2019 report by the Government Law Center at Albany Law School.Many lawyers avoid small towns for reasons ranging from cultural preferences to social life to the economic reality that salaries tend to be higher in metropolitan areas. For example, the mean salary for lawyers in the metropolitan area of Boston and Cambridge, Massachusetts, and Nashua, New Hampshire, was $170,720 in 2018. But the mean salary for lawyers in nearby southwest Maine, a nonmetropolitan area, was just $87,240, according to the Bureau of Labor Statistics.Solving the rural attorney shortage won’t be easy, given that few law graduates appear willing to set up shop in rural America.Theodore Howard, chair of the ABA’s Standing Committee on Legal Aid and Indigent Defendants, believes the relatively low salaries—compared to large urban areas—combined with living in a remote area make rural practice a hard sell for young lawyers.?“Increasingly, it seems as though folks graduating from law school are reluctant to go to areas that are geographically remote,” he says.The upshot is that many people in rural parts of the country are unable to obtain help with legal issues that run the gamut from housing problems to drafting a will to family matters.?“We see folks that just get caught in these legal quagmires that they aren’t able to address, and it just escalates,” says Nikole Nelson, executive director of Alaska Legal Services Corp. and special advisor to the ABA’s Standing Committee on Legal Aid and Indigent Defendants.?Stretched thinVast swaths of Alaska are so remote they are only accessible by plane or boat. Often those areas lack any private attorneys or police officers and jails—a situation prompting Attorney General William Barr to declare a public safety emergency for rural Alaska in January 2019.?Nelson estimates that the Alaska Legal Services Corp., which represents low-income individuals, turns away one potential client for each one that’s accepted.The result is that rural residents of the state who can’t afford to hire private attorneys often are unable to get divorced or obtain custody of children or child support orders. Senior citizens don’t have counsel who can help them with advance directives or powers of attorney, Nelson adds.Additionally, parts of the state, including Utqiagvik, north of the Arctic Circle, have a well-documented housing shortage exacerbated by problems caused by a lack of good title. Those title problems are sometimes the direct result of a lack of attorneys to draft wills, Nelson says.?When a person dies without a will, property is distributed among heirs; if one or more of the heirs also dies without having made a will, the property is again distributed. The property then becomes fractionalized, with dozens of family members potentially owning a piece of a home, while none hold clear title. But without clear title, it’s virtually impossible to sell the home, and no one has an incentive to make needed repairs.One new Alaska program that could improve the situation is a medical-legal partnership. That initiative, which got off the ground in 2017, involves embedding legal services attorneys in six hospitals. The attorneys, who have offices in health care settings, represent clients who have been referred by health care professionals for help with housing issues or other legal matters. (For more about medical-legal partnerships, see “A Model Approach.”)“There are some economies of scale that come through working with other professionals who are screening for legal needs,” Nelson says.?Alaska doesn’t have a law school, and many of the attorneys who work for the state’s legal services corporation take the job with the understanding they’ll leave after a short time. Other states are hoping to recruit attorneys to rural parts of the country on a more long-term basis. While it’s too early to know whether those programs will be successful, some have hit roadblocks.The Drake University Law School program funded by Lohse launched in the fall of 2018 with two recent graduates. The lawyers worked in Oskaloosa, Iowa, a city of roughly 11,500 people, in space donated by Musco Lighting, and they received mentoring by a retired judge. The duo also received stipends of $2,000 a month for the first five months. The plan was for the pair to spend two years in the program, during which time they would build independent practices in Oskaloosa.But things didn’t go as expected. Both of the lawyers pulled out of the program after about a year. Madison “Maddy” Warder, one of the two participants, says she left after about nine months. “It became financially unfeasible for me to stay,” she says.?Warder says she entered the program with the plan of settling down in Oskaloosa, where her parents had grown up. She even purchased a nearby home, which she now rents out.But after she opened a practice with her law partner—the other participant in Drake’s program—she found it impossible to draw enough paying clients to sustain the business.Warder says the town had around 10 practicing attorneys who had been there for decades and “had built up a fairly significant clientele.”?She and her partner decided to target less affluent people. The pair instituted a sliding scale that generally ranged from $50 an hour to $150 an hour, based on factors including clients’ income, number of dependents and fixed monthly expenses.Warder says that rate was “well below” what some established attorneys in town charged. But even with the discounts, only a few clients materialized.“I could probably count the number of private pay clients I had on two hands,” she says. Most were either criminal defendants or people who needed assistance with family law issues like divorces and child custody.?Warder says she and her partner certainly attempted to integrate into the legal scene. She says they had lunch every Thursday at Tasos’ Steak House, where the local bar association—along with the occasional judge—dined in the back room. Her partner belonged to a small business club that met once a week in the morning at a coffeeshop.?Still, after the $2,000 a month subsidy ended, they didn’t have enough business to make ends meet.?“The hard part for us was that we had no idea what our paycheck was going to look like at the end of the month—or if we were even going to have one—after that subsidy stopped,” she says.She started teaching business law for three hours a week at William Penn University. She also began accepting court appointments to represent criminal defendants in Mahaska County, where Oskaloosa is located, and other nearby counties, at rates ranging from $60 to $65 an hour.These court assignments required her to spend hours simply driving between counties.?She used that time to listen to voice recordings handed over in discovery and talk on the phone for work.Even with the teaching gig and court appointments, Warder struggled to pay her mortgage and repay her law school loans.In May of 2019, she accepted a full-time job with the Woodbury County prosecutor’s office in Sioux City—a move that doubled her salary.“My work-life balance has been able to stabilize quite a bit,” she says, adding that she now has the time for activities outside of work—even just taking her goldendoodle to the dog park.Several months after Warder left Oskaloosa, her law partner also departed from the program and took a job with a private firm, according to program director Patricia Houlihan.Their experience suggests that even when lawyers want to practice in small towns, they may underestimate the hurdles they’ll face.“The idea was, let’s give these attorneys an office, office equipment, support, place them in this community and launch them,” Houlihan says. “That’s easier said than done.”‘Legal deserts’For one thing, getting a law practice off the ground is notoriously hard, even for experienced attorneys.For new attorneys, the challenges are even greater.“Actually running a law office on your own, while building your business and learning the practice of law—it’s very, very stressful and difficult,” Houlihan says.On top of that, living in a small town can present its own stresses.“It can be lonely,” she says, adding: “If you’re going to a small community that you weren’t a part of before, you have to integrate yourself in that community.”Houlihan says the school is overhauling its approach with an eye toward identifying potential candidates for the program during their first year.She adds the school is hoping to create internships in rural areas for students between their first and second years.?But she acknowledges the effort to attract many law students to small towns is daunting. “There really isn’t a large pool of new attorneys saying to themselves, ‘I want to work at a small firm in Iowa.’”Lauren Dara Sudeall, co-author of the 2018 paper “Legal Deserts: A Multi-State Perspective on Rural Access to Justice,” has seen firsthand a lack of enthusiasm among law students for rural practice.“When I talk to students from rural areas, many have no desire to go back,” says Sudeall, an associate professor and founding director of the Center for Access to Justice at Georgia State University College of Law.She says many students tend to worry about whether they would have other lawyers to learn from in small towns, as well as about whether they would feel isolated.?Many also have practical concerns about whether they can make a living in rural areas, and whether they can attract clients as sole practitioners.Against the grainBucking the broader trend, some law students and new attorneys say they very much want to practice in remote parts of the country—provided they can sustain a law practice.In April of 2018, the University of Arkansas at Little Rock William H. Bowen School of Law launched its Rural Practice Incubator program for just those lawyers.?Amy Pritchard, the professor who directs the program, says Bowen often attracts students who are the first in their families to graduate college and want to return to their home communities.But, she says, “going back and starting a business is just daunting.”The Bowen program helps make the prospect less daunting by connecting new attorneys with legal mentors, while also giving new lawyers the practical support they need to grow a business.In its first year, five people participated in the program.In addition to receiving mentoring, they attended a three-day “boot camp,” where they were taught basic practice skills, business planning strategies and best practices regarding technology.The program also reimburses participants for $3,000 in business expenses, and offers free legal research software, bar memberships and continuing legal education credits.The hope is that the program will help new attorneys accept rural clients in the low-to-moderate income range. The state’s 25 most rural counties have just 0.64 attorneys per 1,000 rural residents—well below the state average of 2.04 attorneys per 1,000 residents.Arkansas also recently made a separate move that could improve many rural residents’ ability to hire lawyers: The state changed its professional conduct rules to allow “unbundling,” meaning that clients can hire lawyers for a limited scope—such as for reviewing a document or appearing for a single hearing.?That way, a client who may not have enough money to pay an attorney a retainer to handle an entire matter can instead pay for more limited representation.California and Colorado have passed similar rules.?In the past, an attorney who entered an appearance for a client at a hearing could only withdraw with the court’s permission, Pritchard says.?One lawyer to participate in Bowen’s incubator program, Furonda Brasfield, a native of Stuttgart, Arkansas, says she knew back in law school that she wanted to practice in a rural area, where attorneys were desperately needed.?“There has been a shortage of advocates my whole life,” Brasfield says, referring to the area where she grew up.Brasfield, a 2015 graduate of the Bowen School of Law, says she was able to get her own firm off the ground with assistance from the rural incubator initiative.?She says the stipend and access to legal research databases were particularly helpful.Her practice includes family law, auto accidents, workers’ compensation and civil litigation, as well as other areas.“I’m getting everything from guardianships and probate issues to ‘this guy didn’t come back and finish my roof,’” she says.Brasfield, who was once a contestant on?America’s Next Top Model, has lived in New York City and Los Angeles, but she says she prefers the quality of life in rural Arkansas.“We have trees, we have grass, people have yards,” she says, adding that the amount she currently pays for a four-bedroom house wouldn’t be enough for a studio apartment in New York City.Support and stipendsIn 2014, South Dakota rolled out a richly funded rural initiative. That program offers stipends of around $13,288 a year for five years, for a total of $66,440, to attorneys who commit to spend five years practicing in a rural county.?Half of the funding comes from the state, 15% from the state bar, and 35% from the county where the attorney works.?“We were seeing legal issues just compound,” says Pat Goetzinger, past president of the State Bar of South Dakota. “Like a health issue, if you let it go, it just gets worse.”Goetzinger says that around half of the 22 participants who have so far successfully participated in the program are affiliated with law firms or lawyers who aim to retire soon, while the other half started their own practices. So far, two attorneys have dropped out of the program and repaid the stipends, Goetzinger says.?The first law school graduate to join the program recently completed his five-year stint. He is now working in Minneapolis-St. Paul, according to Goetzinger.A current participant, Rachelle Norberg, graduated from the University of South Dakota in 2018 and immediately accepted a job at what was then known as the Gunvordahl Law Office, in the same county where she grew up.She is in the process of purchasing the practice, which has already been renamed Gunvordahl Gunvordahl & Norberg.Norberg, who also is a real estate broker, says she had always planned to return to her Gregory County hometown after graduating.But, like some other participants in South Dakota’s rural initiative, she wonders whether she could have managed to get by without the stipend—which she currently is spending on housing and repaying her student loans.“I always knew I wanted to end up back here,” she says. “I just didn’t think it was going to be possible to come here right out of school.”Thirty-four-year-old Austin Hoffman is another participant who hung up his own shingle.After graduating from the University of South Dakota School of Law in 2016 and passing the bar exam later that year, Hoffman moved to Eureka, population around 800, and opened an office.?Hoffman says his home is so remote that it takes him more than an hour to reach the nearest movie theater.At the time, he had two small children and wanted to be closer to his family.?But Hoffman, who grew up on a nearby farm, says he doesn’t know whether he could have swung a move to Eureka without the stipend.“If it wouldn’t have been for that program, I don’t know if we would have decided to move back,” he says.Currently, he works part-time as deputy state’s attorney in McPherson County, where he prosecutes criminal cases.?He also has a private practice representing criminal defendants (in counties other than McPherson), and representing people in civil matters—mainly involving real estate issues, probate and estate planning.?Hoffman partially attributes his ability to get a practice off the ground to a childhood spent in the country.“If you don’t know anything about agriculture, land, real estate, small-town culture, you’re going to have a hard time making it work,” he says. “Honestly, I think you need to grow up in a rural area to be successful in a rural area.”This article ran in the February-March 2020 issue of the?ABA Journal?under the headline:“No Country for Rural Lawyers: Despite incentives, small-town attorneys still find it hard to thrive”TEXTE 20How are things working out for 3 Utah law grads seeking diploma privilege?BY STEPHANIE FRANCIS WARDSEPTEMBER 1, 2020, 9:08 AM CDTPrior to this summer, Chase Wilde didn’t know how to file a court appearance. Thanks to the supervised practice requirement in the Utah Supreme Court’s temporary order for diploma privilege, he does now.“For a seasoned attorney that seems so simple, but I had no idea what that was or what it was supposed to look like,” says Wilde, a 2020 graduate of the University of Utah S.J. Quinney College of Law.The Utah Supreme Court in April announced it would be allowing diploma privilege due to the coronavirus pandemic. Besides completing 360 hours of supervised practice, the temporary order requires that candidates graduate from ABA-accredited law schools with first-time bar passage rates of at least 86% and have not previously sat for a bar exam.According to Joni Dickson Seko, deputy general counsel at the Utah State Bar, 177 candidates have applied for diploma privilege. Twenty-one candidates were approved for August admission, and 42 more are eligible for September admission. Candidates have until December 31 to complete the 360 hours, according to the order.Wilde finished his hours requirement Aug. 4 and is scheduled to be admitted to the Utah bar in September. His hours included paid work at Kirton McConkie, the Salt Lake City law firm where he clerked, and 101 hours of pro bono representation. His pro bono clients included a single mother who won custody of her children and child support through a default judgement, and defendants in landlord-tenant cases who faced judgements for unpaid rent.Now clerking for the Utah Court of Appeals, Wilde thinks the legal work was much more practical than anything he did in law school.“Some of these people didn’t have jobs, one of them was living in their car. Some things we talked about were maybe they should file for bankruptcy or if they were judgment proof,” he adds.Supreme courts in Washington, Oregon and Louisiana also published temporary orders granting diploma privilege, with various considerations, and Wisconsin has a long-standing rule that allows diploma privilege for in-state graduates. However, Utah is the only jurisdiction that requires supervised practice to earn diploma privilege.Cambre Roberts, a 2020 University of Utah law school graduate, now has a job with the Metropolitan Public Defender in Portland, Oregon. She’s seeking Oregon bar admission through diploma privilege and expects to be admitted to practice in early October.“Once I found out Oregon was going to do diploma privilege, it felt like a weight was taken off my shoulders. There was a lot of stress and anxiety around not only taking the exam but also the additional concerns with COVID-19. I have asthma,” says Roberts.Nevertheless, she thought about taking a bar exam, even though she’s not in a jurisdiction that requires bar passage to practice this year. Utah plans to have a bar exam in September, and Oregon has a remote exam scheduled for October, according to the National Conference of Bar Examiners’ website.“I was worried about the stigma attached to not taking a bar exam,” Roberts says. “It just means I have to prove myself as an attorney, which I was going to have to do anyway.”Rachel Mabey Whipple, a 2020 Brigham Young University J. Reuben Clark Law School graduate, finished her hours requirement July 2 and was virtually sworn in to practice law Aug. 10. The time came from a paid clerking job with Seiler, Anderson, Fife & Marshall, a Provo, Utah, law firm where she is now a first-year associate, and pro bono work. Her assignments included representation for people who experienced domestic violence.Whipple is married to a BYU biology professor, and they have three children, ages 20, 18 and 12. Besides her JD, she has a master’s degree in comparative studies with an emphasis in environmental humanities. She’s done a significant amount of volunteer work, including serving on the PTA at her children’s school and holding board positions with the Utah chapter of the Nature Conservancy and LDS Earth Stewardship, a Church of Jesus Christ of Latter-day Saints organization.However, practicing law is Whipple’s first career outside the home.“Being a stay-at-home mom is in many ways a very privileged thing to do, but it’s also a very vulnerable position to be in. I know now how vulnerable a person can be when their entire financial stability is [dependent] on another person who may or may not be up to that responsibility or treating them well,” says Whipple.She’s grateful Utah has diploma privilege because she doesn’t have to worry about when the bar exam will take place. Whipple mentions Florida, where the state supreme court announced Aug. 16 that its online bar exam, scheduled to start Aug. 19, would be postponed due to technical issues.Wilde agrees. His wife is a mental health care therapist who has been consulting with clients via telephone during the pandemic. He’s not sure when—or where—he would have studied for the bar exam because the couple lives in a small one-bedroom apartment.“For many weeks, I couldn’t have even gone to the school, libraries or even public parks to study as they were all closed because of COVID,” says Wilde, who likes the idea of Utah making diploma privilege for bar admissions permanent.“If there’s not a huge influx of bar complaints against us, and the numbers show that the bar exam may be a little outdated and may not be the best way to show competency, then, yes, I think it would be awesome,” he says. ................
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