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With news of law firm hiring freezes and outright layoffs at top Biglaw firms, we knew it wouldn’t be long until another sign of the financial times emerged. It was just yesterday that we learned of one top firm’s decision to defer the start date for its incoming associates due to demand slowing down “significantly.” Now that deferrals are upon us, we have to wonder: Is this the canary in Biglaw’s coal mine? Top Am Law firms may yet implement additional austerity measures when it comes to controlling their attorney headcounts, but they know just how bad the publicity is when they choose to conduct layoffs en masse. No Biglaw firm wants their brand name to become a layoff-related verb (this happened to Latham when the firm laid off 440 people in February 2009). The way to avoid all the negativity is through the sneak attack of stealth layoffs. Stealth layoffs are the disturbingly popular method used by Biglaw firms to cull the associate (and partner) herd. For those who might be hearing the term for the first time, stealth layoffs allow firms to cut headcount without confirming that there were any financially based layoffs. Firm frequently couch the reductions in performance review terms that coincidentally happen in the midst of a downturn — whether economic- or demand-related — often making those let go doubt their lawyering skills. By their secretive nature, they can be challenging to confirm in specific numbers, but insiders slowly find out something is amiss. So, are Biglaw firms using stealth layoffs right now? Based on some of the tips we’ve received, we certainly think so. Firms are using these stealth layoffs as a way to save face and cut costs at the same time, and we’ll likely be seeing many more of these in the future. Help us help you. Please keep Above the Law in mind when attorneys are suddenly let go and the firm insists there’ve been no layoffs. If your firm or organization is reducing the ranks of its lawyers or staff, whether through open layoffs, stealth layoffs, or voluntary buyouts, please don’t hesitate to let us know. Our vast network of tipsters is part of what makes Above the Law thrive. You can email us or text us (646-820-8477). If you’d like to sign up for ATL’s Layoff Alerts, please scroll down and enter your email address in the box below this post. If you previously signed up for the layoff alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each layoff announcement that we publish. Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn. Enter your email address to sign up for ATL's Layoff Alerts.
James Ho Cancel Cultures Yale Law FedSoc Because Other Students Are Mean To Yale Law FedSoc Students – Above the Law(via YouTube) To borrow from Donald Trump, the conservative legal movement is not sending their best. And, apparently, it’s no longer interested in taking their best either. Fifth Circuit judge James Ho declared yesterday that he would “no longer hire law clerks from Yale Law School” because “Yale not only tolerates the cancellation of views, it actively practices it.” The judge urged other conservatives to do the same. So Judge Ho hopes to hamper the careers of the few conservative stars who got into Yale Law School because he feels bad for… those same few conservative stars at Yale Law School? Brilliant. No notes. It’s not that Yale Law produces better clerks than other schools. In fact, judges should be more conscientious about considering candidates from a broader range of schools and resisting the siren call of elitism. But students getting into Yale are more likely to be future stars and denying career-building opportunities to arguably the best and brightest of your own ideological bent is a weird way to build a movement. But slinging vitriol at Yale Law School is the coin of the realm in conservative legal circles these days. Driven by sensationalist stories in the Washington Free Beacon about the unbearable cruelty of students no longer inviting FedSoc members to parties, conservatives have zeroed in on Yale as the avatar of the law school culture wars. They blame Yale for telling a FedSoc member that the club couldn’t host a party based around racial stereotypes and for students protesting a representative from a recognized hate group. In reality, Yale Law School deserves criticism for its mostly spineless response to these events, but from Ho’s perspective, Yale should be exalting recognized student organizations breaching the student handbook and crushing students who dare to exercise their own speech rights in protest. It’s a nonsensical way to show support for FedSoc students at Yale, but Judge Ho isn’t really interested in helping anyone but himself. Whether it’s Donald Trump or Ron DeSantis or someone else, the vernacular of the troll will dominate Republican politics for the foreseeable future. James Ho wants to be sure he’s grabbing every possible headline that might cross Trump’s peripheral vision if he wins in 2024. And, lo, his comments were splashed across social media, featured in every major legal publication, and covered by the legal reporters for the general conservative outlets. If Ho throws some Yale grads under the bus by positioning himself as judge who most hates the “woke mob,” so be it. But for the record, getting excluded from a Fifth Circuit clerkship seems way more important than a Thursday night kegger if we’re keeping score. In Slamming ‘Cancel Culture,’ Judge James Ho Boycotts Yale Law Clerks [National Law Journal] Earlier: Yale Law School Trap House Incident Not A Free Speech Thing No Matter How Hard Folks Try Yale Law School Is A Microcosm Of A Failing Democracy Banning Law School Protests To Protect Free Speech Marks New Orwellian Heights Yale Law Professor Suggests Punishing Students For Following The Rules Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
The thing about grievance culture is it never ends. There’s always something else to cry about when your whole identity is wrapped up in the idea that someone — usually someone who doesn’t look like you — is out to get you. Unsurprisingly, the people who think the woke mob is responsible for everything from their layoff to little Katie turning them down for prom are big gun fans. Self-esteem with a handle. As it happens, these folks have “won” everything they wanted. In Bruen, the Supreme Court went ahead and fulfilled the promise of Heller and found an individual right to guns grounded in the Second Amendment. But rather than take the W, they’ve embraced the Orwellian “we’ve always been at war with Eastasia” approach and will launch into conniptions if you point to the world before Heller. It all started with a citation to a 2006 piece by law professor Adam Winkler: To put Bruen in context, we've now had about as many decisions striking down laws on Second Amendment grounds in the *3 months* since Bruen as we had in the nation as a whole in the *60 years* preceding Heller, according to research from @adamwinkler in 2006. pic.twitter.com/Hu88YsdGkZ — Jake Charles (@JacobDCharles) September 27, 2022 This claim shouldn’t be controversial unless you’re against “counting” and “linear time.” Professor Winkler wasn’t even talking about federal cases in this article because it was pretty well-established that the Second Amendment did not give people a federal right enforceable in their state. These challenges all involved state constitutions with language mirroring the Second Amendment and of THOSE hundreds of cases, only six struck down a regulation. I retweeted this same observation with more provocative language, but the same conclusion: Which also shouldn’t be controversial. It’s cliché at this point to recognize that the far-right of the Supreme Court agreed on this as recently as the 1990s, but clichés achieve that status for a reason. You can believe the words of the Second Amendment support an individual right to guns if you want, but you can’t pretend that existed before Heller. But gun folks went BONKERS over the mere suggestion that there was a history of law and jurisprudence before 2008. Not gonna lie, watching the gun freak meltdown over this tweet has brought me tremendous joy. To reiterate, neither of these tweets even suggest that Heller or Bruen are wrongly decided. The sole claim here is that reading an individual right to possess guns regardless of state regulation is a new reading of the Second Amendment. This is important because literally no one ever responds to this point. A more representative sample of responses: * “What an unbelievably wrong takr”* “This is a fucking lie”* “How did you pass high school?”* “Erroneous” All fascinating, yet not exactly impeaching the original claim. Perhaps the folks with big followings are bringing the meat of the challenge: You people who aren’t lawyers need to understand. Those of us who are actually good lawyers deal with shitty legal theories every day coming from people who actually passed the bar. This is one of those stupid legal theories. Everything he says is wrong. It just is. https://t.co/2pgXfxmi7r pic.twitter.com/UAukJNVWVn — Kurt Schlichter (@KurtSchlichter) September 28, 2022 Mind you, this is not the beginning of a thread. There’s nothing after this. The words “it just is” represents the sum total of his argumentative acumen. Actually, that’s not fair… the GIF is. In a tragic development, his 280 characters got swallowed by all those adverbs, which prevented him from actually presenting any substantive factual, intellectual, historical, legal, or academic argument. Maybe when Elon buys Twitter he’ll up the limit so this guy can find literally anything to say. Unfortunately, this is the state of the discourse: sound and fury signifying nothing trying to drown out anyone citing evidence. Why do these people care so much? Well, they love to live by the sword of vague originalism when it’s stripping away civil rights, but really hate dying by the sword when anyone pokes into why George Washington lead an army to crush the Whiskey Rebellion for stockpiling weapons outside the aegis of the state militia. Originalism has them tied in knots and it’s just not enough that the right exists now… it had to always exist. And where the past can’t support that, it must be suppressed. Expunge the ratifying statements explicitly identifying the right as a matter of protecting states from a federal army (the army ship — ironically — has sailed)! Forget the contemporaneous gun regulations in place that the amendment’s framers accepted! Ignore that George Mason — as the primary author of the text — didn’t support this reading and expressly rejected the Jeffersonian proposal (suggested for the earlier Virginia Constitution) of an individual right! Erase the caselaw… including the hundreds covered by Professor Winkler’s article. Justice Stevens laid out all this history in Heller, the folks complaining on social media just wish that record wasn’t there. While the sad trolls are fun to laugh at, a few people actually tried to bring something to the discussion. Unfortunately, none seemed to have a grasp of the material they cited. One posted a third-party summary of Presser v. Illinois (1886) — a case about a law banning people from forming private militias — that said “the Second Amendment right was a right of individuals, not militias, and not a right to form or belong to a militia, but related to an individual right to bear arms.” These words, of course, are found nowhere in that opinion. In reality, the opinion reaffirmed that the Second Amendment “has no other effect than to restrict the powers of the national government” and that state and municipal regulation is allowed. The only wrinkle it added to the Second Amendment landscape was the observation that states can’t pass gun laws “so as to deprive the United States” of a reserve military force. Not only is this not particularly relevant today — since warfare is no longer BYOG — it certainly isn’t laying the groundwork for an individual right. Another cited a legal treatise written in 1824 by William Rawle, who had served in the legislature that ratified the Second Amendment: In the second article, it is declared, that a well regulated militia is necessary to the security of a free state; a proposition from which few will dissent… The corollary, from the first position, is, that the right of the people to keep and bear arms shall not be infringed. The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both. The thing about cherry picking is that it only works if you assume the other person won’t go back and check your work. But I will! A practice pointer for young lawyers: be wary of an ellipse. This particular ellipse cuts out some pretty important stuff! Like Rawle’s explanation that “well regulated” is expressly included in the text because it imposes a duty upon state governments to regulate guns for the purpose of “mak[ing] good soldiers.” Likewise, if this person then read for TWO MORE PARAGRAPHS, they’d have found that Rawle believed states can impose any regulation on guns necessary to avoid “the disturbance of the public peace,” and that open carry provides sufficient cause for authorities to stop anyone and warrants “imprisonment” if that cannot prove good intention. I guess this is why the more seasoned responders restricted their comments to “you’re just wrong.” As superficial as that may be, support for their position just goes downhill from there. Earlier: Gun Ruling Proves Supreme Court Just Coasting On Vibes At This Point Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
We are updating our annual compensation data for in-house lawyers and need your help. If you’re an in-house attorney, please take our brief, anonymous survey. While this year’s survey remains short and sweet, we have incorporated a few new elements to enable us to provide even more benchmarking information. How, for example, might compensation differ by industry, experience, practice area, geographic region, or gender? The survey is, as always, completely anonymous and shouldn’t take more than 5 minutes. And feel free to share the survey with fellow in-house counsel. The more responses we receive, the more information we’ll have to share.
Last night, US District Judge Aileen Cannon did Donald Trump a solid — again! astonishing! — and cut the legs out from under the Case Management Plan put forth by special master Judge Raymond Dearie in the Mar-a-Lago records case. Yeah, don’t faint. In her own order appointing the special master, Judge Cannon tasked him with “verifying that the property identified in the ‘Detailed Property Inventory’ [ECF No. 39-1] represents the full and accurate extent of the property seized from the premises on August 8, 2022, including, if deemed appropriate, by obtaining sworn affidavits from Department of Justice personnel.” But Judge Dearie imposed a reciprocal obligation on Trump to verify that the inventory was “full and accurate,” which would have deprived him of the ability to go on television and claim that the FBI planted evidence when it executed the warrant. So that provision got nixed, thanks to a jurist confirmed to the bench after Trump had already lost the election. LOL! And speaking of unpleasant disclosures, Judge Dearie’s proposed case management plan instructed Trump to distinguish between documents subject to “executive privilege that prohibits review of the document within the executive branch” and those covered by “executive privilege that prohibits dissemination of the document to persons or entities outside the executive branch.” Clearly Trump’s lawyers would prefer not to have to publicly drop anything into that second bucket, since that is a bucket which does not exist. The Presidential Records Act (PRA) instructs the Archivist to make presidential documents available “pursuant to subpoena or other judicial process issued by a court of competent jurisdiction for the purposes of any civil or criminal investigation or proceeding,” meaning that no invocation of executive privilege by an ex-president could ever be used to thwart a criminal investigation. The PRA also specifies that the incumbent president gets access to his predecessor’s records “if such records contain information that is needed for the conduct of current business of the incumbent President’s office and that is not otherwise available.” So Trump’s effort to assert executive privilege as against the executive branch, of which the Justice Department is a part, is destined to fail. And not for nothing, but the Supreme Court already held in United States v. Nixon, 418 U.S. 683, (1974) that an invocation of privilege cannot be used to thwart a criminal investigation and must give way to the government’s ‘demonstrated, specific need’ for presidential records. Judge Dearie’s order would have required Trump to make this ridiculous claim of privilege now. So Judge Cannon simply took her red Sharpie to it and made that part disappear, too. But perhaps most importantly, the court nixed the obligation for Trump to engage in a rolling production of documents, so as to “avoid confusion and enhance organization and clear deadlines.” So, even though she only extended Judge Dearie’s deadline to issue a report to the court by a couple of weeks to December 16, Judge Cannon has now ensured that the government won’t be able to use any evidence collected other than the classified documents until 2023. In fact, the government has virtually nothing to do (besides briefing its appeal to the Eleventh Circuit) until November 4, at which time Trump will dump the entire load of documents on them, along with his privilege assertions and claims that he transubstantiated it all into personal property by means of mental telepathy or astral projection. Then prosecutors will have just ten days to brief their replies — thanks, Judge Cannon! And in case it wasn’t clear that the fix was in, Judge Cannon put the kibosh on Judge Dearie’s instruction that the parties should brief the court as to why any Rule 41 motion for return of property should not be returned to US Magistrate Judge Bruce Reinhart, who authorized the original warrant. “As explained in the Court’s previous Order, Plaintiff properly brought this action in the district where Plaintiff’s property was seized,” the judge observes in a footnote. The judge omits to observe that a panel from the Eleventh Circuit, including two Trump appointees, just shredded the trial judge’s justification for her own equitable jurisdiction in this case. And thanks to the latest order, the parties won’t be mentioning it either when they docket that preposterous motion pretending that it’s somehow abnormal for the government to seize and hang on to personal property pending a criminal investigation. TL;DR? Judge Cannon is keeping this whole thing in her pocket, and she’s going to give Trump whatever he wants and dare the Eleventh Circuit to stop her. Trump v. United States [Docket via Court Listener] Liz Dye lives in Baltimore where she writes about law and politics.