Category: News Feeds

Every day it’s something new. The latest is that the Justice Department has come out with its official proposal to revise Section 230. As you may recall, back in February, the DOJ held some hearings about Section 230, followed by announcing some vague and contradictory guidelines for reform in early March.

Apparently between March and now there’s been nothing more important for the Justice Department to be working on, because it’s now blasted out its full unconstitutional proposal for reforming Section 230 and it’s like a greatest hits of bad ideas. You can look at the redline version of the law itself, but the DOJ’s announcement summarizes the revisions in two giant buckets: (1) “promoting transparency and open discourse” and (2) “addressing illicit activity online.” It will not surprise you that the actual recommendations would do neither of these things. There’s a lot in here and I’m honestly just too tired of going through and debunking all the various bad ideas in these proposals, so I’ll just highlight a few egregious parts.

First off, like the recent “Online Freedom and Viewpoint Diversity Act” and the soon to be marked up “Online Content Policy Modernization Act” from Senator Lindsey Graham, the DOJ’s bill would remove the term “otherwise objectionable” (get your t-shirts while they’re still relevant!), and simply create a longer list of why a website could moderate content. It would also require an “objectively reasonable belief” that the content falls into one of those categories to qualify. The new list of acceptable reasons to moderate content to keep your immunity:

any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user has an objectively reasonable belief is obscene, lewd, lascivious, filthy, excessively violent, promoting terrorism or violent extremism, harassing, promoting self-harm, or unlawful, whether or not such material is constitutionally protected

This is pretty similar to the two bills listed above. The only real difference is that this one adds in the promotion of “violent extremism” which you already know that this DOJ will use to include trying to force social media companies to take down Antifa and BLM content.

But, of course, as we discussed with the previous bills, this is clearly unconstitutional. It is a form of regulation of content that is not content neutral, and that’s not allowed. Also, note what kind of content is not included here: racist, homophobic, hateful content would not be covered in many cases. Nor would spam. Yes, in some cases it could be argued that such content is “harassing” or perhaps it might qualify for some of the other categories, but most of it would lead a site to not have 230 protections. Websites would still have 1st Amendment protections, but to fight that legal battle would be hugely expensive and destructive for most websites — meaning that many will not fight at all.

The bill would also expand 230’s exemptions such that federal civil actions were no longer exempt (as per the FTC’s wish). It also includes a bunch of other carve-outs that I’m too tired to go through, but will note that it would appear to allow state Attorneys General to bring lawsuits against websites that were previously barred by 230. This would be allowed in cases where the sites had knowledge of the dissemination of content that would violate Federal criminal law, that the site was notified of this content, and then failed to remove it or failed to preserve evidence of it.

This section is at least worded slightly more carefully that earlier proposals, but would still lead to the risk of significant censorship at the behest of Attorneys General who criticize a website’s content moderation practices — which again would likely make it unconstitutional under the 1st Amendment.

It would then throw in a long list of new laws that were exempt from 230, basically taking the FOSTA model of saying that 230 no longer applied to sex trafficking, and saying “ditto for anti-terrorism laws, child sex abuse laws, cyberstalking, and antitrust.” There are, of course, significant problems with each of these. We’re already seeing how much harm FOSTA has caused with no indication that it helped stop any sex trafficking, and now the DOJ wants to just expand that treatment to a bunch of other laws, just because.

The anti-terrorism one should be particularly concerning. We’ve wrote about a whole bunch of cases involving people who sued social media for “material support for terrorism” in response to a loved one being killed by terrorists. The arguments are, roughly, that because their family member was killed by a terrorist, and because some terrorist-connected individuals used social media, clearly, the social media companies are liable for their family member’s death.

Courts have, rightly, been tossing these cases out on 230 grounds. But if the DOJ got its way, that would no longer be possible, and we’d likely see a ton of frivolous litigation in response.

Another change is an attempt to remove 230 protections for sites that fact check the President. This is not how it’s framed of course, but it’s pretty obvious why Bill Barr wanted this in there. Existing 230 says that you can be liable for content if you were “responsible, in whole or in part, for the creation or development” of the information. The new bill would add to that:

Being responsible in whole or in part for the creation or development of information includes, but is not limited to, instances in which a person or entity solicits, comments upon, funds, or affirmatively and substantively contributes to, modifies, or alters information provided by another person or entity.

Basically, fact check someone, and you can lose your 230 protections. Of course, again, this is unconstitutional, as it’s an attempt to suppress the very thing that 230 (and the 1st Amendment) were designed to encourage: more open discussion. Indeed, for Bill Barr — who has whined about “cancel culture” — to include this in there is deeply ironic. This kind of thing will decrease incentives to add commentary or fact checks, thus suppressing speech.

Finally, the new bill would have a whole section to define what is meant by “good faith” in content moderation, which is basically that you have to clearly delineate in your policies what is allowed and what is not, and your moderation must match that. This is, of course, impossible. It is written by people who have never had to moderate content at all. It is written by people who don’t understand how content moderation is not black and white, but often vast areas of gray where judgment calls need to be made. It is written by people, in bad faith, assuming that all users of a website are acting in good faith. So many of these attempts to reform Section 230 refuse to take into account that people will seek to game the system. And restricting sites’ ability to stop those gaming the system is a recipe for disaster.

But, hey, this is Bill Barr’s DOJ and Donald Trump’s White House. A policy proposal that is a recipe for disaster, as well as unconstitutional, seems to be par for the course.

Justice Department Releases Its Dangerous & Unconstitutional Plan To Revise Section 230

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Today’s “You Tried It” award goes to Florida Senator Rick Scott for his proposed amendment to the 2002 Help America Vote Act, which he’s dubbed the Verifiable, Orderly, & Timely Election Results (VOTER) Act.

Emphasis on the “timely.”

Because if the Florida Republican was actually able to ram through a massive overhaul of the nation’s election laws 40 days before the polls open and while voting is already underway, the result would be less “verifiable” and “orderly” than outright pandemonium.

Most outrageously, Scott’s law would force states to stop counting votes “24 hours after the conclusion of voting on the date of the election.” Even in a normal year, it can take several days to count the votes. And this isn’t a normal year.

Some 80 million voters may cast their ballots by mail this year, as compared to 57 million in 2016. Most states aren’t even opening envelopes to verify absentee ballots until election day, a process that can take several minutes per ballot. The impossibility of meeting an arbitrary 24-hour cutoff would necessarily disenfranchise millions of voters. But it would be timely!

Why the hurry, when the 1887 Electoral Count Act gives states 41 days after the election to name electors to the electoral college? Surely it has nothing to do with the expected overrepresentation of members of Senator Scott’s own party at in-person polling places, while Democrats have concentrated on racking up votes by mail-in ballot. Perish the very thought.

And speaking of mail-in votes, Scott’s proposed legislation would make it illegal to count those votes until election day, in contravention of legislation he himself signed as Florida’s governor allowing absentee ballots to be processed and readied for tabulation before election day, and forcing the 16 states which count votes as they come in to delay their counts.

Scott would cut off absentee ballot requests 21 days before the election, and throw out any votes received after election day, overriding state laws which count votes postmarked on election day itself and received within a few days, as well as laws allowing voters to “cure” defective ballots. (Not that it would matter, since Scott demands an official tally within 24 hours.)

He’d make so called “ballot harvesting,” the process of collecting ballots en masse and delivering them to the elections office a crime punishable by up to one year in jail.

And he’d further gum up the works by imposing a responsibility on every precinct to report the total of in-person and absentee votes received within one hour of the polls closing.

“We can’t wait weeks or months to find out the results of this election or any election in our future – a scenario made all the more likely by the Democrats’ push to change laws late in the game and eliminate standards that protect against fraud,” Scott said. “The VOTER Act will create uniform standards for voting-by-mail, provide important protections against fraud, and make sure we have a timely federal election result. We need to pass this bill now to ensure a smooth and secure election.”

Yep, this is a very serious proposal. Or … it’s a publicity stunt that has no chance of passing the Senate, much less the House, and is simply designed to cast doubt on a careful election tally that takes several days to tabulate and may show some races shifting from red to blue as all the votes are counted.

Probably the second one, TBH.

Verifiable, Orderly, & Timely Election Results (VOTER) Act

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Elizabeth Dye lives in Baltimore where she writes about law and politics.

In case you’re not familiar with it, change management is a powerful tool for managing the human side of change to achieve a desired business outcome. After decades of being used in the business world, it’s (finally) migrating into the legal world — and forward-thinking in-house lawyers need to know about it.

This past Tuesday, September 22, I moderated a great panel about change management and corporate culture — sponsored by Cadence Counsel, the in-house division of the Lateral Link consortium of legal recruitment firms — which featured the following impressive panelists:

• Monique Burt Williams – CEO, Cadence Counsel
• Brittanie Chin-Merkerson – Change Management Consultant, Johnson Controls
• Paula Edgar – Partner, Inclusion Strategy Solutions LLC
• Julie Honor – General Counsel, 3Q Digital

The wide-ranging discussion began with defining the key terms — not just “change management,” but also “corporate culture” and “diversity” (or really “diversity, equity, and inclusion” — DEI). The panelists offered both big-picture theories and concrete tips for how companies can attract diverse talent, combat unconscious bias, use personality assessments and other traditional hiring tools responsibly, and promote a culture of compliance. You can watch the full discussion here (or via the embed below).

Later in the fall, we’ll present the third installment in this free webinar series, focused on change management and technology. Please keep an eye out for additional information and registration. Thanks!

Cadence Counsel Presents: Change Management and Corporate Culture [YouTube]

Earlier:

Ed. note: This is the latest installment in a series of posts from Lateral Link’s team of expert contributors. This post is by David Lat, a Managing Director in the New York office, where he focuses on placing top associates, partners, and partner groups into preeminent law firms around the country.

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Cadence Counsel is the in-house division of Lateral Link, one of the top-rated international legal recruiting firms. With over 14 offices worldwide, Lateral Link specializes in placing attorneys at the most prestigious law firms and companies in the world. Managed by former practicing attorneys from top law schools, Lateral Link has a tradition of hiring lawyers to execute the lateral leaps of practicing attorneys. Click here to find out more about us.

The most practical and realistic federal legislation focused on providing college athletes the right to exploit their names, images, and likenesses (NIL) for commercial gain was just recently co-authored by a Democrat and a Republican. The bipartisan bill, written by Representative Anthony Gonzalez (R-Ohio) and Representative Emanuel Cleaver (D-Mo.) may be cited as the “Student Athlete Level Playing Field Act” and its main purpose is to prohibit the NCAA and universities from preventing college athletes from participating in athletics because they enter into endorsement contracts or agency contracts.

The concept is not new. New Jersey recently became the fifth state to promise NIL rights to college athletes, and Florida is currently situated to be the first to actually afford college athletes such rights as of July 1, 2020. If passed and signed into law, the federal Student Athlete Level Playing Field Act would preempt states like New Jersey and Florida from enforcing their respective laws and regulations that seek to provide their own set of rights to college athletes.

The law proposed by Gonzalez and Cleaver seeks to provide widespread rights to college athletes, with a few restrictions. Tobacco brands (including vaping products), alcohol companies, sellers and distributors of controlled substances (including marijuana), adult entertainment businesses, and casinos or entities that sponsor or promote gambling activities would be completely off-limits. It is not yet clear whether that would include season-long and daily fantasy sports operations. Additional restricted categories are likely to be suggested by a new 13-member commission that is proposed to be established by the law and then be terminated roughly three years after its creation. Twelve members of the commission are to be appointed by various high-ranking members of Congress and then those members are to select a 13th member who will serve as the chair of the commission.

College athletes, under the suggested law, will not be able to wear any third-party-provided items of clothing or gear during athletic competitions or university-sponsored events. However, they shall not be barred from entering into contracts with companies that may be deemed competitors of brands that have business relationships with the universities. For instance, the Florida Gators football program has a deal in place with Jordan Brand. Under the bill sponsored by Gonzalez and Cleaver, a football player at the University of Florida would not be able to wear Adidas accessories on the field, but he could wear Adidas-branded shoes at his apartment and post about Adidas on Instagram in exchange for compensation.

What is deemed to be permissible compensation in those categories that are not off-limits remains the tricky part in providing these rights to college athletes. Perhaps the standard of “I know it when I see it,” uttered by Justice Potter Stewart in 1964 to explain what constitutes obscenity in the realm of hard-core pornography prevails. It is not at all clear at this point. What is clear is the intention of the federal government to prohibit improper payments by boosters (commonly sponsors of an athletic program) to college athletes to cause the athletes to enroll or remain at a specific university. While that may be justified in theory, it could be hard to implement in practice.

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Darren Heitner is the founder of Heitner Legal. He is the author of How to Play the Game: What Every Sports Attorney Needs to Know, published by the American Bar Association, and is an adjunct professor at the University of Florida Levin College of Law. You can reach him by email at heitner@gmail.com and follow him on Twitter at @DarrenHeitner.

(Bryant Johnson, Justice Ruth Bader Ginsburg’s personal trainer of more than 20 years, did three push-ups in her honor this morning while the late justice lied in state at the U.S. Capitol. In 2017, Johnson published The RBG Workout: How She Stays Strong … and You Can Too! (affiliate link). Ginsburg is the first woman and first Jewish person in U.S. history to lie in state at the Capitol.)

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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.

Spoofing, as we have established, is awfully hard to prove in a court of law. Far, far better to come to a more or less amicable arrangement that makes clear that spoofing is very much not OK, but without the hassle of building a case or making an argument or potentially losing and having spoofing become de facto, if not de jure, OK, while also setting a very expensive precedent for those whose spoofing efforts far exceed those of Jamie Dimon’s people, however creative they’ve been.

JPMorgan Chase & Co. is poised to pay close to $1 billion to resolve market manipulation investigations by U.S. authorities into its trading of metals futures and Treasury securities…. A penalty approaching $1 billion would far exceed previous spoofing-related fines. It would also be on par with sanctions in many prior manipulation cases, including some brought several years ago against banks for allegedly rigging benchmark interest rates and foreign exchange markets.

Staring down a potential nightmare of an online bar exam, the California Supreme Court rejected the idea of emergency diploma privilege for law school graduates in the state that took “having the most COVID cases in the country” and add being on goddamned fire to the mix. As far as the court’s concerned applicants are encouraged to rub some dirt on it and get back out there.

But not all is lost! Applicants were thrown a bone when the California State Bar’s Board of Trustees approved a provisional licensing plan.

Wow! That’s…

OK, it’s not totally worthless, but let’s consider the requirements for this new program.

Applicants for California’s provisional license program must be 2020 graduates of California law schools or of schools outside the state, if such graduates are permitted to sit for the bar exam under California law. There are no limits on the number of times an applicant may have taken and not passed the bar exam.

Participants must also be employed by, or have an offer from, an employer with an office located in California, and they also must agree to practice under a supervising lawyer who is an active licensee in good standing of the State Bar.

But folks are able to perform most tasks under the supervision of a licensed attorney now. So when you require them to be employed and agree to practice under a supervising lawyer you’ve really just formalized the status quo. These folks will have to refer to themselves as “provisionally licensed” in conversations with clients which is, I suppose, better than being titled a “Law Clerk” or “Paralegal” but other than appealing to vanity there’s not much to this.

At least they’re considering offering this to those who got a 1390 in the past — which would qualify for passing today — even if they aren’t willing to apply the score retroactively like their system already contemplates.

Meanwhile, California is starting to come to grips that being a smoldering wasteland might impact the online exam:

Everyone who needs assistance should reach out to all the examiners to comprehend how big this problem truly is. If the bar sees just how destructive this all is maybe they’ll take action and… extend provisional licenses for an extra month or two.

California Bar OKs Temporary Law Licenses in Place of Bar Exam [Bloomberg Law]

Earlier: Technical Support Adopts Innovative ‘Stop Answering The Phone’ Strategy
State Adds ‘Practice Waiver’ To The Least Useful Stage Of Bar Admission Process

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

As one Cooley insider told Above the Law, “It was nice being the market leader for a day.”

So, what’s going on at the firm? If you remember way back to last week, Cooley started the COVID appreciation bonus game, offering associates between $2,500 and $7,500 as a special thank you from the firm for their hard work during the pandemic. But then Davis Polk got involved with a new standard, and it just blew away the Cooley scale. Their bonuses started at $7,500 and went all the way up to $40,000. And firms quickly started piling on this new bonus scale.

Though there was a notable outlier. Kirkland — the world’s richest law firm — begged off fall special bonuses, and seemed to be asking the market not to follow the trend.

All of which sets the backdrop for speculation at Cooley. Will the firm pony up the difference between their bonuses and the newly emerging market standard?

It doesn’t look like associates seeking extra cash are in luck. Tipsters report the message from the partnership is, “We’re not matching DPW, but we’re also not matching Kirkland.”

Here’s some perspective from inside the firm:

It’s a bummer, especially after hearing the update on the firm’s numbers. We’re apparently up 8% productivity YoY for August, and down only 1% from this point in the year in 2019 (but rapidly gaining ground after a brief lurch during the early COVID era). There was some reassurance that marketplace total compensation will be taken into account for year end bonuses, but that rings hollow considering Cooley pays individualized bonuses.

We reached out to Cooley for comment, and will update the story if we hear back.

At least Cooley associates got some money — there’s a lot of Biglaw that’s still wondering if their firm will say thank you in the form of some cold, hard cash.

Please help us help you when it comes to bonus news at other firms. As soon as your firm’s bonus memo comes out, please email it to us (subject line: “[Firm Name] Bonus”) or text us (646-820-8477). Please include the memo if available. You can take a photo of the memo and send it via text or email if you don’t want to forward the original PDF or Word file.

And if you’d like to sign up for ATL’s Bonus Alerts, please scroll down and enter your email address in the box below this post. If you previously signed up for the bonus alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each bonus announcement that we publish.

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Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

The Law Department Operations Survey, conducted by the Blickstein Group, is the original and most respected benchmarking tool in the in-house legal  department operations space.  

If you are your organization’s operations head, we’re pleased to invite you to participate in this year’s report.  

Participants will receive exclusive access to proprietary results — an unparalleled resource for insight into legal operations trends. 

The survey was created in 2008 to provide law departments with insights into what was then an emerging field, allowing corporate counsel to compare their legal operations practices with those of their peers. 

All individual responses will be kept strictly confidential, and the data will be used only in the aggregate form. 

Not going to lie, it’s been a little frustrating to see that, when confronted with a constitutional crisis over the future of the Supreme Court, Democrats are mostly split between doing absolutely nothing or giving Mitch McConnell the power to pack the Court “to own the cons.” Which is why I was a little taken aback this morning to find that some people in Congress actually have a head for strategy and have taken the first steps toward building a fight around staggered term limits.

Fix the Court reported this morning that Reps. Ro Khanna, Don Beyer, and Joe Kennedy III are introducing the “Supreme Court Term Limits and Regular Appointments Act of 2020” to institute staggered, 18-year terms for active duty Supreme Court justices. Technically this isn’t the FIRST term limits bill — that came in 1807 — but it’s the first that has any value for our current predicament.

Rather than allow the constitutional fabric of the country to be dictated by a life-tenured proto-nobility, the Court would reflect the will of the voters on a lagged basis. Every president gets two picks per term. Nomination fights are capped by requiring the Senate to vote within 120 days or waive their right to weigh in on the nominee, and senior justices would remain to deal with contingencies.

A term limits proposal may not solve the problems with the Court next year, but it solves the problems for the next 50 years which is far more important. The fact that term limits — as opposed to court expansion — enjoys broad public support and influential media backing from the Washington Post, Boston Globe, and L.A. Times makes this the most strategic fight for Democrats to take on.

While there will be constitutional pushback on whether or not this would impinge on the definition of “good behavior,” let the Supreme Court tell that to an American public heavily in favor of this legislation. Consider the institutional damage of that opinion. “Yeah, we know you all voted for this, but since we want to have power forever we’re ignoring you”? I’m not sure as many justices are willing to unleash that firestorm as one might think.

That is, if a case even ever got brought. Who, exactly, has standing, as this Court has defined it, to bring that case? I’m not sure even the notoriously lax ethical rules of the Supreme Court would allow a justice to rule on a case they brought themselves and beyond that, I’m not sure who could file a hypothetical case like this.

And that’s before we consider straight-up jurisdiction stripping the Court from hearing challenges to this statute — a clause that’s not in the current bill but looms as a perfectly constitutional remedy to any mischief from any entrenched justices who wouldn’t want to go.

Court expansion advocates will surely complain loudly about this bill as “giving up” for trying to take power away from the president and Senate rather than embrace wildly oscillating Supreme Courts flipping precedent every election until the Republic falls. For these folks, the trauma of the slow and anti-majoritarian conservative takeover of the Supreme Court — with five justices soon-to-be on the bench who were appointed by presidents who came to office without winning the popular vote^[1] — has created the same mania that drives Wile E. Coyote. And, like the Coyote, they are adamant that this time blowing up the rules because they have the numbers will never backfire on them spectacularly.

But don’t give into that thinking. It’s time to fix this forever.

Obviously this bill is going nowhere with the current Senate. But bills like these are important because they generate steam among the public who — to the extent they even know what the Supreme Court does — mostly ask, “Why do we have anyone get jobs for life in a democracy?”

Which is a pretty good question.

(The bill is available on the next page.)

Earlier: Liberal Calls For Court Packing Gain Steam, And Mitch McConnell Couldn’t Be Happier

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[1] George W. Bush’s justices were appointed in his second term where he did win the popular vote… but would he have been there without the power of incumbency? Even if we bracket Roberts and Alito for this discussion, we’re still talking about a third of the Court.

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.