The Heppner And Warner Rulings: Hobgoblin Consistency Or An Application Of Principle? – Above the Law

I

recently
wrote

about
the
ruling
of
a
federal
district
court
judge
in

U.S.
 v.
Heppner
.
The
gist
of
my
article
was
that
the
ruling
was
a
warning
that
materials
to
and
from
publicly
facing
GenAI
tools
were
discoverable.
But

a
ruling

on
the
same
day
of
the

Heppner

decision
by
a
federal
district
court
judge
in
Michigan
appeared
to
reach
a
contrary
result.
But
did
it?

The
case,

Warner
v.
Gilbarco
,
involved
a
pro
se
plaintiff
who
apparently
used
some
“AI
tools”
in
some
unspecified
fashion.
Defendants
requested
the
documents
from
that
work
and
Warner
claimed
work
product
privilege
and
moved
to
compel.
The
court
denied
the
motion.

While
on
its
face,
the
ruling
appears
inconsistent,
on
closer
review
it
isn’t
necessarily.
In
fact,
the
court
began
its
analysis
by
plainly
stating
the
material
in
question
was
not
relevant,
or
even
if
so
proportional.
It
should
have
ended
there.


The

Warner

Ruling

In

Warner
,
the
defendants
argued
that
by
using
the
unspecified
AI
tools,
the
plaintiff
waived
the
attorney-client
and
work
product
privileges.
It’s
not
entirely
clear
how
the
plaintiff
could
assert
an
attorney-client
privilege,
nor
is
it
indicated
whether
the
pro
se
plaintiff
is
an
attorney. 

The
court
instead
focused
on
the
work
product
privilege,
noting
first
that
a
pro
se
plaintiff
can
assert
a
work
product
privilege
under
case
law
in
that
circuit.
The
court
then
stated
that
a
waiver
has
to
be
a
waiver
to
an
adversary
or
result
in
the
likelihood
that
the
material
in
question
will
get
in
an
adversary’s
hands.
While
disclosure
to
any
third
party
would
waive
the
attorney-client
privilege,
said
the
court,
that’s
not
so
for
waiver
of
the
work
product
privilege.



Warner

Is
Not
Necessarily
Inconsistent

In
fact,
the
underlying
principles
and
the
holding
is
not
necessarily
inconsistent
with
that
in

Heppner
.
First,
the
fact
that
Warner
was
pro
se
is
important.
Courts
often
give
pro
se
parties
a
little
leeway
for
obvious
reasons.
Warner
had
no
lawyer
to
go
to
to
formulate
strategy
and
discuss
her
case.
So
Warner
used
tools
that
were
available.
And
the
work
product
privilege
clearly
applied
to
her.
 In

Heppner
,
on
the
other
hand,
the
defendant
had
a
lawyer
and
chose
to
ignore
him,
conducting
his
own
search
and
discussion.
That
difference
is
critical.

Second,
the

Warner

court
ignored
one
factor
that
the

Heppner

court
relied
on:
the
fact
that
the
GenAI
tool
in
that
case
kept
the
material
that
was
generated
and
used
it
for
training
purposes.
The

Warner

court
merely
concluded
without
analysis
that
the
Warner
material
was
not
likely
to
get
into
Gilbarco’s
hands.
That’s
an
important
factor
that
the

Warner

court
didn’t
address.


What
Was
Really
Going
On?

It
also
can’t
be
ignored
that,
to
be
blunt,
the

Warner

court
was
simply
pissed,
which
often
happens
in
discovery
disputes.

Why
do
I
think
that?
Here
is
what
the
court
said:

The
motion
seeks
intrusive
post-discovery
production
based
on
speculation
about
what
might
exist
in
Plaintiff’s
internal
drafting
process,
untethered
from
Rule
26
relevance,
disregarding
the
heightened
protection
afforded
to
opinion
work
product,
and
improperly
attempting
to
manufacture
a
waiver
where
none
exists. 
At
its
core,
Defendants’
request
is
a
fishing
expedition…Additionally,
the
Court
agrees
with
Plaintiff
that
the
pursuit
of
this
information
is
‘a
distraction
from
the
merits
of
the
case.’

Pretty
strong.
The
court
clearly
thought
the
material
in
question
was
blatantly
non
relevant.

And
this
at
the
end
of
the
opinion:
“In
the
end,
both
sides
of
this
dispute
seek
to
obtain
each
other’s
thought
processes,
while
shielding
their
opponent
from
discovery
of
their
own. 
The
Court
will
uphold
the
protections
afforded
the
thought
processes
and
litigation
strategies
of
both
sides
and
will
order
production
of
neither.”

In
other
words,
a
pox
on
both
your
houses.

To
get
there,
however,
the
court
took
some
unnecessary
detours
that
raise
some
questions.


A
Little
Wonky

Unfortunately,
to
get
where
it
wanted
to
go,
the
court
got
unnecessarily
a
little
wonky
which
detracts
and
confuses
the
holding.
First
it
said
that
GenAI
tools
are
not
people
and
therefore
disclosure
to
a
GenAI
tool
could
not
constitute
a
waiver,
as
a
waiver
has
to
be
to
a
person.
Not
sure
I
buy
that
since
many
legal
entities
are
not
technically
people
but
are
treated
as
such
in
a
variety
of
circumstances.
And
giving
GenAI
tools
non
people
status
could
have
serious
implications
down
the
road
when
it
comes
to
liability
among
other
things.

The
court
then
held
that
the
materials
were
her
internal
analysis
and
mental
impressions
rather
than
an
existing
documents
or
evidence.
Not
sure
about
that
one
either:
if
materials
aren’t
discoverable
because
what
they
contain
somehow
makes
them
neither
documents
nor
evidence,
I
wasted
a
lot
of
time
over
the
years
producing
stuff.

Neither
point
was
necessary
to
determine
a
lack
of
waiver.


Reading
the
Cases
Together

Be
that
as
it
may,
here
is
what
we
can
glean
from
reading
the
two
cases
together.
Use
of
GenAI
and
whether
it
constitutes
a
waiver
will
depend
on
the
facts.
Under
both
cases,
it
will
require
a
disclosure
and
that
disclosure
must
be
of
mental
impressions.
It
also
must
be
in
anticipation
of
litigation
not
just
idle
advice
here
and
there.

But
above
and
beyond
everything
else,
the
material
in
question
must
be
relevant
to
the
issues
in
the
litigation,
a
fact
I
mentioned
in
my

earlier
article
,
calling
the
relevancy
showing
a
“tall
order”
in
most
cases.
 It’s
clear
from
reading
the

Warner

opinion
that
the
court
felt
the
material
was
so
non-relevant
that
the
time
spent
on
trying
to
discover
it
was
nothing
more
than
a
time-consuming
distraction.
The
material
in

Heppner
,
on
the
other
hand,
was
clearly
considered
relevant
by
the
court.

It’s
also
clear
that
waiver
is
viewed
differently
for
pro
se
parties
versus
represented
parties,
as
it
should
be.
If
the
Warner
material
was
relevant
and
Warner
had
an
attorney,
but
still
used
GenAI
tools
without
her
attorney’s
knowledge,
the
result
might
have
been
different.

So
there
are
some
factual
differences
that
are
important.
But
bottom
line,
both
cases
suggest
that
use
of
GenAI
tools
in
litigation
should
be
handled
with
care.
If
you’re
a
lawyer
and
represent
a
client,
it’s
still
a
good
idea
to
advise
them
that
they
shouldn’t
use
GenAI
tools
without
consulting
you.

Waiver
of
privilege
is
a
mine
field
and
can
easily
happen.
Nothing
in
either

Heppner

or

Warner

suggests
anything
to
the
contrary.
And
treating
them
as
inconsistent
and
thereby
convincing
yourself
that
privileges
protect
what
you
sent
and
received
to
a
GenAI
tool
from
discovery
would
be
a
mistake.




Stephen
Embry
is
a
lawyer,
speaker,
blogger,
and
writer.
He
publishes TechLaw
Crossroads
,
a
blog
devoted
to
the
examination
of
the
tension
between
technology,
the
law,
and
the
practice
of
law
.

‘Incompetence And Chaos’: Former Judge Torches DOJ’s Litigation Meltdown In Biglaw Executive Orders Case – Above the Law



Ed.
note
:
Welcome
to
our
daily
feature, Quote
of
the
Day
.


[It’s]
unprecedented
in
my
experience
for
a
party
to
withdraw
their
appeal,
and
24
hours
later
to
say,
‘Oops,
I
made
a
mistake.’


It
seems
to
show
a
level
of
incompetence
and
chaos
in
the
Department
of
Justice.
They
simply
don’t
seem
to
know
what
they’re
doing,
and
maybe
one
person
doesn’t
speak
to
another
person.



— Shira
Scheindlin
,
of
counsel
at
Boies
Schiller
Flexner
and
former
judge
of
the
U.S.
District
Court
for
the
Southern
District
of
New
York,
in
comments
given
to
the

American
Lawyer
,
concerning
the Department
of
Justice
withdrawing
 from
its
defense
of
its
executive
orders
targeted
against
Perkins
Coie,
WilmerHale,
Susman
Godfrey,
and
Jenner
&
Block,
which
resulted
in
flip-flop
less
than
24
hours
later
,
with
the
DOJ
crawling
back
to
withdraw
its
motion
to
voluntarily
dismiss
the
appeals
of
its
cases
against
the
Biglaw
firms.





Staci
Zaretsky
 is
the
managing
editor
of
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 BlueskyX/Twitter,
and Threads, or
connect
with
her
on LinkedIn.

This Is Why Criminal Justice Needs Number Nerds – Above the Law

In
this
episode
of
the
Jabot
Podcast,
I
speak
with
economist
and
criminal
justice
expert
Jennifer
Doleac,
author
of
The
Science
of
Second
Chances:
A
Revolution
in
Criminal
Justice
and
Executive
Vice
President
of
Criminal
Justice
at
Arnold
Ventures.

Drawing
from
economic
research
and
real-world
policy
analysis,
Doleac
explains
how
data

not
ideology

should
guide
criminal
justice
reform.
The
conversation
explores
how
incentives
shape
behavior,
why
increasing
the
certainty
of
consequences
works
better
than
harsher
punishment,
and
how
evidence
challenges
many
widely
accepted
assumptions
about
crime
policy.

From
probation
reform
and
recidivism
research
to
hiring
discrimination
and
unintended
policy
consequences,
Doleac
argues
that
solving
complex
justice
problems
requires
experimentation,
humility,
and
rigorous
testing.
The
episode
ultimately
reframes
criminal
justice
reform
as
a
question
of
incentives,
systems
design,
and
evidence-based
decision-making
rather
than
political
narratives.

Federal Judge Steps Up To Be Law School Dean – Above the Law

Finding
the
right
law
school
dean
is
an
intensive
process
that
can
take
years.
The
University
of
Kentucky’s
College
of
Law
has
been
looking
for
a
permanent
dean
ever
since

Mary
J.
Davis
announced
she
was
stepping
down
to
resume
teaching

back
in
2023.
During
her
time
as
dean,
the
school
navigated
COVID,
managed
to
hire
10
new
faculty
members,
and
climbed
to
#6
on
National
Jurist
Magazine’s
Best
Value
Law
School
list.
That’s
a
hell
of
a
pair
of
shoes
to
fill.
After
years
of
searching,
the
law
school
has
found
someone
who
seems
up
to
the
task
of
filling
them.

Kentucky

has
coverage:

A
longtime
federal
judge
in
Kentucky
will
become
the
next
dean
of
the
University
of
Kentucky’s
College
of
Law.
Gregory
Van
Tatenhove
recently
accepted
the
offer
to
lead
the
state’s
largest
law
school,
according
to
an
email
sent
to
students
from
UK
Provost
Robert
DiPaola.

“As
a
graduate
of
the
J.
David
Rosenberg
College
of
Law,
this
institution
has
long
meant
a
great
deal
to
me,”
Van
Tatenhove
said
in
a
news
release.

The
former
judge
is
already
getting
support
from
friends
online:

Harder
to
find
a
better
dean
committed
to
the
school’s
legacy
than
an
alumnus
known
for
his
judgment!
Best
of
luck
to
Dean
Tatenhove
and
the
school.


Kentucky
federal
judge
selected
as
new
dean
at
UK
College
of
Law

[Kentucky]



Chris
Williams
became
a
social
media
manager
and
assistant
editor
for
Above
the
Law
in
June
2021.
Prior
to
joining
the
staff,
he
moonlighted
as
a
minor
Memelord™
in
the
Facebook
group Law
School
Memes
for
Edgy
T14s
.
 He
endured
Missouri
long
enough
to
graduate
from
Washington
University
in
St.
Louis
School
of
Law.
He
is
a
former
boat
builder
who
is
learning
to
swim
and
is
interested
in
rhetoric,
Spinozists
and
humor.
Getting
back
in
to
cycling
wouldn’t
hurt
either.
You
can
reach
him
by
email
at [email protected]
and
by
tweet
at @WritesForRent.

Corporate Legal Departments Are Done Subsidizing Biglaw’s Business Model – Above the Law

Last
year,
corporate
legal
departments
hinted
at
weaponizing
their
AI
investments
to

transform
the
fundamental
terms
of
their
relationships
with
outside
counsel
.
Budgets
were
tightening,
headcount
flattening,
and
legal
ops
teams
discussed
leveraging
technology
to
squeeze
law
firms
on
everything
from
taking
work
back
in-house
to
imposing
alternative
fee
arrangements.

The

2026
CLOC
State
of
the
Industry
Report
,
produced
in
collaboration
with
Harbor
digs
deeper
into
those
same
survey
results,
takes
the
raw
numbers
and
adds
more
analysis.
And
it’s
not
a
subtle
one.

CLOC

President
&
CEO
Oyango
Snell
and
Chair
Laura
Dieudonné
frame
it
as
a
profession
that
has
“moved
past
the
era
of
reactive
growth
and
into
an
era
of
intentional,
strategic
design.”
In
other
words,
in-house
legal
departments
have
captured
the
upper
hand
and
are
poised
to
use
it.

Demand
for
legal
work
is
surging,
with
63
percent
of
departments
reporting
rising
regulatory
workloads,
58
percent
cite
cybersecurity
and
IT
governance
pressures,
and
53
percent
point
to
contracts
as
a
growing
strain.
These
are
high-volume,
operationally
intensive
areas
that
used
to
require
bigger
and
bigger
checks
to
outside
counsel.

But
even
with
higher
demand,
only
47
percent
of
departments
expect
their
internal
legal
spend
to
increase,
down
from
65
percent
last
year.
Outside
counsel
spending
expectations
dropped
from
58
percent
to
37
percent.
And
just
32
percent
anticipate
growing
their
lawyer
headcount,
down
from
42
percent.

Someone
has
to
do
that
work
then.
Or
something.

The
report
finds
that
85
percent
of
departments
now
have
dedicated
AI
resources
overseeing
deployment,
governance,
and
risk.
The
top
deployed
use
cases
are
general
productivity
(74
percent),
summarization
(56
percent),
and
legal
research
(54
percent).
The
top
areas
still
being
explored
are
compliance
monitoring
(45
percent),
legal
analysis
(36
percent),
and
chatbots
(32
percent).

Clients
aren’t
necessarily
aiming
to
replace
outside
counsel
with
AI,
but
when
a
legal
department
can
handle
more
research,
contract
analysis,
and
routine
work
internally

even
with
a
flat
headcount

that’s
money
saved.
As
always,
AI
isn’t
replacing
lawyers,
it’s
reducing
the
number
of
lawyers
needed
to
do
the
same
work.
And
between
clients
and
outside
counsel,
that
can
mean
the
work
moves
inside.

Meanwhile,
corporate
legal
departments
are
getting
increasingly
serious
about
evaluating
the
firms
they
do
still
use.
The
report
shows
46
percent
now
have
structured
annual
performance
reviews
for
their
outside
counsel,
up
from
38
percent
last
year,
with
another
18
percent
planning
to
implement
them.

As
the
report’s
foreward
puts
it,
the
legal
operations
community
has
“moved
from
fighting
for
recognition
to
confidently
leading
at
the
enterprise
level.”
Outside
counsel
that
figure
out
how
to
deliver
value
to
this
efficiency
minded
constituency
will
be
fine.
The
ones
still
banking
on
inertia
and
relationship
lunches
could
find
themselves
losing
out
to
the
in-house
cyborgs.




HeadshotJoe
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 or

Bluesky

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
.

When Florida Bar Said It Was Serious About Ethical Violations It MEANT To Say, ‘Yes, Sir. Glory To The MAGA Empire!’ – Above the Law

No
sooner
had
the
New
York
Times
reported
that
the
Florida
Bar
had

opened
a
pending
investigation
into
Lindsey
Halligan


Trump’s
now-former,
always-phony
U.S.
Attorney
for
the
Eastern
District
of
Virginia

than
the
organization
backtracked
to
assure
any
retaliation-minded
federal
officials
that
it
was
just
kidding
about
taking
professional
ethical
obligations
seriously.

Halligan’s
misadventures
as
an
insurance
lawyer
pretending
to
be
the
top
federal
prosecutor
for
the
Eastern
District
of
Virginia
included
a
pair
of
high
profile
faceplants

attempting
to
prosecute
former
FBI
Director
James
Comey
and
current
NY
Attorney
General
Letitia
James

on
charges
generously
described
as
frivolous
and

ethically
dubious
Signal
chats
with
a
journalist
about
a
pending
case
.
After
multiple
federal
judges
took
Halligan
to
task

with
the
most
recent
explicitly
stating
that
he

wasn’t
referring
her
for
discipline
solely
because
of
her
inexperience


the

Campaign
for
Accountability

took
it
upon
itself
to
renew
its
lengthy
ethics
complaint
to
both
the
Virginia
Bar
and
Halligan’s
home
bar
of
Florida.

Virginia

punted
on
its
responsibilities
,
but
Florida
wrote
a
short
letter
acknowledging
that
it
opened
an
investigation.
Now
that
this
news
is
public,
Florida
is
spinning.


Speaking
with
The
Hill
,
a
Florida
Bar
spokesperson
explained:

“In
response
to
an
inquiry
from
a
complainant,
The
Florida
Bar
wrote
a
letter
to
the
complainant
erroneously stating that
there
is
a
pending
Bar
investigation
of
member
Lindsay
Halligan,”
said
Jennifer
Krell
Davis,
director
of
communications
for
the
state
bar. 

“There
is
no
such
pending
Bar
investigation
of
Lindsay
Halligan,”
she
continued.
“In
this
case,
The
Florida
Bar
received
a
complaint
against
Lindsay
Halligan
and,
consistent
with
standard
practice,
the
Bar
is monitoring the
ongoing
legal
proceedings
underlying
the
complaint.” 

What
ongoing
legal
proceedings?
She’s
been
benchslapped
by
three
federal
judges

benchslaps
that
include
phrases
like
“disturbing
pattern
of
profound
investigative
missteps”
and
“misrepresentations
to
this
Court”

and
then
quit.
There
aren’t
any
more
legal
proceedings
to
monitor.
It’s
done!

If

any

lawyer
outside
of
this
administration
landed
on
a
disciplinarian’s
desk
with
a
resume
of
alleged
breaches
like
this,
there
would
not
be
any
“monitoring”
of
the
situation.
A
federal
judge
stayed
his
hand
citing
her
inexperience.
If
the
Florida
Bar
wanted
to
take
the
position
that
it
doesn’t
enforce
rules
against
inexperienced
prosecutors,
it
could
take
that
stance.
Pretending
the
situation
is
somehow
still
in
flux
feels
like
a
statement
thrown
together
by
a
communications
team
trying
desperately
to
come
up
with
cover.

When
rumors
first
started
that
Florida
might
be
disavowing
its
earlier
letter,
Campaign
for
Accountability
executive
director
Michelle
Kuppersmith
said,
“CfA
has
not
heard
directly
from
the
Florida
Bar,
but
it’s
hard
to
reconcile
this
latest
statement
with
the
bar
counsel’s
previous
letter
saying
there
is
an
investigation
pending.
If
there
is
no
longer
an
investigation
into
Halligan,
the
question
is
why
not,
given
that
three
judges
indicated
she
engaged
in
conduct
that
appears
to
violate
ethics
rules.”

But
now
Florida
can
consider
itself
clear
of

the
DOJ’s
wrath
.
All
it
took
was
overcoming
that
brief
crisis
of
courage.


Florida
Bar
says
it
‘erroneously’
stated
Halligan
is
under
investigation

[The
Hill]


Earlier
:

Lindsey
Halligan
Under
Investigation
And
The
DOJ
Is
Big
Mad
About
It




HeadshotJoe
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 or

Bluesky

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
.

You Can Meet Above The Law At Legalweek! Here’s How.  – Above the Law

ATL’s
coverage
of
the
Supreme
Court,
law
school,
life
at
big
firms,
and
bonus
news
has
long
been
a
daily
ritual
for
the
legal
industry.

Next
week,
we’ll
be
adding
Legalweek
to
the
mix

and
attendees
will
have
a
chance
for
a
star
turn
in
the
industry’s
most-read
publication!  

Ashley
Spector
and
Tracy
Chenoff
of
our
business
team
will
be
at
the
Javits
Center,
and
at
various
events
around
the
conference.
If
you
see
them,
come
say
hi,
and
we
may
even
feature
you
in
Above
the
Law’s
social
media
feeds!

Also,
you
can
join
our
editors
and
business
team
for
food
and
drink
Monday
night
at
the
Above
the
Law
happy
hour.
(RSVP
here.
)
If
uncertainty’s
not
your
thing,
feel
free
to
reserve
a
meeting
by
emailing


[email protected]
.

Here,
Ashley
and
Tracy
share
their
respective
backgrounds
in
broadcast
news
and
comedy,
what
they’re
looking
forward
to
at
Legalweek,
and
the
best
ways
to
enjoy
New
York.  


What
can
attendees
expect
from
a
conversation
with
ATL? 


Tracy:

The
truth
and
nothing
but
the
truth
so
help
me

LOL!
But
really,
they
should
expect
to
hear
how
ATL
can
make
their
lives
easier
from
a
marketing
standpoint.
We
find
the
needle
in
the
haystack
for
our
clients.
You
think
it
is
hard
to
find
the
in-house
counsel
who
works
at
financial
institutions
that
make
$1
billion
or
more?
We’ve
got
you. 


Ashley:

ATL
programs
are
designed
to
make
your
life
easier

and
make
you
look
good
not
only
to
your
bosses,
but
also
to
your
sales
team
by
delivering
them
high-value
leads.
Fun
fact,
we
not
only
set
guaranteed
lead
goals
but
we
also
guarantee
ROI.
Basically
we
make
you
look
like
the
smartest
marketer
in
the
room.


You’ve
both
been
in
the
spotlight
in
your
life
outside
of
work.
Can
you
share
a
little
of
that
background? 


Tracy:

Back
in
the
day
I
was
a
stand-up
comedian.
I
would
do
shows
all
over
Manhattan
like
the
NY
Comedy
Club
and
Gotham
Comedy
Club.
Find
me
on
the
floor,
maybe
I
will
show
you
a
clip
;).
I
decided
a
career
in
sales
was
safer.
I
still
get
to
make
my
co-workers
laugh. 


Ashley:

I
actually
started
in
broadcasting

worked
at
CNN
and
CNBC.
I
even
was
the
in-game
host
for
the
NY
Islanders
and
a
minor
league
baseball
team.
Then
I
landed
at
Fox
News

realized
TV
wasn’t
my
forever
home
and
discovered
Above
the
Law.
Somehow,
11
years
later,
they
have
yet
to
kick
me
out!


What
are
you
looking
forward
to
most
about
the
coming
week? 


Tracy:

I
love
getting
a
chance
to
see
my
clients
face
to
face.
We
talk
so
much
during
the
year
on
Zoom
and
through
email.
It
is
so
nice
to
just
chat
and
get
to
connect.
Hope
to
see
most
of
you
at
our
happy
hour! 


Ashley:

I
always
look
forward
to
catching
up
with
clients
(many
who
have
become
friends!)
And
of
course,
hosting
our
happy
hour,
which
we’re
fairly
confident
is
the
best
one
at
Legalweek!


(RSVP
here
to
find
out
yourself.)


What’s
one
recommendation
you
have
for
people
traveling
to
NYC? 


Tracy:

Stay
away
from
the
tourist
traps.
Check
out
great
places
to
eat
through

The
Infatuation
NYC
.
The
popular
places
are
hard
to
get
a
rezy.
I
would
try
to
snag
a
lunch
or
dinner
at

Ci
Siamo

if
you
can.
Very
close
to
the
Javits
in
Hudson
I’ll
Yards. 


Ashley:

Bring
comfy
shoes,
come
hungry,
and
be
ready
to
say
“let’s
pop
in
here”
about
10
times
a
day.
Also,
don’t
overplan.
The
best
NYC
moments
are
the
ones
you
stumble
into. 


Join
our
editors
and
business
team
for
food
and
drink
Monday
night
at
the
Above
the
Law
happy
hour.
(
RSVP
here.
)
Feel
free
to
reserve
a
meeting
with
Ashley
and
Tracy
by
emailing




[email protected]
.

Garwe usurped powers of local authorities as 24 by-laws withdrawn

The
by-laws,
which
affected
councils
including
Masvingo
City
and
Murewa
Rural
District
Council,
were
thrown
out
after
the
Parliamentary
Legal
Committee
(PLC)
issued
an
Adverse
Report
finding
that
the
Minister
had
“usurped”
the
powers
of
local
authorities.

In
Statutory
Instrument
Number
40
of
2026,
the
Minister
was
forced
to
withdraw
all
24
by-laws
after
Parliament
rejected
them.

However,
what
angered
the
MPs
even
more
is
despite,
having
informed
the
Minister
that
his
actions
were
illegal,
he
went
ahead
and
published
new
Statutory
Instruments
(SIs)
that
did
exactly
the
same,
trying
to
take
over
powers
that
belong
to
local
councils.

Presenting
the
findings
to
Parliament
recently,
Tafadzwa
Mugwadi,
speaking
on
behalf
of
PLC
Chairperson,
Jonathan
Samukange,
explained
why
the
by-laws
had
to
be
thrown
out.

The
Committee
had
met
on
29
January
2025
to
look
at
a
long
list
of
statutory
instruments,
which
included
by-laws
from
the
City
of
Masvingo
on
cycle
licences,
environmental
and
natural
resources,
public
health
and
control
of
livestock.

There
were
also
by-laws
from
Murewa
Rural
District
Council
on
community
halls,
control
of
livestock,
even
hairdressers,
beauticians
and
barber
shops.

“The
Committee
unanimously
resolved
that
an
Adverse
Report
be
issued
regarding
the
above-mentioned
Statutory
Instruments,”
Mugwadi
said,
who
stated
the
Minister
had
no
authority
to
make
these
by-laws
in
the
first
place.

“The
Parliamentary
Legal
Committee
identified
that
the
Hon.
Minister
usurped
the
by-law-making
powers
of
the
urban
councils.”

Mugwadi
took
MPs
through
the
Urban
Councils
Act
to
show
how
by-laws
are
supposed
to
be
made.

“Section
228
(1)
of
the
Act
reads
as
follows:
‘Subject
to
this
Section
and
Section
229
and
of
any
other
law,
a
council
may
make
bylaws
for
all
or
any
of
the
matters
referred
to
in
Section
227
and
may
at
any
time
thereafter,
amend
or
repeal
any
bylaws
so
made,’”
he
quoted.

Mugwadi
cited
the
law
is
clear
in
that
councils
make
by-laws
and
then
submit
them
to
the
Minister
for
approval,
he
does
not
make
them
himself.

“This
procedure
was
not
followed
because
there
was
a
procedural
irregularity,”
Mugwadi
said.

“The
bylaws
have
been
made
directly
by
the
Minister,
whose
role
in
terms
of
the
section
cited
is
just
to
approve
the
bylaws
made
by
the
Urban
Councils
Act.”

The
same
problem
applied
to
by-laws
made
under
the
Rural
District
Councils
Act.

The
second
reason
for
throwing
out
the
by-laws
was
that
the
fines
were
illegal.
The
law
says
penalties
for
offences
in
by-laws
should
not
exceed
level
5,
which
is
US$200
under
the
standard
scale
of
fines.

However,
some
of
the
statutory
instruments
had
penalties
ranging
from
US$500
to
US$5
000.

“Any
fine,
therefore,
which
exceeds
US$200
in
the
bylaws
is
a
contravention
of
the
principal
Act,”
Mugwadi
said.

Section
134(c)
of
the
Constitution
requires
that
statutory
instruments
be
consistent
with
the
Act
of
Parliament
under
which
they
are
made.
These
were
not.

Another
problem
was
some
of
the
by-laws
said
fees
were
payable
for
permits
and
licences,
but
did
not
say
how
much.

“There
are
clauses
in
which
fees
are
payable
for
permits
and
licences.
The
figures
to
be
paid
have
been
omitted,”
Mugwadi
pointed
out.

“It
is
unclear
as
to
what
amount
a
person
should
be
charged
in
the
event
that
they
are
supposed
to
pay.
How
much
are
they
supposed
to
pay?”

He
warned
this
creates
a
dangerous
situation
where
officials
can
charge
whatever
they
want.

“Somebody
will
be
made
to
pay
a
particular
figure,
another
one
will
be
made
to
pay
a
particular
figure
different
from
the
one
paid
by
another
yesterday,
depending
on
what
the
relevant
council
will
be
thinking
on
that
particular
day.”

Mugwadi
said
this
violates
the
Constitution’s
requirement
that
laws
be
clear,
certain
and
predictable.
It
also
opens
the
door
for
corruption.

“This
may
also
create
a
breeding
ground
for
corruption
and
therefore,
be
unconstitutional.”

The
Committee
also
found
that
some
by-laws
tried
to
charge
motorcycle
owners
fees,
even
though
they
already
pay
similar
fees
to
Zimbabwe
National
Road
Administration
(ZINARA)
under
the
Vehicle
Registration
Licensing
Act.

This
would
have
meant
people
paying
twice
for
the
same
thing.

There
were
also
bad
drafting
errors
that
some
SIs
referred
to
sections
of
laws
that
do
not
exist.

“The
Statutory
Instrument
is
incomplete,
and
there
is
missing
information,”
Mugwadi
said.

The
MPS
became
worked
up
after
observing
that
not
only
did
the
Minister
have
the
SIs
wrong
once,
but
continued
doing
so
even
after
being
told.

Descent
Bajila
applauded
the
Parliamentary
Legal
Committee
for
their
work,
saying
it
gives
hope 
“that
better
days
are
possible,
better
days
are
coming
for
the
Republic
of
Zimbabwe.”

However,
Bajila
pointed
out
a
serious
problem.

“Yesterday
(2
March
2026)
I
was
reading
Statutory
Instrument
Number
40
of
2026,
where
the
Minister
is
withdrawing
24
Statutory
Instruments
because
of
a
Parliamentary
Legal
Committee
Adverse
Report.
Now,
the
reasons
that
were
stated
by
the
Parliamentary
Legal
Committee
for
their
Adverse
Report
leading
to
the
Minister
withdrawing
those
Statutory
Instruments
are
the
same
reasons
that
the
Minister
proceeded
to
gazette
other
Statutory
Instruments.”

Bajila
asked
whether
ministries
actually
respect
the
views
of
the
Parliamentary
Legal
Committee.

“The
Parliamentary
Legal
Committee
said
the
Minister
has
usurped
powers
of
local
authorities
with
respect
to
24
Statutory
Instruments.
The
Minister
proceeded
to
come
up
with
other
Statutory
Instruments
that
still
usurp
powers
of
local
authorities
after
this
had
happened,”
he
said.

Bajila 
proposed
that
“repetitive
violation
of
the
Parliamentary
Legal
Committee
recommendations
be
punishable
or
be
a
penal
offence
by
this
House.”

He
also
linked
this
to
the
constitutional
principle
of
devolution.

“We
are
trying
by
all
means
as
a
country
to
devolve
powers
to
local
authorities.
The
repetitive
attempt
by
the
National
Government
to
take
away
powers
of
these
local
authorities
is
being
seen
and
observed
through
these
Statutory
Instruments.
It
is
something
that,
as
a
country,
we
need
to
frown
upon
and
see
measures
that
can
be
taken
to
deal
with
these
attempts
to
usurp
the
powers
of
local
authorities.”

Bajila
questioned
whether
the
system
was
“failing
to
have
proper
and
qualified
people
within
the
legal
departments
of
all
these,
starting
from
the
local
authorities,
Minister
of
Local
Government
and
the
Attorney
General,
or
is
it
an
attempt
where
someone
wants
to
truly
usurp
the
powers
of
Parliament?
Hoping
that
maybe
if
we
just
send
these,
the
PLC
may
not
pay
attention
to
detail.”

MP,
Shakespear
Hamauswa
raised
that
such
could
negatively
affect
the
Minister’s
reputation
and
erode
public
trust.

“When
you
look
at
continuous
adverse
reports
to
the
Minister
and
this
House
fails
to
come
up
with
measures…
it
will
end
up
affecting
the
Minister
mentally.
The
Minister
will
also
end
up
losing
confidence
because
he
keeps
bringing
in
the
laws
and
they
are
given
adverse
reports,”
he
said,
warning
it
also
undermined
public
trust.

“If
the
Minister
is
found
overstepping
the
powers
when
he
is
supposed
to
be
guided,
then
what
it
means
is
that
the
people
who
are
actually
believing
that
the
Minister
is
doing
the
job
to
the
best
of
their
interest,
then
they
lose
trust.”

Hamauswa
said
under
the
Constitution,
Cabinet
Ministers
are
collectively
responsible,
so
what
one
Minister
does
affects
the
integrity
of
the
whole
Cabinet.

Minister
of
Justice,
Legal
and
Parliamentary
Affairs,
Ziyambi
Ziyambi,
responded
by
pointing
out
that
the
SIs
actually
originated
from
the
local
authorities
themselves.

He
defended
the
parliamentary
process,
saying
it
is
working
as
it
should.

“That
is
exactly
what
should
happen
to
make
sure
that
there
are
checks
and
balances,”
he
said,
agreeing
that
the
report
should
be
adopted
and
they
would
look
at
improving
the
processes
so
that
officers
check
the
work
properly
before
taking
it
to
the
Minister
for
signature.


I
move
that
we
adopt
the
report
so
that
the
relevant
Minister
can
instruct
after
Parliament
has
written
and
gazetted,
that
they
redo
the
statutory
instruments.”

This
is
not
the
first
time
concerns
have
been
raised
about
how
statutory
instruments
are
made
in
Zimbabwe.

The
PLC
has
also
issued
Adverse
Reports
on
other
statutory
instruments
of
the
same
nature.

In
2025, Christopher
Mugaga,
Chief
Executive
Officer
of
the
Zimbabwe
National
Chamber
of
Commerce
(ZNCC)
,
highlighted
the
proliferation
of
SIs
as
a
major
challenge
for
businesses.

He
said
they
are
often
introduced
without
proper
consultation
and
create
an
uncertain
business
environment
while
increasing
compliance
costs.

In
2023, Harare-based
lawyer
Frederick
Nyamande
launched
a
court
challenge
 against
the
Presidential
Powers
(Temporary
Measures)
Act,
arguing
that
it
gives
the
President
too
much
power
to
make
SIs
and
usurps
the
powers
of
Parliament.

Section
134
of
the
Constitution
says
Parliament
is
responsible
for
making
and
considering
legislation,
but
Nyamande
argued
the
Presidential
Powers
Act
allows
the
President
to
effectively
make
laws
that
should
be
passed
by
Parliament.

The Best Law Schools For Social Justice (2026) – Above the Law

For
a
profession
built
on
the
idea
of
justice,
law
schools
sometimes
spend
an
awful
lot
of
time
preparing
students
for
things
that
look
more
like
billing
than
advocacy.
But
social
justice
initiatives

from
clinics
to
fellowships
to
public
interest
support

can
play
a
critical
role
in
shaping
how
future
lawyers
think
about
the
law
and
their
place
in
it.
When
schools
prioritize
that
work,
they
help
ensure
that
the
next
generation
of
attorneys
is
equipped
not
just
to
practice
law,
but
to
challenge
the
systems
behind
it.

The National
Jurist’s
preLaw
magazine
 recently
released
its
specialty
ranking
of
the
best
law
schools
for
social
justice
on
its
Social
Justice
Honor
Roll,
highlighting
schools
for
the
strength
of
their
programs.
Here’s
the
methodology
that
was
used:

Schools
were
scored
using
a
weighted
formula
that
considered
academic
and
experiential
offerings,
including
centers
(20%),
clinics
(20%),
journals
(10%),
courses
(20%)
and
other
related
programs
(10%),
based
on
Social
Justice/Public
Interest
specialty
updates.
Student
body
diversity
accounted
for
20%
of
the
total
score
and
was
drawn
from
ABA
J.D.
enrollment
and
ethnicity
data.

Without
further
ado,
according
to
preLaw
magazine,
these
are
the
law
schools
that
earned
A+
grades
for
their
social
justice
programs:

1.
Howard
University

2.
CUNY
School
of
Law

3.
Southern
University
Law
Center

4.
University
of
Miami

5.
LMU
Loyola
Law
School

6.
UC
Davis
School
of
Law

7.
University
of
Houston

8.
University
of
Maryland

9.
Georgetown
University

10.
Santa
Clara
Law

10.
Northeastern
University

Click here to
see
the
rest
of
the
Honor
Roll.

Congratulations
to
all
of
the
law
schools
that
made
the
cut
for
this
important
ranking.


Top
law
schools
for
social
justice

[preLaw
magazine
/
National
Jurist]





Staci
Zaretsky
 is
the
managing
editor
of
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 BlueskyX/Twitter,
and Threads, or
connect
with
her
on LinkedIn.

Bulawayo Cllrs call for revamp of youth centres

The
issue
was
raised
during
a
Full
Council
meeting
on
Wednesday,
where
councillors
expressed
concern
that
Bulawayo
is
no
longer
producing
as
many
top
athletes
as
it
once
did.

Ward
14
councillor
Dumisani
Netha
said
the
city
previously
produced
a
large
number
of
footballers
who
went
on
to
represent
the
national
team
but
warned
that
the
trend
has
declined
in
recent
years.

“Bulawayo
City
Council,
through
the
youth
centres,
produced
the
majority
of
players
for
the
Zimbabwe
national
soccer
team
back
in
the
day,”
Netha
said.
“But
now
we
no
longer
have
those
facilities.
In
the
most
recent
games
there
were
only
two
representatives
from
Bulawayo,
which
is
too
low
a
number.”

He
said
reviving
the
centres
would
help
keep
young
people
engaged
and
reduce
social
problems
such
as
drug
abuse.

“If
we
leave
them
idle
they
will
end
up
turning
to
drugs
because
they
have
nothing
to
occupy
them,”
he
said.
“There
is
so
much
talent
in
our
city,
especially
in
arts
and
sports,
and
we
need
these
centres
to
nurture
that
talent.”

Ward
22
councillor
Bruce
Moyo
said
the
centres
should
also
focus
on
equipping
young
people
with
skills
suited
to
the
modern
economy.

“We
need
to
ensure
that
the
programmes
offered
at
these
centres
make
young
people
relevant
in
today’s
economy.
We
want
them
to
learn
digital
skills,”
he
said.

He
added
that
traditional
training
programmes
should
evolve
to
reflect
technological
changes.

“Years
ago
it
made
sense
to
teach
young
people
how
to
repair
phones
and
television
sets,
but
now
the
world
is
going
digital.
These
young
people
must
be
taught
things
aligned
to
artificial
intelligence
and
other
digital
skills.”

Moyo
also
stressed
that
young
people
from
wards
without
recreational
centres
should
be
allowed
to
access
programmes
in
other
areas.

“We
must
ensure
that
youths
from
wards
without
these
centres
are
not
left
out,”
he
said.
“Community
halls
that
council
usually
rents
out
to
churches
could
also
be
used
as
classrooms
for
youth
training.”

Bulawayo
mayor
Councillor
David
Coltart
said
the
city’s
strong
arts
and
culture
sector
could
play
a
role
in
revitalising
the
centres.

“We
can
all
agree
that
Bulawayo
has
a
vibrant
arts
and
culture
sector,”
he
said.
“I
recently
spoke
to
artists
from
different
disciplines
and
encouraged
them
to
work
with
local
councillors
to
use
and
help
maintain
these
centres.”

Coltart
also
warned
that
rising
drug
use
among
young
people
was
linked
to
unemployment
and
lack
of
opportunities.

“Most
of
our
youths
are
doing
drugs
because
they
no
longer
have
hope
of
getting
employment,”
he
said.
“Recently
council
passed
a
resolution
to
turn
one
of
our
properties
into
a
bar,
yet
we
could
have
turned
it
into
a
sports
and
recreation
facility
instead.”

Chairperson
of
the
Health,
Housing
and
Education
Committee,
Ward
23
councillor
Ntombizodwa
Khumalo,
said
efforts
were
already
underway
to
equip
existing
centres
and
broaden
the
programmes
they
offer.

“We
are
trying
our
best
as
a
committee
to
equip
our
centres,”
she
said.
“There
are
a
number
of
courses
that
youths
and
the
community
at
large
are
interested
in,
and
we
welcome
suggestions
on
additional
programmes
so
that
we
can
make
the
necessary
resolutions.”