Sam Alito Successfully Deploys The Shaggy Defense

Episode Notes

Transcript

[Music]

Joe Patrice: Hello.

Kathryn Rubino: Hey.

Joe Patrice: Welcome to another edition of Thinking Like a Lawyer. I’m Joe Patrice. That was Kathryn—

Kathryn Rubino: Hi, Joe Patrice.

Joe Patrice: Hi. That was Kathryn Rubino. Chris Williams is also here.

Chris Williams: Yes.

Joe Patrice: Okay. And that brings us to our usual complement. This is Thinking Like a Lawyer. We’re from Above the Law. We’re giving our weekly – you know, our kind of—

Kathryn Rubino: Roundup.

Joe Patrice: Roundup, a reader’s digest of the big things that we’ve covered in the week

Kathryn Rubino: The week that was.

Joe Patrice: Yeah, you know. Sometimes you don’t have time to read every one of our stories as they come across because you’re busy, so we hope to give you—

Kathryn Rubino: Well, it also might be that the deluge of bonus posts buried some of the other things that are out there, so we’ll give you a quick rundown.

Joe Patrice: That’s a fair point, and I think maybe that will be a kind of quasi Work-related version of small talk.

Kathryn Rubino: Small talk.

Joe Patrice: Yeah, okay. Yeah, yeah. You’ve seen how I fully understand that you’re trying to push this small talk whisper thing because you think I’m going to replace the sound effect, and you are so wrong.

Kathryn Rubino: Okay, we’ll see. I have the power of a drop of rain.

Chris Williams: I think it’s just a nice little addition, you know. Not everything has to be about usurping the Joe, you know.

Joe Patrice: Okay, but it is. Anyway, so—

Chris Williams: With comebacks like that.

Joe Patrice: Not everything has to be. I just am familiar within the context of the 30 minutes we record this show, everything is. So, listen, bonuses. Yeah, that’s right. We’ve talked about bonuses already a bit on this show.

Kathryn Rubino: We have.

Joe Patrice: There’s not a ton new to talk about as far as the substance of what’s going on there other than we did just get a report last week that Cravath, you know, more or less followed the lead that had been set. That model as per usual is becoming the model that most firms are following, SO that’s what we’re looking at, bonuses that are, you know, slightly better than last year.

Kathryn Rubino: For the younger associates.

Joe Patrice: For the younger associates.

Kathryn Rubino: Yeah.

Joe Patrice: Otherwise kind of keeping form.

Kathryn Rubino: Yeah, which is I think very much it’s very similar to what we expected overall and all of the announcements that we’ve gone through last week were just other firms signing on to that scale matches.

Joe Patrice: Yeah, that’s what’s been going on. All of our prior commentary about how this relates to a world in which layoffs are also happening yet some places still holds true, but it looks like with the possible exception of a few firms largely with tech-based clientele, most firms seem like they are holding the line and able to give people good bonuses despite challenging economic times.  Think that’s fair?

Kathryn Rubino: I do think that’s fair. I guess the one difference has been, at least in terms of the Cravath announcement, is who counts as a senior associate or counsel meaning that they’re off-the-grid, meaning that they don’t have a set amount that they are guaranteed to make if they’re, you know, in good standing but instead will be individualized.

Cravath added eighth-year associates to the folks who are off the grid, which historically have been on the grid. We have not heard a lot of feedback from those folks yet, to see if they’re better off, worse off, somewhere in between. My guess is that those very experienced Associates are going to be okay. So, we’ll say that.

Joe Patrice: No, that’s true. And that is always a challenge every year, the folks once they reach for like that eighth year and become senior attorneys or of-counsel, or even income partners, they fall off of the “grid” of pay and, you know, then it’s kind of the Wild West.

Kathryn Rubino: But other than that, how have you been, Chris? You didn’t join us last week. So, are you feeling better?

Chris Williams: I’m feeling better. I’m alive with the glory of love. Let’s see. I was happy to check my work email and see that Joe Patrice was objectively wrong. This is about him, with the notion that everyone is familiar with the works of Melville.

Joe Patrice: And this was discussed on last week’s show too, where that this had come in. Yeah, so we got some reader commentary on a previous show’s dispute over whether or not the phrase “white whale” was something people just—

Chris Williams: No, it wasn’t, it wasn’t a dispute. It was me being right and Joe being wrong but loud about it. And there was clear evidence what was ill happening, which was I was right and Joe was being wrong and loud about it.

Joe Patrice: And what we learned from this email was that this person knew exactly what the phrase white whale meant but had never really known that it was drawn from Moby Dick as opposed to just some other origin of the phrase.

(00:05:02)

Chris Williams: I will go pull up the email. I think the worry was I was not familiar. You are reading into it.

Joe Patrice: No, I think it was that they weren’t familiar with the origins of it which is absolutely fair.

Chris Williams: All right, we are doing this. This can get edited in the downtime but we’re doing this. I will double down on you being wrong.

Joe Patrice: It’s the – yeah, I know. I had an opposite. They knew it was a Moby Dick reference but didn’t know what that reference was. So, they knew it was Moby Dick but didn’t know what it meant. I thought it was the other way around, but same.

Chris Williams: Which is to say if they didn’t know what it meant they didn’t really know Moby Dick.

Joe Patrice: Yeah – well, no they – no, no the thing reads, “I knew it was a Moby Dick reference but I didn’t know what it was about,” which is fair.

Chris Williams: Okay. Either way, you’re holding it out which makes me happy, and I feel like, you know, Kath was probably smiling on the inside.

Joe Patrice: We were talking about it the week you decided not to show up because that’s how much I was ready to talk about it, but you know, I mean, well, yeah, I knew you couldn’t come because you were going to be proven wrong about the turkey thing again. So, I get it.

Chris Williams: Look, ham is a better bird than turkey. I stand on that. People eat turkey because it’s a genocide tradition, not because it’s a good bird, and if you need proof of that—

Kathryn Rubino: I will say I had both turkey and ham at my Thanksgiving feast, and the turkey was way more eaten than the ham.

Joe Patrice: Objectively better. But, I mean, this is how it is.

Chris Williams: Well, it could have been because of obligation because like what other – if turkey is—

Kathryn Rubino: I mean, both were available and on the table.

Joe Patrice: Yeah.

Chris Williams: Both were available but, like, turkey is the Thanksgiving thing because of dead hand control of like dead people, which is called tradition. You know, like if turkey was such a good bird, we’d have it at other events.

Joe Patrice: We did.

Kathryn Rubino: Lots of people have it on Christmas.

Joe Patrice: Yeah.

Kathryn Rubino: It’s a very traditional Christmas meal as well.

Chris Williams: Yeah. Yeah, but like it’s a traditional thing. Like nobody’s like—

Kathryn Rubino: That’s like two of the biggest dinners of the year.

Joe Patrice: I mean in turkey sandwiches and so on, like turkey as a deli meat that is on sandwiches all the time. I see it in salads.

Chris Williams: When people are dieting.

Kathryn Rubino: No, not at all.

Joe Patrice: I see it in salads all the time. No, I mean, it’s just objectively a better meal, and you know, that’s fine.

Chris Williams: I’m saying, so like, if you want to compare like normative consumption of chicken to turkey, there’s no question who’s winning here. Like, chicken is the better bird.

Kathryn Rubino: Yeah, that’s because of big chicken.

Joe Patrice: Well, I also think they’re – it is obviously easier to get chickens than turkeys because they’re smaller and easier to raise.

Chris Williams: When there’s less of a demand for them.

Joe Patrice: I mean, I don’t know, so that would be true. It’s just that it’s easier to do.

Chris Williams: I mean, people cultivate foie gras. Like, if there was a desire for it, there’d be more turkey.

Joe Patrice: Although they cultivate foie gras but it’s not in everything, right?

Chris Williams: Because it’s expensive.

Joe Patrice: It’s difficult to do. Yes, because it’s difficult to do.

Chris Williams: But the demand is clearly there. Turkey is like, “Eh, maybe a deli sandwich or like big holidays.”

Joe Patrice: Tons of deli sandwiches. Anyway, yes. Point is, we’ve been over this far too much. We get it. You’re chasing this white whale that you aren’t going to get, that ham is better than turkey.

Chris Williams: Whale’s already caught. Whale was already caught.

Joe Patrice: Is it a better bird too? Anyway, we’re done with small talk, and only because we have too much else to talk about. What do we have to talk about, Kathryn?

Kathryn Rubino: We had lots of good stories last year, particularly the Supreme Court came out with its statement on the Alito, the second Alito leaked. Not to be confused with the Dobbs leak but rather the Hobby Lobby case, and I think that that’s a story you covered.

Joe Patrice: Yeah, I was inviting you to talk about the story you covered but by all means we could do this one first. So, Sam Alito, who has been one of the vocal people complaining about how the Dobbs case got leaked, most of us think that either he or Ginni Thomas did that but, you know, he’s complaining that it’s the worst thing ever.

Meanwhile, we’ve gotten no report back from the original claims at the time that Chief Justice Roberts is going to get to the bottom of this. Hold that. Hold that thought for a second.

Kathryn Rubino: Dot, dot, dot.

Joe Patrice: Put a pin in that. What has come out since that investigation started is a religious leader who was a longtime anti-abortion activist and was very much in the kind of right-wing social circles that we have read about before, that Alito among some of the other conservative justices meet routinely with right-wing leaders, and pray with them in their offices and stuff like that. This religious leader who has been part of that movement felt somewhat guilty and worried about this investigation in the Dobbs leak and, therefore, felt compelled.

Kathryn Rubino: But they’ve also left the anti-abortion movement, which is relevant I think.

Joe Patrice: Well, moderated their stance on it, yes.

Kathryn Rubino: Right, yes.

Joe Patrice: And felt compelled because of what was going on to report to the Chief Justice that, yeah, Alito told us all about Hobby Lobby before it came down to an accusation that kind of throws some water on Alito’s grandstanding about how leaks deserve to be prosecuted or something for this non-crime, whatever.

(00:10:04)

Anyway.

Kathryn Rubino: It’s not. Yeah, it’s not a crime.

Joe Patrice: Right.

Kathryn Rubino: Let’s be very clear.

Joe Patrice: So, with that said, this is allegation is out there and it has now been dispensed with because the Supreme Court’s council has issued a letter explaining that they looked into this by asking Alito if he did it, and Alito said no. So, they’re done. That was the conclusion of this? Reminder – and, okay, so put aside that. There’s still much to talk about here. Which angle do we want to go to first?

Kathryn Rubino: First of all thinking that just asking, “Hey, Sam, did you do this, that thing that you said was probably bad?” “No, nope. Nope. Didn’t do it at all.” “Okay, we’re done here. Nothing to see.”

Joe Patrice: Yeah. This is in stark contrast to this Dobbs leak where the Chief Justice had the martial seize cell phones and stuff from clerks because they thought it might be a clerk. So, they seized phone records and calendars, of which they had controlled custody over, but also asked for the cell phones of these folks. This is the sort of wide-ranging, intrusive and thorough investigation they’re willing to do when they think it might be, you know, a clerk involved. Now we have credible allegations that a justice did the same thing and the sum total of the investigative power is him telling, you know.

Kathryn Rubino: Right.

Joe Patrice: So, “Great work, gumshoes.” You’re never going to catch Carmen Sandiego that way.

Kathryn Rubino: Yeah, and I think that one of one of the things they said is that even the journalists that broke the story were not able to find direct corroboration of the story, there was plenty of circumstantial evidence that they were able to locate and they discussed in the initial article, but they weren’t able to get direct corroboration from any of the people involved, directly involved, which doesn’t seem shocking.

Joe Patrice: Right. And that featured prominently into this letter, which was basically an embarrassing admission of how broken the Supreme Court as an institution is. This letter, one of the arguments made in the letter for why they should just go ahead and trust Alito saying no was, “Hey, Politico wasn’t able to find any corroboration for this either,” and it’s like, “Oh, really? The news organization that is limited to just cold-calling people with every self interest in saying it didn’t happen, they couldn’t get past that?” You have the power to look at his calendars and phones and stuff like that. He works there.

Kathryn Rubino: Yeah. And as I said, there was some circumstantial evidence. The allegations were that Alito and his wife had dinner with donors of this anti-abortion movement and those donors got that information and they shared it with the reverend who has now come out, and if you look at some of his contemporaneous emails which he provided to the journalists, say things like, “I have news,” or you know, lots of – there’s lots of circumstantial stuff if you go back at his emails because he’s the one who provided them, he is the one who felt it’s important to talk about this. He’s the one who wants the attention on how the court deals with leaks, right? And there is circumstantial, contemporaneous evidence that something was going on or he thought that he knew some information, but those direct two parties involved, no, they were not able to get from them, “Yes, I did the thing that you think is bad.”

Joe Patrice: Yeah, but my point is just the idea that an institution who ostensibly cares about this would not only rest on this laurel, but feel comfortable putting in a letter, that are resting on the laurel, that a news organization with no ability to compel discovery in any way of this couldn’t find an answer, “So, therefore, I’m not going to bother to investigate,” is just reeling.

Kathryn Rubino: Troubling. Troubling.

Joe Patrice: Troubling. But it’s a symptom of the fact that the justices obey zero ethical rules.

Kathryn Rubino: Yeah, there is no ethical code for the Supreme Court. It doesn’t look like there’s a bunch of movement on that despite the mounting ethical concerns about the Supreme Court.

Joe Patrice: Well, that’s not entirely fair. There is an ethical code. The Supreme Court though has taken the position that they impose that ethical code on other federal judges.

Kathryn Rubino: Right, that they themselves they say are not bound by that though.

Joe Patrice: Correct. They don’t feel bound by it. They say that they will ascribe to it but if they do not follow it, there they believe in their longstanding position is they do not have to do anything if they don’t do it.

Kathryn Rubino: Shrug emoji, yeah. Yeah.

Joe Patrice: They’re a co-equal branch. You can’t impose anything on them. They can’t impose anything on themselves. So, there you are. Yeah. Real, real craziness.

Kathryn Rubino: Broken. Broken system. Good news.

Joe Patrice: Yeah. So, it’s been a busy time.

Kathryn Rubino: Yeah. Yeah. You know how I know it’s busy?

Joe Patrice: How?

Kathryn Rubino: Because we’ve had the phone ringing off the hook.

Joe Patrice: Off the hook? Is it really on a hook?

Kathryn Rubino: Well, and you know, I think that it’s one of those phraseologies.

Joe Patrice: Those idioms that you’re just not going to let go of?

Kathryn Rubino: I’m not going to.

(00:15:00)

But you know what I will let go of?

Joe Patrice: No.

Kathryn Rubino: My need to actually answer the telephone.

Joe Patrice: Okay? Okay.

Kathryn Rubino: Yeah. Yeah, yeah.

Joe Patrice: And how will you do that?

Kathryn Rubino: Virtual receptionist services.

Joe Patrice: All right. That makes some sense.

Kathryn Rubino: Yeah, it really does.

Joe Patrice: So, let’s hear from Posh about that.

[Music]

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[Music]

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Joe Patrice: All right, so let’s go back to you talking now about your story.

Kathryn Rubino: Sure, another Dobbs related story. In the aftermath of Dobbs, there was a bit of a scandal at Hogan Lovells, big law firm, where they had a meeting, an all-hands kind of meeting. I think there was over 400 women who attended the meeting talking about in the wake of the Dobbs decision kind of going through and talking about the decision. One of the partners, Robin Keller, got on the call and proceeded to espouse a number of problematic views about abortion, specifically that it was a Black genocide and Black women were responsible for this genocide, et cetera, and that people needed to channel their rage. It was problematic.

In the sort of aftermath of all of these comments, there was an investigation that was done by the firm. They hired an outside firm to look into it. There was an investigation and Keller was fired. She was let go. Now she’s resurfaced, you know, like a bad penny keeps on turning up, this time with an op-ed in the Wall Street Journal.

Joe Patrice: Hold on. I was going to intervene there. She has an op-ed? What institution would bother to publish something so ridiculous.

Kathryn Rubino: Yeah, very much taking a page from (00:17:26)’s book and going to the Wall Street Journal to complain “big laws to whoa” but complaining that Hogan Lovells’ kowtow to woke faction, et cetera. So, there’s not much to be done. The firm issued a statement saying that, you know, basically saying that they encourage folks to talk about issues that matter but we value our difference. It makes us stronger, and they need people to conduct themselves in accordance with firm policies. She was fired as a result of the anti-harassment policy at the firm. So, it was interesting, kind of a follow onto the existing story that we had, but one of the things that kind of struck me is I think that for any piece that I’ve written this year, I have gotten the most hate mail about this particular article.

Joe Patrice: Yeah. And with this particular thread of articles? Because you’ve read—

Kathryn Rubino: No.

Joe Patrice: Just this?

Kathryn Rubino: No, just this one. Not even the initial one where I talked about what happened and then there was an update to the story about how she got fired. No. Those did not seem to really bother the trolls as much as when I say talking about complaining in the Wall Street Journal about it is really not doing a lot of anything.

Chris Williams: Were they substantive complaints at least?

Kathryn Rubino: What? What do you mean by substantive? Like somebody, you know, had a—

Chris Williams: Was it like did somebody agree with what you said and then they’re like, “Oh, here are the merits of the argument Kathryn is making. Let me respond in kind.”

Kathryn Rubino: No. No, no, no. One of them, one of my favorites, had a subject on it and it was like, “Because you have factual errors in your story,” and you know as a journalist, you know, your heart skips a little beat. You look, you’re like, “Oh, what?” And it’s like, “Abortion kills people,” and I’m like, “Okay, never mind.” I can delete this one too. But yeah, it was a lot of vitriol about abortion in general, which I don’t know why there’s so much vitriol. They literally just won anti-abortion.

Advocates are the ones who are the winners as of right now, but yeah, a lot of anger that somebody could be fired for. And again, it’s not just that, “Oh, she has an opinion about the law,” right? This is not some dry, esoteric point of law or she’s making some sort of a reasoned, you know, legal analysis about even the Dobbs decision, right?

Joe Patrice: Right.

Kathryn Rubino: This is Black women commit genocide.

Joe Patrice: Right. And that’s what carries it over into being a harassing statement, right? Like, there would be pushback and some grumbling if she said, “I actually think it’s great that the Supreme Court decided to read a witch hunter’s treatise and rewrite the Constitution over that.”

(00:20:01)

That would get some eye rolls, but it was not anti-harassment. It is anti-harassment when someone in a partner position who has that authority starts espousing that they think what’s wrong with abortion is that Black women disproportionately are trying to murder people. When that is the statement that’s going out, that is evidence of discrimination or the risk of it at least within a firm, which justifies a firm doing a third-party investigation.

Chris Williams: I know for a fact that some debater is going to send this to Frank Wilkinson for his next piece.

Kathryn Rubino: And the thing that gets me is that – and the thing that really I think kind of, linking it to our last story about how the Supreme Court as an institution is broken, the thing that really bothered me is that because of the way, not just that Dobbs overturned 50 years of precedent but because of the way it was written and sort of the half facts that were used to create both the majority decision as well as the concurrence, creates this kind of veneer of credibility for these very hateful statements about abortion to be made. Right? It’s only—

Keller only thinks she has an argument to spew this kind of problematic language and thoughts because the Supreme Court decisions have given her cover, have sort of said, “Hey, we’re pretending like this is real so you can then talk about it in polite company,” but that’s not true and I really applaud the firm for taking a stance, doing the investigation, doing the work to make sure that it’s very clear who’s welcome – you know, what they’re doing, what the firm stands for.

Joe Patrice: Yeah, I think that’s fair.

Your clients are expecting you to know a lot of things about a lot of things, even topics like domain names.

Kathryn Rubino: Domains were definitely not covered in my law school classes.

Joe Patrice: Worse yet, your client might want a domain name to protect their brand or support a product launch that’s already taken.

Kathryn Rubino: Fortunately, GoDaddy’s domain broker service can help. Expert brokers will help you securely and confidentially get that perfect domain.

Joe Patrice: To learn more, visit godaddy.com/dbs.

Okay back, let’s talk now about arguably the biggest story of last week, the Eleventh Circuit has finally issued a ruling in the Mar-a-Lago documents case, where as you may recall, Judge Aileen Cannon had determined that she had jurisdiction to take over another judge’s case about a criminal warrant, and with her seizing of jurisdiction she had the ability to appoint a special master to kind of backdoor motion that Trump had not made about getting documents back or using them within criminal investigation. Basically setting up the idea that if you are subject of a criminal investigation and people have seized your documents, you are entitled to know who the snitches are before your charge. That is, you know, while a wonderful nod towards Tony Soprano’s world, it is not how the world actually operates and ultimately, the Eleventh Circuit has now done that obviously to Trump appointees and one of our personal favorite, George W. Bush appointees. Chief judge prior, they struck this down with extreme—

Kathryn Rubino: With extreme prejudice.

Joe Patrice: Yeah.

Kathryn Rubino: And that’s actually one of my favorite parts about this and one of the reasons I – what Twitter was at one point I will certainly miss as Elon continues to grind it into the ground, but the sort of “I told you so” moment that is happening so, loud on legal Twitter right now. People are pulling up their tweets from when Judge Cannon made her original decision. All this of this is not how the law works kind of people tweets that people are resurfacing now because the Eleventh Circuit was like, “Um, no, not even a little bit.”

Joe Patrice: It was really kind of harsh and snarky.

Kathryn Rubino: Delightful actually to read.

Joe Patrice: Yeah, toward her work. Well, my takeaway, and I’ve talked about this a bit in other forums but like my problem, not problem but my issue with this, is I feel bad for – not really bad but kind of bad for the clerks involved here, right? Like Judge Cannon’s going to have clerks who are going to enter the job market and for the rest of their lives people will say, “Ooh, federal clerkship.” I mean that’s, “Ooh.”

Kathryn Rubino: “What year? Ooh,”

Joe Patrice: What year, yeah. And like, look, I think this is going to become increasingly a thing. I mean, I’ve already encountered it with some employers who have started it, you know, with the rise of the judges that got placed on the bench during the last administration who earned ABA not qualified ratings so much so, and so prevalent this was, that the standard conservative position at this point is that the ABA should not be allowed to evaluate judges anymore because, you know, that thinking guy emoji can’t be not qualified if the ABA can’t opine.

(00:25:03)

So, with that said, with all of that going on, I’ve already heard from employers who are starting to take a more credulous view of federal clerkships when they see what used to be kind of an automatic, “Ooh, you got it,” maybe they would pay attention if it was some really good clerkship but normally a clerkship of any kind was given kind of a universal acclaim and I think, and I’ve definitely heard, people are starting to come around to the idea that maybe it isn’t.

Kathryn Rubino: Clerkships are not created equal.

Joe Patrice: Yeah, and some are created very bad.

Kathryn Rubino: What I – my takeaway was that I think that watching Aileen Cannon in Vegas would be fascinating because she gambles big, right? She took this very extreme position and what did she think was going to happen? Did she not think that she would be slapped down pretty quickly? I mean, she got probably the most favorable panel of appellate Eleventh Circuit judges that she could have and was slapped down with extreme prejudice. I mean, she just – she’s bet big and lost.

Joe Patrice: That is definitely the case. And yeah, I just – look if your vision for your career is that you’re going to go into distinctly MAGA politics, then maybe this clerkship does work. You might not get a big law job ever but, you know.

Kathryn Rubino: No, you could work at Jones Day.

Joe Patrice: Maybe. Fair enough, but you’ll be able to walk out of this and get appointed. Well, maybe frankly given what they’ve done in the past, the next Republican administration might give you your own District Court seat. That said, if you have any designs on making money in the real sector, it becomes dangerous. You need to start considering your clerkship applications a little more cautiously.

There are a lot of good, well-respected conservative judges out there that if you’re on their list that might bode well for you in both worlds, but they’re definitely somewhere. You’re not getting the full value of a clerkship vis-à-vis your career.

Kathryn Rubino: Absolutely.

Joe Patrice: Well, then our final story I guess should talk about is what’s going on at Penn State, because this is a fairly big deal. There are two Penn State law schools, as some people know. There was the independent Dickinson Law School which Penn State system bought, then they attempted to – they ran them as two schools for a while then they merged them into one, then they did this thing where they built a giant building on the main campus and tried to argue that everybody as part of the being one school, all onels had to go to one and then they could choose if they went to the other one, then they became two fully separate schools. And now, they announced the, you know, surprise announcement last week on the eve of finals that, were going to remerge as one law school and the going theory on that is that they are going to close the main campus and move everybody to Dickinson. It’s just that’s what the tea leaves seem to look like.

It is an interesting idea whether or not this saves them any money given that they’ve already sunk costs into a large building on the main campus. I mean, maybe they can repurpose it. Are they going to have to spend a metric ton of money to build more facilities in Dickinson? Probably, because they’ve now doubled the size of the school functionally.

Kathryn Rubino: Right.

Joe Patrice: Does this save them anything? What’s going to happen to the faculty? Are there going to be layoffs because of redundancy there? Like We it’s difficult to say, but the biggest issue putting aside whether or not it’s a good move to merge these, the biggest issue is dropping this with zero warning for either the student or most of the faculty, from what we’ve heard. To drop this days before finals is just – and then not even to have a Q&A period, have like a 10-minute Q&A period on announcement, they just dropped with no preparation, is just the height of disrespect. It’s a real problem.

Kathryn Rubino: Yeah, it would definitely hurt a lot of folks who are at the schools who are very confused, wondering what’s happening, and frankly upset about the entire process, which seems fair to me.

Joe Patrice: Yeah, it’s real bad and, you know, you’re stretched really thin going into finals no matter what. Right? And to do this, to make people wonder what’s going to happen to their degree, and yeah, certainly they’re going to make accommodations for people who are already enrolled I’m sure.

Kathryn Rubino: Sure.

Joe Patrice: But you know, that’s not really a lot of comfort if what’s going to happen is you graduate and your law degree now says a school that no longer exists, that’s not good. Even if PN, you know, you basically are inviting that you have to explain for the rest of your life why your degree is what it is, that’s not great.

(00:30:00)

I’m not taking a position on whether or not merging them might be ultimately the correct idea substantively, but I will very much take the stance that doing it a couple of days before finals was never the right answer.

Kathryn Rubino: For sure.

Chris Williams: Is there any real substantive difference between a law school that has its name changed like, for example, I’m thinking of like Penn changing its name Carey, like will people be affected by that? I mean, it’s different because it’s Penn and – it’s fucking Penn, but like–?

Joe Patrice: Well, right. Right, right, right. Right. Yeah. Law schools that change their name by adding a donor to it and then being very insistent that you always use the name of the donor, which we deal with all the time here at Above the Law, we tend to ignore a lot of that because it’s ridiculous, but – and Carey was very much – Penn’s situation was very much part of that. They went so far as to really for a while push, “Don’t even say that we’re Penn Law School. You have to call us Carey.” Well, that was ridiculous and we all ignored that the same way we ignore most stadium naming deals.

That said, this would be a little different. I mean, I think they’re definitely going to continue to call it Penn State, no matter where it is, but it’s – you know, it’s going to ultimately – it sounds like they’re going to move people away from kind of where the main campus is, move it all to Carlisle. You know, that’s a big change. Yeah. Law schools are—

Chris Williams: Those are quality of life adjustments. I get it, that’s important, but I’m just talking about as far as like the procedure of the degree.

Joe Patrice: So the procedure of the degree, their argument, the university’s argument is that it will get better. I don’t know how true that is but their argument is that it will get better because they currently are running two schools that are both equally good. They’re both in kind of the high 50, low 60s. Their argument is that by putting them together they can have one excellent school. I’m not sure that’s true. They can obviously, assuming they get smaller as a law school, which I’m thinking has to be the answer because if it’s a cost-saving measure, you can’t dump 300 more students into a campus that’s not built for them. So, that means they’re probably going to have to get more selective. Does that help them? Maybe to the extent rankings matter. We’ve already talked about how those may not matter for much longer.

Chris Williams: But yeah, I mean like good plus good means gooder is at least a facially like sustainable argument.

Joe Patrice: Yeah.

Chris Williams: I mean that – I’m worried because like about the claim like a person needs to explain that the school they go to doesn’t exist anymore, I would imagine that would be – a softer cushion to land on would be like, “Yeah, the school that I used to go to, it’s better now. Now it’s called X.” Like I’m just thinking like them in the interview, like would they really have an issue with explaining the change to their employer?

Joe Patrice: Yeah, I mean if it just becomes Penn State it might not be all that bad. My feeling is, and I think this may be borne out and I don’t know all the details of how they took over, my feeling is that the agreement that brought it, where they purchased Dickinson, probably requires them to call that school Dickinson, which would suggest that if you did not go to that school you didn’t go to the real school.

Chris Williams: Got you.

Joe Patrice: And that was the issue that for a while it sounded like it seems as though different university presidents there have tried to get rid of this law school, the Dickinson thing altogether, and found that actually the agreement by which they bought it was that if the university runs any law school whatsoever, they must maintain the Dickinson part. So, they can only either don’t do law school or have it in Dickinson. So, anyway, yeah. The point is, don’t treat your students this way.

The announcement suggests that students are going to have a say in the future of this. One hopes that’s true. I’ve told some students who’ve reached out to me hoping to stay on this issue, I told them, “Look, we are going to stay on this issue but we’re not probably going to spend a lot of time on it in the next two weeks just because, A, there’s not a lot of progress going on and, B, you all need to get through the set of finals. And then, we can regroup and start talking about it a lot more in January.” But we’ll see.

Anyway, so that’s going on, and that was a big story. Last week too. And now, I think we’re done. So, thanks for listening. You should subscribe to the show, get them when they come out. Give reviews, all of that stuff. You should read Above the Law so that you can read these and other stories as they come out. You can follow it at @atlblog.

Chris Williams: For now.

Joe Patrice: If Twitter continues to exist. You can follow us individually. I’m @JosephPatrice. She’s @Kathryn1, that numeral one there. He’s @rightsforrent. You should follow the other shows that we do.

[Music]

Kathryn is the host of a podcast called The Jabot. I’m a guest on the Legal Week Journalists’ Roundtable – no, the Legaltech Week Journalists’ Roundtable. With that, you should listen to the other shows by the Legal Talk Network. And yeah, that’s it.

Kathryn Rubino: Peace.

(00:35:00)

Joe Patrice: All right. Bye, all.

[Music]

And thank you as always to Posh and GoDaddy Domain Broker Service for sponsoring the show.

Kathryn Rubino: Thanks.

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