Judge Decides To Just Make Up The Rules As She Goes Along

Episode Notes

Transcript

Joe Patrice:

Hello and welcome to another edition of Thinking Like A Lawyer. I’m Joe Patrice from Above the Law and the fact that you did not hear me get interrupted by somebody is a sign that I am completely alone. Well, not in any great existential sense, but I am without my co-hosts this week. This is one of those situations where I’m out of town. They all got busy. We couldn’t find a way to get everybody together in time to record, so we had to come up with an alternative solution. So with the help of the folks at the Legal Talk Network, I am recording live from the Austin Convention Center where I am based here for the Clio Cloud Conference in 2024. It is a good tech conference, but I know as Kathryn will always remind us that not all of you care about technology as much as I do.

So to hear more about that, you can check out my tech show. We just did a live version of it here as a panel. You can hear all my tech thoughts over there, but instead, we’ll hop right into this. As far as small talk goes, I don’t have access to my usual sound effects. Alright, now, small talk. Yeah, there’s not really much for me to say because I’m alone and I can’t really have good banter when I’m by myself. So instead, we’ll move right past that, but I didn’t want to leave the show without sticking to its correct and accurate format. So here we go. First story of the week that we have is about Judge Kathryn Mizelle. In the movie Ghostbusters Winston says, “Ray, when someone asks if you’re a god, you say yes.” The less famous, but equally valuable Axiom is that when the ABA says a judicial nominee is unqualified, they are right.

Do you have any idea how low the bar is for ABA qualification? It is scraping the ground. This is what they do. You should listen to them instead. No one did. Judge Kathryn Mizelle rose to the bench in the waning days of the Trump administration on the strength of being a year that is one solitary year singular removed from her clerkship and working as an associate at Jones Day. The law firm Lord Voldemort would use if Lord Voldemort wasn’t worried about what it would do to his reputation. There’s a bestselling book covering the firm called Servants of the Dam, which should tell you all you need to know about their clientele mix after a rough start to her judicial career, tagged with the scarlet non-qualified ranking from the ABA, Mizelle gained infamy for striking down the CDC’s mask mandate in 2022. In that decision, she yanked Corpus Linguistics from an interesting and a totally nerdy academic world where linguists track evolution of language usage to speak to broad trends about cultural progress and she then used it square peg, ground hole style to define sanitary as not including sanitary masks despite the name.

Because someone in the 1930s had once used the word to describe garbage trucks. Had she just taken an all expense paid trip paid for by people pushing linguistics as a vehicle for right wing judicial activism, you had best believed that she had, but at least in that case, she cited something. Last week, Mizelle declared the False Claims qui tam provision unconstitutional. This law has been on the book since Abraham Lincoln signed it and existed as a concept dating back to the Middle Ages as described in the English common law treatises that conservative judges usually used love to cite it enjoys a long history in the Anglo-American legal canon as a necessary tool allowing private citizens to recover damages owed to the United States government that might otherwise go unclaimed. For this, she ginned up an Article two theory, not unlike the one Judge Mizelle’s counterpart.

Aileen Canon recently used to conclude that special counsel Jack Smith violated the Constitution by merely existing, which that itself had been based on Clarence Thomas’ opinion, a dissent writing for himself alone, where he complained explicitly that no one else on the Supreme Court agreed with him, essentially claiming that the Constitution forbids anyone from acting to the benefit of the United States unless they are appointed by the president. What about opinions being deeply rooted in the nation’s history and tradition? Consistency is the hob goblin of good faith actors. Instead, she shrugs off this history of the law as not a course of deliberate practice for those playing along a course of deliberate practice. We don’t know what it means, but it clearly means at least predating Abraham Lincoln at this point. She includes a long string site without a single site to relevant authorities, zilch, nada, concurrences and dissents and that’s it.

No majority Supreme Court 11th Circuit sibling circuit opinion, not even a stray district court opinion from some far-flung district. The rest of the courts have explicitly declined to strike down this law in all of these cases, but somehow a district court judge decided she can, which actually makes for a much bigger and apolitical problem. When bottom rung trial judges are running around inventing new constitutional law that they hire. Courts have refused to take it, messes stuff up. The judiciary is tiered for a reason, forcing trial judges to apply the existing law, whatever they think of it, discourages litigants from pursuing costly and frivolous challenges to the status quo and also prevents the appellate courts from having to run constant cleanup on rogue district court opinions when there is a presumption in favor of maintaining existing law. A predictable business litigation environment relies on stacking the deck against judges making radical changes when they willy-nilly want to impress their friends.

Unfortunately, that’s not the world that we live in now. This brings us back to why it’s important that people be qualified. Next, we turn to the world of law school. I am dating myself a little bit when I remember the US News and World Reports was a news magazine and not nearly a ranking delivery device last. Those days are long pass and the publication is now notable for just slapping numbers on things and selling big splashy rankings reports for all sorts of stuff. The US News Law school rankings are still months away, but a lot of the data that goes into their methodology is now out there in the wild, and based on this industry observer, Mike Spivy predicts some radical at the top of the venerable ranking for those who, well, everybody knows this, right? You all know there’s 14 schools that are always at the top and they follow a pretty distinct pattern with very little variation amongst them.

Well, if his predictions is to be believed, and last year he managed to get something along the lines of 177 of them, right? Based on this sampling of data, we have a new ranking for the top 10. Number one will be Stanford University. Number two will then be Yale. That’s right. Yale will slip out of number one into the two slot. This is fairly significant. If this comes to pass, Yale will then have to do the right thing by its ancestors and ritually disband Following them, number three is Chicago. Four is a tie between Harvard, Penn and Virginia. By Penn we mean the Cary Law School, which they constantly tell you you’re supposed to call them despite the fact that there are other schools with the same name and Penn is a much better name. Number seven will be Duke all by its lonesome and then a tie at eighth between Michigan, Columbia, NYU, and Northwestern.

Yale’s fall from grace. You just hate to see it, don’t you everybody? Everybody has such warm, fuzzy thoughts about Yale. There’s nobody out there who thinks that the school is a unending soap opera that should have been canceled years ago. Alas, the New Haven Institution notoriously pulled out of giving its own proprietary data to US News and World Report to facilitate their rankings a few years ago, making the public data that is now out there more likely predictive because there’s no secret sauce coming from Yale because they don’t cooperate anymore. They might now be regretting the fact that they threw the rankings into complete disarray just so they didn’t have to be called out for being wildly expensive. Also, the classic standard of HYSCCN, the Harvard Yale Stanford group followed by the Chicago Columbia NYU group has been fully disrupted with Chicago jumping into three ahead of Harvard and Columbian NYU plummeting all the way down to eighth.

But at the end of the day, do rankings even matter in a sense? No. There’s a reason Above the Law has its own ranking methodology to highlight outputs over inputs. The US news cares a lot about whether or not students have high undergrad GPAs and good LSAT scores, whereas the Above the Law rankings, es shoe that and care more about who gets full-time, long-term jobs and clerkships and salaries, stuff like that. So there’s a reason that we have that because schools can be measured in multiple ways and prospective students should see them in that light. Take in all the information, integrate it in the way you want and work it out. This year is Above the Law rankings even includes a feature that allows you to customize the rankings for what you think is important, shifting the weights around a little bit to whatever you want, which is we think more valuable to students coming together.

But again, do rankings then matter? Well still, yes, there’s a broad reputational impact to their rankings. No one’s really quibbling about whether Chicago or Harvard is three or four. They might, but ultimately no one cares, but they do care about Stanford versus say high point. There’s a importance to the bands and tiers in these rankings. Now, this level of granularity therefore doesn’t really matter, but when you look at these schools in whatever order they’re specifically in, understand that they’re all notably better these schools in this list for your long-term career than the ones that are going to slot in below. That doesn’t mean that the ones below are necessarily bad schools or ones that you shouldn’t take into account. Obviously if you are in a position where you’re getting a full ride from somebody, a tier down and you’re having to pay through the nose for these schools, then you probably should go to that other school.

But this is information that needs to be carried into your decision-making process, and that’s why rankings are important and that’s why as much as we have over the years dogged the US news rankings, we are more irritated with Yale’s decision followed by other law schools to pull out of cooperating with the rankings. It’s a level to which they added more opacity to the decision-making process on law schools that was unnecessary and bad prospective students and we oppose all of that and therefore karma. Finally, there is a new Matlock. Why is there a new Matlock? Well, it’s because Hollywood is out of ideas and someone thought pop culture references to shows that catered to 80 year olds in the 1980s are hot. That person works for CBS. Obviously this version of the show puts Kathy Bates in the role, but not as a seersucker clad simple country lawyer, peddling folksy wisdom between solving brutal slayings.

Instead, Bates plays a down on her luck, unassuming low-key, brilliant lawyer that chitchats her way to success during a high profile lawsuit, but she’s also terribly ethically challenged. This is where the spoilers begin give up. If you really are sitting around waiting to watch the first episode of Matlock, which hopefully you aren’t, but whatever or you are, I don’t care. You do you. But anyway, spoilers at the end of the premier episode, it’s revealed that Maddie Matlock is actually a fake name and Bates is a successful attorney who is faking her identity to get hired by a big firm because why wouldn’t you do everything you could to work big law hours if you already were successful? She expositions that one of the three partners at this firm that are now her bosses had done, hid documents on behalf of a pharmaceutical company client and she’s now investigating that. The character we know is Matlock then believes these documents could have removed opioids from the market and her daughter who died of an overdose.

That’s the revenge plot here. Okay, so she’s lied her way to a job at the firm to the people responsible. Now faking an identity, probably not something bar licensing authorities look favorably on. There’s some rules about ethics and honesty and integrity, nor would they necessarily like a revenge plot that focuses on blowing up attorney-client privilege and espionage. That said, here we are once again with a law show catering to the general masses that makes law a complete mess like what she’s doing for the right causes or whatever or not. This is the sort of shenanigans that gives people a bad view of the legal profession. I’m never going to be one of those people with a pollyannaish view of lawyers that they should be seen as some great saviors of society or anything. But it actually is somewhat important that the average person not think that everyone out there is capable of doing dirty underhanded stuff to get things done.

That’s the actual danger to a civil society when you have that sort of thing going on. This is why these legal shows, and we’ve gone through several of them over the years, these ones that play fast and loose with what the role of a lawyer in society is, why they are so bad. Don’t let these happen. But I mean if you would just want to watch Kathy Bates in a show, that’s cool. Do that. Alright, with all that said, we are done for this very short episode. I didn’t have co-hosts to help me flesh things out, but they will be back next time. In the meantime, thanks for listening. You should subscribe to the show. You should leave reviews, stars, write things. All of that helps. You should be listening to the other shows on the Legal Talk Network. You should be reading Above the Law so you can read these and other stories before they hit this conversation. You should follow us on social media. It’s @ATLblog. I’m also @JosephPatrice. I’m @JoePatrice at Blue Sky, which is where we’re trying to get conversations going slowly and surely over there. You should be listening to other shows. Did I do the other shows? I can’t even remember. Oh no, I didn’t do that. The Jabot is Kathryn’s other show and I’m a guest on the Legal Tech Week journalist round table. And with all of that said, I think we are done from Clio. Check you out next week.