Joe and Kathryn take a deep dive into some Above the Law stories from the last couple of weeks. Kathryn focuses on what ticks her off about a superficially light-hearted story about a Supreme Court advocate appearing for oral argument while his baby was busy being born and Joe talks about what reasonable accommodations for disabilities and the unconscious rhetorical choices he’s made.
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Above the Law – Thinking Like a Lawyer
Happy New Year! Everything’s Awful
Intro: Welcome to Thinking Like a Lawyer with your hosts Elie Mystal and Joe Patrice, talking about legal news and pop culture, all while thinking like a lawyer, here on Legal Talk Network.
Joe Patrice: Hello. Welcome to another edition of Thinking Like a Lawyer. I am Joe Patrice. Welcome to the New Year. Thanks for joining us in this New Year and also thanks to our sponsors Smith.ai, the virtual reception service for lawyers and US professionals answer your phone and website chats. They are very useful and you can schedule appointment. So you can get a free trial with Smith.ai. We will talk a little bit more about them as we go on, but they are sponsoring the show, which is just me and not Elie, who is not here at all.
But Kathryn Rubino also of Above the Law is here to fill in for Elie, so welcome.
Kathryn Rubino: Hi folks. How are you doing?
Joe Patrice: Yeah. You have noticed we have been absent, that’s because we could not find any time where Elie was around between travel issues and him getting ill and now he is at the Law Professors Conference so there just was never any good time to get everybody together.
So Kathryn is thankfully stepping in to allow us to have a show, so thanks for that.
Kathryn Rubino: Well, my New Year’s resolution is to be kinder to my coworker, so I really had no choice when you asked.
Joe Patrice: Wow. That’s good to know. That’s good to know. And for those who don’t work here, that’s a very significant New Year’s resolution that I am sure will be broken, possibly before the end of the episode.
Kathryn Rubino: Try not to tell too many people.
Joe Patrice: No one is going to listen to this podcast, it’s great. So it’s not like we have an audience or anything. So we are here to talk about the New Year and a few stories that have happened since we last checked in with you. Do you grind gears? Do you have anything that you are annoyed about?
Kathryn Rubino: Well, I probably won’t yell like Elie, so that will be a distinction, but yeah, there is definitely some stuff that has been annoying me. How about you?
Joe Patrice: Yeah, sure. But see like —
Kathryn Rubino: No, well, but there was a story that we recently ran on Above the Law.
Joe Patrice: No, no, no, no, no, no, no, no, no, no, like how often do you listen to this podcast?
Kathryn Rubino: Pretty frequently. I mean in fairness, you generally record in the office while I am in the office so I hear it as it’s happening most of the time.
Joe Patrice: Yeah, there’s a format here, there’s a thing, you like complain about something that’s totally unrelated and then we banter about it, like come on man, you let me down here.
Kathryn Rubino: Well, my Christmas lights are still up and I actually don’t care. I think that we should actually keep our Christmas lights up through February. We are getting to like the ass-pit of the winter months and I feel like Christmas twinkle lights are pretty much the only thing bringing joy and everyone should keep them up until the ground melts or something.
Joe Patrice: Yeah, I actually read a thing the other day making the argument that we really need to move Christmas later. We should just all make the concerted decision to the extent that it probably does not actually reflect any specific date, but was rather just kind of chosen by the church and it’s therefore flexible.
Kathryn Rubino: Are you telling me Jesus was not born as a Capricorn, is that what’s going on?
Joe Patrice: That is what we are saying, yeah. And so to that extent it probably is a smarter move to move it to the middle of the winter rather than four days into the winter, because then you would have something to look forward to.
Kathryn Rubino: I mean it’s so true. The weather is crap. There is no chance anything is melting. We are going to have snow and cold and wind for another three months in all likelihood. The only kind of spot of joy is a little bit of Christmas cheer, it makes total sense if we move it. I mean it will never happen, but it would be great.
Joe Patrice: Yeah. Well, maybe we can move Festivus. Okay, so there, see, that was a worthwhile grinding of gears.
Kathryn Rubino: Oh, it’s the best I can do.
Joe Patrice: You did okay. All right, well, good. Well, let’s take a quick break.
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And we are back. So Kathryn, what stories have been happening in the last couple of weeks that you find interesting for all the listeners following the legal landscape?
Kathryn Rubino: Well, there was one fairly recent story and it’s kind of a cute, seemingly innocuous kind of story, but the more I think about it, the more it kind of sticks in my craw and makes me really pissed off. There was a recent Supreme Court oral argument and the attorney in the case, Trevor Cox, he gave the oral argument while his wife was in labor with their child. And it’s kind of been going through Twitter and people are referring to it as an impressive humblebrag or somebody else wrote that it may be a humblebrag least worthy of being humble.
But it just kind of pisses me off because a woman who was giving that oral argument would have no option to work through the labor of their child. And it’s really only a privilege — it’s only something that men get to do is to kind of be that kind of diligent, hard worker that puts their family life on hold in order to do an impressive thing with their career while their wives are busy giving birth.
And that’s not something that every person gets the opportunity to do and I don’t think it’s something that we should be exalting as some positive or something worthy or some sort of a humblebrag or something like that. I think we need to be like, hey, that’s kind of messed up. We should never ask anyone to do any of those things, and the more we kind of hold up this as a model of look, what this guy did, when we know for a fact that women or people who are able to give birth are not able to participate in the same ways, it’s just holding up an ideal that is never attainable for everyone.
See, I told you, I get really pissed about this. The more I think about it, the more angry I get.
Joe Patrice: So your stance is that we should, as a legal culture, we should not allow or we should certainly not encourage and potentially not allow men whose partners are expecting to give birth to be forced to do work right up against that, is that where we are going?
Kathryn Rubino: Yeah. I mean it speaks of the whole culture of elite legal practice that we are willing to ask people whether it’s explicitly or implicitly to sacrifice parts of their personal life in order to be the very best at this. And if we don’t come to some sort of recognition of the ways in which we are asking — what we ask in order to be elite is only something that people who are not pregnant are able to be and able to do, and then we wonder why the amount of men giving oral arguments at the Supreme Court far outweigh the number of women, while even though we have more women entering law school, fewer of them are becoming law firm partners or giving these oral arguments and all sorts of appellate situations.
These are all part of the reason why. There is a whole landscape of reasons and certainly changing one thing is not some automatic cure, but I think we also have to be very aware and wary of the times when we see something that is part of the problem, and it’s more than just oh, he got to give an oral argument while his wife was in labor, but think about a woman who is in a firm or somebody who could potentially be on a case that might want to do this sort of thing, are they put in a position of being forced to delay their family plans, what if they do become pregnant as they are on a case that may get to — may get started, may get to the argument from the Supreme Court or any kind of big appellate court, are they being put in a position of being like oh, well, I guess we will also staff it with a male client just in case you have to give birth at the time?
And these are the sorts of opportunities that are being taken away from women because we refuse to — we see pregnancy and families as a detriment to the elite practice of law.
Joe Patrice: Well, that was a thing earlier this year, there was some firm that tried to file sanction motions against another firm because the woman who was leading the trial team of the other firm asked for a delay to give birth and so they filed for sanctions for her trying to screw this up.
Kathryn Rubino: I mean that’s a fact too. Yeah, I mean that’s kind of — I would certainly hope too many people and firms and lawyers aren’t taking it to that extreme, but it’s even these kinds of little things that oh, this guy had a ton of pressure on him as he is waiting to see whether or not — his wife’s status of her labor as he is giving oral argument, look at all the pressure he is able to withstand as he is also being peppered with questions by the court.
This seems a lot less awful certainly as someone who has asked — lawyers who ask for sanctions just because a woman asked for a continuance because she is pregnant, but those are all the sorts of small things that make up a landscape where women are not — are increasingly checking out from these sorts of positions.
Joe Patrice: Yeah, definitely, because I am sure — it turns out that he didn’t tell the court that this was going on. He only let it slip after the oral argument was over. He let reporters learn of it.
Yeah, it’s rough. I mean he probably should have been back there in the waiting room smoking a pipe or whatever it is men do these days in that sort of situation. But yeah, no, like that was what he did. It wasn’t even like — it wasn’t like it was some D.C. Williams & Connolly partner who was down the street, it was a state away.
Kathryn Rubino: I am sure this guy is great and I am sure he is just trying to do the best he can being a parent and being a lawyer who is arguing in front of the Supreme Court and I don’t mean to direct any of the concern I have about it at this individual, because people make difficult choices all the time, but we have to sort of think about why we are making the choices we make and how we choose to talk about and report when these sorts of things do happen.
I think we need to be very aware of the fact that as cute of a story as it is that oh, this is what he did, we have to recognize that it’s not a luxury that a woman attorney would have in the exact same situation.
Joe Patrice: Oh yeah, and that’s a good point. It’s not so much that he has done anything wrong here. He has done in fact what he would have been expected to do. I don’t think that the powers that be would have expected him to do anything but this when confronted with the opportunity of representing a client in this case; in this case it was a state, right, yeah, and in front of the Supreme Court. Yeah, anyway.
Kathryn Rubino: So are there any recent stories that have kind of stuck in your craw that you want to talk about Joe?
Joe Patrice: Yeah. So also kind of on the culture being broken. This one comes out of the University of Michigan’s Law School. They had a situation, like most schools do, where in accordance with a lot of the legislation from the Americans with Disabilities Act and just generally how schools try to deal with potential discrimination. They make accommodations for those who have any condition that could be construed as a disability for getting a test completed on time. They will afford reasonable accommodations up to and including extra time for those folks to finish their exams. That’s all well and good. It’s fairly common practice among law schools.
Kathryn Rubino: Law schools, undergrad, I mean I think that this is, as you were saying, a very common practice.
Joe Patrice: Some student that we don’t name because our policy is generally speaking that students are allowed to be morons and we give them the opportunity to get themselves back on track. Some student wrote to the school-wide comment board that yeah, these people were ruining the curve for him.
Kathryn Rubino: It’s a late fall.
Joe Patrice: Yeah. I mean it is the kind of dumb thing that happens out there. There are people who, especially at 1L level, who are A, unnaturally worried about their curve; and B, not yet ingratiated into commonsense enough to understand what reasonable accommodations are and how important these are for folks who just need them to be on the same playing field as other folks, not because they aren’t capable, but because there is one thing that — they can’t do certain things at the same pace and so that needs to be addressed with a reasonable accommodation. So that was the story.
Afterwards though is what I am more interested in, because after I wrote this story, I think everybody kind of agreed this was a bad thing that the student had done complaining about it, the university was quick to point out that that didn’t reflect their values and why they did what they do and that was all well and good.
What was more interesting to me as somebody who writes on the Internet and has kind of a public life like that, finding people who can point to and show me new ways of thinking about stories that I may not be in a position to see or understand. So one of the things that was interesting to me was there was initially some push back over my use of language like disabled in the piece, which that is a difficult one because there are people who suggest that there is problems with utilizing language like disabled for folks who have these various conditions.
That said I did what I did, because as far as utilizing that language because that is the language of the statutes and the regulatory regime that is a play here. But it does create — I mean it’s a — if he placed though, like at a certain point as a journalist I’m re-inscribing that sort of rhetoric by utilizing it.
Now, granted, I’m doing it because that’s what the law is, but you know that I bear some responsibility for the language choices I’m making too. So that was an interesting thing and it’s always good as a person who writes out there to be self-reflective about whether or not — I’m not altogether sure I would have changed that particular usage in a different situation but it was important to understand that that is a concern and to be able to flag it.
Kathryn Rubino: Sure. So, you were saying that there are some people who have responses to our articles that really felt. You feel like it helped you develop some of your thinking on these issues, is this one of those cases where — so you had some nuance conversations with actual readers that weren’t just an onslaught of Hate Mail?
Joe Patrice: Yeah — no, absolutely, I did. There were some folks who thought it was awful or whatever and I addressed them and some responded, some didn’t. Others though came in and said that actually from their perspective as folks who were in this position, they were like talking in disability rhetoric like that, ableist rhetoric like that. In this way they did not find problematic and they kind of supported the language choices that I’d made. In that they understood that why I was doing them and saying that that actually isn’t a problem in this context. So, it was nice to hear from people from all sides explaining how they felt about it so I could develop a better picture.
One more interesting comment that was made was from somebody who said that the use of disability rhetoric wasn’t actually a problem, but the thing they did have an issue with that they wanted to point out to me which I’ve already used in the context of this podcast now that I think about it, is they said that I should have been more concerned about using language like moron which we use colloquially for people who do things like write posts that say you are rocking my curve.
However, the term itself began as a clinical definition for people who had certain mental conditions, and so, its usage as something that to denote dumb decisions kind of is actually re-inscribing that kind of anti — some kind of ableist rhetoric, which I thought was interesting and it does put you in a weird place because I think that’s probably true that a lot of that language came from there, but on the other hand, there’s some level to which we’re getting so divorced from that original meaning that does it still ring true, and certainly, it’s not something that would strike me off the top of my head as ringing true like that, but it’s also something where, of course it doesn’t, because I have the privilege of not thinking about that every day.
So it did kind of inform how I think about that and where I use it and why I use it and whether or not, that’s a problem. It’s important to just always be thinking about these things even if you aren’t making a change, like as a person writing up there to have it front of mind, even if you go forward with it, it’s still important to be cognizant about me.
Kathryn Rubino: One of the things that I kind of think is very interesting about this dialogue that you were able to have with the readers is that even though at Above the Law we closed comments about three years ago now. Even though we don’t have comments, we still are able to have dialogues with our readers. Whether it’s, we have our email just as widely available on the website. We all have social media, Twitter, all that kind of stuff, but I think that what we’re finding largely is that old-fashioned comment boards are very much a relic of the early 2000s and not something that is super-necessary for websites in the late teens.
Joe Patrice: Yeah, I will say that I had far more engaging and valuable conversations about this because people took the time to engage directly rather than have to fight through the boards that I don’t know if people remember the old Above the Law boards but there was a lot of like duh, you are dumb, fat, blah, blah, blah, that would be something that —
Kathryn Rubino: Those are the more benign comments that used to be on the ATL comments.
Joe Patrice: Yeah, right, I mean, there was lots of sexual violence obviously. Yeah, stuff like that.
Kathryn Rubino: It’s terrible stuff.
Joe Patrice: Yeah, and folks we even wanted to have a constructive conversation in that board, we are always drowned out by all of those comments.
I think that we have a — obviously it requires more active work on the writers’ part, and back in the day that the comment boards could exist and people could feel like they’ve said their piece whether or not we ever looked at it or not; but now, if somebody does at you on Twitter, you do have to look at it, evaluate it, gauge it, and that’s something that I think has actually made the conversation better. It makes it a little less — you have a little less self-aggrandizement by being able to say, hey, look, that’s my name there, calling Ellie “a walrus”, which was a thing that happened a lot. But, you don’t have that but you do have the ability to talk to us. It does require us to read our emails and respond, but I think that we’re pretty good about that.
Kathryn Rubino: Yeah, and I think we had a recent story, I am pretty sure you wrote it; about some of the legal Internet or commenters, even though at ATL we’ve closed the boards that they really have found other homes kind of across the Internet.
Joe Patrice: Yeah, the poor ABA Journal has — they never got rid of their comments, they’re still there, you have to affirmatively click to enter them, which is a practice that even we were doing at the end. But, yeah, you have to click to enter them but they have also inevitably taken the turn and while there are people there trying to have good, substantive, intellectual engagement with the stories that the ABA Journal’s writers are actually writing, they just keep getting derailed by all manner of awful stuff, mostly weird conspiracy mongering people who then incite everyone else to fight them and even those fights get more-and-more aggressive and reaching the point of violence. And it just — they are just kind of poisonous places because they reach out to the lowest common denominator who unfortunately has the power to ruin everything for the people trying to have a good discussion.
Kathryn Rubino: Yeah, I mean, I think that once you are writing something on the public forum, that is the Internet, you kind of become a beacon for all manner of people. Anyone with a phone or an Internet connection of any sort can read and comment and respond to your stuff, and I think that what lots of different publications are trying to grapple with is what is the best way in order to have the conversations, is it on forums like Facebook or Twitter that are kind of third-party that at least have some sort of a name attached to them versus these sort of an anonymous comment boards which is something that we had in Above the Law back in the day.
And it’s kind of an interesting dichotomy as we’re going forward and trying to figure out what’s the best mix for, not just for the sanity of the writers because whatever we signed up for this but also for folks who are interested in engaging in a lot of these questions.
Joe Patrice: Yeah, it just fundamentally struck me that this is not the publication’s job.
Kathryn Rubino: Right.
Joe Patrice: Like, you don’t run your own fan site as — if you were a celebrity, right? And that’s kind of what it’s like. Our job is to put out a product that the millions of clicks will like and whether or not they like it, or I shouldn’t say “like” that they will read and consider, whether they like it or not, and at a certain point maintaining those boards that were only frequented by a handful of people, that’s resources and time, energy that takes away from the actual audience, and you just have to recognize that that’s not our job.
If people want to engage in those stories in another forum, we have forums like that, places like Facebook and Twitter, they exist solely so people can make commentary about things. That’s not what we are doing.
And so follow Above the Law on @ATL blog on Twitter, Follow us on Twitter @JosephPatrice, @Kathryn1 whatever or wait — are you just — you are Kathryn1 right?
Kathryn Rubino: Yup, @Kathryn1.
Joe Patrice: Yeah. @Kathryn1. Be a fan of the site on Facebook, whatever it is, but those are the forums where third parties run them to have that discussion, like don’t expect that we’re going in a position frankly to take the time to maintain a space for people to talk about the site. Our job is to have the site not to host the place where people can talk about it. And yeah, and so to close the loop that’s the thing, the ABA Journal is kind of in that place that we were a few years ago where they had these great conversations that are getting derailed, and so, when I saw it I was very — I felt kind of a thing
Kathryn Rubino: Sympathy?
Joe Patrice: Oh, I feel where you are, and then I also felt a bit of guilt because, I mean, I’m sure these are people who would otherwise be on our site complain before we closed ours.
Kathryn Rubino: So, Joe, we are at the end of the year and I have to ask you, what was the best legal story of 2018 in your mind?
Joe Patrice: We are actually into the whole New Year.
Kathryn Rubino: That’s what I said — of 2018, like what was the legal story that spoke the most to you?
Joe Patrice: I mean, I don’t know, spoke the most to me like that I most enjoyed, like they are kind of all over the place. I mean, the legal story of the year was the various actions of the Supreme Court, the like loss of Kennedy and the whole Kavanaugh Kerfuffle.
The story that I enjoyed working on the most was probably the Schlosberg story which was the random lawyers shouting a bunch of racist stuff in Midtown Manhattan and then the fallout from that. That was the most kind of fun I had like following a story from its birth to —
Kathryn Rubino: Early moments.
Joe Patrice: Yeah. I had a lot of fun this year following the various cases. I don’t know, like it depends on what you are saying, but I mean, those are two that crop out to me.
Kathryn Rubino: For me I think that you know what, one of the big stories that sticks out in 2018 is the Biglaw raises. I think a core of the Above the Law audience is always going to be concerned about what’s going on in Biglaw and when Milbank decided to raise salaries across the Board — not a ton, mind you, but enough to kind of move the needle and then Cravath came over the top for at least for senior associates and Simpson matched those numbers and then also added in a special summer bonus, which Milbank and the rest of them eventually matched all of those numbers. I thought that was a really exciting time for those who follow the ins and outs of the worlds of Biglaw.
Joe Patrice: Yeah — no, I mean, that’s a good one too, like the legal industry news of the year was definitely the raises, and the way in which it’s pushed the whole industry a little bit further down and down the line of a reckoning I think because like I do feel as though there’s a flattening especially at the top where you are getting the same giant salary in certain — like in — I’ll pick on Houston again — in Houston as you are in New York City, and at what point does that break? And I think we thought that we talked about this in 2016 and now it just got a little more acute. So —
Kathryn Rubino: Yeah.
Joe Patrice: Anyway, cool. So, thanks for pinch-hitting for us here with Elie not around.
Kathryn Rubino: Anytime.
Joe Patrice: Cool. That’s Kathryn Rubino, she is at Above the Law. She also is the host of her own podcast called ‘The Jabot’, which talks about a lot of these issues about women in law and —
Kathryn Rubino: Diversity and Identity —
Joe Patrice: Discrimination and — yeah. So, thanks for listening. You should read Above the Law as always, you should be following all of us on Twitter. I am @JosephPatrice, he’s @ElieNYC, Kathryn is @Kathryn1. You should be following the Above the Law Instagram account which I gather we have not that I’ve been very active in it, but I know that it’s out there. You should be subscribed to this podcast, you should be giving it reviews, all those sorts of things. You should check out Smith.ai who again thanks for sponsoring the show and you should be listening to other Legal Talk Network shows. There’s a bunch of them. I sometimes host ‘On the Road’ whenever we find ourselves at a convention together. So, there’s some episodes there, there’s obviously ‘Thinking Like a Lawyer’ and a bunch of other good ones out there too; so, check them all out. And with all of that, I think we are done. We will talk soon everybody.
Kathryn Rubino: Bye.
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