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Joe Patrice

Joe Patrice is an Editor at Above the Law. For over a decade, he practiced as a litigator at...

Kathryn Rubino

Kathryn Rubino is a member of the editorial staff at Above the Law. She has a degree in journalism...

Episode Notes

Elie is out of town, so Joe and guest host Kathryn Rubino take a page out of ESPN’s playbook and offer a PTI-inspired roundup of the week’s legal news items in short, two-minute bursts. There’s even an air horn.

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Above the Law – Thinking Like a Lawyer
Pardon The Injunction


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 from Above the Law. Elie unfortunately is not with us this week, so I have replaced him temporarily with Kathryn Rubino, also of Above the Law.

How are you?

Kathryn Rubino: Good there. How are you doing?

Joe Patrice: Good, good, good. So what is up on this fine Thursday that we record?

Kathryn Rubino: There are a lot of things going on. I thought we might try something a little — something different, if you are game for it?

Joe Patrice: Okay. I mean that seems like you are jumping right into something, but okay.

Kathryn Rubino: Do you not want me to jump right in?

Joe Patrice: I mean that’s normally not how things work around here.

Kathryn Rubino: Okay.

Joe Patrice: I mean it’s almost like you have never been on the show before instead of like —

Kathryn Rubino: I mean you literally yelled at me like this exact same thing the last time I co-hosted this podcast.

Joe Patrice: Yeah, and yet —

Kathryn Rubino: I know, I just feel like it’s like artificial and you are trying to like force me into Elie’s role and that seems weird.

Joe Patrice: Well, I mean —

Kathryn Rubino: Well, do you have something you want to complain about?

Joe Patrice: No, no, no, I mean I just — I thought that having gone through this before, you would be more prepared.

Kathryn Rubino: Well, that’s why I asked you to come up with something that you wanted to complain about.

Joe Patrice: I mean, if left to my own devices, if left to my own devices, what I would complain about is the problems that arise when you miss calls, because are you missing calls, are you spread too thin, interruptions kill your productivity, but clients demand a quick response? The US-based professional receptionist at help law firms screen new clients and schedule appointments by phone and website chat. Plus, integrates with your software, including Clio and LawPay. Plans start at just $60 per month. Get a free trial at

Anyway, so your position is you don’t like coming in here and having to fulfill the guest-host sacred duty of replacing the person who they are guesting for?

Kathryn Rubino: I am not sure you know what the word sacred means.

Joe Patrice: I mean we take things very seriously.

Kathryn Rubino: Do you?

Joe Patrice: This is — I mean this is a professional podcast.

Kathryn Rubino: We are literally recording in a closet you guys.

Joe Patrice: Yeah, I mean, yes, we are in a closet, that’s fair, but —

Kathryn Rubino: Like an actual storage room.

Joe Patrice: Yeah. Anyway, the point is we are professionals is what I am saying.

Kathryn Rubino: Are you? Is that what you are saying?

Joe Patrice: Yeah. So if you want to do something completely different than the usual Elie format, I mean that’s a bold choice on your part but I am willing to take that.

Kathryn Rubino: I am nothing if not bold.

Joe Patrice: All right.

Kathryn Rubino: Well, I had an idea, right?

Joe Patrice: Okay.

Kathryn Rubino: Now, maybe you have been watching a little bit too much of the ESPN in this sport season here, but I thought I would come up with a list of legal hot topics. So do a quick little 10 questions, but we will spend two minutes on each of them, what’s your hot take on all these burning legal questions.

Joe Patrice: So you want to do a PTI-style rundown of legal topics?

Kathryn Rubino: Correct, yeah, yeah, just stuff that’s been in the news recently. You don’t necessarily want to talk about it for 20 minutes. What’s all stuff that people are talking about right now?

Joe Patrice: Okay. All right. I mean, look, I am in for this other idea. I am fine to have a banter and fight about this.

Kathryn Rubino: Listen, you have got to mix it up a little bit. Can you put two minutes on the clock?

Joe Patrice: I can do that, yeah. Cool.

Kathryn Rubino: All right, question number one, Kim Kardashian wants to be a lawyer, will she make it?

Joe Patrice: I actually think that if she sticks with it, she probably will make it. It seems as though she has taken actual initiative to have an apprenticeship. She seems very committed to doing the work. Now, will she pass the California Bar, which is notoriously difficult?

Kathryn Rubino: That is the real question here, right, if you are actually going to be able to put Esquire at the end of your name, you have got to pass the Bar.

Joe Patrice: I mean, I don’t know, that one I am going to go with a 50-50. There are a lot of people who have failed the California Bar who should — by all rights should be practicing lawyers. There are a lot of people who are practicing lawyers in California who probably shouldn’t be. So I give it about a 50-50 shot on that front.

The real question is whether or not she is going to be willing to keep up the hard work that she is currently putting in to do this.

Kathryn Rubino: Because becoming a lawyer through the apprentice program in California I believe takes longer than just going to law school.

Joe Patrice: Yeah.

Kathryn Rubino: It takes four years, I think, is that right?

Joe Patrice: Yeah, and you have to take an intermediary test.

Kathryn Rubino: Yeah. So it seems like a lot more kind of work and effort and a lot more time, but I mean, what else is she going to do, make more perfume bottles designed like her ass?

Joe Patrice: Yeah. I mean she is already complaining about the fact that she had to work like 14 hours in one day.

Kathryn Rubino: I mean that does suck, like you have been a lawyer, you have had to work 14 hours, it’s not great?

Joe Patrice: No, it’s not great.

Kathryn Rubino: And you complain about it. You just don’t have 1. whatever million Twitter followers.


Joe Patrice: Right, like it — yet. But no, that’s —

Kathryn Rubino: Gauntlet thrown.

Joe Patrice: But no, I mean that’s the whole thing, right, there is a certain level of — I don’t think that the problem for her is that she won’t be able to do work, it’s that she has done some things that suggest to me that she may not have the mindset yet.

Kathryn Rubino: She also hasn’t even gone to college. So in terms of her ability to stick with an academic program, there’s — it’s fair to have some questions about that.

Joe Patrice: Yeah, I mean, yeah, there could be some issues. I don’t know how this is going to turn out, maybe 50-50, but if she sticks with it.

Kathryn Rubino: Don’t worry. We will follow it closely at Above the Law.

Joe Patrice: All right. That was the air horn.

Kathryn Rubino: Okay.

Joe Patrice: So what’s next?

Kathryn Rubino: All right. Everyone is talking about Bill Barr’s testimony yesterday, particularly how Kamala Harris handled it. Do you think that Kamala Harris’ performance will be important for the 2020 election?

Joe Patrice: No.

Kathryn Rubino: No?

Joe Patrice: I mean I — this is a problem that we have around here, especially because Elie, for those who don’t routinely watch cable news, Elie is increasingly on cable news, and so because of that I have seen more cable news than I am inclined to watch naturally. And just watching it like there is this real crazy universe of people who for some reason believe that the world is watching C-SPAN all the time, and they are not.

Kathryn Rubino: They are not, but you have to — I mean these things are trending on Twitter; you now have all clippable versions that everyone is getting on their phone in terms of their Twitter feed and whatnot, and the thing is this is a moment where having a prosecutor on your side is a good thing, in terms of the left wing of the Democratic Party. She is having a moment right now. It’s the good side of having a prosecutor, if we ignore the whole putting truant parents in jail thing.

Joe Patrice: Right. So if we overlook all of the actually —

Kathryn Rubino: There are legitimate qualms that people have about Kamala Harris, but I think that if she is going to have a moment surge, this seems like a good way to capitalize in it. She had some great clips from yesterday.

Joe Patrice: Yeah, she had great clips during the Kavanaugh hearings too. I just really don’t think that anything that’s happening now is going to move any needles.

Kathryn Rubino: Sure, but I mean think about it, when Hillary testified on Benghazi for like the 18th time, all of her approval ratings went way up the way she handled herself. I think that people tend to respond very positively to the dynamic of a hearing. When someone handles themselves very well, people react, and I think that long-term — I don’t know how long these hearings will go on, who else will get called, what other proceedings might be a part of it, but the longer I think that Kamala is able to do this, she will be in the spotlight, and I think that that helps her candidacy and it makes the fact that she was a prosecutor get a good shine on it in a way that just talking about her record may not.

Joe Patrice: Okay.

Kathryn Rubino: Also, more on Bill Barr, has his reputation taken a hit because of his performance in yesterday’s hearings?

Joe Patrice: I cannot be more annoyed with this hot take, and I have seen it —

Kathryn Rubino: Go for it man.

Joe Patrice: I have seen it — Huffington Post has an article about it, Ezra Klein tweeted about it, I do not understand these people who want to talk about Bill Barr having a reputation hit because of his involvement in everything yesterday. Bill Barr had a horrible reputation long before this.

Kathryn Rubino: Do tell, go into details here?

Joe Patrice: Bill Barr is the person who was brought in by the first Bush Administration to squelch the Iran-Contra controversy.

Kathryn Rubino: And not everyone is old enough to remember Iran-Contra, so go into a little bit of detail here.

Joe Patrice: That’s fair enough. Oh yeah, so that’s an excellent point. Back in the long ago times before Thanos killed anybody, there was —

Kathryn Rubino: Spoiler Alert.

Joe Patrice: No, that’s from the movie before. Like if they haven’t seen the movie before, then they are in real trouble.

Anyway, the point is, the Iran-Contra affair was this controversy where a bunch of Republicans in the Reagan Administration, with or without the President’s knowledge, but almost definitely with George H.W. Bush’s knowledge, were selling weapons to the Iranians in exchange for getting hostages out. And part of it was that they were then taking a bunch of this money that they were making off of that because it was illegal to give that money to the Contras in Nicaragua and they were taking this money they were getting from selling these guns and getting hostages and then sending that down to Nicaragua. And it was all sorts of corruption on a massive scale. And when it came time to penalize people for this, Bill Barr stepped up to the plate and made sure that it all went away. He is —

Kathryn Rubino: So this very much seems in par of course with his treatment of this president.

Joe Patrice: What’s amazing about people saying his reputation has taken a hit is that his reputation was as a cover up artist and he covered something up, that is not a hit, that’s a —

Kathryn Rubino: It’s not a bug, it’s a feature.

Joe Patrice: Exactly, a feature, not a bug.

Kathryn Rubino:  All right, more about reputations, but has Don McGahn’s, former White House Counsel, has his reputation improved as a result of all the details in the Mueller Report?


Joe Patrice: Sure. I mean look, whether it should or not, like yeah, it appears as though Don McGahn was a somewhat unwilling participant in some of the most awful shenanigans of the last couple of years that got uncovered in the Mueller Report and he was a cooperating witness. That said, he is absolutely a person who stuck around through all of that so that he could do all sorts of other awful things, like the way in which we put multiple people who have been rated as not fit for the judiciary on the federal courts to sit there for years and years and years. That’s all Don McGahn’s business.

So I am not sure I am ready to rehabilitate him entirely, but sure, he seems to have a line in the sand.

Kathryn Rubino: He also has made a really good case for taking notes as a professional, good thing.

Joe Patrice: Yeah, I guess that was the key takeaway of the Mueller Report, for those of us who are actual practicing lawyers, we learned that when we all thought that taking notes was a good thing, we learned that at least somebody in this administration agreed with us, so yeah.

Kathryn Rubino: All right, next question. Moving out of the world of politics for a minute here, but Walmart just appointed a General Counsel of Health and Wellness, true or false. Is the General Counsel of Health and Wellness as big a scam as wellness itself?

Joe Patrice: Yeah. I mean I am not the world’s biggest fan of wellness and mindfulness. Like look, people should do things to take care of themselves, but I mean mostly I think of that as a kind of stupid buzzword that’s utilized to convince people not to care about the actual material problems in their lives, and lo and behold, a company that is notorious for not paying its workers enough for them to eat seems to think that the answer is not a raise, but instead to make sure that they can throw a lawyer at the problem.

Kathryn Rubino: Yeah, I mean that’s definitely one of the most glaring problems at least from a PR perspective with this hire, is that literally they teach employees how to go on federal assistance or state assistance for food and you are not improving the quality of your life because you have a GC of Health and Wellness; you are improving the quality of your life if you can afford healthy food or any food frankly.

Joe Patrice: Well, that’s the question, what does a GC of Health and Wellness mean?

Kathryn Rubino: I am not sure exactly. I mean it’s a new position, they have just appointed it I guess.

Joe Patrice: I mean it’s not like a health and wellness like coordinator who is coming up with programs, it’s a lawyer, so one assumes that what they are actually there to do is stifle health and wellness. Like that seems like that’s all that could possibly be.

Kathryn Rubino: You know, I can see how that could be true.

Joe Patrice: I mean maybe their position is to handle situations where workers complaints.

Kathryn Rubino: Maybe in the compliance kind of a way, like workers’ compy sorts of issues maybe.

Joe Patrice: It just seems so ridiculous. I just can’t understand — I mean the worst part about this job when I saw it was I am concerned that this is about to become the new hotness, that now all of these companies with all sorts of PR disasters are going to say well, we have got an idea, is there a way that we could give a lawyer six-figure — six, seven figures to be the GC of Health and Wellness.

Kathryn Rubino: All right, sticking with the healthcare tip. The DoJ recently switched his position on the Affordable Care Act, is that the end of healthcare in America?

Joe Patrice: I mean some background on this case for people who haven’t been following it. Basically a real outlier of an opinion came down. A judge said that the ACA should be all thrown out. Nobody believes this opinion makes any sense at all. It is widely criticized. There are Republican judges who have heard the exact same case and said no, there is no way this is true. It’s almost assuredly going to get swatted down.

Now, that said, to the extent that exists the DoJ’s position had been well, that’s not what we were really arguing for, we were arguing for this limited thing. They have now decided to lean into this opinion and say let’s get rid of everything.

Kathryn Rubino: Lean into the crazy seems to be a theme of this administration.

Joe Patrice: Yeah. And honestly, I don’t think it’s like the end of anything. I just think it’s a really poor strategic move. Now all of a sudden what the government is doing is almost guaranteeing they are going to take a major loss. And I don’t think that they are quite gauging how popular this program has slowly become. Obviously there were some days where it wasn’t, but at this point invalidating this, especially a complete invalidation, which is what they are trying for, even if they were successful, which I don’t think they would be, would be the sort of thing that could be really bad for them if it happens anytime before the election.

Kathryn Rubino: I mean listen, the polls to push for the repeal were pretty clear on that, there is a reason why they pulled back from that stance from early on in the Trump administration.


Joe Patrice: From a litigation perspective, this just seems like a poor decision, like when you — I have never gotten it myself though, other people in my firms have, the opinion that goes much further than even you would and even you know probably is too far, like it’s an awkward moment. It’s a moment that you don’t lean into because you know it’s going to get bad for you and I just don’t understand why they think this is a good idea for them.

Kathryn Rubino: Yesterday was May 1, which is also Law Day.

Joe Patrice: Sure is.

Kathryn Rubino: Is Law Day a sham, Joe Patrice?

Joe Patrice: Yeah, Law Day is a horrible —

Kathryn Rubino: So you wrote something actually about the history of how it actually got started. What is all that about?

Joe Patrice: Yeah, Law Day is a propagandistic kind of —

Kathryn Rubino: Ploy.

Joe Patrice: Ploy, yeah, troubling ploy, it’s International Labor Day. In the Eisenhower administration there was an effort to make this Law Day instead of Labor Day, but the implication of that is unions are not law and order; we are for law and order, which is probably not the best look in the world.

But yeah, Law Day, I wrote a thing about, not just on this facet of how a Law Day doesn’t really mean what it thinks it does, but also just remembering that the law as an institution for all of the high-minded seeking justice, public interest, granola things we like to think about it, Warren Court loving, being mad at the Supreme Court, more often than not in the American history the Warren Court is an outlier, more often in American history law is very much and has always been very much on the side of stopping justice and holding back progress.

And so to the extent that Law Day exists and has to exist, especially with this kind of dark history that it has, it’s probably I think a better time for people to remember the bad things that it’s done and reflect on that.

Kathryn Rubino: Yeah. And to kind of tie it into another news story, the Clooney Foundation for Justice started TrialWatch, which is an international program which sends monitors to trials in order to kind of shine light on what is being given the veneer of legality through courts throughout the world, and eventually they want to be able to rate different countries and different judges and say these are not good and these are good and I think that it’s the same sort of thing when we don’t want bad things to get that veneer of legality.

Joe Patrice: Yeah.

Kathryn Rubino: Judge Jim Lammey, who is a criminal court judge in Memphis, is in hot water for, among other things, sharing articles by Holocaust denier David Cole that called Muslim immigrants foreign mud and other terrible things. Can he be impartial? Should he be a criminal court judge anymore?

Joe Patrice: No.

Kathryn Rubino: Full stop, we are done.

Joe Patrice: Yeah. No, I mean what gets me is obviously there are a lot of horrible people on courts at all levels and many more thanks to your buddy Don McGahn, but the —

Kathryn Rubino: I just asked a question man.

Joe Patrice: The problem with this is that I mean in some ways it’s a good thing, like we know because he does these sorts of things, but I don’t understand how stupid all of these judges can possibly be that they — it’s almost like they don’t think people read social media and they put up there these — I mean Holocaust deniers are a special kind of thing to go find — you have got to do some work to find those and share them and so a judge doing that is —

Kathryn Rubino: Is not mainstream media here.

Joe Patrice: Yeah.

Kathryn Rubino: I think it’s very appropriate for a judge’s impartiality to be called into question when they share this kind of stuff. If somebody shares these racialized slurs, why would you ever be comfortable being either a lawyer or a defendant in his courtroom again and that seems pretty obvious and a very clear reason why that person shouldn’t be on the judiciary.

Joe Patrice: Oh yeah.

Kathryn Rubino: I mean it doesn’t seem like a hard question at this point.

Joe Patrice: But this goes back to the more fundamental problem in America, we elect bunches of judges and to the extent that we do that, we invite —

Kathryn Rubino: It’s not great, not great.

Joe Patrice: We invite this kind of lowest common denominator to occasionally end up making decisions, and unfortunately, we also end up in the situation where there is not always a solution to that problem. Elitism is not my favorite thing in the world, but there are certain arguments for — especially in the legal case, to embrace it as a way of making appointments.

Okay, cool.

Kathryn Rubino: The Democratic emolument clause case against Donald Trump has survived a motion to dismiss. Is this a good thing and how does it affect 2020?

Joe Patrice: Meh.

Kathryn Rubino: Meh. You are not enthralled by the case, you don’t care.

Joe Patrice: I think it’s interesting. I think it’s probably true. I don’t know as though it has much impact at all. This is another place where Elie and I have a disconnect, like the ultimate impact to this — the only actual legal consequence to any of this is an impeachment, which I am capable of counting to the number 67. So I know that’s not happening.

Kathryn Rubino: Sure. But I do think that having it in a court also means it’s a distraction for Trump, to the extent that you are looking ahead to 2020, I think that it is something that the candidates can rail against and it’s not something that’s going to be easily a victory for the President. So it’s not like it’s going to clear him in any way.


So I think that keeping these sorts of multi-fire, attacking from many different fronts is publically a good thing, but what we have seen really is that the President has a hard time focusing on what’s really important and he gets very distracted by the shiniest object that — I mean, there is a reason why his buildings are gold, right?

Joe Patrice: Yeah.

Kathryn Rubino: And so, I think that — to that extent it’s certainly useful. It doesn’t appear to be pulling anybody off of sort of more important work or better work or anything like that, so I think that it’s a good thing.

Joe Patrice: Oh, that’s why I’m not against it. I’m just — like glad that it’s there, keep going, whatever.

Kathryn Rubino: Somebody has got to do it.

Joe Patrice: Yeah, I mean —

Kathryn Rubino: Glad, it’s not you.

Joe Patrice: Yeah, like it — I guess there is a value to it. It is not the value that I think a lot of the people who —

Kathryn Rubino: It’s not a silver bullet.

Joe Patrice: A lot of the people who go on cable news —

Kathryn Rubino: Yeah.

Joe Patrice: — and the think there is, there’s ultimate impact to it, that is not going to be there it’s —

Kathryn Rubino: I mean, it’s also just kind of human nature that people would like there — people who are opposed to the President would like that there would be an easy answer.

Joe Patrice: Right.

Kathryn Rubino: There’s not.

Joe Patrice: Yeah.

Kathryn Rubino: You have to wait till 2020.

Joe Patrice: Sometimes things are hard and that’s — that the thing that some people don’t quite get.

Kathryn Rubino: The ABA did a survey of civic literacy. They asked 15 questions pulled from the naturalization exam, only 5% of those surveyed got all the answers correct.

Joe Patrice: Yeah.

Kathryn Rubino: 5%.

Joe Patrice: That’s terrifying.

Kathryn Rubino: Are you terrified — my question was, are you surprised?

Joe Patrice: I have actually done the immigration test as a practice before when I was helping somebody pass it and it is very easy.

Kathryn Rubino: Well, good news. I have the questions here. Are you willing to put yourself against — you can prove you are in the top 5% here?

Joe Patrice: I think I could be in the top 5%, let’s see.

Kathryn Rubino: It’s a multiple choice question so make sure you listen to all of the answers that are possible. Question number one, what does the U.S. Constitution say shall be the Supreme law of the land: (a) State Constitutions, (b) Articles of Confederation, (c) The U.S. Constitution, and only the U.S. Constitution or the U.S. Constitution and Authorized Federal Statutes and Treaties?

Joe Patrice: I feel like that last one probably is the more correct answer.

Kathryn Rubino: That is the more correct answer. [Bell Rings] There you go. 47% of those answered, said that the U.S. Constitution and only the U.S. Constitution is the supreme law of the land, so that’s not great —

Joe Patrice: Yeah.

Kathryn Rubino: — but that at least is like a right-ish answer, right?

Joe Patrice: Yeah, I mean, well no.

Kathryn Rubino: It’s part of the right answer.

Joe Patrice: Yeah.

Kathryn Rubino: That’s not horrifying to me. Some of these might be horrifying. Okay, question number two, the idea of self-government is in the first three words of the U.S. Constitution, what are these words: (a) I Pledge Allegiance, (b) We The People, (c) Might Makes Right or (d) Yes We Can?

Joe Patrice: Is it ready to rock? Yeah — no.

Kathryn Rubino: What’s the answer, Joe Patrice?

Joe Patrice: Wait, I — the first three words of the Constitution, is that the question?

Kathryn Rubino: Yeah.

Joe Patrice: Yeah, We The People; yeah — yeah.

Kathryn Rubino: Ye, you got it.

Joe Patrice: Yeah, I literally was not listening to any of the options, I just started going with three words will be funny.

Kathryn Rubino: I mean, I really like that Might Makes Right was right as an answer [Bell Rings].

Joe Patrice: Yeah, alright.

Kathryn Rubino: Question number three, what are the first 10 amendments to the U.S. Constitution called: (a) The Declaration of Independence, (b) The New Deal, (c) The Bill of Rights, (d) The 10th Commandments?

Joe Patrice: I’m so hoping that the most often checked answer was (d), but it is in fact The Bill of Rights.

Kathryn Rubino: It’s The Bill of Rights, that’s correct [Bell Rings], and that was the most common correct answer. The Declaration of Independence came in number two at 18%.

Joe Patrice: Yeah, that’s shame.

Kathryn Rubino: Question number four, which one writer freedom is not the First Amendment to the Constitution: (a) Freedom of Speech, (b) Freedom of the Press, (c) The Right to Vote, (d) The Right of People to Peaceably Assemble?

Joe Patrice: Yeah, voting is not there. It seems like choosing (c) is a good answer generally [Bell Rings].

Kathryn Rubino: That’s most — multiple choice tests. Question number five, what did the Declaration of Independence do: (a) Freed slaves in confederate states, (b) Gave women a national right to vote, (c) Declared our nation’s independence from France or (d) Declared our nation’s independence from Great Britain?

Joe Patrice: France’s — they thought they were going to simplify that.

Kathryn Rubino: That is (c).

Joe Patrice: Yeah, I am going to go with (d).

Kathryn Rubino: One in ten people thought that the Declaration of Independence freed slaves from confederate states.

Joe Patrice: Yeah — yeah.

Kathryn Rubino: I mean, I got the right, kind of like.

Joe Patrice: I’m just saying, I think we’ve made the point. This is not a difficult test.

Kathryn Rubino: It’s not.

Joe Patrice: And that 5% is —

Kathryn Rubino: Terrifying.

Joe Patrice: Yeah — no, that’s not good.

Kathryn Rubino: So, they also —

Joe Patrice: But our country is full, we don’t need the immigrants because the people who already here getting 5% are enough.

Kathryn Rubino: So, let’s skip ahead to the rest of the questions, they are all pretty easy but this one is a little bit shocking, this was like when their bonus questions that they ask as part of their law day survey, does the First Amendment permit you to burn the U.S. flag in political protest or no?


Joe Patrice: I mean, the First Amendment as interpreted by a number of court decisions would say, correct, it did, yes.

Kathryn Rubino: Yeah, less than half got that correct.

Joe Patrice: Yeah.

Kathryn Rubino: 54% of those asked said that the First Amendment prevents people from burning the flag, which is the exact opposite —

Joe Patrice: Yeah.

Kathryn Rubino: — which is a little disturbing.

Joe Patrice: Yeah, well fair enough. So yeah, that was interesting, so I guess I’ll go question with you because we have got a little bit of time here. So big law firms, office-based design questions, glass everywhere or no glass everywhere, how do you feel?

Kathryn Rubino: Listen, I am naturally not the most organized person in the world. I lean towards the messy in my life and I feel like all glass walls put a lot of pressure on you to keep your office organized and presentable, which is probably a good thing, but also a little bit terrifying. It would be a little stressful I think if I had to have own office with all glass walls and I would be constantly worried that I wasn’t neat enough for a stranger walking by.

Joe Patrice: I love that neat enough is your problem not appearing obvious to the whole rest of the world that you’re not currently working on something.

Kathryn Rubino: I feel you can angle your desk, like there’s a window — there is usually a wall or windows behind you — you can usually —

Joe Patrice: I mean, I embrace the panoptic on when it comes to big law work. I feel like I get more efficiency out of people there.

Kathryn Rubino: That seems terrifying.

Joe Patrice: With everybody on their toes. No, I mean, I just — I like the natural light.

Kathryn Rubino: That is certainly a benefit of it.

Joe Patrice: Private offices or shared offices like you have thoughts on bullpen systems, these are all new trends.

Kathryn Rubino: Very anti-bullpen. I think there is a recent article in ‘The Atlantic’ that the rise of earpods are actually becoming so popular in offices because people no longer have book walls that people need a little alone time, time when they don’t have to answer questions constantly and socialize, even outside of just the big law environment where you have client confidences and what not going on. So I think that having at least a share, I mean — listen, if you want to put a couple of junior associates in the same room, whatever, I did that when I was a first-year associate, it’s fine, it’s not ideal, but it’s fine, but I think that a pure bullpen system is not ideal.

Joe Patrice: The only way I have ever seen it where I was like, oh, I think I could make this work, is a situation where the sitting is kind of bullpen whatever that’s here like home-based, but that there is tons of little conference rooms, tiny spaces, closets, if you will, that you have the option to go to and that you are not tied it to any one desk, that system I think works. It can’t be a bullpen where that’s your desk somewhere in the bullpen, but it can be a situation where you have a little storage space but otherwise it’s kind of an open campus design of small rooms and stuff like that, I could see that.

Kathryn Rubino: I mean, I think it’s harder especially in the legal profession because there’s a lot more sort of a 00:27:54 that go along with it you always have like the exhibits or the cases and there’s lot of printouts, there’s lot of paper that kind of accumulates, even in paperless offices there’s still a lot of paper; and so, I think that it makes it a little bit more challenging and I think the kind of inverting that relationship where you have your own kind of private space and then there’s also an option for lots of collaborative kind of work to go on is probably how I would prefer to work personally.

Joe Patrice: Yeah, well cool, that brings us mostly to our time here, so do you have anything else like big finishes sort of a situation or are you good?

Kathryn Rubino: I wasn’t expecting to putting it as well like that, but no, I mean, we talked a lot already.

Joe Patrice: Yeah. Wow, I mean, I thought there was a lot of energy in that episode and then it came to such a going out with a whimper kind of ending.

Kathryn Rubino: Well so we kind of — I thought you are going to answer the questions that you would be correct and then we would be like peace out, Joe is perfect, and I thought, you would enjoy that more than anybody else, but you are currently my only audience member, so I thought that that was a good position.

Joe Patrice: Fair enough. Well, they are not the only audience member because this show —

Kathryn Rubino: At the moment in the future there will be other audience.

Joe Patrice: This show has tons of audience members.

Kathryn Rubino: In the future there will be an audience but at the moment it’s only we are live streaming, right?

Joe Patrice: It’s not like it’s The Jabot or any podcast like that.

Kathryn Rubino: Wow

Joe Patrice: No — no, so yes.

Kathryn Rubino: Wow.

Joe Patrice: No — for those who don’t know The Jabot is another podcast that Above the Law hosts that —

Kathryn Rubino: It’s only been in existence like the fifth of a time that yours has, so.

Joe Patrice: True, but that Kathryn hosts, so be sure to check that out. Thanks everybody for listening. You should always be subscribed to the podcasts so that you get new episodes when they come out. You should be giving it reviews, stars, write-ups, whatever, all of it helps to get it out there and up in the algorithm when people search for law podcasts, they run across it. Obviously also listen to The Jabot, listen to the other offerings from the Legal Talk Network that are run the gamut of subjects and beyond the lookout for sometimes, we’re guests on those.

So you should be doing all that. You should be reading Above the Law, you should be following us on Twitter, I’m @JosephPatrice, she is @Kathryn1 spelled — you can see her name in the description, spelled like that, but with a numeral one afterwards.

And with all of those things said I think — oh, what am I saying? And obviously thanks to for sponsoring this show, and with all of that I think we’re done and we will be talking to you soon.

Kathryn Rubino: Bye.


Outro: If you would like more information about what you heard today, please visit You can also find us at,, iTunes, RSS, Twitter, and Facebook.

The views expressed by the participants of this program are their own and do not represent the views of, nor are they endorsed by Legal Talk Network, its officers, directors, employees, agents, representatives, shareholders, and subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer.


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Episode Details
Published: May 7, 2019
Podcast: Thinking Like a Lawyer - Above the Law
Category: Legal News
Thinking Like a Lawyer - Above the Law
Thinking Like a Lawyer - Above the Law

Above the Law's Elie Mystal and Joe Patrice examine everyday topics through the prism of a legal framework.

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