Birds, Books, And Blogs. Oh My!

Episode Notes

Transcript

Above the Law – Thinking Like a Lawyer

Birds, Books, And Blogs. Oh My!

11/05/2019

 

[Music]

 

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.

 

[Music]

 

Joe Patrice: Hello. Welcome to another edition of Thinking Like a Lawyer. I am Joe Patrice from Above the Law. And today, we are recording in two separate places so I can’t see my co-host, but I know he’s out there. Elie?

 

Elie Mystal: I am just happy to be out of goddamn costume.

 

Joe Patrice: Oh yes, no. For those of you who don’t already follow him on Twitter, which I don’t know why you wouldn’t he’s @ElieNYC, you saw the costume that he was forced to wear last night, but tell us a little bit about your turn as a Pokémon?

 

Elie Mystal: All right, so my kids, my oldest 7-year-old he wants to go as Pokémons and we usually do family costumes so we all go as something, right? So, this year he wanted to go as Pokémon, that’s fine. He was Pikachu, the little one was Snorlax, we had this all set. I was going to be Charmander or Charizard depending on whether or not I got the wings in time, right?

 

So I don’t want to do this. I’m not a Halloween fan. I don’t like dressing up and having my kids got into the street and beg for candy, that’s like not me. But, you know, whatever, you got kids, you do what you got to do and my wife is into Halloween, my mother is like crazy super Halloween person.

 

So, I get into my Charizard costume so that I can surprise the boys when they’re getting off the bus coming home from school. Okay, that all works great. Then my wife gets home and she’s all like, you know, obviously, we had planned this. She knew what I was going as and she’s like, yeah, your costume, it’s just not big enough and I’m like, well, sorry lady, ain’t nothing you can do about it, right?

 

Joe Patrice: So by big enough, were you going as sexy Charizard or —

 

Elie Mystal: No, she wasn’t making a fat joke, at least that’s how I interpret it in real time.

 

Joe Patrice: I actually meant short skirt kind of a thing, but interesting, you took it to that direction. There are many ways this can go, all right, and it’s all going badly, go on.

 

Elie Mystal: It’s all going badly for me, right? But, no, I took it as that it wasn’t kind of loud enough for my personality knowing that I don’t like to have a big personality on Halloween. So I was like basically tough nuggies lady. She’s like actually I can do something about it and she pulls out of the closet unbeknownst to me what my actual costume was, which was this giant blow-up Pikachu thing. They literally had to get into then sit still while they inflated around me. I had to take off my glasses because they were fogging up and I can barely see without my glasses besides the fact I’m looking at this thing’s mouth hole and I had to waddle around my neighborhood in front of my neighbors in this giant Pikachu costume.

 

And you might think, oh well, anonymity was preserved. Not on my street. I think my neighbors know my family and so they know, oh, that must be Elie in the giant Pikachu costume. It was — and like the kids at first were just like guiding me because I can’t see, but of course as they get into it, they’re just abandoning me in the street to go running after candy. So I’m like walking into cars and knocking over trash cans, it was just my wife and like I couldn’t see her, but the entire time I just hear my goddamn wife like cackling, cackling in the distance for her — she would call it genius.

 

Joe Patrice: Yeah — no, I mean, that sounds awful. I am —

 

Elie Mystal: What you go as?

 

Joe Patrice: I was regularly dressed in a bar, but you know; actually that’s not true. I actually went as dignity.

 

Elie Mystal: That’s not as good as your best Halloween costume. You want to tell the people that?

 

Joe Patrice: My best Halloween costume? Well, I was going to follow up on dignity. I was wearing a shirt with a weird design on it with no explanation if people asked me what I was, I was going to say, it was dignity, because the design is from the episode of Simpsons where Kirk and Luann get divorced over a Pictionary game because he draws this weird thing, he says, come on Luann, it’s dignity.

 

Elie Mystal: That’s right.

 

Joe Patrice: So I was just wearing that, hoping someone would ask what I was wearing so I could say, you know I’m going to get it. I’ll show it to the cat, the cat is going to get it. So, yes, I went as dignity technically.

 

My favorite Halloween time was an instance where I was hosting a party so I didn’t have to go outside, which allowed me to use a wheelchair all day and be FDR and I did up the whole FDR thing. It was pretty elaborate.

 

(00:05:01)

 

It did require me occasionally to stand up and do things around the party at which point I would become Secretary of the Navy, Franklin Roosevelt because I could still move around then, but yeah, that’s what I — that was my most elaborate stab at dressing up.

 

Elie Mystal: That year I went to your house for that party and I went as Jimmy McMillan, the Rent is too damn high guy.

 

Joe Patrice: That was a pretty good one actually, like I mean, it was no Pikachu, but it was pretty good.

 

Elie Mystal: In any event that’s why I pissed about. I guess technically that was grinding gears but I’m actually happy because I’m out of the Pikachu costume and I’ve lost ten pounds, so that’s also good.

 

Joe Patrice: Yeah, no, dressing up as animals which brings us to today’s episode is brought to you by your cat Mr. Whiskers who’s very mad at you and thinking about moving in with your ex, all because you’re still at the office slogging through an endless doc review project, make better decisions, keep your pet and work smarter with Logikcull, eDiscovery software that gets you started in minutes. Live in the meow, create a free account today at logikcull.com/atl.

 

Elie Mystal: You just said “live in the meow”.

 

Joe Patrice: I did say “live in the meow”, yeah — no, and I’m feeling great about it. Actually animals have been kind of dominating our legal news lately because we had Lawyer Cat, obviously the greatest episode of the show’s history, but also we have now a bird that’s loosen Harvard’s Law Library.

 

Elie Mystal: Yeah, can you explain that story because I don’t get it?

 

Joe Patrice: So, there’s a bird in the law library, somehow managed to get into the law library and they can’t get it out and it’s just flying around the library and nobody knows how to get a hold of it.

 

Elie Mystal: Yeah, can you explain that story because I don’t get how that’s a story, the bird happens Langdell is large.

 

Joe Patrice: Yeah, I mean, I don’t know. I’ve been to a lot of large buildings that don’t have birds in them. Like you usually find birds getting into large things like, Elie, you’ll find them in a department — not a department store, but like a super store, Wal-Mart kind of thing, but that’s because they’re flying in through the loading and unloading docks.

 

These large openings that you can’t really police, but I would assume a law library is the sort of structure that can only be entered through normal-sized human doors and that’s why this is a little weird. But, no, the bird is causing terror all over the stacks. It’s getting food from the law students who are in there and that’s keeping its energy up.

 

The bird now has a Twitter account by the way.

 

Elie Mystal: I didn’t know that.

 

Joe Patrice: The bird has a Twitter account. It has a bunch of followers but it’s only following one account, which is the account that exists for the stray cat that occasionally hangs out in Langdell. Obviously, bird needs to keep tabs on that cat. So –

 

Elie Mystal: I’m still — I mean Langdell is a beautiful building. I think Langdell is easily the most beautiful building on the Harvard Law campus and I think definitely in the top two or three buildings on the Harvard University campus as a whole. I feel like it’s outlived its usefulness like I do not know what to tell a young student now, why they would ever need to go into a law library other than like their dorm sucks. So it’s like a nicer place to study. But like as a functional building it might as well feed some birds while you’re in there because it doesn’t do anything.

 

Joe Patrice: Well, I mean, this is kind of the struggle when it comes to legal research and obviously organizations like Westlaw who sponsors Above the Law a lot, these sort of research engines, and there’s more than just Westlaw obviously have taken a lot of the legal research that you would ever need and put it online such that it can be accessed from pretty much anywhere.

 

And that leads people to feel as though the law library isn’t important anymore and there’s some truth to the idea that you don’t need nearly as much of a footprint. You don’t need to have all those federal reporters in print form now that every — all of those cases are digitized.

 

That said, there’s other reasons why the law library is important and it’s not just because of a study hall situation, but there are records and primary sources that you can’t get in digitized form and they’re important for that. Now that’s not the sort of work that a 1L, 2L may be doing, but at the point that you’re writing a note or some sort of or if you’re a faculty certainly and writing something more robust about just general legal scholarship.

 

(00:10:01)

 

Having access to primary sources, handwritten notes of people and stuff like that, that’s what a library is still always going to be needed for.

 

Elie Mystal: I think you’re absolutely right in terms of faculty, like the law library exists for faculty, the same way that any research library exists for full time scholars and exactly because you say of the primary documents, of the historical records that are kept in there.

 

I was talking more from the perspective of a student like it’s — for a 1L Langdell is just a prettier place to study.

 

Joe Patrice: I mean, yeah, totally, and I’ll say that as a law student I was there 20 years ago and the library was already at that point no longer a place that you needed to be as a student already the primary works that you would need to interact with as a student had moved into digital form and it was just there as a cool place to study.

 

Elie Mystal: I do feel though like as is back in those days and I’m just 00:11:08, so 20 or so years ago, I do feel that because Westlaw, Lexis, these technologies were there and established but still kind of emerging. There was some, you could go to the library and get some Boolean search help, right/ Like the research librarian was still kind of a thing at least 20 years ago in a way that, even that position has been digitized out of our existence.

 

Joe Patrice: I actually don’t know about that. I’d pull back on that. I actually think that as a resource while the library is less of a resource, the librarians are still very important, because of the way in which they can see through, and algorithms are obviously always going to be evolving and making this a little bit easier, but research librarians are in a position to say, oh, this is what you’re after, did you realize you should be looking over here in ways that sometimes aren’t obvious to algorithm.

 

Elie Mystal: Right, right, right.

 

Joe Patrice: So I still think that that’s a resource that’s very valuable and in a lot of ways I feel as though and I haven’t gone to AALL, which is the law librarian conference that we usually send someone to, unfortunately it’s just always happened during a week that I’m not available to travel to it, but I’d love to because I get the sense that the role of the law librarian is somewhat evolving to be not just a librarian, but also to be kind of a go-to legal-tech expert, because so much of that work is becoming — here’s how you deal with the algorithm that’s supposed to tell you where to find things. This is how the search should be structured so that you get the maximum of what you want, and that transition into the tech world is an interesting evolution of a job that obviously has existed in a very analog form for a long time.

 

Elie Mystal: Indeed.

 

Joe Patrice: Yeah, that we talked about a bird and said some very, very deep things about the nature of legal research. I’m impressed with us.

 

Elie Mystal: Well, you know, it’s better than talking about a cat.

 

Joe Patrice: See, yeah, well now, that I’m worried about, I’m worried about the birds dealing with the stray cat, who lives in the library. We’ll have to see how that Tom and Jerry situation plays out.

 

Elie Mystal: Fly, fly, fly little birdie, fly, fly, fly.

 

Joe Patrice: Yeah.

 

Elie Mystal: Listeners, we come to you today in the midst of a very sad time in our industry, and by our industry, I mean people who like to read.

 

Joe Patrice: Yes, we’re putting on a slightly different hat than our legal hat when we talk about industry to talk about the journalism industry.

 

Elie Mystal: One of the best websites out there for journalism for writing and certainly for sports, Deadspin is going through a really tough period right now. They have been cannibalized by private equity vultures and this week saw the mass exodus of just some of the best sports writers available following hot on the heels of the mask firing of the other group of the best sports writers available who formerly worked for Sports Illustrated.

 

I have a belief that sports writing is actually some of the best writing bar none, some of the best journalism bar none of any kind of writing, in part because most people who watch sports think they can write about sports, right, that you watch the game why can’t you talk about it.

 

And so the competition to get a good job as a sports writer is so high that when you reach that pinnacle you’re either kind of a shameless hack Stephen A. Smith jerk face who should be banished from society or you are one of the best kind of communicators of information in your field, and I think that Deadspin is much more the latter than the former, and it’s been gutted, it’s being gutted right in front of our eyes.

 

(00:15:09)

 

And it goes into, to me, lots of different issues, it’s a lot about journalism in the future, if there is going to be a future for journalism.

 

It’s also a labor issue, where these bosses, Deadspin, a part of G/O Media now, they are unionized writers and that’s supposed to have some protections, but despite being unionized, the private equity vultures were able to, as far as we can understand, take down content without editorial approval and then essentially fire their Deputy Editor for refusing to play the private equity game and putting up the content that the editors wanted to put up as opposed to the owners wanted to put up, and that shouldn’t be possible in a world with strong unions.

 

Joe Patrice: Right. And we will take a second to focus on some of the legal aspects of what you just brought up. So this comes also on the heels of the same organization getting rid of all the Splinter writers, which they did a few weeks ago. The Deadspin — the reason the Deputy Deadspin Editor was the person on chopping block this week is because the actual editor-in-chief had already left over these issues. So Barry was operating as something of the interim head.

 

Elie Mystal: Right, acting head.

 

Joe Patrice: Yeah, acting head. So when you say they took things down and that shouldn’t be, that’s because the union that they — that operates there has a collective bargaining agreement, as one would if you are a union, and that collective bargaining agreement included provisions on how to deal with taking down posts, and required to take down any post according to the agreement between management and the union was that there would have to be a meeting involving the Executive Editor of the publication at the time where a majority vote would be taken between the CEO, the General Counsel and the Executive Editor.

 

That did not happen and they took down a post that was relatively innocuous in a lot of ways. It was that the site had started running autoplay video ads, and if you are a human being, you hate those. So when you would open up the website, some blaring idiot would start screaming out of your computer and people didn’t like that, and the post said we agree, we would rather not have these on our site. If you have a problem with it, you should share that with our business side because they feel these are valuable.

 

That is a perfectly well-meaning and important customer feedback avenue. It was taken down in the middle of the night without any consultation with editorial, which is violation of the collective bargaining agreement, which was then brought to their attention, which resulted in the removal of the Deputy Editor and over the course of the next probably four days the leaving of everybody.

 

Elie Mystal: It’s an important point to focus on, because I have seen online and in other media outlets people kind of sniggering and saying like oh, how our autoplay video ads are the hill worth dying on. First of all, they are kind of a hill worth dying on.

 

Joe Patrice: They are the worse.

 

Elie Mystal: Because they are the worse, and I understand business and advertisers think they are super valuable because it forces people to engage with the ad, just to make it stop, but it’s — to me, it’s such an invasion and violation, because so many people are trying to read while they are doing other things usually at work, right? So when your computer starts talking to you at work, it is embarrassing in front of your colleagues to basically be outed by the website you are trying to patronize for doing that on “work hours”.

 

Now, we could go into this whole — I could go into a whole different kind of populist, revolutionary way of like we shouldn’t be all wage slaves that are afraid of taking some downtime out of the workday, but regardless, since I understand what capitalism is, certainly you should not be forcing your users and readers to out themselves just by clicking on your website, but, but, that’s not actually the hill they were dying on, okay.

 

It could be worth it to die on that hill, that’s not the hill that Barry Petchesky and the Deadspin editors were dying on; the hill they were dying on is exactly what Joe says, it is the way in which a post is supposed to be taken down. They have a structure for that. They have a collectively bargained structure for that and their owners just ignored that in order to take down this post criticizing the autoplay ads on the site.

 

(00:20:11)

 

Joe Patrice: Yeah.

 

Elie Mystal: That is certainly a hill worth dying on, because you have collectively bargained to be on that hill.

 

Joe Patrice: Yes, exactly. It’s more of a sign of the disrespect they have for the agreement as a whole, making this very much a labor issue. We are talking about a sports site, but I think to a lot of people it meant a lot more than that and that’s why Bernie Sanders is tweeting about the Deadspin situation. Like it’s astounding to me how this sports site has grown into something that’s big enough that presidential candidates feel the need to weigh in on.

 

But it really is, because this is — because of the way in which labor law has kind of been — labor unions as a whole have been kicked around in this country, this is one of those few situations left where there is actually a union in a nonpublic service sector.

 

Elie Mystal: And not to go fully into kind of politics 2020, whatever, like one of the key issues for a lot of the people who are leaving Deadspin, what they had is that there was the edict from on high that they “stick to sports”. This is a very ESPN, Disney-fide driven view of things. That people come to sports site to want to read about sports. They don’t want to hear about anything else. This is their break from the horrible political news.

 

And I get that. I certainly — when I turn on a game, part of the reason why I am turning on the game and not cable news is that I am sick of cable news and I want to just kind of immerse myself in something that is fundamentally entertainment as opposed to our actual news cycle. But what Deadspin understood and what they did and what they got a lot of traffic for is that there were a whole lot of cultural, social issues that expressed themselves through sports.

 

Certainly as an African-American I can tell you that for all of the great work of a Rosa Parks or Martin Luther King or the whole Civil Rights Movement, none of that happens without Jackie, none of that happens without Jackie Robinson, and Jackie Robinson doesn’t happen without Jesse Owens, who raced the Nazis essentially and won, right, like don’t tell me that our sporting culture doesn’t have a role to play in the advancement of social issues, okay. That’s number one.

 

Number two, for all of these Democrats who are constantly whining and 00:22:37 about how they are going to get to Trump voters and they have got to get Trump voters coming back to the fold, the way to get Trump voters is not to go on Fox News. You don’t go on their home turf and fight the battle on their terms with their white supremacist, state propagandist network. You go get them when they are watching the game. You go get them at the pep rally.

 

And so one of the things that I think Deadspin did effectively was not just to talk about social issues as they crossover into sports, which is just basic journalism, but also present a way of thinking about the world that was fact-based, that eschewed the bullshit talking points from both sides, if you will, talking to people who were gettable on either side of the political spectrum, because we are all coming here kind of for the same thing, which is to talk about how stupid the Jets are. Like you are getting people in a, I want to say vulnerable moment, but in a moment where I feel like they are more open to conversation and it’s not about having a left-right conversation, it’s about having a facts-not facts conversation, and that’s what Deadspin was doing, and to take that away from them is just frustrating.

 

Joe Patrice: Yeah. I mean I disagree with large swathes of particular things you said there, but I do think that you hit on the way in which it was — it understood that an audience is not a — people who read sports websites are human beings, not sports automatons who want to see just sports news, and some of the fallout of all this has been a discussion that former salespeople for the Gizmodo and before that Gawker Group point out, where they are saying in social media, this is just not true. The ads that we would sell on those websites were never sports related ads, they were lifestyle ads or something about the culture. The most popular posts were the how-to — the recipes and stuff like that. There were always things that weren’t sports, but things aimed towards readers who are sports fans.

 

(00:24:56)

 

And that understanding that your audience is a human being who is more well-rounded and that the sports vector is only the entrée to who they are and may give you some clues as to other things they may be interested in, but that you are serving that audience as a whole and not just as here is my sports vector news, was what they did, and what they were incredibly successful at, which is where I think you transitioned to the one other — the next legal aspect of all this, which is the problem which you already mentioned in passing is that this exists because of private equity as a model of investment, where you have companies who come in and say, I am going to spend a lot of money, usually pension money actually, which is an unfortunate aspect of this, another labor aspect of this, one of the few other places where labor is involved is in public sector labor unions having pension funds and those unfortunately are mostly hijacked by private equity groups for this sort of investment.

 

That money is thrown in, usually more money than can be afforded, but don’t worry, once the company is acquired, all that money is moved into being debt upon that company. So the people who bought it never have to pay it, it goes to that company. And the argument is maybe they can find a way to gussy it up such that it can be sold at a quick turnaround profit and they walk away with everything and somebody else is left holding the bag, or if it goes down the tubes, well, the company is what’s charged with the debt, not us. We collected our fees and we move on.

 

It’s that kind of mindset that some candidates in the election have talked about the need to reform our laws, in particular tax and bankruptcy laws, as well as corporation laws, because a lot of this happens because for a lot of the good that it does having LLCs and ways in which you can structure your business so that you don’t get destroyed every time you take a risk.

 

However, the flip side is you embolden kind of a moral hazard behavior of we are going to throw tons of debt on this company that probably can’t afford to maintain it, but it doesn’t matter, we are never going to be stuck with those consequences.

 

So that’s the other legal aspect of what’s going on with this company is that to some extent the incentives got messed up, because when it came to that stick to sports, even though as the salespeople pointed out the real profit to be had in Deadspin was in the appealing to culture, because that was where they were really making their money, but they didn’t want to do that, they wanted to make it just sports, because I mean you could say that they didn’t understand the business, but if we give them the benefit of the doubt and say cynically what it was, was, it wasn’t whether or not they cared about whether it was sticking to sports, they figured the next rummy to come along that they would sell it to would want it to just be sports.

 

It’s not about making money to them, it’s about figuring out how to position the company so it’s easier to sell to the next person who has no idea what they are doing.

 

Elie Mystal: That’s the point man, like Deadspin was profitable, okay, like everybody talked about, there is no money, no. Deadspin was profitable and the vultures who bought it didn’t want to make that profit, they just wanted to sell it, and exactly as you say, they thought it would be easier to sell as an anodyne kind of game box score recap site as opposed to the site that was profitable.

 

Joe Patrice: Correct, and that’s where when we talk about law, talk about this from a legal perspective, that’s going to be a real issue and it’s happening with Deadspin, but it’s certainly not only happening with Deadspin, it’s been happening with newspapers across the country, it’s happening throughout media.

 

This model of investment, which could — there are arguments for private equity investment and reasons why it could be very good about helping companies out. Obviously a lot of startups operate with venture capital, raised through private means, that is the only way in which we end up with all sorts of technological advancements.

 

That said, this model also with the paucity of regulations upon it right now puts us in a position where it is very easy to have incentives go the wrong way and behaviors that are destructive to the economy are privileged as opposed to punished.

 

Elie Mystal: Yeah. I know a candidate that has a plan for that.

 

Joe Patrice: Yeah, I am sure, and there are more than one who view this as a problem, but this is going to be a challenge that I think we should all spend more time looking for. It’s to get back to the library, maybe this is a way that we go full circle, I don’t know. Not a lot of people just read law reviews for fun, but the legal scholarship that is going to be growing out of how we should approach regulating this sort of investment strategy is important work and we should all take a trip down to the library and read the most recent outings of people who are working on that problem, because it’s a real one.

 

(00:30:15)

 

Elie Mystal: Oh.

 

Joe Patrice: See how I did it in a real way, we got back to the library, yeah, we did everything.

 

Anyway, so with —

 

Elie Mystal: That’s great Joe. Give yourself a cheer on the soundboard.

 

Joe Patrice: Oh yeah. No. That’s a good point. Where is my soundboard? I actually didn’t open it up, which is so sad.

 

Elie Mystal: We will put that in the post.

 

Joe Patrice: No, no, we got it. So yeah, so with all of that said, thanks for listening, and you should be subscribed to the show, you should give it reviews, not just the stars. I know that’s easy, but we will take the little bit extra ask and just throw in some words about, this is a fun way to learn about what’s going on in law schools or whatever, all those words are valuable, because algorithms, the things that rule our lives these days, take that and it moves it up the list of recommended podcasts, which means that more people get to listen to it.

 

You should also be reading Above the Law as always, a website that has good news, not just sticking to law, sometimes we get a field of that, but it’s all for you the human being who has a legal interest.

 

Elie Mystal: We are not owned by private equity.

 

Joe Patrice: Yeah, true. You should follow @ElieNYC to see his costume; you should follow @JosephPatrice, that’s me. I do not have a picture of a costume. You should be listening to the other shows available from Legal Talk Network. There was an episode recently of On the Road that I was a guest on from the Clio Cloud Conference, so that is one you should go check out.

 

You should listen to The Jabot, which is Kathryn Rubino’s podcast. She also has been a guest and guest host of this show sometimes.

 

And with all of those things said, I think we are done.

 

Oh, and of course thanks to Logikcull for sponsoring the show.

 

And with that, I think we are now fully done.

 

Elie Mystal: Peace.

 

[Music]

 

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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.

 

[Music]

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