A new account compiles the acts of racism that compound at Harvard Law School, but they could emanate from almost any law school. We take a look at this account and the response of law schools around the country to recent events, including one law school that’s taking an aggressive anti-racism stance. Also, we discuss Neomi Rao’s Michael Flynn opinion which left a lot to be desired as a work of professional legal writing.
Special thanks to our sponsor, Logikcull.
Above the Law – Thinking Like a Lawyer
Addressing Law School Racism & Neomi Rao’s School Of Legal Writing Don’ts
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: Hey everyone. Welcome to another edition of Thinking Like a Lawyer. I am Joe Patrice from Above the Law. I am joined as per usual these days by my partner in various misdemeanors Kathryn Rubino, how are you?
Kathryn Rubino: Hi there. How are you?
Joe Patrice: I am not going to go with felony, but you know I mean — I am sure there is a few local ordinances that —
Kathryn Rubino: Yeah, I prefer not to be too hard about that, but it seems likely.
Joe Patrice: Fair enough. So yeah, we are here again as we said from Above the Law and we are chatting today about the week’s events. How have you been?
Kathryn Rubino: You know, I am based in New York, so coronavirus is actually down here unlike large swaths of the country, which is encouraging to see.
Joe Patrice: Yes, it’s so far down that the governor of your state is trying to ban people from some of those states from coming to New York, which seems illegal.
Kathryn Rubino: I don’t know, I think it’s just really funny because it wasn’t that long ago that Andrew Cuomo was quite upset when Rhode Island and other states tried to do the exact same thing to New York and now all of a sudden it’s like shoe is on the other foot.
Joe Patrice: Yeah. Well, I talked a little bit about this the other day, like it’s not just that he got mad when other states did it and called it questionably legal, indeed probably very illegal, but when they did it, they actually had something close to a colorable argument for making that sort of a discrimination against citizens based on their state, because at the time New York was like hundreds of times worse than every other state, but now he is kind of making fine lines between well, California a hotspot is not enough of a hotspot, but Utah, those are the people that we can’t have coming to New York or they could bring the disease, even though the difference between them as hotspots is negligible and more people come from California than from Utah, like there is —
Kathryn Rubino: Yeah, it seems pretty arbitrary and it seems like if you are truly concerned about people bringing the disease to the state, you would be very concerned about Californians coming.
Joe Patrice: Yeah, yeah, the internal logic of it as something that has any efficacy falls apart, but beyond that like it’s just hard to imagine that if anybody did choose to challenge this, and again, maybe people won’t because they don’t want to have to get into it, Attorney Generals have more important things to do, but if anybody did want to get into this, it would seem pretty difficult to figure out what the compelling interest is in barring Utah and not California and how this is in — and this seems incredibly poorly tailored to protect anything.
Kathryn Rubino: Goals that they say they have.
Joe Patrice: But you know, he was super upset when other states did it, now that he has got, as you said he has got the upper hand, it’s all bets are off.
Kathryn Rubino: I mean listen, I am not a particularly big Andrew Cuomo fan, but a lot of his political posturing has a kind of schoolyard feel to it, right, ha-ha, now I have got you and your mom too, you know.
Joe Patrice: That’s a good point. There is a very posturing feel to a lot of what happens as opposed to actually doing stuff, which I mean credit, New York is in pretty good shape right now, but —
Kathryn Rubino: And listen, not great shape obviously, we still have a lot of people recovering and still have a lot of active infections and whatever, but definitely in the correct direction in New York and I think that it’s definitely taking a step in the right direction.
Joe Patrice: This is how we will tie this into — well, I guess it was already a legal conversation, but to tie it back, Cuomo has always struck me; he was former Attorney General, he has always struck me as one of those lawyers; there are kind of two sorts of lawyers in the litigation world that always struck me, there is kind of the, and this is a terminology that I know is used in legislatures as well, but the show horse and work horse. There is definitely the lawyer who gains their success by knowing everything about what’s going on, who takes the time to learn the law and learn all the ins and outs and explain what’s in the record and are masters of all of that and there is also the lawyer who wings it and just is charming and/or a bully and uses that to get away with things.
And Cuomo has always felt very strongly that — I guess I reverse them there, so I shouldn’t say former, the show horse type and the idea that people are starting to get bored with wearing masks, so he is going to start banning Alabama from coming here, seems very much in that vein.
Kathryn Rubino: Yeah.
Joe Patrice: But it’s a thing, and COVID is still a crisis which is why we are still talking about it on our Above the Law COVID Cast, where we talk about COVID and the law, but it seems that even though there are still problems, the Federal Government is cutting back on COVID testing centers, so there is that.
Kathryn Rubino: Well, if you don’t know you are infected, then are you even really infected at all?
Joe Patrice: I mean it —
Kathryn Rubino: Ha-ha, I got you on that one.
Joe Patrice: Was it Basho who said, what if a tree falls at the woods, yeah, obviously I think there — a lot of us suspect there are political motivations behind it, but government’s argument is they are just —
Kathryn Rubino: They is polling data that I think is being reacted to as opposed to science and medical data.
Joe Patrice: But I mean the government’s ostensible argument is they are trying to cut costs and that’s valuable, because if you are trying to cut costs you are not alone. In today’s climate a five-figure e-discovery bill per month is steep. Don’t pay that. Use Logikcull to reduce expense and control your discovery process. Get started today for only $250 per matter and they will waive migration costs from competing platforms. For more information, visit logikcull.com/ltn. That’s logikcull.com/ltn.
So what else is going on? What has been keeping you busy this week?
Kathryn Rubino: I am not sure I remember this week.
Joe Patrice: So it’s like that, huh?
Kathryn Rubino: I feel like I am in that stage of quarantine, like I don’t really remember. Well, I guess yesterday I wrote a story, which kind of dovetailed nicely I think with a story that you covered about a different law school, but there is an Instagram account that’s going around, Black at Harvard Law, it’s a site where people can anonymously submit stories of all sorts of racism interactions, whether they are overtly racist or microaggressions or somewhere in between that actual law students, current and former, that have gone to Harvard Law have experienced.
And it’s quite illuminating and it’s absolutely — if you are thinking about getting into the legal profession, if you are already in the legal profession, it’s something everyone should really check out, it was pretty shocking.
Joe Patrice: Yeah. Unfortunately it wasn’t as shocking as you would think. I mean it was bad, but it’s also I mean our — no longer working with us on a day-to-day basis, but our friend and former co-host of the show Elie Mystal was a Harvard Law grad who was a Black guy, and so yeah, I had heard — obviously we have heard over the years a lot of those sorts of stories so it didn’t seem as shocking, even though it was still disappointing.
But yeah, no, law schools aren’t perfect places when it comes to these issues.
Kathryn Rubino: Certainly I don’t labor under the misconception that there is any sort of like a pure bastion that is somehow eliminated all traces of racism from their shores, but there is a lot of professors or perhaps a lot of stories about a few professors that are shocking. Maybe you are just not biologically predisposed to become a lawyer, for example, is a thing that a Black person at Harvard Law was told.
Joe Patrice: Wow.
Kathryn Rubino: Another professor called a Black woman the name of the other Black woman in the section and instead of an apology the professor just said, well, you know, one major cause of wrongful convictions is that White people are unable to tell the difference between different Black people. That’s not an apology you guys.
Joe Patrice: Yeah. It really does stand in stark contrast to another story of the week, which was Rutgers Law School, who released a statement — a lot of schools and law firms have released statements obviously in response to the issues of the day, but the Rutgers Law faculty stepped it up a bit I would say.
From my perspective I thought it was probably the strongest statement I have seen anybody write when it comes to addressing racism and talked about what the school has done, what the school frankly admits what the school could be doing better, opens up about what they see as non-exhaustive list of concrete actions to take, and they were not purely symbolic actions either. There were a lot of real steps that they said that they wanted to engage in and work with the students and community leaders on. It was a real thing. It’s a lesson that I think a lot of law schools and law firms should try to learn from.
Kathryn Rubino: Yeah, that was a good one. And I think you are right that a big part of kind of the reckoning in the legal profession is not just what to do, but what have they done wrong historically.
I wrote a story today about the Law Firm Antiracism Alliance which over 125 law firms, including some of the biggest and most prestigious law firms in the country, have signed on to, which is a great, great thing, but even their point person talked about anticipating a steep learning curve and that there will be bumps in the road as we try to figure all this out.
And it’s great that pro bono and antiracism efforts will have more resources available to them as a result of all these firms kind of signing on, both in terms of ours and the other kind of big point was access to decision makers that a lot of firms have that may not be available to folks who work exclusively in the nonprofit sphere. So there is just a lot of opportunities with this Alliance, but there is also a steep learning curve as we try to undo all the bad things that we have done historically.
Joe Patrice: It’s an ongoing struggle and it’s one that — in the past I have written an article where I make the point and I think it’s still true that one of the real shortcomings for lawyers in addressing these issues is that lawyers like to have finality, like lawyers like to think that I have done something and I went through the process and maybe I had to appeal, but I got done with the process and now I am done, whereas this is something that requires constantly recognizing that it is an unfinished job. It rubs the mentality of lawyers in a way that they are not used to I think.
Kathryn Rubino: That’s a very, very astute point, absolutely.
Joe Patrice: I mean that’s what I come here — that’s what you come here for is to hear me be astute.
Kathryn Rubino: Is that why people are here?
Joe Patrice: I mean I just like that word being tossed around. It’s better than words like sophistry being tossed around, so.
Kathryn Rubino: Oh yeah, is that a word you have recently tossed around?
Joe Patrice: I almost did. I actually erased it from a draft moments before I hit publish on it.
Kathryn Rubino: Just a little peek behind the editing process here.
Joe Patrice: And I am glad I did, because as soon as I was done, almost simultaneously with my publishing, Mark Joseph Stern from Slate had published his article about the same subject and put the word sophistry in like the first paragraph, I was like whew, avoided that, that could have been embarrassing, look like we — it’s like showing up in the same outfit, like I would have been like no, no, no, no.
Kathryn Rubino: So who is the sophist?
Joe Patrice: Judge Neomi Rao who joined the DC Circuit very recently, a trumpet apparatchik who got themselves on to the DC Circuit, wrote an opinion that doesn’t really read like an opinion. It reads like, I mean sophistry is a very good word for it, which is why both of us wanted to use it and one of us did.
Kathryn Rubino: That’s very, very appropriate.
Joe Patrice: Almost half the opinion is not laying out an argument for why Michael Flynn should be allowed to plead guilty and still not be sentenced, but more than half the opinion is her responding to the dissent, which a life lesson for anybody listening who is not in practice yet, but you have to address the arguments of the other side, certainly, but you also don’t want the arguments of the other side to become the entirety of what you are writing, because all it manages to do is inform the reader that uh-oh, the other side might have the better of the argument, because all you are doing is flagging how much more difficult it is to believe you than the other side and when you spill over half your opinion on it, that’s a bad sign.
And in this case it was a necessary move on her part because she had no real affirmative case to lay out, what she spent most of her time trying to say was well, here is reasons not to believe the dissent so by default you have to believe me, which isn’t how things work.
But yeah, it was a real Franken opinion of —
Kathryn Rubino: But she wrote the majority opinion for the DC Circuit, so I guess that means that Flynn is off the hook or?
Joe Patrice: Well, that is where it would currently stand; it was sent back to Judge Sullivan to render his leave such that the case could be dropped, but rather than do that Judge Sullivan cleverly said well, if I go forward with this case, I have to grant leave, so I am issuing a stay in this case to delay it, because he assumes that he will, A, file for an en banc hearing, but even if he didn’t I am not altogether sure that there won’t be one anyway because as I believe Steve LeDuc pointed out on Twitter, they have a procedure at the DC Circuit where any judge can request sua sponte a en banc hearing, so there is a reasonable likelihood that it’s going to happen whether he — Judge Sullivan appeals or not; but my guess is, they will wait around to see if he appeals but —
Kathryn Rubino: Got you.
Joe Patrice: — it could happen either way, it was a real mess. It managed as a conservative opinion to ignore judicial restraint textualism and the underlying logic of original public understanding all in the space of a few pages. So —
Kathryn Rubino: I mean you got to use the arguments that are available to you, Joe.
Joe Patrice: I mean, if you are writing backwards it certainly puts you in a bind, if you begin with the result and work backwards it creates for some mischief.
Kathryn Rubino: Yeah, it’s the opposite of the balls and strikes cliché at this point that could serve justices like to hang their head?
Joe Patrice: Yeah, it was rough and what was really weird about it was I felt like it was rough in ways, I mean, I don’t want to give her life lessons but —
Kathryn Rubino: I don’t think she’s listening, Joe.
Joe Patrice: Yeah, but it did strike me as though there were ways in which one could write that opinion and get that result that we are not patently ridiculous but she issued all those and went straight for, look, I know the text says this, but who needs textualism, which was probably a long term for her judicial philosophy, a bad move?
Kathryn Rubino: Well, I mean, unless it gets her on the Supreme Court.
Joe Patrice: Well, right, that’s the logic, that’s actually what we should do, maybe we will do that in a future episode. We should set an actual like Vegas line on the odds that certain people end up on the Supreme Court.
Kathryn Rubino: That’s pretty impressive.
Joe Patrice: We will work on that, we will unveil that in a future episode here. I think that’s a good move.
Kathryn Rubino: And if folks have particular jurists that they would like us to set a line on, you should send them to us at [email protected] and you can have SCOTUS line as your subject line and in this way we will be able to gather them all if there’s anyone, so we don’t miss any big names that we should be talking about.
Joe Patrice: And obviously the results of the election play into who it will be but we will act as though it’s a 50/50 election as far as the purposes of our completely fake gambling goes.
Kathryn Rubino: I am sure there’s somewhere in the world you can bet on this.
Joe Patrice: Yeah, I mean, there is somewhere in this world where you could bet on this, I think was something that you have mused about before, and I am sure there is and I am sure it’s in like Scotland or Ireland, that seems to be where everybody bets on things that are unconventional but —
Kathryn Rubino: Yes, it definitely does.
Joe Patrice: Yeah — no, I mean, we should start this going, we will get a little league or something. So that’s been going on. Is there anything else — oh it appears as though while we have been doing all this that Mary Trump, her book, her ‘Tell-All’ book that — well, not the administration, Trump’s brother basically as a proxy for the administration has sued to prior restrain the publication of that book and that got tossed out of Court already.
Kathryn Rubino: Prior strains have been roundly rejected.
Joe Patrice: Yes. The Supreme Court has roundly rejected prior restraint, the line you are looking for, I think.
Kathryn Rubino: There you go.
Joe Patrice: Yeah.
Kathryn Rubino: Yeah, I mean, this is not a surprising move. It was not a — did not seem like a winning argument at any point.
Joe Patrice: The Big Lebowski School of Law comes through yet again.
Kathryn Rubino: Yeah, everything I need to know about being a lawyer I learned from The Big Lebowski. Although, honestly, I don’t think I would have passed evidence if I hadn’t watched ‘Law and Order’.
Joe Patrice: Interesting. See that’s weird because I will be honest — may be we went to different law schools, so it could be different approaches, but for me evidence was like criminal procedure I thought had some law and order elements to it, but for me evidence, 90% of the questions were hearsay questions which I don’t think ever really comes up in law and order as much.
Kathryn Rubino: Well, I mean, I remember our exam was more than — it was multiple choice — short answer for most of the test not like essay questions, and as I was studying every time there was like I was like, oh, I remember there was an episode of ‘Law and Order’ and in that case it went like this, it was like, oh, I see the differences between the hypothetical and this and it just seemed like every case that I had, I was like, oh yeah, I remember that episode of ‘Law and Order’ because I was also in law school so watching a lot of ‘Law and Order’ at the time, so I had quite a few to draw on.
Joe Patrice: For my exam it went — like the crux of my exam were a series of questions where you had to delineate the difference between this isn’t hearsay versus this is hearsay, but there’s an exception to it. And that distinction which both get the same result, but from different ways that was the —
Kathryn Rubino: Different reasons.
Joe Patrice: That was the fine line that you had to work out to be right, but these are the sorts of struggles you go through to get through law school and achieve a diploma which one would think would be enough for you to then go be a lawyer, but it’s not because our country has an archaic Bar exam process that makes people take another test despite having just spent hundreds of thousands of dollars to get a professional degree because we don’t trust the law schools, which is probably a deeper problem.
Kathryn Rubino: Well, I mean, in fairness there are a lot of law schools that don’t do a great job about getting kids to pass the Bar exam. I think that there were eight or ten, I think ten schools on the latest list of the ABA Non-Compliance list for the standard that says that within two years of graduation 75% of graduates need to have passed the Bar exam and there are a bunch of law schools on that list.
Joe Patrice: Yeah, I mean, I get that. But the problem is — there’s multiple problems there. One is, the ABA has after years of kind of rubber stamping schools the ABA tried to crack down on those schools and instead got sued, which is problematic on a lot of levels because we should be relying upon the ABA to accredit people and if they are not going to be in a position to do that without getting sued then someone else needs to be in that role, we need some sort of regulation of law schools.
And I think ideally we would be in a position where we regulate law schools sufficiently well that we can trust anybody who goes to them it way if they pass and get clear to their diploma, then they are subject-matter competent and then we can and should still have ethics investigations and ethics tests and probationary periods. All those sorts of issues can still be part of the licensing process, but there’s no reason to go to law school and then take another test to prove that you understood Law School.
The only reason it’s still around is because tradition and archaic it’s from an era when we used to let random people like Cardozo who didn’t go to law school become lawyers by taking tests and after they’d apprenticed and stuff, it was there to replace the law school diploma, but now that people have to go to law school it really doesn’t serve the purpose it was supposed to other than we have bad law schools which should beg the question not. Well, that’s why we need a Bar exam but why do we allow bad law schools.
Kathryn Rubino: Well, that seems like a much more difficult thing to conquer.
Joe Patrice: Right. Sure. But the excitement of the current crisis is the increased interest in pushing for diploma privilege as an emergency measure. Since people can’t figure out how they can do in person Bar exams without everyone getting sick, so folks are asking for it. Actually one of the more triumphant stories of last few days is the deans from Utah asked and received an emergency diploma privilege exemption in Utah and after that Washington has gotten the same thing.
Now the Oregon deans as well as a lot of Oregon law students are pushing for it in their State and in Minnesota without help from the deans per se a few recent grads put together their own petition and sent it to the Supreme Court on Monday more or less assuming that it would languish as or get a quick, yeah, we don’t care kids. And instead the Supreme Court got back to them and said we’re opening this up for a public comment, period, and let’s take this under advisement. So there are good stories out there of people taking their own initiative to push for this.
Kathryn Rubino: That is encouraging. Certainly better particularly as we’re not seeing the end of Corona anytime soon.
Joe Patrice: Yeah. Oh well, it’s been eventful, but I think if there’s any theme to this week, it was probably why can’t people do things right between —
Kathryn Rubino: Why indeed, why indeed.
Joe Patrice: Dean Cuomo and Rao and the attempt to get the book banned. And we’re coming right off of the attempt to get John Bolton’s book prior restrained like what is it about these basic legal concepts that people don’t seem to understand?
Kathryn Rubino: Well, they don’t give them the result they want. Like what Rao said, right? Like, sometimes you have to abandon principles in order to get the result you want.
Joe Patrice: It’s a disheartening day for people who have gone through their like, well, 1L year probably is sufficient to get most of these lessons.
Kathryn Rubino: It is deeply discouraging, I suppose, but here we are.
Joe Patrice: And I don’t remember like the days are all blurring into each other, but it’s been since last week that we had the whole Geoffrey Berman attempted firing too, right?
Kathryn Rubino: Oh gosh.
Joe Patrice: Yeah. Like nobody can do things right.
Kathryn Rubino: Yes, that was last weekend.
Joe Patrice: And that’s just the — that’s the Administrative Procedures Act, it’s like not an Administrative Procedures Act, no, sorry, that was my other topic from last — that one we did do last week, the Administrative Procedures Act. I definitely remember we did that part last week.
But no, but coming right off of the Administrative Procedures Act screw-up they managed to screw up an agency process by saying under the — like trying to pull some vacancies act garbage. Despite the fact that Berman isn’t somebody that has actually been put in that job by them, because they couldn’t figure out how to get somebody in that job before the deadline went out so the court actually appointed him with a term according to the court that holds until they nominate and confirm somebody else, so they can’t fire him to, oh, it was — and then Trump took the stance that he could fire him, which is iffy. There’s a ‘Washington Post’ article that kind of walks through exactly the overlapping legislation that suggests that maybe Trump could fire him despite the fact that he’s not been put in that job by Trump, but by the courts. But even with that the process to replace him would not end with their stated replacement getting that job to SEC Chairman, it was such a mess.
And it’s yet another one that was an unforced error like the APA decision that we talked about where the DACA was upheld not so much because there was a majority of the Supreme Court that wanted it upheld, but because literally the administration couldn’t figure out how to cross its Ts correctly. And here we have yet another instance where they could have gotten somebody to replace Berman, but they couldn’t have done it the way they did it so it became a huge problem. Why can’t people do things right?
Kathryn Rubino: Yeah, I mean, although perhaps it has done its ultimate goal which is stopped the amount of time we’re talking about the administration’s response to COVID-19.
Joe Patrice: I guess, yeah, and it’s —
Kathryn Rubino: I mean, it’s a kind of a very cynical world view but.
Joe Patrice: And it does appear that they got — they did succeed in getting Berman replaced although they did not replace him with anyone that they wanted instead he will be replaced by his longtime deputy which is the proper line of succession move, but why can’t people do things right?
Kathryn Rubino: Because, I mean, we live in like the worst timeline.
Joe Patrice: The rules just really aren’t that difficult here. I mean, there are places in this world where rules are hard, but these aren’t that hard.
Kathryn Rubino: This is not it. This is not the hard one.
Joe Patrice: Yeah.
Kathryn Rubino: They are hard ones. This is not it.
Joe Patrice: So —
Kathryn Rubino: I can’t believe we’re almost at July, so that is crazy. I guess our next episode will actually be recorded in full summer. I feel like July is like the — like historically I grew up in New York City. You know in school, today I think is graduation day for a bunch of kids. So, yeah, I mean, next week is like the official start of summer and we are no closer to being done with coronavirus than we were in March.
Joe Patrice: Well, maybe if we just ban people from certain States from coming here.
Kathryn Rubino: Ignore it. I mean, that seems to be our current strategy.
Joe Patrice: Yeah. So thanks for joining today and chatting about what’s been going on kind of a wide-ranging discussion. No, I like that. I like — yeah, I like when we’re just kind of loose about the events of the world.
Kathryn Rubino: I feel like that’s just how we have to roll these days.
Joe Patrice: Fair enough. Yeah, anyway, thanks for joining us. You should be subscribing in the podcast giving reviews all of that good stuff you should be reading Above the Law. Follow, I’m at @JosephPatrice on Twitter, she’s @Kathryn1. Check her out on The Jabot, which is a podcast that talks to folks about diversity in the legal profession.
You should be listening to the Above the Law COVID Cast, where we talk with people about the unexpected ways in which the pandemic will change the legal profession. You should listen to the other offerings of the Legal Talk Network, in particular the 150th episode of Digital Edge is out and that celebration did include me. I was one of the interviewees on that one and we had a lot of fun talking about legal technology on that one. So if you’re interested in that, check that out. And yeah, that’s it till next week.
Kathryn Rubino: Till next week.
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