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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

Chief Justice Roberts was hospitalized for a head wound and managed to keep the news from the public for weeks. But it didn’t seem to slow him down on the final day of the Supreme Court season, authoring two opinions punting on Trump’s subpoenas, kicking things back for a nice, long, litigious delay. The rule of law is upheld theoretically if not practically and that’s just where Roberts likes it. Also, we catch up on the looming in-person bar exams, which have crossed into farce refusing public health warnings while issuing dress code modifications.


Above the Law – Thinking Like a Lawyer

Chief Justice Hits His Head And Remembers Rule Of Law



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. I am joined as usual by my partner in this show –

Kathryn Rubino: Ooh, that, that was a too long a pause there, Joe.

Joe Patrice: I mean but I guess you’re —

Kathryn Rubino: Partner in crime?

Joe Patrice: I was going to say co-editor and then I was like no, it’s senior editor, am I going to say Co-senior editor, and I — so I went with partner in crime. Yeah, I think that’s –

Kathryn Rubino: Okay, I mean I can live — I can live with partner in crime. I think that’s — that’s fair.

Joe Patrice: So Kathryn Rubino is here also of Above the Law obviously. How are you this fine day?

Kathryn Rubino: You know, I’m still a little shook that it’s not the long weekend, but we’re rapidly approaching another weekend, so that will be okay.

Joe Patrice: Yeah, it is however a fairly long weekend, indeed a fairly long summer, staring down the United States Supreme Court concluded activities today.

Kathryn Rubino: Yeah, I think this was like the first time in 24 years that they have had decisions go into July.

Joe Patrice: Yeah, although I think that’s a little bit unfair.

Kathryn Rubino: COVID, yeah.

Joe Patrice: The previous time it was because there were a lot and this time it was because they spent a month doing nothing.

Kathryn Rubino: Quarantine is a bitch.

Joe Patrice: But yeah, so we had — we had the last day as it turns out as far as we can tell obviously there’s no rule that you have to resign immediately after the last opinion.

Kathryn Rubino: Sure but it has been tradition.

Joe Patrice: It has been tradition and based on that it seems as though Clarence Thomas and Samuel Alito are not retiring.

Kathryn Rubino: But you — it’s a pretty interesting take I thought. I mean I thought that last week we kind of talked about this and I think it’s generally true. I think that you know Thomas, I mean people who suggested Thomas was going to retire just have not been paying attention to Thomas ever, they just make a bunch of assumptions.

But in terms of Alito, which is “the stronger rumor” that he might resign, I get it, it seemed pretty far-fetched to me, but I thought that given they are sitting out of a pair of 7-2 decisions today, I thought you had a pretty good take on that.

Joe Patrice: In fairness I don’t think that either of them had any desire to retire and –

Kathryn Rubino: No.

Joe Patrice: Wow, I’m rhyming today, I guess it’s because I see Hamilton —

Kathryn Rubino: Desire to retire.

Joe Patrice: Yeah. No —

Kathryn Rubino: Did you like it?

Joe Patrice: Yeah sure, but more importantly the Supreme Court also saw —

Kathryn Rubino: You know sometimes conversations take little detour. So just roll with it, Joe.

Joe Patrice: Well, I was just going with moreover the Supreme Court saw Hamilton as they made multiple Hamilton and Burr references in today’s opinions.

Kathryn Rubino: I did see some of that and some was like is this — is this going to be the sequel to Hamilton the Musical?

Joe Patrice: I mean they’re really pushing it. I assume they’re. I assume like everything else Disney also owns most of the Supreme Court.

Kathryn Rubino: That would make more sense.

Joe Patrice: Yeah, but yes I did not think that they were going to leave office. I felt like most Supreme Court justices are, yeah, I think it was — I think it’s the late Greg Giraldo had a stand-up routine about on the occasion of Sonia Sotomayor’s naming, being named to the court that she gave a speech something like, I’m very humbled by this and he made fun of that, it’s like yeah, that’s the thing people say. You’ve just been given the greatest job ever for the rest of your life, you were absolutely not humbled. That is the opposite what you are right now.

And I think that’s true. I think that these –

Kathryn Rubino: He was a lawyer, right, Greg Giraldo.

Joe Patrice: Was he? I don’t know.

Kathryn Rubino: I think so.

Joe Patrice: Anyway, great comic is the real point, but yeah, and Kathryn is making me kissing her fingers and pointing to the sky sign, which if we were a video chat, you would see.

Kathryn Rubino: It would be funnier, sure, I get that.

Joe Patrice: Anyway, I thought that they weren’t going to, because they are not humble people.

Kathryn Rubino: Sure.

Joe Patrice: These are people who do not believe their replacement value, no matter how much Leonard Leo and the Federalist Society like everyone to believe that they can just plug another one out, they don’t believe that and I think that if there was any sense that they believed they were replacement value and indeed any sense that the Conservative Movement wanted them to be pushed out the door and replaced with a 35 year old from George Mason Law School or something, that all disappeared when they were the only two trying to defend Trump from having his taxes revealed.

I mean now that Kavanaugh and Gorsuch or Cox in their eyes like what are they going to do.

Kathryn Rubino: Yeah, that is particularly true and I think it’s something interesting about the plug-and-play model that you’ve been talking about, where when in terms of like the legislative branch, that’s more of a plug-and-play scenario and the majority of the work that they do is voting, I am sure there’s some folks of course, write bills and whatnot in their committees, but most of their work is voting up or down particularly pieces of legislation and it doesn’t matter who’s voting aye or nay, right, but when it comes to Supreme Court decisions you know those are written and even though the decision, the result might be the one that they wanted how they write it and the methods that they used to write it and the cases that they say and the logic that they use obviously has the ripple effect and frankly that’s why who writes the abortion decision matters, like that’s why all this, this really is important.


And I think that as much as the Conservatives may want to the plug-and-play model, I think that the mere structure of the way that the courts write their decisions prevent that from being accurate.

Joe Patrice: Yeah, and especially with Thomas somebody who even amongst the mainstream of the movement seems to go off on his own little tangents.

Kathryn Rubino: Right.

Joe Patrice: He can’t possibly believe he can be replaced. Obviously this could all prove between — even between now and publishing of this podcast could all fall apart on it.

Kathryn Rubino: Sure.

Joe Patrice: But it seems now that the — now that the day is done, that is safe.

Kathryn Rubino: I don’t think, I do not think that Thomas is going to retire.

Joe Patrice: Exactly. So what we had today, let’s talk quickly about what we had today and then this will be — we’re going to have a lot of Supreme Court talk I guess which is fitting, because it’s the end of the term.

So what we had today was in — there’s a social media meme going around people describe your favorite movie in the most boring terms possible, that sort of thing.

Kathryn Rubino: Sure, sure.

Joe Patrice: Have you done any of those?

Kathryn Rubino: I haven’t.

Joe Patrice: Yeah. So this is going around. I figure we can do that with the Supreme Court here.

So the first case which Justice Gorsuch wrote was Oklahoma is no longer a state. No, not quite true, but this was a case about Native sovereignty and whether or not Oklahoma can prosecute people in contravention of some tribal sovereignty treatise and as it turns out Justice Gorsuch and the more liberal justices got together on this over the objections of the Conservatives and said, no you have to respect the treaties that we have with these tribes which is kind of an amazing shift given that the — a lot of people who I saw this written somewhere that, a lot of people who practice tribal sovereignty law believe that the actual hidden canon of Indian law is tribes always lose, and so this was a — this suggests that Gorsuch who has a long history of being friendly as a lower court justice to –

Kathryn Rubino: Judge yeah.

Joe Patrice: Oh yeah judge, low as a before becoming a justice when he was a judge being more friendly to tribes.

Kathryn Rubino: Yeah.

Joe Patrice: So this was kind of expected but it’s a huge —

Kathryn Rubino: Something I’ve seen going around social media today about that particular decision was that, this is the second time that RBG has been the senior person on top of a decision and the decision has been written by Gorsuch, so something that she would have approved signed off on and whatnot and some folks are taking it as a sign that RBG is not the liberal hero that they want.

And listen I mean she’s not my favorite justice, I like her a lot, but I think Sotomayor sitting right there doing the work. But the other thing I think that, that sort of the memefication of the Supreme Court is missing is that in order to get five justices to agree oftentimes these sorts of deals have to be made, right, it’s very possible that you know Gorsuch would have sided with the written a concurrence or written another his own dissent if it wasn’t something that he wrote.

So I think that there’s — there’s a lot of behind the scenes politicking that perhaps we don’t capture when we write memes.

Joe Patrice: Yeah, and that’s fair and on the other hand though, it’s —

Kathryn Rubino: But also maybe –

Joe Patrice: I haven’t spent a ton of time on this opinion, I read it quickly but then the other two that we’re about to get to rolled in and drew me away. But I’m also not altogether sure there was a lot of politicking. It seems as though his opinion was pretty straight up the gut of what you would imagine the liberals would have chosen.

Kathryn Rubino: Which you would wanted —

Joe Patrice: Yeah, more or less it was that this might make things harder for Oklahoma prosecute crimes, but you know —

Kathryn Rubino: Tough.

Joe Patrice: Tough. The borders that we have —

Kathryn Rubino: So goes sovereignty.

Joe Patrice: The agreements we have with these people are not – cannot be waved away at your convenience. He didn’t really say it that way but more or less yeah.

So then the other two cases which were both written by the Chief Justice how would we describe these in a boring way.

Kathryn Rubino: Chief Justice delays decision.

Joe Patrice: There is that, Chief Justice punts with great fanfare, but it’s also true that you could say that the White House attempts to overrule Nixon fails.

Kathryn Rubino: That doesn’t sound super boring.

Joe Patrice: Yeah. So these were the cases about whether or not in the first instance the Manhattan district attorney would be able to subpoena financial documents from the Trump Organization, and in the second case it was whether or not there a variety of congressional subpoenas out there to secure financial information and whether or not those are valid. In all cases they didn’t really come to a conclusion.

Thomas and Alito said obviously the President doesn’t have to answer to anyone. The other justices felt that.


Kathryn Rubino: And that’s where they cited the Aaron Burr case, right. It was the treason case of Aaron Burr that I think they cited and they because Burr wanted to subpoena Jefferson and I believe that that was one of the citations anyway to Hamilton that you were alluding to earlier.

Joe Patrice: Yeah. What I was going to say is that so the both of these cases still involve more litigation — the Vance case, the Manhattan one that —

Kathryn Rubino: Seems closer.

Joe Patrice: That will be — that is much closer, it more or less said that there is not an absolute immunity here, it will be kicked back down to the circuit and then potentially from there back down to district court, but we are looking at the high likelihood that this is subpoena that has to be complied with now.

Kathryn Rubino: Will that be done before November.

Joe Patrice: Will that be done before November, difficult to say probably not. The question —

Kathryn Rubino: No, no, do you think that it’s something — you have a bit more white-collar experience than the average bear, is it something that could be done by November and we are concerned that they sort of delays within the Manhattan District Attorney’s Office might prevent it or is it just that the process is such that it just it could not be fast-tracked?

Joe Patrice: If you wanted to get this done this could get done.

Kathryn Rubino: And you don’t think Cy Vance wants to get this done or care or doesn’t care about getting it done?

Joe Patrice: No, I mean I think, yeah, I assume given that this is a high-profile matter that he will work diligently on it, so long as it results in him — I mean if it’s something that matters to somebody, Cy Vance is very — and by somebody I mean he means the general public. He’s very quick about things, if it’s getting people who have not even faced arraignment out of Riker’s Island in seven years he seems very bad about that job. Yeah, job seems probably more important.

However this is – this is going to be a high-profile enough matter that I assume he’ll work quickly, but you know it’s going to — there’s going to be motions to delay it at the circuit level. There will be attempts to muck it up below that. So it’ll take some time. In a normal proceeding you could imagine this all moving fairly quickly but who knows.

Kathryn Rubino: Maybe this will be our October surprise.

Joe Patrice: Yeah, I mean could be. It’s so far it seems as though I believe Deutsche Bank is already intimated that they’re going to comply with subpoenas that they’ve received so.

Kathryn Rubino: Right.

Joe Patrice: Some of the third parties are going to move forward like that. The other case about congressional subpoenas was more tricky. This is the one where Congress says hey, I want this stuff and the Federal Government said, in Federal Government not, the Solicitor General’s office said no, you don’t get to have those because you have no reason to see those because you’re not impeaching anybody and their position is well how would we know whether we’re impeaching somebody until we see these things.

Kathryn Rubino: Sure. It seems like a bit of a chicken and egg question right there, but –

Joe Patrice: It is and the majority in this was we think that it’s ridiculous to assume the President can avoid congressional subpoenas, we also think it’s ridiculous to assume that Congress can subpoena anything they ever want ever.

Here’s some broad guidelines that we would like to see followed.

Kathryn Rubino: Get on that.

Joe Patrice: So everybody go back and get on that. It is –

Kathryn Rubino: Delays the —

Joe Patrice: It is pretty much impossible to believe that this will be resolved. They’re basically all starting from scratch; it will have to go through multiple tiers. I mean you could, we brought up Nixon earlier, you could envision a world where things get fast-tracked and I mean the Nixon case was what nine — like nine days after it came out the Supreme Court had an opinion on it, that’s not something I think anybody well — it’s certainly not what the conservatives on the court have an appetite to do.

Kathryn Rubino: Sure. Sure, they’d rather wait till it’s moot.

Joe Patrice: Yeah, I mean that was that the — that was what the three majority conservatives suggested by having this punt of a decision was that they have no appetite to push this any faster.

I mean it pisses off Alito and Thomas but what Kavanaugh and Gorsuch and Roberts did is save the power of Congress to ask questions about Hunter Biden and Ukraine for the next four years which is what I fully expect.

Kathryn Rubino: Yeah, I mean you can’t look at these decisions and not kind and not be cynical and I think that, that a cynical eye towards these decisions is necessary in order to fully understand what was said and why it was said. But it’ll be really interesting to see.

Joe Patrice: Yeah. So we were talking about retirements obviously, but we’ve determined that we don’t believe Alito and Thomas are going to retire. Another justice who there’s no reason to believe would retire is Chief Justice Roberts despite the fact that he falls down and goes boom.

Kathryn Rubino: He did and nobody knew.

Joe Patrice: Yeah and that’s really the bigger issue here.

Kathryn Rubino: Yeah.

Joe Patrice: So for those who weren’t tracking all of this because no one was able to track it, because they didn’t report it, it a private —

Kathryn Rubino: And it also happened during quarantine time so there were not as many people who can observe stuff and –


Joe Patrice: But didn’t happen at his house. The Chief Justice who pays something like — it’s something like $90,000 to become a member and then $9,000 a year to maintain a member at some like Country Club he goes to, was walking around his Country Club in late June and fell down and managed to crack his head open sufficiently that he had to get stitches and stay overnight in a hospital.

Kathryn Rubino: Well, I mean in fairness my understanding is that it was just a flesh wound, but no, but that it wasn’t that the laceration was so severe that it required being overnight, but that he is previously on two separate occasions had what do they call –

Joe Patrice: Seizures.

Kathryn Rubino: Seizures that’s what they call, sorry, seizures as a result of falls and so in an abundance of caution they decided to keep him overnight for observation and noting that that he had no further symptoms.

Joe Patrice: Yes, they’ve determined that he like — I don’t know, Beyonce or Ariana Grande or something like that was just dehydrated, which is –

Kathryn Rubino: Mariah Carey classic —

Joe Patrice: Mariah Carey, yeah, and look that’s an excuse that I don’t totally buy when people use it to get out of concerts, but there at least they’re dancing for two hours. I don’t see a reason why the Chief Justice is dehydrated as –

Kathryn Rubino: Well we don’t know how long he was walking.

Joe Patrice: Yeah okay, fair enough.

Kathryn Rubino: Oftentimes medications can cause dehydration. Maybe had a lot of coffee.

Joe Patrice: He says that what they now say that this was –

Kathryn Rubino: Alcohol also dehydrates you, lots of things —

Joe Patrice: They said that this is not a seizure related incident apparently, so he’s just clumsy, but —

Kathryn Rubino: I mean listen, I come from a very, very long line of clumsy individuals and I think that you having known me for a matter of years can attest that I am a fairly clumsy individual that I could easily just fall and crack my head open.

Joe Patrice: Yeah, that’s fair I guess, but —

Kathryn Rubino: Like some people are just clumsy, it’s not like in reflection on your abilities as a human.

Joe Patrice: The point though is that this was a thing that happened in late June to a person who has a history of seizures and the public was informed of this in a Tuesday night news dump, this Tuesday night, which is not –

Kathryn Rubino: Several weeks later yeah.

Joe Patrice: Which mean as I put it RBG gets the sniffles and it’s a multiple hours worth of talk news about how she should retire and it’s — and it builds a narrative that really undermines her ability to do her job and that’s why she may not probably like the fact that her health records get blasted as soon as she has an incident, and I respect that.

The problem is that’s the way it works when you have a screwed up system where we have lifetime and a lifetime aristocracy making most of our important constitutional decisions.

But the double standard that the dude with — the dude who controls that office then has a history of seizures and goes into the hospital and manages to keep it under wraps to protect himself is problematic.

Kathryn Rubino: Playing devil’s advocate, but I mean it was released eventually, a few weeks later we’re in the middle of global health crisis, so it’s possible also they wanted to make sure that he was — that there weren’t any further complications before they reveal it and we know eventually, we know that he has a history, I know all about his history of seizures, so it’s not like he’s somehow more isolate, whether the timing is super important probably, but it doesn’t — it’s not like he’s — it’s not years later, it’s a matter of weeks later, we’re still in the middle of the same global health crisis.

Joe Patrice: Frankly spending time in a hospital during all this is newsworthy in and of itself.

Kathryn Rubino: I mean he did wait two weeks right, maybe, maybe that was the concern.

Joe Patrice: I mean this is what the folks that fix the court have been on top of and I think are very right about, the court is not only a bizarre outlier in the American Constitutional System in that it is profoundly anti-democratic and it is run as a lifetime aristocracy and then on top of that we managed to make it the most transparent, with the least transparent.

Kathryn Rubino: Least transparent. Well, I mean certainly and also their hesitance to have any sort of technology in the courtroom is been incredibly problematic.

Joe Patrice: Hesitant to technology, they aren’t telling you when people are getting sick like it’s — it’s a complete lockdown and it is problematic and this is just part and parcel of the issues with the courts transparency problem.

Kathryn Rubino: Sure. Yeah, I think it’s part of it. I don’t think it’s a separate issue necessarily, but he was well enough a few days later to take away a woman’s right to contraception if she works at a religious employer.

Joe Patrice: Yeah. Well I mean he was giving back to the health care industry that helped him. So what else — so we talked a lot about the Supreme Court here, is there anything else this week that you found of interest?


Kathryn Rubino: Man, I can’t even remember what I did yesterday.

Joe Patrice: That’s fair. I mean that is a lot of what it’s like these days.

Kathryn Rubino: Yeah, I just feel sick everything comes super fast and furious. I think they’re — I think I wrote something about some sexual harassment survey, women lawyers on guard did it, well sexual harassment still terrible, it’s the short answer.

Joe Patrice: Yeah.

Kathryn Rubino: You know I think there was a lot of information in there and you should check out their actual survey — the results, but people think that sexual harassment is basically over and done, and has been solved in the legal profession and the actual survey results suggest otherwise.

And the other I think really key finding that they had was they also surveyed women who said that they had experienced harassment at work and looked at what consequences women or not just women, but the people who were harassed faced, whether it be to their mental health, whether it be to their professional career, combination of those and by and large they found that the consequences to those harassed were far greater than those who did the harassment even if it was reported, which is obviously not what you want to see.

Joe Patrice: No definitely not, but unfortunately not a result I’m surprised to hear.

Kathryn Rubino: Yeah, and I think that those who were really surprised were probably folks, and I think this happens I think a lot with the legal profession, people assume that they are somehow better than these problems that are society-wide and what we’ve learned through a series of cases and allegations and so forth is that the legal profession is no better, it doesn’t matter how that you went to, whatever law school that you have, what level of education, these sorts of systemic societal problems still occur in even the highest levels of the legal sphere.

Joe Patrice: Oh, nobody thought that the legal profession was better than anything.

Kathryn Rubino: So plenty of people do oh, they, they must — how could they be sexual harassing, they’re the ones who write the laws, they’re the ones who write the sexual harassment training, how could they possibly be doing it.

Joe Patrice: Yeah, no, it’s — it’s bad and the profession is — I mean the profession has a lot of problems, right, that doesn’t mean that we can’t be romantic about what it should be, but we should be realistic about what it is.

Kathryn Rubino: Sure. Okay, Atticus Finch over there.

Joe Patrice: I mean, actually oh — that actually is a good lesson of the two books back-to-back. Be romantic and then, but —

Kathryn Rubino: I mean, those are separate issues that never should been published, she never intended it really for it to be published.

Joe Patrice: Beyond that conversation about the profession and what it should be and all that, the only other major trend going on and for those who’ve been listening to this show for a while, you know it’s been going on for a while and we’re still talking about it, because it’s going to keep being an issue for a little bit, which is the Bar exam is –

Kathryn Rubino: Oh yeah.

Joe Patrice: The schedule for the Bar exam is coming up, most states have –

Kathryn Rubino: And this month is when, historically it would in non-pandemic times, the end of this month is when the Bar Exam would be.

Joe Patrice: Right, and for several states is when the bar exam will still be.

Kathryn Rubino: I can’t believe that’s happening.

Joe Patrice: Yeah, it’s really problematic. There are a number of states still going forward on it. There are policies in place, supposedly safety measures which are troubling. There are last-minute cancellations as people are finally starting to realize this isn’t doable, there are –

Kathryn Rubino: Also the Delaware just moved their location to a larger venue in order to ensure greater distance.

Joe Patrice: And Colorado just guaranteed that there would be smaller groups in any individual place, but yeah it’s — it’s a problem and we’re seeing that the Bar examiners are really —

Kathryn Rubino: They don’t care.

Joe Patrice: They are not giving —

Kathryn Rubino: Well essentially not every state there, but there are definitely a cadre of states that have said, well you’re going to take the test.

Joe Patrice: I would highly recommend a great piece that we published by our Columnist Law Prof blog about the ‘Bar Examiners: The kings of Wishful Thinking’, and it is a great run down, kind of satirical rundown of how bar examiners are responding to the crisis and it’s unfortunately largely based in fact.

We have — we’ve seen calls where the bar examiners who are doing it over Zoom, because of course they wouldn’t do it in-person because that would be dangerous, but are being asked why all the students have, when our students graduates have to take a test in person under these circumstances and we are seeing bar examiners who are on these calls going to sleep, rolling their eyes, it’s —

Kathryn Rubino: Disconcerting to say the least.

Joe Patrice: It’s disconcerting, and I — and look, I’m sensitive to the idea that on a 3-hour Zoom call you’re possibly not going to always appear engaged, like that’s going to happen.

Kathryn Rubino: Sure.

Joe Patrice: I mean I look — I look disinterested when you’re talking during this podcast half the time, but that’s not —

Kathryn Rubino: Really, really?

Joe Patrice: But that’s not because I am.

Kathryn Rubino: It’s a half hour man, get it together.

Joe Patrice: It’s not because I am disinterested —

Kathryn Rubino: Get it together man.

Joe Patrice: Okay, but okay fine. I will accept that because that speeds my point. Sometimes you can look disengaged, but you have to get it together under certain circumstances and while —


Kathryn Rubino: Yes, yes, and certainly —

Joe Patrice: And while this is not a video podcast.

Kathryn Rubino: Too bad. I look good.

Joe Patrice: Video Zoom call where a person who is, yeah, okay I see what you said there, a video podcast where a person who is responsible for all of this.

Kathryn Rubino: Right, and it’s a serious matter, it’s not like people are saying oh, what do I — what dress code is going to be enforced at the bar exam, there’s a freaking global pandemic. This is important, this is important.

Joe Patrice: It’s your job.

Kathryn Rubino: And it’s your job.

Joe Patrice: And that’s a thing, you signed up, you signed up.

Kathryn Rubino: You do it twice a year, twice a year, get it together man.

Joe Patrice: You signed up for the job that requires you to care, and so you have to look good for your own institution’s credibility.

Kathryn Rubino: 100%.

Joe Patrice: And so that’s been problematic. Yes, both Texas and California had these incidents, we wrote about them at Above the Law in a joint column about why can’t these people stay awake, but yeah, that’s —

Kathryn Rubino: Get the Bar Examiners more coffee.

Joe Patrice: Yeah, that should be the refrain, but anyway —

Kathryn Rubino: And you know I kind of use it as a throw away, but I actually thought one of the — one of the funnier, sad, but also funny bar exam stories that you did since you’re kind of our point on all things bar exam related at the moment was Virginia.

Joe Patrice: Have we not talked about that one on this show yet? I can’t remember.

Kathryn Rubino: I think it happened this week.

Joe Patrice: Did it?

Kathryn Rubino: I think so.

Joe Patrice: No, that had to have been like a year ago. It feels —

Kathryn Rubino: Time is no meaning you guys.

Joe Patrice: Yes, the Virginia Bar Exam has looked at the situation and realized that it’s dangerous for people to be taking an in-person summer bar exam and so they have decided that men don’t have to wear ties to the exam anymore.

Kathryn Rubino: Men had to wear ties to the Virginia Bar Exam?

Joe Patrice: They actually still have to wear suits, but the tie itself is not required.

Kathryn Rubino: I don’t — I mean okay, I remember what outfit I wore to the bar exam because I wanted to — I want it to be a lucky, lucky outfit that I –

Joe Patrice: Oh my.

Kathryn Rubino: Outfits, a series of outfits. I mean you know me, you know I – you know I did this, but I can’t imagine if I had to wear a suit or a dress to the bar exam, I mean it just seems — it seems laughable and I think you had a great line.

Joe Patrice: Did I, I don’t remember what it would be.

Kathryn Rubino: The cosplay.

Joe Patrice: This was — again, remember I thought this story was like a month ago, like —

Kathryn Rubino: You said that, you said that they’re just playing lawyer cosplay.

Joe Patrice: It is. I mean that yes, the bar examiners are at — they are at least are trying to have like a dress-up Renaissance Fair LARPing of lawyering.

Kathryn Rubino: Was utterly, utterly necessary to wear anything in particular to take the bar exam, it is completely irrelevant to your ability to be a lawyer, it is not in front of a client, it is not in front of a judge, it is just a bunch of bullshit and it’s laughable that that is their biggest concern right now.

Joe Patrice: Yeah, but I mean it highlights how Bar Examiners don’t care about this. They wrap themselves in protecting the public and all this garbage, but they really just care about running their annual party where they make little, little graduates jump through hoops and dress up all cute for them and play pub trivia about law stuff. Like there is no real advantage, it doesn’t protect anybody, there’s a great article from Oregon Court of Appeals Judge where she just unloaded on people saying that the bar exam is about public protection, because she’s like it’s not and I’ve been doing this for years, I know it’s not and let me explain how badly these arguments play if you know what you’re talking about.

Kathryn Rubino: As you might imagine Joe Patrice is fan, a big fan of Diploma Privilege.

Joe Patrice: I am, I think that and not –

Kathryn Rubino: I mean it’s pretty obvious, but yeah.

Joe Patrice: Yeah, and I think I’m definitely a fan of it on an emergency basis.

Kathryn Rubino: Certainly.

Joe Patrice: But I think I am at going-forward basis, I think it has to go hand in hand with a tightening of the ship among law schools, like we do have a problem of people who can’t pass the bar when they graduate from law school, from some law schools.

Now some of that is because bar exams are dumb and should be letting more people in, but others of it is because we have diploma mill law schools.

Kathryn Rubino: California.

Joe Patrice: Well, we have diploma mill law, yeah, exactly diploma mill law schools that don’t actually prepare people to be attorneys.

Kathryn Rubino: To do much of anything, yeah.

Joe Patrice: And in that case I think during this emergency time we have to saw err on the side of caution and let those people all in.

Kathryn Rubino: Right.

Joe Patrice: But longer term I think a Diploma Privilege program or there’s also some distinctions between that and education privilege and I won’t get into all that now. We’ll talk about that on a future podcast, but I think that they’re probably next week’s even. But —

Kathryn Rubino: Preview.

Joe Patrice: But I think that there’s a value in moving to that system long term, because it will then force the ABA and so on to be in a better position to tighten up, and I think the ABA wants to, I just think that they are hamstrung by bar exams and schools that say, it doesn’t matter how lacks we are, we all get settled at the bar exam stage.

Kathryn Rubino: We will settle it yeah, yeah on the back end, it should be a front-end question before, students were asked to pay or take out loans.

Joe Patrice: Yeah.

Kathryn Rubino: You know hundreds of thousands of dollars worth, no of course in the front end.


Joe Patrice: We should trust that if you’ve gone to a law school and completed an approved curriculum then you have mastered the subject matter, that does not mean that you have mastered your ethics exam, it does not mean that you’ve passed character and fitness, but it does mean you at least have passed all of the subject matter requirements to be a professional.

Kathryn Rubino: Yeah, I think you are right, and have an ethics, continued to have an ethics exam.

Joe Patrice: Oh yeah, if not strengthen it, because if you want –

Kathryn Rubino: Yeah, make it actually, make it a real thing.

Joe Patrice: Because if you want to talk about protecting the public it seems to me as though those two things have a lot closer line than a bar exam, but —

Kathryn Rubino: Yeah.

Joe Patrice: Well, we have been going on for a bit in a pretty rapid fire way, so unless you have something else to say I’m prepared to —

Kathryn Rubino: I can, I can hold my piece till next week.

Joe Patrice: Oh, what I mean it —

Kathryn Rubino: I don’t have a thing, I’m just saying.

Joe Patrice: Oh okay.

Kathryn Rubino: I thought it was a cute line, no, you didn’t like it?

Joe Patrice: Sure.

Kathryn Rubino: You are such a jerk.

Joe Patrice: What, what I – no, I mean it was fine, like what do you want me to say, do you want me to lie, like —

Kathryn Rubino: You are such a jerk.

Joe Patrice: All right. So with that said, thanks for listening, thank you for subscribing hopefully. You should be subscribed, you should give reviews, give stars, write something, all those things help, and they give us guidance and helps out the algorithm figure us out where we are.

You should be reading Above the Law. You should follow, I am @JosephPatrice, she is @Kathryn1, both on Twitter. You should be listening to the other shows. Kathryn hosts The Jabot.

Kathryn Rubino: I do.

Joe Patrice: We also both usually host our special coverage ATL COVID Cast, where we talk about COVID and the law related issues. You should check out, there are some other Above the Law shows, you should check out all the other offerings from the Legal Talk Network you have, and yeah, if you have a hankering for legal tech stuff on Fridays, I do another show up, where I’m a panelist, so on Bob Ambrogi’s show. So you can find us in a lot of places.

With all that said, we’ll talk to you in the future.

Kathryn Rubino: Peace.


Outro: If you would like more information about what you have 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: July 14, 2020
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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