Are We Still Citing Judge Kozinski As An Expert?

Episode Notes

Transcript

Above the Law – Thinking Like a Lawyer

Are We Still Citing Judge Kozinski As An Expert

03/17/2021

[Music]

 

Joe Patrice: Hello

 

Kathryn Rubino: Hi.

 

Joe Patrice: Hey.

 

Kathryn Rubino: How are you?

 

Joe Patrice: Good. This is Thinking Like a Lawyer and we just started at night. You’ve been interrupting my attempt to have a normal interaction.

 

Kathryn Rubino: It’s kind of my thing.

 

Joe Patrice: Yeah, so I thought I would try and trick you by like not doing — like, I was trying to throw you off but you seem to have rolled with it.

 

Kathryn Rubino: Yeah, I’m good like that.

 

Joe Patrice: Yes. So this is Thinking Like a Lawyer, I’m Above the Laws Joe Patrice. That’s Kathryn Rubino, and we are here for yet another week of talking about law stories and catching you up on the short 30-minute.

 

Kathryn Rubino: It’s been a week.

 

Joe Patrice: Thirty-minute tour of a week’s worth of legal news.

 

Kathryn Rubino: Sure. The highlights the lowlights everything in between.

 

Joe Patrice: Yeah. Well, one thing that we aren’t going to talk too much about but I figure I should just at least preview that it happened. Last week was ABA Techshow, so it was — among the Legaltech conferences that exist, it’s the one. This more focused on kind of small law firm, not that that’s officially what it is but it seems to have developed kind of a —

 

Kathryn Rubino: Reputation.

 

Joe Patrice: Reputation. As these are products that are very valuable for building a small law firm. And so, it was nice to catch up on that world and hear from some folks. Obviously, nothing —

 

Kathryn Rubino: I think you can’t wait so you can actually go to it, “Techshow” but anything, so yeah.

 

Joe Patrice: Anything. Well, it’s reaching a point where it’s diminishing returns to do everything virtually.

 

Kathryn Rubino: Right.

 

Joe Patrice: I mean everyone’s doing their best but it just isn’t going to work out.

 

Kathryn Rubino: Well, it’s been over a year now.

 

Joe Patrice: Yeah, but Techshow was the last thing I went to. Yeah, that was — I think last year it meant that it was about 10 days before the New York lockdown. So anyway, but we will have a show soon. The annual ILTACON is going to be in person, so I’ll be able to do that.

 

Kathryn Rubino: Isn’t that in August, yeah.

 

Joe Patrice: Yeah, so by then —

 

Kathryn Rubino: That’s not soon. We haven’t even officially hit spring yet and that’s at the end of the summer. You’re rushing things a lot and I fully expect spring and early summer to be amazing so I appreciate you not kind of jumping the gun on the end of summer.

 

Joe Patrice: I did. I don’t notice I was jumping the gun or we just saying that we are soon going.

 

Kathryn Rubino: You said soon.

 

Joe Patrice: Yes, yes.

 

Kathryn Rubino: You said soon. That’s many months from now.

 

Joe Patrice: We haven’t had a thing in a year. I think in four and a half —

 

Kathryn Rubino: And it won’t for several more months.

 

Joe Patrice: And in four months, I feel it’s not a —

 

Kathryn Rubino: That’s a third of the year.

 

Joe Patrice: I think you’ve really — you’re misunderstanding —

 

Kathryn Rubino: Isn’t that hard for you that is going now?

 

Joe Patrice: No, no. I think you need to understand the proportionality of all this. When you’ve been off for a year, four months is relatively soon.

 

Kathryn Rubino: Listen, pretty soon actually soon not you are weird use of soon. We will all have access to a vaccine, right? President Biden has said every adult will have access to a vaccine by May 1.

 

Joe Patrice: Yeah.

 

Kathryn Rubino: That is just over a month.

 

Joe Patrice: Well, that’s why we’re going to have a show very soon.

 

Kathryn Rubino: Jesus Christ! Seriously, do not forget — don’t rush August. I have many months that I intend on having a lot of fun because we can actually do some stuff outside.

 

Joe Patrice: Fair enough, fair enough, yeah.

 

Kathryn Rubino: So, are you going to go in person soon?

 

Joe Patrice: Yeah.

 

Kathryn Rubino: You’re going to go to ILTA though?

 

Joe Patrice: Yes. I see no reason not to. I will be vaccinated by then. I know when my second vaccination shot will be and so I know it’ll be well before August and yeah.

 

Kathryn Rubino: And you feel good and confident about traveling again?

 

Joe Patrice: I do. And it’s ridiculously cheap, right? Seriously, like obviously it’s a sign of some bad things that things have gone so badly that people are so desperate for someone to visit but the hotel, I mean, it was like $35 a night.

 

Kathryn Rubino: Jesus! That is cheap. Well, where is it? I guess that is part of it.

 

Joe Patrice: Vegas.

 

Kathryn Rubino: Okay.

 

Joe Patrice: Yeah. I mean you’re speaking of people who clearly needed folks to go, right?

 

Kathryn Rubino: Yeah.

 

Joe Patrice: That’s a town that runs on tourism.

 

Kathryn Rubino: Tourism, sure. And the other thing is that lots of airlines and hotels are still have very generous cancelation or rescheduling policies? So if you have any sense of when your vaccination will be, strike while the iron is cheap.

 

Joe Patrice: Yeah, very true, very true. So we have a show that we’re going to get through and throughout the show —

 

Kathryn Rubino: We are we are doing that as we speak.

 

Joe Patrice: How meta and throughout the throughout the show you will hear from our sponsors at various points. Lexicon, Nota powered by M&T Bank and LexisNexis interaction. But first, let’s transition talk about — what do you want to talk about first? We got a lot of things. We can —

 

Kathryn Rubino: A lot of things happen this week. So the thing that made me — I’ll start with what made me angry, I guess.

 

Joe Patrice: Okay. Lots of things made you angry but —

 

Kathryn Rubino: Didn’t, I don’t know I —

 

Joe Patrice: Fair enough. Go for it.

 

Kathryn Rubino: There’s a thing that made me the angriest perhaps of the weekend. It was only kind of an aside to a larger story.

 

(00:05:02)

 

So, I’m going to take this time to kind of really delve into the reasons why it pissed me off. I did a story last week about Tom Girardi. A big time California plaintiff’s lawyer became sort of famous because he has a character in Erin Brockovich the movie in real life, right? So, but big plaintiff side lawyer.

 

Joe Patrice: Also, reality show person, right?

 

Kathryn Rubino: Yeah. Married to a real housewife of Beverly Hills. So well, has since filed for divorce and that’s kind of getting a little ahead of them.

 

Joe Patrice: I mean, that’s how these things get well.

 

Kathryn Rubino: But they were married for 21 years. This is not some like flashing the pan marriage or something like that, but Tom Gerardi is in a lot of trouble. All of his finances have been put under freeze. There’s now reports that he is suffering from dementia potentially Alzheimer’s disease. There’s a whole bunch of stuff going on and it was all kind of this like financial pyramid scheme that’s been alleged that he would collect money from various cases not pay it to the victims. The one that kind of caused the big issue was the victims of the Boeing of, you know, the plane crash whatever. The victims of the —

 

Joe Patrice: The super max ones.

 

Kathryn Rubino: The super max, right. Was supposed to get a big payday. He wasn’t paying the people that he was supposed to and then all of a sudden all this you know kind of the details of years’ worth of financial questions came to light. And the L.A. Times did a great investigative journalism kind of piece about the ways in which the California Bar had sort of propped up Gerardi’s financial house of cards throughout the year that he had had tons of allegations and complaints against him throughout the years, but nothing was ever done. His record was kept pristine and he had lots of friends within the Bar Association. He gave elaborate parties, all these kinds of stuff. And it was kind of interesting.

 

Joe Patrice: The cracks of that being that there some kind of suspicion that he’s avoided discipline for things in the past because he schmoozes the Bar.

 

Kathryn Rubino: Correct. I think the headline or maybe the subhead was that Girardi had “seduced the Bar.”

 

Joe Patrice: No. I mean not.

 

Kathryn Rubino: Yeah, I mean it was —

 

Joe Patrice: Look, we write headlines.

 

Kathryn Rubino: I appreciated it. I liked being able to quote it. But here’ s a thing that —

 

Joe Patrice: Maybe that’s why they’re getting a divorce.

 

Kathryn Rubino: There you go.

 

Joe Patrice: He’s been two-timing with the California Bar.

 

Kathryn Rubino: But the thing that pissed me off about it is one of the cases that Gerardi avoided the worst, sort of the repercussions was this Dole banana case, and there was a case in Nicaragua, the victims of some pesticides that had been used had sued Dole in Nicaragua. Had a judgment and Girardi was among the attorneys who tried to get it enforced in California, but in Nicaragua the wrong defendant was listed. It was like Dole Food Corporation instead of Dole Food Company, I believe was the issue. But somehow miraculously, when the paperwork was filed in California the correct company was listed. And there were two kind of parallel court proceedings. One when federal court, one in state court. In federal court, he was eventually censured and fined for the way that the names, kind of, all of a sudden miraculously appeared correct in the filing, and the Times cites Alex Kozinski as this was so shocking and this kind of moral authority on how ridiculous what Girardi was accused of was, and how he couldn’t believe that the State Bar Association only gave him — they only gave Girardi a slap on the wrist. And that’s all the article says about Alex Kozinski.

 

Joe Patrice: It’s weird because it seems like if you bring Alex Kozinski into a conversation about ethics you’d half of the few things.

 

Kathryn Rubino: Mentioned that he resigned in disgrace.

 

Joe Patrice: Yeah.

 

Kathryn Rubino: You would think, yeah. I mean listen Alex — I’ve written many, many, many articles about Alex Kozinski. For those who maybe don’t remember he’s the former Ninth Circuit Judge who resigned in disgrace after numerous allegations of sexual harassment. Allegations that he showed clerks porn at the office, asked for their opinion on it and a whole bunch of other stuff. So he resigned ending the ethics inquiry into his behavior because that’s how the federal system works. He gets to resign with full benefits and it means that the investigation is no longer active. So, I’ve wrote about that, but the other thing that I’ve been writing about since he has left the bench.

 

Joe Patrice: Let me jump in really quick that investigation no longer active. That’s actually an interesting subject on its own but for anybody who doesn’t necessarily know. The courts can investigate ethical lapses by their judges but only if they remain a judge, and if they resign it all goes away.

 

Kathryn Rubino: Right, which is something that plenty of people have taken advantage of including Maryanne Trump Barry when allegations about taxes and their family’s finances came to light also resigned.

 

Joe Patrice: Yeah, go on.

 

(00:10:00)

 

Kathryn Rubino: Yeah, so he had to resign but since his resignation there’s been an active effort to sort of rehabilitate Kozinski’s reputation, right. Big law firms have taken him as an honored guest to functions his written op-eds and other materials without any acknowledgement that he brings with him all of his baggage because he does have this sort of resume that suggests that he should be important. And I fundamentally have a problem with people who use the Kozinski name and former job as sort of this like badge of authority when you don’t acknowledge that he is an incredibly problematic figure. It’s not okay to use Alex Kozinski’s name in order to prop up the authority of any argument you’re making without acknowledging that he is an accused sexual harasser and was for years. The allegations are not just like a single incident it spans many, many years and it’s incredibly problematic and rather than deal with it or apologize or anything he resigned to end with full benefits in order to maintain his position and to block any further information about to what happened to him. Well, he did.

 

Joe Patrice: I mean Kozinski was something of a rock star judge. He was a well-known presence and all that. I get that, but there are a lot of retired federal judges available to talk to. If you’re the Los Angeles Times and need somebody to give a quote on a story or opine on something, there are other people you can call. It’s just out there. Thrown that up.

 

Kathryn Rubino: It’s also just not okay to use his name without saying what happened. It’s not okay to just say it and people who are not sort of the court followers. Listen the Above the Law audience, I assume most of the folks who listen to this particular podcast are either lawyers or legal followers in some way. People who care about the sort of internal workings of the legal profession. So yeah, we know who Alex Kozinski is. You can’t tell me that name without me knowing exactly who that man is.

 

Joe Patrice: Right

 

Kathryn Rubino: Right. But that is not the average reader of the L.A. Times and I think it’s frankly irresponsible to just kind of be like “Oh! Yeah, this guy is the moral authority” that’s saying can you — and also just kind of the irony of using a disgraced judge to say “look at all the moral failings of this particular incident.” Whether or not he is right about, there should have been some further repercussions for Girardi in a case that he is particularly talking about.

 

Joe Patrice: Right, right.

 

Kathryn Rubino: Whatever. But you can’t use Kozinski as a moral authority without recognizing that he had faced plenty of questions about his own ethics and rather than deal with them has decided to resign. And ever since then, has been in an active campaign to get himself back into the good graces of sort of the cultural Zeitgeist to have legal authority and you are allowing him to do this. You are perpetuating this kind of rehabilitation in a way that I think is fundamentally problematic.

 

Joe Patrice: Yeah. No, I mean, I certainly hear that.

 

Kathryn Rubino: I get really mad about it.

 

Joe Patrice: Yeah, no, I hear that. I think everybody just heard that. But no, it’s true like —

 

Kathryn Rubino: Don’t. I’m completely justified.

 

Joe Patrice: No. That wasn’t a bad thing. Everyone just heard that rant until I’m saying, but no —

 

Kathryn Rubino: As you roll your eyes at me.

 

Joe Patrice: I did not roll you. See, this is the problem. There’s no video here and so you can make these accusations —

 

Kathryn Rubino: You gave me a look. Stop.

 

Joe Patrice: I didn’t.

 

Kathryn Rubino: Do not guess like me. You can’t. We are literally talking about sexual harassment do not guess at me. It’s not a good look.

 

Joe Patrice: I didn’t.

 

Kathryn Rubino: It’s not a good look.

 

Joe Patrice: See, I normally would believe this sort of thing but like your —

 

Kathryn Rubino: I mean, in fairness, it’s also true that you normally roll your eyes that made of regardless of what I’m talking about.

 

Joe Patrice: I don’t. I don’t. That’s ridiculous. Anyway, so yeah.

 

Kathryn Rubino: No good transition there, sorry.

 

Joe Patrice: Well, so that was about legal ethics. One of the most important ethical obligations you have is to maintain trust accounts for your clients.

 

Kathryn Rubino: That was very much part of the Girardi’s story for sure.

 

Joe Patrice: Exactly. If you’re having problems with that, if you went to law school to be a lawyer not an accountant, take advantage of Nota, no cost, IELTS management tool that helps solo and small firms, track client funds down to the penny. Enjoy a peace of mind with one click reconciliation, automated transaction alerts, and real-time bank data. Visit trustnota.com/legal to learn more. Terms and conditions may apply. Okay, so after totally unnecessary attacks, I just took —

 

Kathryn Rubino: I won’t listen. It wasn’t unnecessary nor was it an attack.

 

Joe Patrice: Let’s talk about attacks over this. I mean we’ve record this with the assistance of Zoom.

 

(00:15:00)

 

So, let’s talk about what etiquette should be like on Zoom because I think you know don’t like accuse people of rolling their eyes at you like that sort of thing. What else?

 

Kathryn Rubino: Sure. Okay, so I mean that’s something I think that you’ve talked about. You have a lot of these kind of Legaltech circles and I’m sure folks in those circles talk a lot about Zoom.

 

Joe Patrice: Yeah. In fact, if you are a clubhouse person you should check out the clubhouse conversation that we have on Wednesdays. And last week, we talked about netiquette. I actually — this is terrible, I forget what we titled our clubhouse group. Well, because it was something of an impromptu thing.

 

Kathryn Rubino: You are a hell of a representative of the legal technology community. You couldn’t remember for months. You could not remember the name of the roundtable podcast you do. You can’t remember the name of the clubhouse group you do. You’re knocking it out of the park.

 

Joe Patrice: The point is that we didn’t really have a name for it at first. It was kind of an impromptu thing.

 

Kathryn Rubino: Okay, number one on the Zoom etiquette tip is “don’t use filters.”

 

Joe Patrice: I think that’s fair.

 

Kathryn Rubino: Right. Don’t use filters and I guess kind of the subpart of that has to be “check your Zoom settings before you log in to the court to make sure that you don’t have any filters currently on,” right? You’re not a cat. Don’t make it look like you are. I think that number two, maybe this is more for other participant, you know, not necessarily the lawyers who hopefully have this down but if you’re appearing in court make sure you’re doing it from an appropriate location, right? If you are a doctor don’t take that call from an operating room. In actual case something that happens. If you are being accused of assault don’t take the call from your victim’s house when there’s a no Contact Order. Yeah, there was a case that I wrote about last week where the victim was kind of like looking off screen and being very nervous and very apprehensive and the assistant prosecutor in the case was like “I think something’s wrong your honor. I need to investigate. Sent a police officer to the house.” Turned out that they also asked the defendant “where are you taking this call from?” and he’s like “a friend’s house” or something and not the location where he actually was and they sent cops to the victim’s home found the defendant there, arrested him, revoked bail. Pull nine like it was a terrible. And then, that was followed up by the same judge, Judge Jeffrey Middleton in Michigan and the same assistant prosecutor, Deborah Davis, also had another case that has gone viral. I mean you really have to appreciate their hit rate there. They had another case where somebody had a suspended license and was pleading guilty to as having a suspended license and driving with no insurance and took the court appearance from a car, the driver’s seat of a car. And Judge Middleton was like “I feel you’re not taking this particularly seriously you’re pleading to driving with a suspended license and here you are taking it from the driver’s seat of a car.” The defendant had an excuse said that it was his boss’s car and his boss had driven him but he was just trying to get some privacy to take the call, but regardless it did not. It was not a good look.

 

Joe Patrice: Yeah.

 

Kathryn Rubino: It was not a good look.

 

Joe Patrice: Good week for that judge.

 

Kathryn Rubino: I think the case has actually happened over the course of the month but yes.

 

Joe Patrice: Yeah, fair enough. I mean going viral a couple of times. That’s exciting.

 

Kathryn Rubino: He is so a thing. What other kind of tips do you have?

 

Joe Patrice: We talked about a lot was like you said just making sure that you have — if you’re appearing like defendants whatever like they have and whether they can do other things. If you’re an attorney and you’re doing something over Zoom, you’ve got to understand that it’s like that room rater account that everyone talks about like you have to actually present a professional appearance. Make sure you’re in a location that looks good, be dressed up, do all what —

 

Kathryn Rubino: At least from the waist.

 

Joe Patrice: Yeah. I feel like maybe you should go the whole nine yards and do the whole thing. The point is you should do what you need to do to appear professional. That’s one. Understand the filters obviously. But also, understand mute buttons, I mean, we talked about in the past the guy who made a comment about his dog, although it certainly seemed like it was profanity. All of these sorts of issues —

 

Kathryn Rubino: Know how to shut off your camera?

 

Joe Patrice: Shut off your camera. I’ll tell you the best tip I ever got on the mute front is Nikki Blackburn writes for us taught me that with Zoom rather — If I’m in a conversation where it could embarrassing things could happen I actually am always muted and you can use the if you saw Zoom’s window is open, if you hit the space bar it unmutes you and then you can talk and let go. So, you can treat it like a walkie-talkie. That way there’s no risk that anything is being said, unless you are affirmatively pushing down the button to say something.

 

(00:20:00)

 

Kathryn Rubino: Got it. That’s interesting.

 

Joe Patrice: It’s a super useful tool. I’ve never really had an issue where it would have been bad but I can totally see how — if you were.

 

Kathryn Rubino: Yeah and also make sure that your system is set up for it. It doesn’t cost a ton of money to get $20 to $30 to get a decent microphone, make sure you have headphones so you’re not hearing kind of ambient noises as part of the recording. And make sure folks can hear you. There’s nothing worse than being in any sort of a virtual proceeding and like I don’t know what did they just say.

 

Joe Patrice: Yeah. That’s very true. The technology is important because look this is going to continue even though we’re almost out of the pandemic. One might also be willing to say soon but we now have such facility with this technology. That it’s going to continue to matter.

 

Kathryn Rubino: And there are lots of benefits.

 

Joe Patrice: Yeah exactly.

 

Kathryn Rubino: That courts in particular, have seen as a result of virtual hearings. I think you had written about that.

 

Joe Patrice: Yeah. We’ve seen that the jury pools for online Trials. The jury pools are actually more young and diverse than they generally are.

 

Kathryn Rubino: That’s amazing.

 

Joe Patrice: Which is important to good. But also, i think one of the biggest issues and this was brought up on Legaltech trending news the clubhouse conversation.

 

Kathryn Rubino: That was so subtle, good job. Two points.

 

Joe Patrice: One of the points is like I don’t know of how much you did in state court. I did very little but the little that I did was a nightmare. A state court is filled with — because the feds you know you have appointments and there are hearings that have times. State is just the Wild West where there’s a big room and they just like have 100 of lawyers there and they call up cases willy-nilly as they happen. It means you burn hours of your day waiting for somebody to just say your name. Zoom and these kind of remote things for those cattle call hearings that are usually not particularly substantive. Those can add a great deal to the efficiency of attorneys if we moved that sort of thing to the Zoom world. So, this could continue because there’s reasons why it should. So yeah. And those cattle call conferences are just kind of an administrative nightmare which makes me wonder if you were interested in streamlining kind of your administrative tasks or something like that. And that’s why we’re going to hear from our friends from Lexicon

 

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Kathryn Rubino: That was a good transition.

 

Joe Patrice: Yeah. I know.

 

Kathryn Rubino: I appreciate that.

 

Joe Patrice: I am professional. So, finishing up. Another story that you had of the week, there was an issue at Georgetown.

 

Kathryn Rubino: There sure was. Two professors were caught on Zoom they co-taught a negotiations class and professor Sandra Sellers had choice words about the folks that were sort of she considered in the bottom of her class and she identified them by their race and said some very problematic stuff about the black students who were in her class.

 

Joe Patrice: Yeah. First, I will say when I first saw the quote absent seeing the video but just like a transcribed version of the quote. My initial takeaway was, as you said, if you’re talking about black students out, was that it was something about a hard to be as I would say.

 

Kathryn Rubino: Yeah, you refer to as the blacks.

 

Joe Patrice: Right, which white people should only utilize that term if it’s immediately followed by discussing New Zealand rugby scores. So, that was a sign that something was wrong, however the “barring that seemed in just pure text to not be all that terrible.” It seemed as though the professor was saying “I’m always concerned that in this class it seems like there’s a disparity in grades that are visible but on race and I’m concerned about that, which is the sort of thing that there is a value to that. And the other professor involved in the conversation because it’s co-taught class makes a comment then about like “yeah, it makes you wonder if maybe there’s an inherent bias problem that we’ve got going on here” which those are conversations that should happen. So, I was like unfortunate phrasing but maybe this is —

 

Kathryn Rubino: Typically, the co-professor is only sort of in hot water for not calling out the problematic things that professor Seller said, that noting that there’s potentially unconscious bias that informs grading is obviously a valid conversation and concern to have a couple of things though.

 

Joe Patrice: Right.

 

Kathryn Rubino: First of all.

 

Joe Patrice: This story took a turn.

 

Kathryn Rubino: It takes a turn. First of all, it is a negotiations class where they’re graded on their sort of in-class performance, so that’s not a blind grading situation, right? It’s very likely if not. Certainly possible, probably likely, that unconscious bias or affirmative bias are playing a role in the grading.

 

(00:25:05)

 

Also, the way that Sellers kind of introduced the issue is by saying that she could barely understand this student and it makes you — Yeah, it’s a very deeply uncomfortable thing to actually watch her talk about. And there’s also this sort of recognition that like I think she said “I hate to say it,” but then she completely goes on to say the things she would hate. And I think the real problem is these are the conversations that happen behind closed doors. She did not know. So it was like after a Zoom class and the Zoom kept on recording and eventually was posted on the classes’ website, so people would have access to the class recording but I actually appended sort of all this conversation that happened after the fact. So, Sellers thought she had this kind of sympathetic audience of one and these are the kind of behind-the-scenes conversations that happened. And the other kind of part of it is she’s an adjunct professor, they teach kind of one class a year. They just teach this class and shortly after this whole thing went viral, Georgetown announced that they’ve asked for the resignation of Sellers. She had actually — according to the statement by the dean of Georgetown, they said that she had kind of come into the conversation saying that she knew she needed to resign so they cut off the relationship with Sandra Sellers. And the other part of it was that they’re going to try to bring in someone else to make sure that the folks in that class are graded appropriately that all this stuff that is on the up and up that folks who took the class or not, sort of being penalized either. Because of the change in professorship or because of this sort of conscious or unconscious biases that are very much on display in this kind of secret recording. Not secret because they knew that there was a recording. They just thought they had stopped it. So yeah, that was a whole thing.

 

Joe Patrice: Yeah. No, and it’s a continuing issue at law schools obviously we’ve had. Professors who do aggressively bad things but they always try to get away with it by playing the academic freedom card. So, there’s a kind of a distinct difference you’ve got like the Richard Sanders and stuff like that from Richard Sander and like you have the Richard Sanders’s not like of folks that like their whole scholarship is around peddling kind of half-baked racist theories. And then, you have like an Amy Wax who — Amy Wax, as you see like –I feel like Sander is the one who’s in the safest position. I mean, it’ still reprehensible but like at least that is an attempt at scholarship. Now, Amy Wax pushes the line. Says all this racist stuff but writes it in op-eds and so on. But so, it’s like she claims that’s her academic freedom but she’s not really doing any scholarship. She’s just like mouthing off but she like can get around it. This is an instance where there was just no attempt at a justification this is about their academic work. The problem is I believe in academic freedom and the importance of it and so on and so forth, but the problem is, it is a tool that is easily hacked and easily exploited and it somewhat bothers me that as important as this is like it’s always the adjunct at the bottom of the pool who’s not doing anything scholarly who we can actually hold accountable for their actions. And all of these other people with tenure up the chain get to skip out on it because we have a system that in the interest of protecting good work, we created a protection that they exploit.

 

Kathryn Rubino: Yeah. I think fundamentally academic freedom is probably more valuable for people who are actually doing important work and work that kind of pushes the status quo and questions authority and the structures of power. And I think for those folks, tenure is an incredibly powerful and important tool and I don’t want to really do anything to jeopardize that because I do think that work is important. But it is also true. You’re a 100% right that people have sort of used it to get this kind of perianth thrill of being able to say “you know, racial slurs in class” because — well, it’s a quote from this case.

 

Joe Patrice: Right.

 

Kathryn Rubino: Never mind that. In some cases, I have a whole cottage industry writing about law school professors that use racial slurs in a class. Sometimes when they’re asked specifically by students, please do not use the racial slur right now then go on and use the racial slur on purpose because they get this sort of weird thrill from being able to see things they’re not supposed to have this cloak of academic freedom. So, I think you’re right that it’s hackable, but I’m also very hesitant to make any sort of attacks for getting rid of academic freedom because I do think that it protects very important work. But I think that we should be able to note the difference, understand the difference, and call it out when we see it. And I think that you’re right that we do have to hold more people accountable but I don’t think that means that in this current Georgetown case that the penalties were somehow inappropriate.

 

Joe Patrice: No, absolutely not.

 

Kathryn Rubino: I don’t think you’re saying that.

 

Joe Patrice: Yeah, no. And obviously, I was saying it’s frustrating that you can only deal with it when it’s in this low-grade adjunct.

 

(00:30:06)

 

Kathryn Rubino: She’s an adjunct, so of course, they could get rid of her. But I mean also, of course, because of the nature of that contract versus the nature of the contract with a tenured professor. Yes, there are a lot of issues there but I was glad to at least see that there was some relatively quick response. Also, at Georgetown has some other demands that they’re making and those are still being talked about, but hopefully it’s not the last change that they’re going to see at that law school.

 

Joe Patrice: Yeah. Agreed. It’s not providing a very good transition. We talked about law schools, we never really got to talk about law firms this week. And you know, how have law firms whether previous economic downturns have come out stronger on the other side. LexisNexis interaction has released an in-depth global research report confronting the 2020 downturn, lessons learned during previous economic crises. Download your free copy at interaction.com/like a lawyer to see tips, strategies, plans, and statistics from leaders who have been through this before and how they’ve reached success again. All right, well, so that is it for us this week as we walk into a new week of — I assume unmitigated horrors in the legal world. We will be back to chat with you about that then. You should be subscribed to the show, give it reviews, write something in the comments and all like shows engagement which helps the various podcast services. Recognize that we are out there as a legal podcast. You should be listening to The Jabot which is Kathryn’s other show. You can check out on clubhouse, the Legaltech trending news group on Wednesdays, and you can check out Legaltech week, the Journalists Roundtable on. Well, it’s live on Fridays and then they release it after, but you come live. Hey, you should be checking out the other offerings of Legaltech.

 

Kathryn Rubino: LegalTalk Network.

 

Joe Patrice: See, like there’s too many LTs. And yeah, the Legal Talk Network, you should be reading above the law as always. You should be following us. I’m @josephpatrice. She’s @kathrynI and with all that, I guess, we’ll close out this show and we’ll be, as I said back next week. Again, virtually and whatever and at some point in the future, we’ll be in cities and maybe we’ll actually see some of you listeners out there in the real world soon.

 

[Music]

 

(00:32:42)

 

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