After weeks of waiting, Davis Polk enters the salary increase game and re-raises, offering higher numbers for mid-level and senior associates. Is this the new normal, or could the market sustain one more shock to the system? Meanwhile, “Hobbit Law” aficionado Paul Davis gave Business Insider an interview that reads suspiciously like a rehabilitation attempt from a thoroughly embarrassed lawyer. Finally we discuss the latest Voting Rights Act case out of Arkansas and the trouble with judges getting too big for their robes.
Special thanks to our sponsor, Posh Virtual Receptionists, LLC.
Joe Patrice: Hello.
Kathryn Rubino: Hello.
Joe Patrice: Welcome to another edition of Thinking Like A Lawyer.
Kathryn Rubino: Thank you.
Joe Patrice: I’m Joe Patrice. That’s Kathryn Rubino. We are joined as usual by Chris Williams. How is everybody doing?
Kathryn Rubino: Doing good. You don’t sound great though. I have to — mean, I don’t want to be critical. I mean, I do. But let’s say that I don’t and just say that you don’t sound your normal, enthusiastic self.
Joe Patrice: Yeah, yeah. I had a minor surgery this morning, was one of those outpatient things. They were like, oh, no, you can even take yourself home. It’s no big deal and what I’m learning is there’s really no such thing as minor surgery, it really, really hurts. But you know, the show needs to go on.
Kathryn Rubino: And that is some dedication right here to the podcast lifestyle.
Joe Patrice: I mean, these, these sound clips aren’t going to play themselves.
Kathryn Rubino: You know, one might say that’s even a benefit.
Joe Patrice: I don’t know about that.
Chris Williams: I just want everyone to know, Joe was the only person that is here today, fighting through struggle. I forgot to put my laundry in the dryer. So I had to do that again this morning. So you know, we all have our heart.
Joe Patrice: At least you caught it before it, like sometimes they can get mildewy if you let it sit too long, that’s always get worst.
Chris Williams: Which I don’t get. I thought it was a clean environment. It just got washed.
Joe Patrice: Why is the growth now? I don’t understand it.
Kathryn Rubino: Well, it’s not like airtight in there, right? Like, it’s just a good lid.
Chris Williams: True. But like, if it’s just like airborne stuff in my kitchen why doesn’t my kitchen smell like that?
Kathryn Rubino: Well, because if you let something, if you had like a washcloth on your like, counter overnight, it probably would be.
Joe Patrice: Yeah.
Kathryn Rubino: Like, do you ever do that? Like, like, not clean your washcloths and they smell, they smell?
Joe Patrice: Yeah, it’s the moisture and —
Kathryn Rubino: Yeah, it’s the fact that it is damp.
Chris Williams: Okay, yeah.
Kathryn Rubino: Not a great word.
Chris Williams: My wife (00:02:11).
Joe Patrice: So this is an exciting science that we’ve got going here.
Kathryn Rubino: How was your President’s Day weekend, Chris?
Chris Williams: Do I remember anything? It was good. It was good. Oh, I played a lot of God of War IV.
Joe Patrice: That was your talk last week too.
Chris Williams: Yes, it was.
Joe Patrice: The game is still going?
Chris Williams: Now playing on the hardest difficulty and as the French say, I’m getting my ass beat. All the other encounters I was like, “Oh, this is cool. I’m Kratos. I’m good.” Now it is like oh, you just got beaten by a small child for the fifth time. You’re not as good as you thought. So it’s been very humbling. Very humbling.
Kathryn Rubino: Well, how about you, Joe? Did you do anything fun?
Joe Patrice: Not particularly, just kind of prepped for having this thing done. So yeah —
Kathryn Rubino: The surgical procedure.
Joe Patrice: The surgical procedure, yeah, not the show.
Kathryn Rubino: I was going to say.
Joe Patrice: I spent the whole weekend preparing for the show.
Chris Williams: Is this you prepared? Because wow, wow.
Joe Patrice: Okay. Well, that’s, that’s super. Yeah. So that’s where we are. Okay.
Kathryn Rubino: I booked a girls trip to Dollywood.
Joe Patrice: Dollywood.
Kathryn Rubino: I’m going this summer. I’m very excited.
Joe Patrice: I mean, now that she met with the loss of Betty White. She is now our queen. So I guess —
Kathryn Rubino: I mean, obviously, which is why when I made the suggestion, it was like a group chat, group of my friends and people were throwing out different locales and I was like, “Hold the phone. I have the answer. It is Dollywood.” And I was obviously right about that one.
Chris Williams: Shout out to Dolly Parton. I didn’t expect to say it today, but it is true. In my heart she is close right next to the left ventricle. I also want to visit, what is it Prince’s estate? I think I was in Minneapolis.
Kathryn Rubino: Oh yeah, — yeah, Minneapolis.
Chris Williams: Minneapolis, didn’t get to go because it was like a layover but one of these days, I want to go see the purple ones crib just for posterity sake.
Kathryn Rubino: That does sound like a pretty fun endeavor. I think I was supposed to go to Minneapolis, like during what is now just our last years of COVID. I originally had a Minneapolis trip planned and it’s not happening, obviously but —
Joe Patrice: Yeah, isn’t there? Is there something coming up? I think there’s something coming up there.
Kathryn Rubino: I think that there’s a debate meeting that we will be going to.
Joe Patrice: Yeah. We have to go to anyway, whatever. Yeah, obviously, yeah.
Chris Williams: Speaking of travel trips very soon, we’re going to what is the Legalweek thing?
Joe Patrice: Yeah, New York.
Chris Williams: Yeah, I already got a nice email because if you’ve read my work first off, I’m sorry, and secondly, in my bio, I’m doing what people should be doing. I should on St. Louis and one of the people that’s going to be at the event is from St. Louis.
Joe Patrice: Of course, yeah.
Chris Williams: Of course, you’d read that. Well, yeah, I got somebody offered to buy me a coffee because of it. So if you’re listening to this, just sit on whatever places you don’t like maybe you’ll get a free drink.
Joe Patrice: Yeah, actually, that’s a good point. I’ll share my calendar with all of you of meetings that are scheduled so that you can see them.
Kathryn Rubino: Legalweek will be fun.
Joe Patrice: Yeah, well, I’m doing the back to back duty because ABA TECHSHOW is immediately before Legalweek, which seems like a ridiculous thing to have two tech shows back to back but Legalweek was supposed to be earlier in the year.
Kathryn Rubino: January, January-February, right? It’s normally when it is.
Joe Patrice: Yeah and then COVID happened, and they pushed it back. So now it’s back to back with ABA TECHSHOW. So yeah, so the entire Legal Tech Journal community is going to fly to Chicago, then turn right around and fly back.
Kathryn Rubino: Well you know, yeah. Listen, if (00:05:44) get you.
Joe Patrice: Yeah. All right. Well, with that done, I think we can move on to our topic, I guess. Concluding small talk, and now we can move on to a more exciting topic, which is Davis Polk finally paid some raises.
Kathryn Rubino: That was really, really long.
Kathryn Rubino: That was really long.
Chris Williams: Yeah, can you get shorten it?
Kathryn Rubino: That was too long.
Chris Williams: You know, just like —
Joe Patrice: Okay, I don’t — I think we’re losing track of the plot here, which is the Davis Polk.
Kathryn Rubino: Yes, yes, yes. They announced raises.
Joe Patrice: Salary raises, yeah, which —
Kathryn Rubino: And they not only match the Milbank scale. They came over the top as we kind of speculated. They might at least four, I think, it’s second years and above.
Joe Patrice: Four.
Kathryn Rubino: Is that fourth year?
Joe Patrice: Four, fourth year, yeah.
Kathryn Rubino: Four years and above. So junior associates shut out a lot, still get the same 215 starting and but for more senior folks there’s an added little bump in there.
Chris Williams: I thought the bank rolling over Milbank pun there somewhere?
Joe Patrice: Yeah. Okay. Maybe my assumption is we’ll hear from Milbank that they’re matching this within, maybe before the episode comes out. I think —
Kathryn Rubino: Maybe a little longer than that. But yes, I do think —
Joe Patrice: I think the firm expected this.
Kathryn Rubino: I think that they are aware that it was a distinct possibility. I think that they are comfortable matching, whatever the number shakes out to be. But even though, they did not set the full scale for everyone. I think it’s super important that Milbank were the ones who started the ball rolling.
Joe Patrice: Yeah.
Kathryn Rubino: And that’s appears to be their role in the, you know, biosphere of big law.
Joe Patrice: Every reaction needs a catalyst, you know? And that’s —
Kathryn Rubino: Yeah, they’re the catalyst, but that’s really — they are the catalyst.
Joe Patrice: Yeah.
Kathryn Rubino: And I feel like I don’t know enough about science to continue this, but —
Joe Patrice: On our Science Podcast.
Kathryn Rubino: Obviously, Davis Polk is the one who kind of like, it’s like, “No, no, we’re going to go over the top or whatever and then Cravath kind of blesses it and then, you know, we’re all done.”
Joe Patrice: We still not heard from Cravath.
Kathryn Rubino: We have not, as of the recording. Who knows what time? It’s published tomorrow, but you know, they could absolutely make different moves?
Joe Patrice: But the lengthy delay between Milbank’s announcement and Davis Polk taking action.
Kathryn Rubino: Right, it’s a little over a month.
Joe Patrice: Yeah. Was, was interesting. I think a lot of us expect — a lot of us view the situation as a standoff with Cravath over who was going to make the first move. I think a lot of us expected a match at least, but as the delay went on and on, we started wondering if somebody was going to do some sort of over the top thing. Frankly, I think I’ve said this on the show before, I expected the scale to be matched because that’s a locked in amount and then maybe another round of bonuses or something to compete in the lateral market head to heads up with Milbank, but not necessarily lock yourselves into the future but the firm did and —
Kathryn Rubino: Yeah, and this is not an unexpected or unheard-of move where the junior associates kind of just get a match but the mid to senior level associates, I think it was what 2016 — no, 2018, 2018 that’s what Cravath did that I believe. So it’s a thing that happens. I think that the re-part of the reason behind it is because of, you know, I’ve said it, what 17 million times, but hot lateral market, in particular for those mid-level senior associates. So if you want them to stay put, you better be offering them the very top of the market.
Joe Patrice: It’s interesting and obviously this is another wrinkle. We’re going to see what Cravath does, whether they just match this, whether they try to have some sort of bonus or something. Obviously, this feels like we’re going to start seeing some loosening on this up until now we’ve had Milbank matched by some firms but a lot of firms seem to be in a holding pattern awaiting another mover, we now have that other movers. So we’ll see where we go from there. Anything else on this topic do you think?
Kathryn Rubino: I mean, this is our big money move, not unexpected. Glad, it’s finally happening. And let’s see how quickly even now the rest of the — I feel like folks had an excuse before DPW came out with a new scale, they have an excuse to kind of drag their feet. I don’t think they have that anymore.
Joe Patrice: Yeah. It’s phone ringing. While we’re doing the show, we don’t have time to pick up that phone.
Kathryn Rubino: We don’t.
Joe Patrice: We would really benefit —
Kathryn Rubino: If somebody would answer the phone for us.
Joe Patrice: If somebody were there to do that.
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Kathryn Rubino: Let’s do it.
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Joe Patrice: All right, so the money thing just happened. So that kind of changed up the topics we were going to talk about. You revisit an old friend this week. Want to tell us about Paul Davis?
Kathryn Rubino: Did I, I thought that you’re talking by something fun? I was like, are we back to small talk again? How weird?
Joe Patrice: No, you didn’t hear a trumpet? You’d have known because there would have been a cue?
Kathryn Rubino: No, you usually wait till I start talking and then you interrupt me with a trumpet.
Joe Patrice: I don’t.
Kathryn Rubino: No, no, Chris (00:11:20). Cavalcade of clowns.
Joe Patrice: Yeah.
Kathryn Rubino: Cavalcade of clowns, Paul Davis, yes. He is an attorney. He is a former Associate General Counsel at an insurance company. He was fired when he went on social media be like on January 6, and was all part of the insurrection. He has not been arrested for any crimes or anything like that. But when he was fired from his job as Associate General Counsel, he then started his own practice and part of that was filing a bunch of lawsuit against — I think it was like every elected official that’s literally ever been and like also Bill Gates or something like that, and challenging the results of the 2020 election. That was when he very famously made some Hobbit law. I’m not mispronouncing that. I mean, like J.R.R. Tolkien ‘Return of the King,’ “Gondor has no king” references in actual real filings that he signed and put in court like this is the thing that happened. Anyway, so he had an interview at Business Insider where — I mean, I have some generous amounts of salt while reading it. It seemed designed to garner sympathy, he talked about losing everything, his fiancée wound up leaving him after — I mean, it wasn’t like somebody like outed him, he was the one who went on social media and was like, “I’m doing this,” right, whatever.
But when he got a lot of attention for it, he wound up losing his fiancée, wound up losing his house, lost his job, obviously, we’ve already discussed. Also, he said that some friends distance themselves from him, which, you know, if I had known him, you know, and whatever. But he’s saying how terrible things have been because he tried to overturn the results of a free and fair election. So, you know, that did not work out great for him. So he has this interview, trying to be like, you know, things were terrible and all I could say is like — I mean, essentially the consequences, the natural and logical consequences of our own actions.
Joe Patrice: Yeah, you know, I think it’s important to view people with some degree of sympathy, but I think what we are going to see at this point are a lot of those folks, especially the ones who were directly involved in January 6, and are facing actual criminal penalties, coming out of the woodwork with their sob stories, which is just going to happen, take them with as you said, the boulders of salt that (00:13:45).
Kathryn Rubino: Yeah, I mean listen, I have sympathy for lots of folks who were involved in January 6, the people who felt like they were being literally attacked at the Capitol Police who had to sort of defend our literal institutions of government. You know, these are the people who were injured, who were hurt that I have tons of sympathy for. People who voluntarily participated in this, you know, they’re further down on my list, let’s just say. And when I have a finite amount of sympathy, they are a little bit further down on the list. But I don’t know. That’s my perspective, do with it what you will.
Joe Patrice: Yeah, no, so it is interesting. So somebody — I just can’t believe anybody was able to get him to do an interview, but which then suggests that this is very much part of a rehabilitation tour, almost.
Kathryn Rubino: Yeah and obviously, you know, that is a well-worn play for folks who have had some questionable PR in their lives or questionable moves that have finally been brought to light, right? You know, I wrote extensively about Judge Alex Kozinski’s rehabilitation tour. We remember he resigned after sexual misconduct allegations. There were a lot of them.
He resigned and you know, I think was about a year or so later, you saw big law firms taking him out to do dinner, buying tables for him and his, you know, whatever or appearing at an event as a keynote speaker or signing some pro bono filings and stuff like that and I think it’s all designed to make us all forget the bad parts. And I’m always going to — every time I write about Judge Alex Kozinski, I’ll be like, who resigned in disgrace, right? Resigned in disgrace friends?
Joe Patrice: Yeah, no so —
Kathryn Rubino: Never forget. I mean, obviously, I don’t want to like minimize anything but also you have to be ever vigilant when people are trying to actively make you forget about the things that they’ve done.
Joe Patrice: Yeah.
Chris Williams: Question, are you going to do it just for his stuff or are you going to do a MacArthur to be burned thing and just do it for every single post? Like, “Hey, new raises?”
Kathryn Rubino: By the way, Alex Kozinski resigned in disgrace. No, just when they mentioned him, it was what I’ve done, certainly. But I think that — listen, he was a federal judge of the appellate court for the Ninth Circuit. He was well respected by both sides of the aisle which is a whole thing and —
Chris Williams: Like a little Above the Law allstar really, like an early —
Kathryn Rubino: Yeah, yeah, yeah. The iterations of our website, spent a lot of time throwing adulations on Judge Kozinski, and you know —
Chris Williams: He was a supporter of, before our time, but he was a big supporter of the website and gave it credibility, you know, so yeah.
Kathryn Rubino: Yeah, for sure, but that doesn’t mean that you know —
Chris Williams: Correct?
Kathryn Rubino: It doesn’t mean I’m not going to write about sexual harassment by a federal judge. And I think that if — this is not saying that no, no one ever gets a second chance, or second acts are not, or impossible by any stretch of the imagination, but when your only sort of acknowledgment of your misdeeds is to say like, “Oh, well, but now I’m doing — here’s the new, here’s my new act.” Don’t you want to just cover that without any sort of meaningful apology or sort of acts of service to kind of demonstrate that you understand what you did that was wrong? No, I have no time for that.
Joe Patrice: That’s the thing with second acts, they actually are part of the same play. You don’t get to just reboot the entire first act and the second act, you know?
Kathryn Rubino: Right, right. Exactly and that’s certainly how I come out on this issue. But I read that Paul Davis article along a similar vein where it’s like, I don’t know. He says that he actually — Paul Davis in the interview said he regrets nothing that this has led him to — he talks very openly about his second act. As you know, now, I think he has a bunch of clients of folks that are trying to resist vaccine mandates and masking requirements and that kind of stuff. You know, it’s exactly what you would imagine for somebody who was involved in January 6, or so.
Joe Patrice: So yeah, so there was that? I guess we should, real quick one thing that made some news last week is there was another Voting Rights Act case in this instance. It was a trial judge, federal district court judge who decided to determine that section two doesn’t work anymore. More specifically, that only the DOJ is allowed to pursue section two violations. This is a conclusion that it contradicts Supreme Court precedent, but his take on it was — it put aside the substance for a second, which is obviously important. But that takeaway for me, the thing that was so shocking to me, was the conclusion where he basically said, “I understand that this is contrary to decades of precedent and I’m going to overturn it and if the appellate courts disagree with me, then they can fix it.” And that’s not how the order of operations go.
Kathryn Rubino: Sure. It was really interesting. So that morning after this, it came out in the evening, I believe, right, the decision. The morning after I was actually doing one of my Jabot, my other podcast and in an interview with an actual voting rights experts, Gilda Daniels. She is a professor at the University of Baltimore School of Law and she wrote a book about ‘Uncounted” The Crisis of Voter Suppression’ and she, I was like, so how was your morning in here? You know what, I think that that right now, I think voting rights experts are some of the hardest workers in legal academia and you know, we are all poorer because of it, right? The fact that this continues, we are seeing the constant chipping away of these foundational rights is deeply disturbing.
Joe Patrice: Yeah. So this — this, I mean, yeah — for me, it was just the audacity of reversing the order of operations. So yeah, like we abstracted out of the gravity of this substance like nothing could work like this. If trial judges were the ones who said “I’m overruling things” and if the onus is on the appellate level to fix it that would be backwards, the status quo, the burden should be that the existing law stays and if somebody wants to change that they can raise it up the ladder.
Kathryn Rubino: Right, that like changes not only sort of the very conception of our system of our legal system, but it also changes sort of the — if this becomes the way people do you think that district court judges do things going forward, that vastly changes the amount of the caseload that appellate courts are going to face.
Joe Patrice: Well, yeah.
Kathryn Rubino: Right. This really disrupt stuff in a not like a tech guy, cutesy disruptions (00:20:36).
Joe Patrice: You’ve heard of circuit split. Have you heard of district splits? Yeah, it’s —
Kathryn Rubino: I mean, just like — this is chaos. This is chaos.
Joe Patrice: Well, and that was my takeaway was that because and the reason I did this is obviously it’s not that I don’t think that the Voting Rights Act issues aren’t gravely serious, they are. I just — we all have lanes and other people were writing very good articles about the seriousness of the substance of what he did. So I focused on the procedural issue which I think is also really troubling because if we’ve reached a point where these folks believe that their district court job allows them to rewrite things, shift the burden of persuasion on these issues to change the law radically at the district level and then hand it over to the appellate courts to reverse that, that’s just pure chaos.
Kathryn Rubino: Listen, I don’t necessarily want to sound like a sieve pro fanboy, but like, you know —
Joe Patrice: I’m comfortable with that.
Kathryn Rubino: That’s also cool. But it’s true that there are substantive rights that are protected or chipped away by the way we treat procedure, right? Like these are these are very much related issues and yes, I think you’re right that other folks are writing quite eloquently about the way that we are chipping away at voting rights in this country in very troubling ways. But I think that the way in which folks are also using procedure to make sure that it’s easier for more people to continue to chip away at substantive rights, is also the story.
Joe Patrice: It really drives home that the tenor of people that have gotten these jobs recently, genuinely believe that they are life tenured legislators, and they can do whatever they want, which is dangerous. We’ve also saw this, we talked the other day about the chief justice having problems with the shadow docket voting rights case because he felt that you don’t get to have a freebee election. But that’s functionally the same thing although at least that was a Supreme Court who is in the appropriate place on a ladder to make those sorts of decisions. But the premise is the same that you don’t allow the law to be changed in the interim and then ask questions later. The onus should always be on maintaining the status quo before you make a radical change. This destabilizes everything and now, obviously they are going to — right now they’re limiting that to the issues that are there hobby horses, but it becomes real difficult to have much confidence in the legal system at all when these things get flipped like this.
Kathryn Rubino: Oh, for sure.
Joe Patrice: Yeah. Well —
Chris Williams: We all had confidence this whole time?
Joe Patrice: Not whole time.
Chris Williams: But we were past that threshold a couple years ago.
Joe Patrice: No, I mean, kidding aside though, yeah, we have big issues with big ticket political issues. But I genuinely trust that if I’m a bank, who has a contract with another bank and we get into dispute over it, that’s going to get settled by the litigation system in a reasonable way and now I don’t know as though I can really trust that.
Kathryn Rubino: You cannot.
Joe Patrice: These judges have decided that they have powers that they never used to and who knows what happens now. To your point, like, what I’m trying to say, I guess is that for the rich and powerful in this country, the system did work. And now I don’t even know if it works for them. They’re not shedding tons of tears on that but it is part of a functioning system that you can trust that your agreements will be honored, but (00:24:17).
Well, I think that’s pretty much all we got for this week, unless anybody has any other thoughts to pass out there.
Kathryn Rubino: No, I’m pretty done.
Joe Patrice: All right. Well, cool. Thanks everybody for listening. You should be subscribed to the show. You should be downloading it when it comes out that’s why you should subscribe, sorry. You should be leaving reviews not just stars, but write something kind of that engagement helps. You should be checking out other shows. She’s on The Jabot. I am panelist on Legaltech Week Journalists Roundtable talking about legal tech stuff, which we will be doing a lot of with a couple of shows coming up right around the corner as we said.
You should check out other shows on The Legal Talk Network. You should be reading Above The Law as always to hear, to see these and other stories. You can follow us on social media. I’m @josephpatrice. She’s @kathryn1. She puts up her finger, the numeral one. He is at @rightsforrent. You should be, what else? Checkout Posh, our sponsors for this show and that’s everything. All right, yeah, we’ll check in next week.
Chris Williams: See you next week.
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Podcast transcription by Tech-Synergy.com