The Fifth Circuit can't stop and won't stop.
Kathryn Rubino is a member of the editorial staff at Above the Law. She has a degree...
Joe Patrice is an Editor at Above the Law. For over a decade, he practiced as a...
Chris Williams became a social media manager and assistant editor for Above the Law in June 2021....
Taking its lead from Neil Gorsuch’s Supreme Court shenanigans, a Fifth Circuit panel told attorneys to go maskless. In Louisiana. The state that just edged past New York in COVID deaths per million. Though at least some of its judges care enough about freedom to respect the judgment of counsel. Joe Rogan is still, unfortunately, in the news and he’s basically the poster child for how little people seem to understand about free speech. Meanwhile, the Milbank raises still have a lot of notable holdouts. When is the market going to catch up?
Special thanks to our sponsor, Posh Virtual Receptionists, LLC.
Kathryn Rubino: Hello.
Joe Patrice: Hello and welcome to another edition of Thinking Like A Lawyer. I’m Joe Patrice from Above the Law. I’m joined by Kathryn Rubino and Chris Williams. How’s everybody doing?
Kathryn Rubino: I’m good. Does me interrupting you in the intro not bother you anymore?
Joe Patrice: I am pretending it didn’t exist. I’ll probably edit it out. I’ll just cut off your mic.
Kathryn Rubino: Interesting.
Chris Williams: Starting the week off right.
Kathryn Rubino: Listen, you got to be on brands at all times.
Joe Patrice: Speaking of being on brand at all times, welcome to the small talk portion of our conversation.
Kathryn Rubino: Do the fucking words. I mean, come on!
Joe Patrice: So yeah, how’s everybody doing?
Kathryn Rubino: I mean, I don’t know. I’m very cold. It’s February. I’m over it. I’m ready for spring. It’s something like 35 days or something in that neighborhood before the sun doesn’t set until 7 PM again, and that’s where I that’s where I need to be.
Joe Patrice: Well, depending on what the groundhogs tell you.
Kathryn Rubino: That’s why I said the sunset, not just like an arbitrary spring, and I believe that Punxsutawney Phil said six more weeks of winter.
Joe Patrice: It sounds about right.
Kathryn Rubino: That little.
Chris Williams: Pre or post death, Punxsutawney?
Joe Patrice: No, that’s a different one who died. That was a that was a non-canonical groundhog.
Chris Williams: A protestant hog?
Joe Patrice: A heretic hog. In fact, that was the hog that Bill de Blasio dropped way back in the day. Remember when he tried to get one and it squirmed out and it dropped? That is the one that ultimately left the New York Central Park Zoo or whatever, moved to Jersey and died recently.
Chris Williams: Why do you know this?
Kathryn Rubino: You know — thank you.
Joe Patrice: It lived a life.
Chris Williams: What life do you lead where you know that off the top?
Joe Patrice: It’s like the news, the articles about it dying, which you all knew about one dying. I just read the article where they died and they made that connection and pointed it out.
Kathryn Rubino: Too clear —
Chris Williams: Did you write the article?
Joe Patrice: I did — no. I mean, I just, that’s not really my beat.
Kathryn Rubino: You realize that there’s somebody who is just tracking semi-famous animals whose only job is to write about animals you might have heard of before.
Chris Williams: Steve from accounting. He has a very interesting life.
Joe Patrice: Wrote into obits, he is survived by so many.
Kathryn Rubino: Legal by marriage to Punxsutawney.
Joe Patrice: I mean, I’m not sure.
Kathryn Rubino: Well, I also don’t really believe that groundhogs get married. I don’t think that they have — they don’t have any such traditions, and I think that us implying that they do is really overwriting groundhog culture.
Joe Patrice: That’s fair. I think they’re only tradition is this meteorology thing. Otherwise —
Kathryn Rubino: That’s organic.
Chris Williams: You got to start somewhere, man.
Kathryn Rubino: Chris, how was your weekend?
Chris Williams: It was a nice weekend. I reconnected with a friend I haven’t spoken to in about 12 years, friend I met through RuneScape. This was before that illusion of combat. We used to fight next together. I know that was all Spanish or actually I think, Nex is Latin for death. I know that’s all Latin but it was nice to reconnect and I got a lot of experience in flushing. RuneScape, old school RuneScape forever.
Joe Patrice: Nice.
Kathryn Rubino: It sounds like you had a good time. I didn’t —
Chris Williams: It was good.
Kathryn Rubino: Here you go.
Chris Williams: It was very good. Note that I very heavily, I did eat the diet consisted of cheese and Girl Scout cookies, but I had calories.
Kathryn Rubino: I mean, I love — what’s your favorite Girl Scout cookie?
Chris Williams: They have a new one that’s actually kind of fire. I don’t know the name of it, but it looks like it has a caramel chunk in the middle of it and it looks like some of the cookie from the thin mint around it with a little chocolate drizzle on top. It was really nice, but thin mints are hard to beat.
Kathryn Rubino: I mean, they are classic for a reason.
Chris Williams: They’re classic for a reason. And the peanut butter ones are nice also.
Kathryn Rubino: The tag-alongs or the peanut butter sandwich cookies?
Chris Williams: The peanut butter ones where they had the — it’s like peanut butter and then they’re covered in chocolate.
Kathryn Rubino: Those are the tag-alongs. Those are also really good. You get like three of them in a box, but worth it every time.
Chris Williams: Also, respect to you for knowing them by name.
Kathryn Rubino: Well, I mean, I was, well, maybe not obvious to you, but very obviously to me, I was a Girl Scout for a lot of years and now my nieces are Girl Scouts, and so I have a direct line to boxes of cookies, whatever —
Chris Williams: That’s cool. I’ve been looking for a cookie plug. So if I run low, I’ll be sure to hit you up.
Kathryn Rubino: You got it.
Joe Patrice: Trefoils are the best ones.
Kathryn Rubino: You are the most boring person I’ve ever met, for the uninitiate, those are just the shortbread cookies. They’re plain. They’re plain!
Joe Patrice: Very good.
Kathryn Rubino: You also like vanilla ice cream.
Chris Williams: To be fair, a couple months ago, this guy was trying to make eggnog in a pressure cooker with eggs that were cooking for like two weeks. I haven’t forgotten that. I still lose sleep at night.
Kathryn Rubino: It occupies space in your brain.
Joe Patrice: It was an immersion cooker in order to pasteurize the eggs.
Chris Williams: That doesn’t make it better, Joe. It was an artist in the full (00:05:47) cultivate. I don’t care. Why don’t you just buy the eggnog?
Kathryn Rubino: Grocery stores sell it now.
Chris Williams: What’s rumming it?
Joe Patrice: Well, I mean, there was plenty of that and what I made too. Anyway, I think we’re good. Is everybody without any further objection? I’m sorry, if you had anything else that it is now ended, small talk.
Kathryn Rubino: You’re the worst. You are the worst.
Joe Patrice: I don’t know as though that’s true. But you know who might be the worst? The Fifth Circuit Court of Appeals.
Kathryn Rubino: They’re not great.
Joe Patrice: How is that as a transition? All right. What’s going on with the Fifth Circuit? We complained about the Supreme Court a lot around here, but the Fifth Circuit is a special kind.
Kathryn Rubino: It is the worst of the circuits. I think that is pretty clear. And as many people are aware, we’re still in the middle of the coronavirus pandemic. Good for us, but there was a — we’ve kept it going for so long you guys. Look what we did. But there was an argument in the Fifth Circuit and one of the attorneys for the United States, Joshua Koppel had asked to appear at the oral argument remotely because he has too young children and, again, pandemic and his children cannot be vaccinated as of yet. Most that was denied.
He appeared, he traveled to New Orleans for the argument and in front of the Fifth Circuit panel of Jerry Smith, Jennifer Elrod and Andy Oldham, he appeared at the lectern to give his argument and Judge Smith asked him to remove his mask. He said, “I prefer to leave it on if–.” “We would prefer that you remove it. Thank you.” “Pardon?” “We prefer that you remove it.” That happened.
Chris Williams: Is the Fifth Circuit in Florida?
Joe Patrice: No.
Kathryn Rubino: New Orleans.
Joe Patrice: This Texas and Louisiana, this hearing —
Chris Williams: This is like a spiritual Florida thing.
Kathryn Rubino: In their heart, they’re Florida men, but what is particularly interesting is that New Orleans has an indoor mask mandate in effect, according to their mandate, all indoor spaces except while actively eating or drinking, no word about oral arguments obviously there. Also, there’s audio of the hearing and you can listen to it. I embedded it in the story as well and it is perfectly clear. It’s not like some sort of a mumbled, somebody can’t understand what’s happening situation. The masked individual is as clear as the unmasked judges. And this is just an instance where the judges wanted to assert their own authority and anti-mask worldview. And it is pretty reprehensible all things being equal in my mind.
Joe Patrice: It was a little impressive. I did not expect that kind of aggressive, science denial fun from anybody, but I guess if I did, it would be the Fifth Circuit.
Kathryn Rubino: Certainly, if this was going to happen in a federal circuit court, it was going to be the Fifth Circuit. I think that is undisputed. Still surprising that it happened in a federal circuit court to my mind.
Joe Patrice: In violation of local laws. Now, I mean, I know the federal courts can make the argument that they are immune on their property from the state laws, but still.
Kathryn Rubino: Certainly. Yes, you would still think that federalism would demand that you at least care.
Joe Patrice: Vaguely try to follow what’s going on around you. Yeah, no, it’s problematic. It is another indicator that we’ve crossed into just performative awfulness. This is, of course, is a follow-on to our conversation about Neil Gorsuch refusing to wear masks despite the fact that everyone else has been told to.
Kathryn Rubino: I guess I’m at the point where I’m like, well at least Neil Gorsuch doesn’t demand that other people take off their masks.
Joe Patrice: He’s not in charge yet. That’s that line that John Roberts gets to have over him, I guess.
Chris Williams: But what I will say is I appreciate the spillover because for the longest time, so much of lesser evil discourse has been concerned with presidential candidates, but now, we consider it about judges in the circuits. Hey, they might have some horrible jurisprudence concerning natives, but hey, they wear masks.
Joe Patrice: I’ll say of the addendum to the story of course, and unfortunately, I don’t have the exact Tweet in front of me, or not, it wasn’t a Tweet but it was covered in a Tweet, but the addendum to the story is immediately after this becomes a newsworthy, I believe the very next day, the Fifth Circuit had another hearing, different panel — oh, you do have it.
Kathryn Rubino: I do. I do. Beth Wilensky covered it on Twitter and Raffi Melkonian put, when Judge Willett was on a different panel basically sub-tweeting, his colleagues said, “You can remove or keep your mask on at the podium. It’s totally your call.”
Joe Patrice: Yeah, which the phrase sub-tweeting is critical because Judge Don Willett, for those who are relatively new to this space, before being elevated to the Fifth Circuit, he was a Texas state judge who was heavily active on Twitter. He was like a power Tweeter and it was actually fun and interesting like he, a conservative judge, but very engaging personality. He was a lot of fun to follow. As part of being elevated to the Fifth Circuit, he agreed to no longer Tweet, but he still gets the culture and that was a brutal subtweet.
Kathryn Rubino: He still gets what’s going on.
Chris Williams: Wait, he had to give up Tweeting to be on the circuit?
Joe Patrice: Yep.
Kathryn Rubino: I mean, the President doesn’t but —
Chris Williams: That’s what I’m saying, like what? It must be a branch thing.
Kathryn Rubino: He’s actually just better at his job.
Joe Patrice: In fairness, I don’t know there was a formal discussion about this as much as there were deep concerns about a federal judge tweeting as much as he did and he was like, yeah, that’s not a problem. I can stop doing that.
Chris Williams: He probably has an amazing burner account. It’s just like —
Joe Patrice: Someone else.
Chris Williams: — not Tweet judge.
Joe Patrice: That’s what’s going on at the Fifth Circuit, which is super exciting and great for democracy and everything. I guess, it doesn’t really impact democracy because it’s a life tenured court, but it’s great for a society and collapse.
Kathryn Rubino: I mean, we very clearly live in a hellscape.
Joe Patrice: On that exciting news, who is going to answer the call to fix this problem?
Kathryn Rubino: Who will answer the call? Well, you’re interested in having other people answer your calls. I saw what you were cooking there, you’re welcome.
Joe Patrice: Well, let’s hear from our sponsors, Posh. I hate having to do this but at the risk of continuing to engage in a discourse that should have, by all rights, ended two weeks ago, I guess we should talk about Joe Rogan.
Kathryn Rubino: I guess we should.
Joe Patrice: The Joe Rogan thing —
Chris Williams: Do we have to be on shrooms for this?
Joe Patrice: Let’s talk about whether or not the Mayans were visited by ancient aliens or whatever he says in between interviewing Proud Boys, but the point is broken stuff is a little outside of our purview as a legal matter generally whether he’s spreading misinformation or interviewing aggressive racists and not worrying about it at all. Those are bad things, but not necessarily where a legal show would pop in. Where a legal show does pop in, and I wanted to talk about is my pet peeve of the whole discourse has been people arguing that Neil Young and similarly minded folks pulling their music from Spotify are engaged in censorship of Joe Rogan’s free speech rights.
Kathryn Rubino: That is not true because Neil Young, while an excellent artist, is not in fact the US federal government.
Joe Patrice: No, no.
Kathryn Rubino: Nor state government.
Chris Williams: Not yet, but once they take our guns.
Kathryn Rubino: Then we’ll live in the United States of —
Joe Patrice: I mean, he’s Canadian so I don’t even know how it gets to that.
Chris Williams:: So was Obama.
Joe Patrice: No, no, no. Obama was — Ted Cruz continues to be, but he’s not the US federal government nor any of these artists. There is no free speech right that compels you to give your labor to a company you disagree with.
Chris Williams: This sounds like a tea show. Neil Young is not the United States Federal Government.
Joe Patrice: One, true. But this is the whole problem with this discourse, and what bugs me about it is I do have to constantly give a civics lesson to people who write us emails complaining about the censorship and how I’m not worried enough about the First Amendment and I have to explain the First Amendment has nothing to do with any of this.
But what’s really terrifying and I have talked about this in the past with regard to other “free speech issues,” but the real problem going on is there’s been a subtle, but deliberate shift in how people talk about speech in this country from you can’t have the awesome power of the government pick sides to it is a virtue in and of itself for you to sit quietly and listen to unpopular speech. That is not a value that has ever been endorsed or celebrated.
When people say awful things, your job is to tell them they said awful things, not to sit there and take it, but the virtue according to these folks is that you accept bad opinions, not that you don’t let the federal government stop people from expressing bad opinions, and that subtle shift is in full display in this entire discussion. The fact that I get deluged by emails from people who seem to think the First Amendment has anything to do with this, is a sign of the breakdown of civic education and that’s where we come in because as lawyers, this is what we have to tell people, no, this doesn’t apply.
Kathryn Rubino: People’s misunderstanding of the First Amendment is shocking because people talk about the First Amendment so often.
Joe Patrice: I’ll go even further because first of all, First Amendment doesn’t apply, done. But secondly, sometimes people will go that extra bit and say, “Well, even if it’s not a First Amendment legal thing, isn’t it a problem with free speech?” And I’m like, “No because free speech isn’t about just being, as I put it, a passive bullshit receptacle.” You don’t have to listen to people say bad things and you certainly don’t have to give your labor to them to allow them to do that, which is really the issue because all Neil Young’s doing is saying, “The stuff that I made, you don’t get to sell.” That’s how free markets work last I heard.
Chris Williams: That is something I find weird about it because I do think that there should be some fundamental tension between how right-leaning people are talking about this amorphous freedom, and what they should be supporting like the right to contract. The right to contract isn’t constitutionally backed up anymore like it used to be, but it’s still something they’re like, “Hey, we get to deal with who we want.” But then they’re like, “Hey, you have to listen to us now.”
No, especially where money is concerned, because we are at a point where money is speech, it’s considered speech, they’re just pretty concerned in that and it’s like if I don’t want to contribute my money there, even if you’re not buying whatever my speech is, you should at least respect my right to contract who I choose to, which is why I’m surprised that there’s not a contract angle with the Georgetown discussion in Shapiro. That kind of just went out of the discourse.
Joe Patrice: For legal movement that is trying to bring back the Lochner era, it is weird how much they hate the idea of counter tactic.
Kathryn Rubino: Well, I mean, permits also, because there’s no ideological consistency here. That’s not true. It isn’t ideological.
Joe Patrice: Whoa, whoa, whoa, wait, wait, wait. Are you suggesting these people act in bad faith?
Kathryn Rubino: I actually fully support the use of the soundboard in that particular instance. I want to be just clear.
Chris Williams: I was about to be like, you know what? Kathryn is right, that was too much.
Kathryn Rubino: That was perfect though.
Chris Williams: Maybe we can meet somewhere in the middle and we can all agree that I’m right.
Kathryn Rubino: But no, the only ideology is whatever they — if somebody attacks the right, then they are wrong and there’s no other binding legal theory that attaches all of these various positions that the far-right currently has. It is just we are right, everyone else is wrong, and we are going to scream about it until you basically submit.
Chris Williams: Maybe some Carl Schmitt would help.
Kathryn Rubino: Wow, okay.
Joe Patrice: I mean, I guess with the invocation of Carl Schmitt, we come to the conclusion of a conversation about interviewing Nazis.
Chris Williams: It comes full circle.
Joe Patrice: It well does. Yeah, that really gets us all the way back.
Chris Williams: Listen, I do what I can.
Joe Patrice: Anywho, so that’s what’s going on. Hey, listen, everybody, tell people in your lives this isn’t what free speech means. Free speech means something. It’s not that everybody has to respect everybody else’s opinion. And we don’t really respect it. Anyway, we’ll move to a final conversation, which is, I think an important one and an impressing one for all of you who are currently working as lawyers. Milbank, as we discussed, raised associate salaries. Several firms have followed that.
Kathryn Rubino: But not as many as you would have thought.
Joe Patrice: Yeah. There was some big hold outs and it’s making you wonder.
Kathryn Rubino: What’s going on here?
Joe Patrice: Are people willing to lowball their own associates? Are they looking to come up with something bigger? Is everybody just afraid to move?
Kathryn Rubino: Yes. I think that there is a lot of fear in — listen, biglaw is little C, conservative, especially fiscally, right? And it often takes a lot for them to make big financial moves. Milbank coming out, raising salaries, forcing the rest of the market to kind of respond, we haven’t heard yet though from Cravath or Davis Polk, which are the other two large pieces. If there’s kind of a triumvirate of biglaw salary movers, it’s Milbank, Cravath, and DPW. And it the whatever the trio of them eventually settle on is what the overall market, at least at the very tippy top of biglaw, will fundamentally settle on.
But with two of those pieces still not making any moves, it makes you wonder what is going on. It’s not surprising that other folks have not come out with their salaries because they’re waiting to see what those other two big players do. It has taken longer than you would expect for those other two players to kind of do something and both of them have historically come over the top, at least in some ways, meaning it’s for some classes, maybe not across the board for every class, but they have historically come over the top of whatever numbers Milbank has put out there.
Maybe that’s what’s in the offing. Maybe they’re waiting to see exactly how much bigger their numbers are going to get. Unclear, but we’re kind of in a wait and see what is going on, big question mark moment right now. And, even some firms, I think Morgan Lewis told their associates on Friday that they are aware of what’s happening. They will at least get a true up payment in April to these numbers, but they’re not convinced that these are the end of the numbers and rather than make multiple announcements, what they announced is that, “We will make you right by the end of the year or at least by mid-year and we’re to wait and see until then, but don’t freak out, we’ll make you whole.”
Joe Patrice: I actually found more interesting than Norton Rose announcement, which was similar because Norton Rose had said, “We are aware of what’s going on. We aren’t going to do anything now, but we’ll do whatever the market eventually decides, which whatever.” But then a week later, they just went ahead and matched Milbank almost as though they had come to the conclusion that they didn’t have to wait on anybody.
Kathryn Rubino: Or perhaps they were getting enough agitation from their ranks that it wasn’t — even if they have to make a second announcement, it’s maybe worth it to kind of soothe fears and the distinction also I think in the Morgan Lewis announcement to the Norton Rose announcement is that they’ve committed to making a bonus payment that will consist of that true up amount. It’s not like, “Oh, well, we missed three months of salary at this higher rate,” whatever they decide, whenever they decided that they have committed to those payments, which I think will go a little bit further in in soothing nervous associates.
Joe Patrice: It’s got to be interesting. And obviously, outside of the purview of law, there’s a lot of talk about inflation and this is part of it. Inflation as a general matter is considered bad, but some measure — I once heard a Nobel prize winning economist describe inflation as the alcohol that people bring to the punch bowl. He was like, “Because nobody wants there to be no alcohol in the punch bowl, but if you get too much alcohol in the punch bowl, that’s really bad too.”
Kathryn Rubino: You’re going to have a bad time.
Joe Patrice: And he argued that like, well, you shouldn’t be aggressively anti-inflation, but you need to be very worried about things getting out of hand and that puts us in where we are now. And I think there may be some concern on the part of some of these firms that if they engage in raising salaries all that much, it’s going to contribute that, which I think is a little ridiculous to the extent that this conversation is not impacting how much the partners feel they can take home in profits, which is also part of inflation. It’s a little disingenuous to go that route, but that’s where we are.
Kathryn Rubino: I’m sure in time that if you working at a big enough firm, you’re going to be making at least as much money as the Milbank raises.
Joe Patrice: I think that’s true. And I just don’t understand why big players aren’t doing something. It’s starting to look conspicuous that they have taken no stance one or the other.
Kathryn Rubino: They will eventually and when they do, Above the Law will be there to report it for you.
Joe Patrice: There you go.
Kathryn Rubino: Plug, plug, plug, plug. See, it was also organic and natural. See how sometimes you can make those plugs and just make them feel like they’re normal. And I actually remember —
Joe Patrice: I’m aware. I’m really good at that.
Kathryn Rubino: Oh, what’s the name of that podcast that you’re on? Finding out that not all your plugs are as.
Joe Patrice: What?
Kathryn Rubino: You don’t always remember the name of the podcast that you —
Joe Patrice: Thinking Like a Lawyer.
Kathryn Rubino: No —
Chris Williams: Fight!
Kathryn Rubino: All right, this is over.
Joe Patrice: With that, I do think that we’re pretty much over. Thanks, everybody for joining us. You should be subscribed to the show that way you don’t miss any episodes. You should be giving it reviews, stars, writing something, be active just writing anything shows engagement, that helps people find the show. You should be reading Above the Law, that way you see these stories before they get the podcast summary. You should be listening to the Jabot which Kathryn hosts. You should listen to Legaltech Week’s journalist roundtable, which I’m a panelist on every week, if you’re interested in the legal tech stuff. You should check out the Legal Talk Network’s other panoply of shows, which sometimes involve us. I’ve been guests on them, I’ve guest hosted them but we’re not every week but check all those out.
You should be following us on social media. I’m @JosephPatrice. She’s @Kathryn1. He’s @rightsforrent. You should be checking out Posh, our new sponsor, and I think that now brings us to everything.
Kathryn Rubino: Peace.
Joe Patrice: All right.
Chris Williams: See you next week.
Joe Patrice: Bye.
Outro: 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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|Published:||February 9, 2022|
|Podcast:||Above the Law - Thinking Like a Lawyer|
|Category:||Legal Entertainment , News & Current Events|
Above the Law - Thinking Like a Lawyer
Above the Law's Joe Patrice and Kathryn Rubino examine everyday topics through the prism of a legal framework.