Everything keeps coming back to New Haven. Conservatives are doxxing law students for saying they might not party with FedSoc anymore. Professors are whitewashing Alito opinions. Alums are attacking the press. Why can’t this school chill out a little? Also a Biglaw firm needs some lessons in collegiality and Elon Musk is trying to make his own law firm.
Special thanks to our
Joe Patrice: Hello. Welcome to another edition of Thinking Like a Lawyer.
Kathryn Rubino: Hi. How are you doing there, Joe Patrice?
Joe Patrice: I’m good, I’m good.
Kathryn Rubino: Are you a senior editor at Above the Law?
Joe Patrice: I am.
Kathryn Rubino: That’s interesting.
Joe Patrice: No, yeah and so —
Kathryn Rubino: It’s really interesting because I’m also.
Joe Patrice: A senior editor?
Kathryn Rubino: At Above the Law.
Joe Patrice: No and you’re Kathryn Rubino?
Kathryn Rubino: I am Kathryn Rubino.
Joe Patrice: Yeah, we’re joined.
Kathryn Rubino: As always.
Joe Patrice: By Chris Williams.
Kathryn Rubino: Yeah, yeah he also was —
Chris Williams: Am I too a senior editor at Above the Law?
Joe Patrice: You are not. You are an editor at Above the Law.
Chris Williams: Damn combo break, combo break.
Joe Patrice: Yeah, we’re older but you know, that’s —
Kathryn Rubino: There’s a lot of other ways you could’ve said that were not hurtful.
Joe Patrice: I understand.
Kathryn Rubino: Okay.
Chris Williams: Well that said when you do use the word, the prefix senior to talk about your being worker here I mean that is kind of a course.
Joe Patrice: I mean there’s no really way around it.
Kathryn Rubino: Even a word like experienced as opposed to older was probably first of all just nicer, more accurate because I am in fact younger than you are, Joe so I don’t think that we should be like looping us into the same age bracket here but you know, whatever.
Chris Williams: Anywho.
Joe Patrice: So let’s have a — some small talk a time so yeah.
Kathryn Rubino: You are a petty, petty man.
Joe Patrice: I am so what’s everybody been up to? I’ll start.
Kathryn Rubino: Great.
Joe Patrice: I have a fox problem.
Kathryn Rubino: But what do they say?
Chris Williams: What did they do now?
Joe Patrice: What does a fox say? Yeah, no I remember that. Yeah so I got a family of foxes who have decided I’m their owner and they pay me tribute —
Kathryn Rubino: That does not seem great.
Joe Patrice: Yeah they pay me tribute with duck carcasses which is not great.
Kathryn Rubino: That’s a plural there.
Joe Patrice: Yeah, there’s been a few.
Kathryn Rubino: That’s not happiness to see me
Chris Williams: ‘Carcassi’
Joe Patrice: Yeah so I’m waiting on a call from the animal control people about what kind of repellants and stuff I need to invest in to just get them to stop hanging around the house.
Kathryn Rubino: That’s yeah, yeah I mean —
Joe Patrice: Like go back to the woods.
Kathryn Rubino: It just feels like you don’t want foxes to be overly familiar?
Joe Patrice: Yeah, I think that’s fair.
Kathryn Rubino: You know.
Chris Williams: To be frank I think what may have happened is they much — they may be listeners to this show and I remember Kathryn’s recent love of Disney you know, like will be the most Disney princess thing possible.
Joe Patrice: Yeah.
Chris Williams: And of course I haven’t heard Joe sing but I just assumed his voice is heavenly so maybe like it was too loud in the shower one day and then they you know, the nose perked up because apparently that’s how foxes hear —
Kathryn Rubino: Maybe foxes are your demon.
Joe Patrice: Oh yeah, from the His Dark Materials books, okay.
Kathryn Rubino: Maybe that’s going on here.
Joe Patrice: No, I think I just have foxes and I’m —
Kathryn Rubino: Neighbors maybe that have chickens or something?
Joe Patrice: Ah yeah I don’t know. I mean I haven’t seen a chicken carcass yet so we’ll see but yeah now so that’s been my weekend. I don’t know about anybody else.
Kathryn Rubino: Good times.
Joe Patrice: Yeah.
Kathryn Rubino: That sounds like a blast.
Joe Patrice: It has not been.
Kathryn Rubino: So you’ve removed the ‘carcassi’?
Joe Patrice: Yeah, yeah. I go out with shovels and remove ‘carci’
Kathryn Rubino: ‘Carci’ is that?
Joe Patrice: I don’t know.
Kathryn Rubino: I’m pretty sure it’s all wrong but that’s —
Joe Patrice: Yeah, poor ducks.
Kathryn Rubino: Well you’re a duck so is it extra violent to an ‘organ alum’?
Joe Patrice: Yeah. I wonder if this is a warning, they’re like, “this is what we do to ducks around here,” yeah so I gathered I’ve got to get some like ultrasonic things and like predator urine from like bigger animals.
Kathryn Rubino: Well that sounds like it smells like a true delight.
Joe Patrice: Yeah it’s great.
Kathryn Rubino: Yeah.
Joe Patrice: It’s just super.
Kathryn Rubino: Yeah you know, it’s nothing quite says welcome home like the smell of wolf urine.
Joe Patrice: Yeah so that’s yeah again, this is my life.
Chris Williams: Question though, have you considered adopting like a pet monkey getting a purple backpack and saying Swiper no trespassing three times?
Joe Patrice: No.
Kathryn Rubino: No, Swiper.
Joe Patrice: Yeah not —
Chris Williams: Oh, man!
Joe Patrice: Not going to do that with the monkey pox situation.
Kathryn Rubino: Oh yeah that’s —
Joe Patrice: Yeah.
Chris Williams: That’s timely.
Kathryn Rubino: I mean I’m really looking forward to see some form of pandemic life, yeah? I think that you know, they brought in the new cat character like little you know, cousin Oliver the monkey pox and it’ll be —
Joe Patrice: Upping the stakes a little bit.
Kathryn Rubino: Yeah, it’ll be a good time but I actually took advantage of the warm weather this weekend. It was unseasonable — not unseasonably because it’s May but it went from not at all spring-like and a little chilly to like 90-some odd degrees and sweating quite profusely outside but my cousin is in town so I have my little family BBQ.
Joe Patrice: Cool.
Kathryn Rubino: How about you, Chris? Did you did anything fun?
Chris Williams: Well, I think it was Saturday. It was the heat wave.
It was like 9,500 degrees out and that Friday I think it hailed like there was ice coming from the sky so considering the recent weather and how the Supreme Court is looking I brushed up on my Christian Gnosticism, just to theorize myself with what appeared to be ending times you know.
Kathryn Rubino: I mean listen, if you can’t laugh at the end of the world what can you laugh at?
Chris Williams: Listen, speaking of because I’m still playing Elden Ring and one of the endings to the game is to usher in the end of the world, shouts out to Shabriri, on my soul level one playthrough. I am about — I’m now at Malekith the Black Blade so for those who understand what that means, Oh God I’m at Malekith well yeah that’s been mostly my weekend. Learning about the end of times and trying to usher in the end of times in Elden Ring.
Kathryn Rubino: Well it sounds like you’re prepared for 2022.
Joe Patrice: Yep, all right let’s get to the news of the week so by concluding small talk. Yeah so what’s been going on? It seems as though the epicenter of news for last week was Yale Law School. They managed to find their way into the news a couple of times where the first of which was the ongoing fascination of the Washington Free Beacon seems to have with Yale and trying to turn them into some pilot program for a new fascist state and what they did was did a bunch of doxing of Yale law students who had complained that maybe the time has come to stop inviting fed sock kids to their parties —
Kathryn Rubino: Well that doesn’t seem like the appropriate reaction to you know, pruning a guest list.
Joe Patrice: Yeah, I don’t see anything wrong with not inviting people to your parties. That seems like certainly within the —
Kathryn Rubino: You have the freedom to associate with whoever you choose to. It’s almost like that’s a pretty basic freedom but you know, who’s to say?
Joe Patrice: And the reply to this of course was for a newspaper to reveal all the people who did this call the future employers if some of these people to ask for comments. Just really-really ridiculous petty stuff over something that is pretty mundane.
Kathryn Rubino: This is obviously the whole problem with the right calling out cancel culture as somehow bad or problematic or whatever, right? Is that you’re allowed to not like every message, you’re allowed to not like people, you’re allowed when people make choices and to react. Those things are not — that’s just being alive in a society.
Joe Patrice: I mean I’ve used this line in a lot of my work up on this subject generally but the slow transformation of freedom of speech from you get to say things and the government can’t shut you down to you are obligated to be a docile bullshit receptacle who just sits there as every message is forcibly shoved in your face, is a real problem. That’s not what free speech has ever been before but that is certainly the interpretation these folks seem to have for it and yeah so that was the first thing that happened. It’s getting really ridiculous. The fact that there’s anybody out there defending the assault on these kids is ridiculous but unfortunately there are so that’s why we have to keep talking about it but I think we’ve talked about this on this show before, right? Like we don’t want to have to always be talking about Yale Law School. It’s just like that they’re just there all the time.
Kathryn Rubino: The Yale Law SEO performs fairly well so —
Joe Patrice: Yeah.
Kathryn Rubino: I don’t have a real problem with it but yeah, there are lots of other law schools happy to talk about them but Yale does seem to attract the very worst.
Chris Williams: I personally would love to slander Vanderbilt but that’s just —
Joe Patrice: So —
Chris Williams: Thin ice.
Joe Patrice: So with that in mind let’s move to the next topic which is about Yale Law School.
Kathryn Rubino: There we go.
Joe Patrice: So with the ongoing fallout from the leaked Alito draft and the impending overturning of Roe and Casey, Akhil Amar a Yale Law professor, decides to write op-ed in in the Wall Street Journal talking about how you know, I’m a democrat who vote you know, who cares about abortion rights, but you know, seems as though this is the right opinion. I don’t see any reason why there is any constitutional rights here just what bothered me —
Kathryn Rubino: First of all, you don’t get to call yourself a liberal or a democrat or progressive or any of these words if you think that this proposed Dobbs decision is okay. Maybe that’s a litmus test. Whatever you want to call it I’m here to be very explicit.
If you’re okay with that, you’re none of those words. None of them. That is not even being judgmental about it. I mean, I have judgments associated with that but this is merely descriptive at this point.
Joe Patrice: The thing about it that got me was even if you have these alternative views think about the context of where you are, like read the room. Even if you have these sorts of issues you know, when you go to a major publication and do the work of whitewashing this for the benefit of you know, the right wing folks who are trying to do it. I mean this is going to come back and bite you later even if you don’t care about reproductive rights which you probably should but even if you don’t like if you care about any sort of right, this work of whitewashing, this is setting up that future assault. We already know from the opinion that it casts a suspicious eye on the continued viability of marriage equality, privacy all of these are up for grabs by the terms of this draft.
Kathryn Rubino: I mean explicitly calls out Lawrence v. Texas and marriage equality explicitly within the text of the document. This is not oh liberals are being crazy. They’re being terrified which one you should be but this is what the actual opinion, the draft opinion that we’ve all read says.
Joe Patrice: Yeah I mean it —
Kathryn Rubino: If you choose to ignore it listen, republicans are telling you they are explicit about what’s coming next, if you choose to ignore this that’s on you.
Joe Patrice: I mean in fairness they mentioned them in the logic of their safe but I don’t think anybody can read that as anything more than kind of a fig leaf to be thrown in there for the sake of —
Kathryn Rubino: I mean they also say that like abortion that is not based on this kind of historic right also for those privacy rights and marriage equality are also not based in the history —
Joe Patrice: Right the reasoning of the opinion puts these in — it juxtaposes these pretty clearly that this is the same logic by which they would overturn all these other rights so.
Kathryn Rubino: There have been other rights obviously and other cases that are very much I think on the far right agenda. We’ve heard folks explicitly talk about calling into question Brown v. Board, Sullivan Griswold, I’ve written — we’ve written collectively many-many words about all of the horrors that potentially wait for us if this does become, which it will be, the decision that carries the day and none of it, none of it’s great.
Joe Patrice: But it really gets to — there’s a category of people out there that are problematic in the legal academy, who operate on this logic that they can cabin off everything as a unique little plaything of an argument with no regard to the broader you know, fabric of what they’re doing. Writing an op-ed at this point about how I don’t know seems like Alito is doing just fine is even if you think that in some limited sense you are putting yourself in a worse — making the situation worse across the board you know, sometimes we don’t need to hear from you. You can go ahead and shut your mouth you know, like discussions the better part of valor here.
Kathryn Rubino: That is not great.
Joe Patrice: No, it’s not.
Kathryn Rubino: Hey, you should probably get that.
Joe Patrice: Oh, don’t have time.
Kathryn Rubino: Do you have a call?
Joe Patrice: Don’t have time —
Kathryn Rubino: Oh yeah cause we’re recording the podcast.
Joe Patrice: But we could you know, — a virtual receptionist service, yeah so let’s hear from Posh about that.
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Joe Patrice: All right, we’re back. While we were on the subject of the Supreme Court, Chris, fill us in on what Clarence Thomas has been up to.
Chris Williams: Yeah so you remember that thing where judges aren’t supposed to do anything especially in the public eye that gives them at least even the appearance of —
Joe Patrice: Impropriety?
Chris Williams: Yeah that so Clarence Thomas got in front of a bunch of people and said basically the press are doing a horrible job and that if he were doing as bad of a job as the press were doing that he would quit.
Kathryn Rubino: You promise?
Chris Williams: That’s the hope like I wasn’t paying attention to that part in contract but I really hope that like you know, I want specific performance. Yeah, I want that specifically
But yeah so he gets up and bashes the press which is you know, I guess he’s going to do cause it’s not any like risk of there being a case going to the Supreme Court or anything that has to do with like the capacities of the press do something like nothing. Well they will know was it not a recent Sarah Palin case?
Joe Patrice: Well, yeah Sarah tried to overturn New York Times v. Sullivan honor of —
Chris Williams: Yeah so I mean but hey, it’s not like that’s case being talked about him come to right times that you know, you shouldn’t show your opinions anyway, so that was a thing and being the you know, restrained person I am like, okay now it’s time to dunk on Clarence Thomas because I want him to take him at his own word and quit you know, retire because you know, it’s nice to have it generally lies at black people on the court well we’ve got (00:15:50). You can go home. It’s funny, there was at least funny to me, so common law was not my best grade in law school because I did that thing you know all about the Commerce Clause, right?
Joe Patrice: Yes.
Kathryn Rubino: I’ve heard of it.
Chris Williams: Heard of it, right. It would have been nice with me to mention it once which I did not and it wasn’t all things where it was like an — it wasn’t just an open book test. It was a 24-hour take home and this was pre-COVID like I had no eggs, I had no excuse to not mention, I mean wicked like I didn’t mention the commerce clause at all but there was this one question where we were basically looking at — there was a Clarence Thomas quote and he was like “Oh we should overturn the slaughterhouse cases because the way that people will read due process into the Fourteenth Amendment is not always was going to be used historically,” what have you and I made a joke in his expense as a law student, so I’ve been consistent. I read his opinion and I noticed that one of the judges that he cited to was a former Supreme Court Justice, Black right and then a footnote I put this is the one documented time in which Clarence Thomas echoed a Black opinion. I was so proud of that moment. I was so proud, lowest grade in the class probably but worth it. Worth it and for what it is worth it —
Kathryn Rubino: In fairness I doubted it’s that reference that gave you the low grade as opposed to the commerce clause issue.
Chris Williams: Hey look, you know you’re right — yeah no, it was just all Column B. The column B be commerce clause like it is a huge part of constitutional law so —
Kathryn Rubino: (00:17:43) as it turns out.
Chris Williams: Yeah, yeah any (00:17:45) Yale is listening don’t be like me you know, not everything is perfect on this side. I did my memory is a failure.
Joe Patrice: I’m just really struggling to figure out how you managed to not even stumble into a like what were the questions that we’re at no point did you go like wait a minute commerce clause?
Kathryn Rubino: Hold the phone.
Joe Patrice: Yeah.
Chris Williams: Man, look that is a great question. I wish that was on the test because maybe it would have reminded me to mention the commerce clause but you know and the stress is mounting and you’re really trying to call the Supreme Court Justice a coon you lose attention you know, you get the blinders on like that one time when there was a prosecutor who’s clearly racist, who didn’t want any Black jurors on a murder trial and Clarence Thomas said, oh that’s fine you know, you just don’t see things. You don’t see things and it happens. It happens.
Joe Patrice: Yeah I mean I had an experience of a similar one. It was though it was an exam in class where it was conflict of laws and just one of the three major tests of conflict of laws I just like blanked on and never even talked about it, ran the question through two of them and then just moved on and afterwards so if I was talking to somebody and they mentioned that case that went oh, yeah. Yeah, I know.
Chris Williams: I did mention Marbury though.
Joe Patrice: There you go.
Chris Williams: You know, so that’s something.
Joe Patrice: Okay, let’s transition and chat about what’s going on with — we had reasons to fire people.
Kathryn Rubino: We had a big loss story. Although technically it comes from us, comes to us from across the pond it’s a London story. There was a partner in the London office of White & Case who sadly lost his wife to cancer. He was also let go from the firm. He says because the grief and depression that he experienced following the death of his wife caused him a bunch of mental issues as one might imagine and that was why he was let go and that is a problem because that should be a protected disability you know, those cuts have mental issues and White & Case and he says that you know, it was a toxic environment, something he’s never experienced before and he’s worked with other big law firms et cetera.
While in Case’s response which was in the filings, it wasn’t necessarily a statement about it, but in these filings according to lots of reports was that sadness and grief are not disabilities.
Joe Patrice: Like yeah you know, even if that’s what you think, you don’t say that.
Kathryn Rubino: It’s hard when the allegations are you have a toxic work environment and that is the pull quote from your briefing, right? Even if and again, I’m certainly not an expert on British law, right? British employment law don’t know really anything about it, know a lot of a big law firms though and the fact that their allegations about toxic work environments not particularly surprising in any big law firm, frankly. So you always know that’s a risk that’s out there that big law you know, works hard. It’s a difficult job. If it were easy you probably get paid a lot less so it’s a difficult job, you know that it’s a tough work environment, why try to — why add the PR nightmare that is grief is not a disability to a widower.
Joe Patrice: Yeah.
Kathryn Rubino: They also said things like that he had another business venture that he was working on while he was on bereavement leave and said that he was fired for cause, that his work product wasn’t satisfactory whatever but pulling it outside of the legal implications of that particular case, I just think it’s a terrible, it’s a terrible look for a firm and this is a partner, right so you can only imagine the kind of shit rolls downhill world of the associates, paralegals, admins at the firm if this is what a partner who was like the co-head of his group in the office if that’s what this person is feeling, you know, one’s mind can certainly imagine how it how it rolls.
Joe Patrice: Yeah that’s a rough, rough story. Yeah, we’ve talked a lot about how law firms need to come to — have a kind of a real reckoning with how toxic they can become you know, definitely is a place where, you know, there’s important work that needs to get done but also you know, just a little bit of humanity.
Kathryn Rubino: Yeah and especially for you know, I do such that you built a podcast as well and I tend to do more interviews as opposed to my own just kind of pontificating and I speak to folks who are in leadership positions of big law firms and that’s kind of a question I’m always asking which is, you know how do you try to create a culture, like what’s on your mind and by and large I think most leaders at big law firms are very aware of the downsides of their job. They’re aware that it can lead to burnout, overworking that it can be a really problematic place for a lot of folks to work particularly given the sort of talent crunch the industry is seeing. They, I think that more than ever big law firms should be aware of the of this kind of potential problem and there just has to be a better way of you know, without getting the details about what actually happened in this case but sadness and grief are not a disability is a terrible lie. It’s just terrible.
Joe Patrice: Speaking of law firms. I guess this story is relatively new and it wasn’t on our original schedule but it seems like it’s going to be a big deal this week. Speaking of law firms, Elon Musk is trying to start.
Kathryn Rubino: Yeah.
Joe Patrice: He went on a tweet storm at the end of the week saying that he was going to begin his own legal practice, needs litigators, they’re never going to fight unjust cases and yada, yada. Send him three to five bullet points of why you should be on the team. He wants to find —
Chris Williams: Isn’t he filing a sexual assault charge right now or something?
Joe Patrice: No he settled that which brings me to — I’m like, if your position is we will never settle any case that’s not true then are you telling us that was true? I think that’s why you don’t go around making blanket statements like that but whatever. Yeah so he’s trying to start up his law firm here. He specifically calls out Perkins Coie and Coie as firms —
Kathryn Rubino: He certainly has a bone to pick with Coie.
Joe Patrice: Yeah, he doesn’t like it. And his bone to pick with Coie was —
Kathryn Rubino: Yeah one of the Coie associates previously worked at the SCC was involved in the case where the SCC went after Elon for the tweets that he made and had that agreement in place as a result and Elon Musk demanded that Coie fire the associate otherwise they would lose his business and they were like, “Oh, we’re going to go with a lawyer.”
And so they did not fire said associate and you on absolutely pulled work from the firm. Not all but obviously you know, things are halfway through whatever but yea there’s definitely an impact and speaking about like ways to build a culture I think that firm, I think clearly gets a ton of credit from my perspective for taking the side of the associate.
Joe Patrice: Yeah.
Kathryn Rubino: Especially like not even a partner, an associate. Good for them. Good for Coie that was my take on that.
Joe Patrice: Meanwhile, Perkins Coie is just so deeply involved in like the John Durham delusions that he’s Musk’s new fan base of right-wing trolls view Perkins as the bad guy so that’s why he mentions them but he says he wants street fighters and there will be blood —
Kathryn Rubino: You actually don’t want any of those qualities in a lawyer.
Joe Patrice: Very preferably —
Kathryn Rubino: Those are not great characteristics or somebody that you want to win in a courtroom.
Joe Patrice: Yeah.
Chris Williams: That is how you get your attorneys on Above the Law. And you know how many electricity puns I’ll make? Shocking. The lawyer burns out, like it’s going to be so bad. There will never be a shortage of electricity puns I can make.
Joe Patrice: Yeah that’s good, that’s good.
Chris Williams: That’s real time people, that’s real time.
Joe Patrice: Yeah so he’s got a law firm that can arbitrarily catch fire now but if history is any guide so yeah that’s what he’s looking into, we’ll see how that works you know. Wish him all the worst on this endeavor so yeah.
Chris Williams: He’s still investing in the glass company. I’m still surprised nobody gives him worst shit for that time he showed off a boxy ass car and it crumbled and it crumbled harder than I don’t know Young Thugs Associates once they saw the RICO charges like I’m — that look like it was aluminum foil more than glass.
Joe Patrice: So yeah that’s what he’s up to. I don’t know and certainly don’t condone people applying to this with joke bullet points but I don’t know. I certainly seen in the replies to which a bunch of people have already sent their five joke bullet points to because you know, this is not how professionals hire folks.
Kathryn Rubino: No.
Joe Patrice: So.
Chris Williams: While Joe may not condone it I do. Please send us your joke Tesla resumes to Above the Law or [email protected] that is an easy write-up. I would love to do that. Please —
Joe Patrice: Actually, yeah get on that now. Put a post-up asking people what their three to five bullet points would be.
Kathryn Rubino: Yeah we got lots of holes in the schedule today, get on it.
Joe Patrice: Cool, yeah so with that I think we’re pretty much done here so thanks everybody for listening. You should be subscribed to the show, give it reviews all of that stuff. You should be following us on social media I’m @JosephPatrice she’s at @Kathryn1.
Kathryn Rubino: The numeral one.
Joe Patrice: The numeral one, yes and Chris is at @rightsforrent. You should be reading Above the Law so you see all of these stories and more before we chat about them. You should check out our other shows. Kathryn hosts the Jabot. I am a panelist on the Legal Tech Week Journalist Roundtable or Legal Happy Hour, Legal Tech Happy hour as I personally call it. You should be checking up the other shows on the Legal Talk Network that we aren’t hosts of but check those out. I think that’s — and thanks to Posh for sponsoring a bit of a programming note now you two aren’t here next week so we’ll have a show with a guest host or something and then yeah that’s what’s coming up.
Chris Williams: Maybe one of the foxes has something to say.
Joe Patrice: Yeah maybe.
Kathryn Rubino: What do they say?
Joe Patrice: All right.
Chris Williams: Have a good one.
Joe Patrice: That’s it, okay bye.