2022 Legal Year In Review

Episode Notes

Transcript

[Music]

Chris Williams: Hey everybody.

Kathryn Rubino:  Hey, how are you?

Joe Patrice: Good.

Chris Williams: Pretty good. Thank you.

Kathryn Rubino:  Good to know.

Joe Patrice: All right. Well this is –

Kathryn Rubino: This is the last time I am going to interrupt you.

Joe Patrice: That’s not true.

Kathryn Rubino: This year.

Joe Patrice: Oh, there we go. This is a —

Kathryn Rubino: That really tickled me.

Joe Patrice: No, you know, low standards. Anyway –

Kathryn Rubino: When I am talking to you Joe, always.

Joe Patrice: So this is Thinking Like A Lawyer. This is your podcast about Above the Law’s stories of the year – stories of the week generally, but this time it’s going to be stories of the year, so you know –

Kathryn Rubino: Woo-hoo, 2022 is over.

Joe Patrice: Yeah, well about to be.

Kathryn Rubino: Or almost over.

Joe Patrice: This is Joe Patrice, Editor at Above the Law. I am joined as per yuzh by Chris Williams and Kathryn Rubino.

Chris Williams: Hey.

Joe Patrice: And we are going to talk about this.

Kathryn Rubino: Yeah, little caveat, of course, is that we are recording this before the actual last day of 2022. So, if something crazy happens in the legal world for the last week, may not be covered.

Joe Patrice: I mean obviously it’s coming out before the last day of 2022, so yeah.

Kathryn Rubino: Well people, listen not everybody listens to a podcast the instant it’s available. People like —

Joe Patrice: Oh no, really? You know how they can —

Kathryn Rubino: Yeah, they can do it on their own schedule.

Joe Patrice: You know how they can avoid that problem, by subscribing—

Kathryn Rubino: Subscribing.

Joe Patrice: Which you should now, as well as give reviews.

Kathryn Rubino: But even if you subscribe, you don’t have to listen immediately. Like I subscribe, I subscribe to this podcast but I don’t listen the second it comes out.

Joe Patrice: That, see that’s Folly, I carve my day up so that as soon as I get that notification, I listen.

Kathryn Rubino: Well, la-di-da.

Chris Williams: Get a job, Joe.

Joe Patrice: Indeed, and speaking of jobs, let’s jump right into it because we have a lot to cover.

Chris Williams: We got to point out, we got to point out. I told you to get a job, your immediate response was indeed. That was brilliant.

Joe Patrice: Yeah, oh yeah. Not a sponsored.

Kathryn Rubino: Not sponsored, yeah.

Joe Patrice: As far as we go. I guess — actually I shouldn’t necessarily say that because we have kind of a dynamic ad thing, so maybe they will be in the future, which point, great.

Kathryn Rubino: Send them this little clip to pitch them.

Joe Patrice: Yeah, no. So, yes. So we will forgo our usual small talk and get right into it.

Kathryn Rubino: Small talk.

Joe Patrice: Yes. No, we’re yeah, we’re going to forego that.

Kathryn Rubino: So like saying it.

Joe Patrice: Right. So there’s no –

Kathryn Rubino: So it’s going to be.

Joe Patrice: No Trumpet Fanfare for small talk today.

Chris Williams: Damn it.

Joe Patrice: All right, so.

Kathryn Rubino: Obviously.

Joe Patrice: So given that, let’s go right into our end-of-year thing, because it is of course, you know, the end of the year and the New Year upon us. So –

Kathryn Rubino: Fantastic.

Joe Patrice: That said, let’s talk about — what do you want to do, how do we want to do this?

Kathryn Rubino: I think we’ll try to figure out what the top stories, the most important stories in the legal news world are or were in 2022. We’ll kind of divide it up into categories, so it’s a little bit easier to talk about.

Joe Patrice: Awesome. So, first category of legal news of the year, you have down here on my notes Supreme Court.

Kathryn Rubino: Yeah.

Joe Patrice: So what’s the biggest — what are the biggest takeaway story of the year for the Supreme Court?

Kathryn Rubino: Well, it’s hard not to say Dobbs, right?

Joe Patrice: Oh yeah, which one was that? Yeah, no I know that makes it.

Kathryn Rubino: When we lost all of our freedom. Remember Reproductive Freedom, I knew you –

Joe Patrice: I mean you did. I came out of it okay unfortunately, yeah.

Kathryn Rubino: Yeah, I mean, there’s definitely a very strong argument that that is one of the most impactful Supreme Court stories of the year. Obviously, the Alito decision overturned 50 years of precedence that secured reproductive freedom for uterus-havers that is now gone, and we have almost immediately saw the repercussions throughout the country. In a bunch of states that had trigger laws, which meant that abortion was immediately banned. We have continued to hear just horror stories from across the country of just terrible situations where women’s lives are being put at risk there. Well, mental well-being, certainly because of these ridiculous laws.

Joe Patrice: So I hear that and I think there’s also — there’s also a spinoff of that story to other issues, right? I mean it’s worth noting that that story began — had be gapped a number of protests.

One of the bigger stories of the year on our website at least was the string of protests outside of Supreme Court Justices’ homes which prompted republican lawmakers and the courts internal security folks to say that there needed to be some sort of crackdown and the local law enforcement needs to prevent this sort of thing from happening, which was rich given that the Supreme Court had already ruled that you can harass abortion providers outside their home as a matter of the First Amendment.

(00:05:02)

Kathryn Rubino: The law for ye not for me.

Joe Patrice: Right. So this was the year that they learned that the law applies to the — that the laws they create apply to them too.

Kathryn Rubino: Now, see, here’s the sad trombone noise.

Joe Patrice: Yeah, right.

Kathryn Rubino: That’s where that needs to come in. Yeah. And I think that you’re right, and I think importantly, we’re probably not going to see the end of the protests against the justices because the Dobbs case, well it certainly happened in 2022, and I think that the Dobbs is important in two ways. First of all, the most important by the verdict talked about that it took away freedoms from folks, but also in the leak aspect of sort of the – the machinations behind what goes on at the court really got — a light was shown on it.

Joe Patrice: Right. So we had the Supreme Court opinion being, the draft opinion being leaked earlier. There was a lot of speculation over who did it, who done it.

Kathryn Rubino: Who done it?

Joe Patrice: Chief Justice Roberts promised sweeping investigation where they seized phones and records and tried to figure this out and we are now — that was a long time ago and we’re now at the end of the year, they’re going to find out who killed –

Kathryn Rubino: Spoiler alert, we are not going to find out.

Joe Patrice: They’re going to find out who killed Tupac and Biggie before they figure out who leaked this. That said, I think we also though did have on the Supreme Court beat, we had some insight as to who might have leaked it, because this was also the year we learned that Justice Alito — well, we learned. We heard from somebody who said –

Kathryn Rubino: Allegations that –

Joe Patrice: Justice Alito told us the results of Hobby Lobby before it happened, and yeah, at a private party that he hung out with us. Justice Alito said, no, I didn’t, and that was the end of that investigation.

Kathryn Rubino: End scene.

Joe Patrice: So you can see exactly how this works for everybody. All right, so let’s transition there. So, that was Dobbs.

Kathryn Rubino: Right.

Joe Patrice: Right. But I will contend that there might be some other, other issues at Supreme Court levels yeah.

Kathryn Rubino: Bigger stories?

Joe Patrice: Yeah.

Kathryn Rubino: Okay, love it, love it.

Joe Patrice: I really think that, I mean I actually agree with you that Dobbs, when you add in, I mean Dobbs was already maybe the biggest story and then when you add in all the tertiary stuff about leaks and whatever, it probably is the biggest story. But there’s something we said also for Moore v. Harper showing that there’s — at least (00:07:18), we don’t have an opinion yet, but we have an oral argument that seems to have some pretty cool tea leaves. There may be limits to how far even this majority is willing to go.

Kathryn Rubino: Yeah, you know, I think that the thing that kind of ties those two stories together is the emergence of the YOLO Court. Even the way that –

Joe Patrice: (00:07:38) on that one. That’s obviously her.

Kathryn Rubino: Obviously. But it’s so aptly captures, what I think these decisions that we were reading now, what they’re doing and what they’re saying, I mean if you read the Dobbs decision, I described it as like flame on, it is scorched Earth, we don’t care, we have the numbers, what you going to do about it. It is not the kind of measured legal reasoning that most people have come to expect from Supreme Court decisions.

Joe Patrice: So Moore v. Harper, this is the case where they argue and if you’ve been listening recently, you heard a little bit about, that this is the case where the Supreme Court took up the possibility that when the Constitution says legislators get to set the rules for Federal elections, they mean, legislature, state legislators independent of what the state constitution or the State Executive or the state courts might say about what the laws of the state are. This obviously has ramifications that are very good politically for a party that may draw map lines such that rural areas have over-representation in those legislators. That was seemingly a real attack on the core of how elections happen in this country, which could be even — could really have arguably, I’m taking a devil’s advocate position, this case could have been even bigger than Dobbs in some ways because the rights at issue in Dobbs as well as several other strings of rights would all be contingent if that case went the other way.

That said, what we saw at that, at that oral argument was that it seemed like only three conservative justices were really on board with this. And that every and there were also three conservative justices who seemed a little leery of the idea of canceling democracy.

Kathryn Rubino: I mean, listen, maybe this is more accurately the biggest story of next year.

Joe Patrice: Yeah.

Kathryn Rubino: About the Supreme Court, but certainly the impact, the potential impacts that’s on the line here is tremendous, cannot be overstated. If you hear people screaming about Moore v. Harper, they are not overreacting, they are perhaps under-reacting.

Joe Patrice: I’m going to give a shout out because I think it’s worthy, or like, well, we wrote about how Justice Jackson actually asked the most, the most damning question during oral argument on this which was how does a legislature have power kind of above its own Constitution that created it, which is an excellent question.

(00:10:09)

But I was going to give a shout out since it wasn’t really the focus of the article on it to Hogan Lovells Neal Katyal gave an oral argument on it that I highly recommend if you’re anybody who’s like thinking –

Kathryn Rubino: Cares about argumentation and debate, yeah.

Joe Patrice: I think well, no, I mean put aside that. If you are thinking about getting into oral arguments and being an appellate lawyer, I would highly recommend listening that –

Kathryn Rubino: Master class.

Joe Patrice: Yeah, well, I will go so far as to say that Judge Luttig who is a – used to be basically the benchmark of right wing Judge and it is testament to how times have changed, Judge Luttig actually made a point on social media about like this was the best oral argument I have ever heard, and I got to be honest, I listen to it, I thought something similar. So, a good story there.

Chris Williams: Was that oral argument in your Spotify rat, like did, did, did you go to sleep at night just listening to the sweet sound, did you catch it all.

Joe Patrice: So I don’t have Spotify. I, I’ve never done that. Yeah, no. I buy my music, and then put it on my thing and that way, I have it.

Kathryn Rubino: So that’s what Generation X thinks about these issues.

Joe Patrice: Yeah.

Kathryn Rubino: But the other thing I was going to say is that you kind of teed us up to the other major Supreme Court story, which I think is a much more optimistic spin on the court, which maybe is why we for granted the other story. But obviously it’s KBJ ascension to the court right.

Joe Patrice: Yeah.

Kathryn Rubino: First Black woman, on the Supreme Court comes in to the court immediately starts swinging for the fences in oral arguments. She hasn’t written anything yet because that’s where we are kind of in the cycle, but very optimistic about what she’ll bring to the court.

Joe Patrice: Yeah. Yeah, that all happened this year too.

Kathryn Rubino: Yeah, that also happen.

Chris Williams: I am just, I am just very happy that the second Black Supreme Court Justice is a woman. And before anyone preamps, I said what I said.

Joe Patrice: Yeah, fair enough. All right. Well, this is looking down. I see that we have a bunch of messages but –

Kathryn Rubino: Oh no, I’m busy right now because I’m recording a podcast.

Joe Patrice: Yeah, right well –

Kathryn Rubino: If only –

Joe Patrice: Well —

Kathryn Rubino: If only –

Joe Patrice: Yes, if only when you were doing your legal work, you had someone else handling and intaking those calls.

Kathryn Rubino: Right, so you can focus on the task that you are trying to accomplish and not get distracted by telephone calls when you can have a virtual receptionist take care of that mundane work.

Joe Patrice: So let’s hear from Posh about exactly that.

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[Music]

J. Craig Williams: Today’s legal news is rarely as straightforward as the headlines that accompany them. On Lawyer 2 Lawyer, we provide the legal perspective you need to better understand the current events that shape our society. Join me, Craig Williams, and a wide variety of industry experts as we break down the top stories. Follow Lawyer 2 Lawyer on the Legal Talk Network or wherever you subscribe to podcasts.

[Music]

Joe Patrice: So, where do we want to go next? We want to go to law schools?

Kathryn Rubino: Yeah, now we should talk that law schools.

Joe Patrice: Okay. Yeah.

Kathryn Rubino: Chris, you’ve actually had a great argument for sort of a trend that you were seeing in Legal Academia this year.

Chris Williams: Yes, concerns (00:13:43) of a really good job of pretend, like, saying bullshit opinions and being like, what liberty. So there have been a bunch of private institutions that have been arguing for the right to at least on some level, maybe their employees to either like say slurs or just do like very, very bigoted things and be like, oh no, this is about freedom of speech. When that isn’t they think, like the, like, the First Amendment pertains to public institutions, right, and like GAIL, despite all its prestige is a private institution as is Georgetown as is this whole gamut of the law schools that aren’t properly interacting with the First Amendment. Is this the issue that was in mind?

Joe Patrice: Yes, no, that’s absolutely the issue. So, so obviously, those are all institutions whether the First Amendment doesn’t actually apply because you can’t use the First Amendment against private, private actors. That said, I’ll put on my role play as Jonathan Turley had, I rarely do — but on this point he has at least a limited point, which is that even if the Constitution is not giving you a right of action that this is a violation of our constitutional rights. There is an advantage to the idea that academic spaces are open to free speech or academic freedom, these kind of buzz word terms.

(00:15:08)

Chris Williams: I also think I like academic spaces should be like subject to proper citation.

Joe Patrice: Well –

Chris Williams: And like the idea that these things are all being couch in the First Amendment, when they clearly aren’t.

Kathryn Rubino: Would you want to talk about what some of these were.

Joe Patrice: Yeah. So, go with that.

Chris Williams: Amy Wax saying that like, Blacks are vengeful and lazy, or not no, vengeful and don’t deserve to be here, like Asian folks don’t deserve to be here and those are just like, that’s just bad pedagogy. Like no student should have to deal with the person grading them, having that at the front of their mind, let him the back and what is clearly issue of just being a bad teachers. Well, you know, we have the right to have free discourse. No, this is just you being shitty at your job.

Joe Patrice: So, on this front, so this actually takes us back to a previous year, but –

Kathryn Rubino: Amy Wax is the gift that keeps on giving.

Joe Patrice: Right.

Chris Williams: And the gift is debt.

Joe Patrice: Yeah, so Amy Wax, Amy Wax in the past had said all those things and Amy Wax also has cited Wikipedia as her justification for that which is, you know, the point where maybe academic freedom doesn’t, doesn’t extend that far.

I think this year was really the year that for her where she brought a White Supremacist to class to talk to her students. That’s the part where we reached maybe –

Chris Williams: She is been showing up to her classes for years Joe.

Joe Patrice: Oh zing, I didn’t know of it — I have a –

Kathryn Rubino: Yeah, you got to, you are going to have to do.

Joe Patrice: Yeah.

Kathryn Rubino: Thank you. Thank you.

Joe Patrice: So yeah, I just didn’t have that open because I was opening the article, but for reference. But yeah, so when she did that that was what finally pushed after years of this, the folks at Penn Law to consider maybe discipline that –

Kathryn Rubino: Consequences.

Joe Patrice: Maybe consequences are necessary.

Kathryn Rubino: Consequences are so 2022.

Joe Patrice: Even though somebody is tenured. This prompted obviously right-wing outrage. They’re like oh, you know this is going after tenured professors and what about academic freedom and it’s like is this really academic freedom to bring white supremacists to class.

That said this isn’t the only one. Obviously, the biggest story in the law school space on the First Amendment side was the Yale situation, where we had — we’ve had this brewing for — again, this is another one that’s brewing for several years.

Kathryn Rubino: Yes.

Joe Patrice: We’ve had the Dean speak about how she didn’t like that people would protest speakers invited to campus in the past. We had the Trap House incident where we had –

Kathryn Rubino: FedSoc had a party that they used a lot of racist imagery on.

Joe Patrice: Right. And the school said, hey, don’t do that and it became a whole thing. Now, this year the issue was that the FedSoc folks invited a representative from a recognized Hate Group to speak at class is, speak at the institution. Other students saw who did not like the idea of Hate Group members speaking at the school, staged a protest in the event they were warned to leave. They continued, they were warned to leave and then they left.

The reason they structured it that way of course, was that they were in full awareness that the policy at Yale that reasonable time, place, manner restrictions that they have were to allow two warnings and then you leave. So they left and then protested outside. The event went on after that.

Anyway, at that point all hell breaks loose. The professors at Yale start arguing that even though they followed the rules, they should be punished. A couple of Federal Judges decided that they’re never going to hire any clerks from Yale again. The Dean issues this like fairly spineless response of how they’re going to start cracking down on this sort of thing and how it’s unacceptable that people have free speech at their school, because free speech means powerful people who get invited here should be able to speak uninterrupted which is not what I think a lot of us think free speech means but –

Kathryn Rubino: Yeah, the protesting part is actually weighing down.

Joe Patrice: Right? But that’s the thing, that’s where it gets to this whole like obviously crying about the First Amendment in a private institution is clearly dumb, but like the whole concept, divorce stuff, the First Amendment what does it mean to have freedom of expression and speech and academic –

Kathryn Rubino: Discourse.

Joe Patrice: The process of academic discourse, how does that function in a law school space and these invocations of freedom seem to be mostly one, unidirectional towards we should let the powerful turn you into — I coined the phrase, passive bullshit receptacles. And that’s basically what they think it should be. So that is obviously a very big story in the law school space, but arguably not the most important.

Kathryn Rubino: Yeah, I mean certainly a story in the law school space that kind of expanded from just legal Academia, and I think everyone at this point, even outside of Academia has heard about it is starting with Yale Law School, a bunch of big law schools pulling out of the U.S. News & World Report rankings.

(00:20:05)

I think it’s a very interesting move as a PR mechanism, because I’m not entirely convinced that it will — because at this point, I think it’s 12 out of the top 14 schools have pulled out something like that. I don’t think it’s going to change the rankings tremendously. I think this is — I don’t think this will substantively affect the rankings very much. I also think that U.S. News is such a powerful name in the rankings game. I mean, the other day I was watching TV and there was a hospital commercial that touted its U.S. News rankings, right, like I think it’s so ubiquitous in our current culture that when they come out with their rankings for next year, even though, so-and-so hasn’t participated, it’s still going to matter.

Joe Patrice: So USNWR or U.S. News & World Rankings had puts this out, yeah. And so they, yeah, so what’s happening here is that it’s not like they are not going to rank, it’s just that certain data the law schools have access to and normally share voluntarily with U.S. News, they’re not going to do anymore.

Now, a lot of that — that’s sparked the division, the argument that this getting out of the rankings matters, is that you have these people who say, oh well, this is just going to lead to a situation where it’s going to hurt diversity and stuff like that because it’s going to allow these schools to do things on the back end that are — that aren’t transparent. They’re letting people who maybe not really — shouldn’t be there and they’re like the transparency, this all kind of wraps into, because of course, the main piece of data that they hand over is the LSAT scores and stuff and great GPAs and stuff like that. It bleeds into what could be the big story of next year, which is the ABA pending vote to get rid of the requirement that standardized testing is necessary to go to Law School. So there’s definitely that concern.

The flip side of that concern of course, is that the Rankings as designed with that data, privileges a gaming of the system that says, hey oh, you’ve got this great score here that you spent $10,000 on LSAT prep going to, not that LSAT prep is a bad thing, but it’s not a perfect, it’s not a perfect determinant as much as people claim that it is. And it definitely does do things the GPA doesn’t do and it can even the playing field because it’s standardized in some ways. But it’s also gameable and at some point you want a little bit of flexibility and not to be penalized for having that flexibility.

It also, of course, there — one of the other big data points that the rankings have is debt and stuff like that. Yeah, I mean, that’s very important, but it’s also something that the rankings aren’t really doing a very good job penalizing people for now. So, maybe we — like because the argument is that? Oh, well, they penalize us for having students in debt, but that means we don’t have enough money to give scholarships to other people. So because they’re penalizing us for the debt we create, they’re actually preventing us from doing more to help poor students.

Kathryn Rubino: And this is only —

Joe Patrice: This is circular and stupid. But this is the argument.

Kathryn Rubino: Yeah. And it is still also a very wild argument. Because the thing is a lot of folks in university life know is that law schools are money makers for university systems overall, right? So there’s the fact that it is a cash cow for a lot of these schools. Also, the fact that Columbia Law School constantly has the highest priced tag has not made it dip out of the top five. That is still true, and it is still wildly expensive. I mean, listen, you get you also living in New York City, there’s lots of reasons why that’s true.

Joe Patrice: Of course.

Kathryn Rubino: Et cetera, et cetera. And they have great unemployment numbers on the back-end. But let’s not let’s not pretend that the debt that, myself included as a Columbia Law alumni, it really impacted their ranking in any meaningful way.

Joe Patrice: Yeah, but it is definitely changing things. And yeah, that LSAT thing is just going to come on top of it.

Kathryn Rubino: Yeah.

Joe Patrice: Back in, yeah.

Chris Williams: Question?

Joe Patrice: Yup.

Chris Williams: If you had to compare the law school boycott of US news to a non-legal BS boycott? What would it be? Because I’m thinking, blackout Instagram or —

Joe Patrice: Yeah.

Chris Williams: That dumb on the way, everybody had like — I feel like for those weirdos who live listen to this podcast —

Joe Patrice: But that’s a good one.

Chris Williams: Who listen to this podcasts that still only know — aren’t really that aware with the legal news, I want you to know how dumb this was. This was like Yale’s equivalent of having those safety pins on like your jacket to like show that you were down with the people, like this was so stupid.

Joe Patrice: Yeah.

Chris Williams: What do you all think? What would you compare it to?

Joe Patrice: I like your blackout thing.

Kathryn Rubino: I think the black square, for sure.

Joe Patrice: Yeah. The black square is definitely in there.

Chris Williams: The Yale blackout of US News?

Joe Patrice: Yeah. All right, well, let’s — I guess we should probably we have enough topics. So we should probably go into the next one before the next break.

Kathryn Rubino: Got you.

(00:25:00)

Joe Patrice: So we’ll go right to Big Law.

Kathryn Rubino: Yeah, I think changing the format slightly. I think the two — kind of foreground that two big stories because they’re very much a Ying and Yang of one another in Big Law. And they are massive raises on the first half of 2022 and layoffs on the back-end.

Joe Patrice: Wait, wait, wait. What did you say at the end on the back-end?

Kathryn Rubino: Layoffs?

Joe Patrice: Layoffs? We’ll talk about layoffs? You’re kidding me? Layoffs? The great Jim Mora playoff quote, which we have turned into our layoff sound effect.

Kathryn Rubino: I enjoyed that.

Joe Patrice: Okay, good. Good. Yeah.

Chris Williams: What Charlie Chaplin ass video was that from?

Joe Patrice: What, no —

Kathryn Rubino: Jim Mora.

Joe Patrice: That’s Jim Mora’s playoffs speech.

Kathryn Rubino: Speech.

Joe Patrice: When he was with the Colts.

Kathryn Rubino: Playoffs, playoffs?

Joe Patrice: Yeah.

Kathryn Rubino: We’re talking about —

Joe Patrice: Classic.

Kathryn Rubino: It’s sports ball.

Joe Patrice: Yeah.

Kathryn Rubino: It’s sports ball.

Joe Patrice: It’s sports ball.

Chris Williams: Is that from like, George Walker Bush or George W. Bush?

Joe Patrice: Jim Mora.

Kathryn Rubino: No, no, what — how long ago was it is the question.

Joe Patrice: Yeah, I can’t remember off top my head. So anyway —

Chris Williams: I’ll Google it.

Joe Patrice: So anyway, yeah. So back to the actual topic. So —

Kathryn Rubino: Yes.

Joe Patrice: Yeah, so there were massive raises at the beginning of the year that brought things up to like 215. That is, great.

Kathryn Rubino: Obama, by the way, is the answer.

Joe Patrice: Okay. Fair enough. Go on.

Kathryn Rubino: Going on, it was 2009. But I think it’s very interesting in the way that these two stories kind of play on each other. In the beginning of the year, we saw the base salary for associates go up considerably. We’re now at a base of 215. Right?

Joe Patrice: Mm-hmmm. Yeah.

Kathryn Rubino: $1,000 for first year associates. So somebody who has just graduated law school, who to be clear, no disrespect to somebody who’s just graduated law school, but you don’t know how to be a lawyer yet. Law school doesn’t teach you how to be a lawyer. You don’t know anything about the job you’re supposed to do is getting paid $215,000 plus bonuses.

Joe Patrice: Right. But and to start, I’ll counter that that’s necessary because —

Kathryn Rubino: Sure.

Joe Patrice: The associates who are working in those big law jobs, the law schools back to the last topic, a little bit had been so egregious lately, nickel-and-diming them that they need that money to pay off those loans. I mean, this is how an inflation cycle operates and you know, put aside everyone talking about inflation, which this year was mostly about Putin anyway, despite what the Fed wants to say. But so those raises, I didn’t think were necessarily bad.

Kathryn Rubino: No.

Joe Patrice: And I’m not — and yes, there has been a slowdown in work given the economic issues.

Kathryn Rubino: At least in certain practice areas.

Joe Patrice: Right. And I think that’s the real issue when it comes to the layoff situation because when I see these layoffs, I’m seeing largely companies with a lot of tech sector clients.

Kathryn Rubino: Right.

Joe Patrice: You know, we’re hearing stealth or outright layoffs from the Cooley, Gundersen kind of world. We have some rumor mill stuff about some other firms that are very heavy and like private equity stuff, but —

Kathryn Rubino: We’ve reported on Kirkland doing —

Joe Patrice: On Kirkland. Yeah, but most law firms aren’t doing this yet. And I think, I think part of that is that nobody wants to jump the gun on layoffs.

Kathryn Rubino: Yeah. I think that that’s 100% accurate. I think that the ghost of 2010 looms large in the minds of big law partnership. And that is why they are slow playing these playoffs. I mean, layoffs.

Joe Patrice: Yeah, no, I think that’s true. I also think there’s at least some cooler head prevailing somewhere thinking that even though they may not be somebody on the Federal Reserve, that when you look at the inflation cycle that we’ve had, it seems to be supply chain-related from either holdover catching up from COVID lockdowns, in particular, in China, where a lot of supplies come from. Added to the energies’ shock and how that spills through everything. Both of which are getting addressed. And you can see inflation just going down and down. I mean, it’s still up. But you know, the rating —

Kathryn Rubino: It takes time, yeah.

Joe Patrice: The rate of it going down and down every month, that suggests if I’m a law firm, I think I can take it on the chin for six months. And then we’re going to be back to basically where we were.

Kathryn Rubino: Right.

Joe Patrice: And then I don’t want to have to recoup and go out and find all new associates.

Kathryn Rubino: Yeah, I mean, I think that this is incredibly smart and because I wasn’t lying when I say that the sort of the ghost of 2010 looms large. Remember in 08, 09, beginning of 2010, a ton of folks were laid off because of the great recession. They laid off a ton of people almost regardless of what practice area they were in. And the result was in two or three years’ time, they had a massive lack of mid-level talent and senior-level talent. They all of a sudden, we’re looking to be able to give associates, “Oh, we need somebody to run a case” but they didn’t have the folks who had that experience at the firm anymore, because they had let them all go.

Joe Patrice: Right.

Kathryn Rubino: They don’t let almost classes worth of folks go. And then they were screwed on the back-end.

(00:30:00)

Joe Patrice: Yeah.

Kathryn Rubino: And they saw that. That’s something that happened. And you know, give them a bit of credit for recognizing something that happened and trying not to do it again.

Joe Patrice: Yeah.

Chris Williams: How did they not see that coming?

Kathryn Rubino: You know, I think that they — well, the great recession was — we saw like entire businesses go down.

Joe Patrice: Right.

Kathryn Rubino: I think firms are much — we saw giant law firms Dewey LeBeouf. We saw it collapse very, very quickly. I think firms were much more concerned about staying afloat at that time, things seem too much more terrifying.

Joe Patrice: It was also going to play out over a longer period.

Kathryn Rubino: Yeah.

Joe Patrice: You knew that that one was going to be a three to four-year period, and you can take it on the chin for six months. Can you take it on chin for three years? More importantly, is it worth taking it on the chin for three years? If the associate isn’t getting three years’ worth of more experience, then ditch them and get a cheaper one on the back-end? I mean, that’s harsh, but that is how people looked at situation. I can get a cheaper associate three years from now when things ramped back up.

Kathryn Rubino: Right. And listen, it impacted an entire generation of attorneys.

Joe Patrice: Oh yeah.

Kathryn Rubino: Who now are the on partnership level at this point and if you don’t think that impacting the people who are making the decisions now —

Joe Patrice: Yeah.

Kathryn Rubino: This is all part of the thing.

Joe Patrice: No, I think that’s true.

Kathryn Rubino: Right.

Joe Patrice: The only other potential big law story that just traffic-wise did very well for us. Wait for whatever that’s worth is let’s pour a little out for Skadden, who, you know, just not that anything really bad happened to Skadden, it’s just they try so hard to provide good advice to counsel. And then counsel — no, good advice. Good counsel to clients.

Kathryn Rubino: Clients. Sure, sure, sure.

Joe Patrice: That’s what I meant to say. Good counsel to clients. And then the client says, “You know what? I’m waiving due diligence. Let’s just bite there. See, I actually have a sound effect.

Kathryn Rubino: Yeah.

Joe Patrice: Anyway.

Kathryn Rubino: But it takes you time and —

Chris Williams: Yeah, you got to be quicker than that.

Kathryn Rubino: Time is of the essence, Joe.

Joe Patrice: Anyway, so yeah. So poor Skadden. Sometimes, it doesn’t matter how good your attorneys are if people aren’t going to listen to you. All right, so that’s very —

Kathryn Rubino: And the Mora quote was 2001. I misspoke earlier. Go.

Joe Patrice: Oh, okay. Which quote?

Chris Williams: I was —

Joe Patrice: Oh, that one, yeah, yeah. All right, that one. Yeah, yeah.

Chris Williams: I was seven.

Joe Patrice: Okay.

Kathryn Rubino: It’s very famous.

Joe Patrice: I mean, it’s reasonably famous. So anyway —

Chris Williams: Not to seven-year-old.

Kathryn Rubino: Also not to somebody who doesn’t like sports ball.

Joe Patrice: Actually, yeah. Probably yeah. Yeah, I think that’s much more of the point because I think it’s very important to a seven-year-old. So your clients are expecting you to know a lot of things about a lot of things. Even topics like domain names domains.

Kathryn Rubino: Domains were definitely not covered in my law school classes.

Joe Patrice: Worse yet, your client might want a domain name to protect their brand or support a product launch that’s already taken.

Kathryn Rubino: Fortunately, GoDaddy’s domain broker service can help. Expert brokers will help you securely and confidentially get that perfect domain.

Joe Patrice: To learn more, visit godaddy.com/dbs. All right, next up was tech — legal technology. What did people think was the big stuff — all right, so I understand I’m the only one who —

Kathryn Rubino: I have thoughts.

Joe Patrice: Oh, you have thoughts?

Kathryn Rubino: I have thoughts.

Joe Patrice: Thoughts.

Kathryn Rubino: Free Pacer?

Joe Patrice: Yes.

Kathryn Rubino: That was — it’s not actually accomplished yet, but the slow progress towards getting free federal records continues.

Joe Patrice: Yeah, I think that’s true. So Pacer, which is the clearinghouse of federal documents and court records, opinions, yada, yada. That’s how you find them. So it costs money, because it was created back in an era where it costs like —

Kathryn Rubino: Where you had to fax pages over.

Joe Patrice: Yeah, so it’s like 10 cents a page to look at stuff. Is that necessary in the year of our Lord 2022? Absolutely not. But for the last couple of years, as Congress has ployed with making it free, the Federal Court System has adamantly declared that it would cost them $2 billion to make it free for people to download cases. Ultimately, after years of staving it off, Congress has gone ahead and said “Let’s do this”. They submitted it to the Congressional Budget Office, who crunched all the numbers. And the result is it saves $14 million a year.

Chris Williams: It saves?

Joe Patrice: Saves money.

Kathryn Rubino: Yes.

Joe Patrice: Yes.

Chris Williams: How?

Kathryn Rubino: Because the amount that they have to spend to process all those 10-cent fees.

Joe Patrice: Well, there’s partially the processing. The second part is the decision to make it free really just — it’s not as though it entirely became free. Massive downloaders are still going to pay fees and that’s going to be there. So like Thomson Reuters and Lexus who download everything.

Kathryn Rubino: Everything. Yeah.

Joe Patrice:  Because they have to put it all in their databases, they will be charged and they will be charged, I believe kind of an elevated rate over the 10 cents, but they are making real money.

Chris Williams: Eleven.

Joe Patrice: But they’re making real money off of it so they can absorb that. Whereas —

(00:35:04)

Kathryn Rubino: Solo practitioner?

Joe Patrice: Joe Schmo who just needs a couple of docs doesn’t have to do that. So yeah, it saves money. There you go. I think the biggest story from my perspective, there were two. One was kind of the — my takeaway was the API, that kind of real tech shift in Legal Tech towards kind of the API, like let’s have everything played together with Legal Tech. I mean, for years, people have been kind of trying to say like, “My product is the perfect product”. But nobody cares if you have the perfect product if it doesn’t work with everything else they use.

So there’s a big push towards everybody being able to play nice. That was a theme at all the shows I went to this year about Legal Tech, which I thought was new and interesting. It’s kind of falling years after the rest. Like consumer electronics maybe had that moment, but it’s getting there.

Kathryn Rubino: Yup.

Chris Williams: Did you hit the point where you started to cringe every time you heard the word “synergy”?

Joe Patrice: No, I mean, it’s not synergy. Because it’s just hey, we leave it to the client to figure out what they want us to work with, which is new. It’s been there, but that became the real selling point this year, which I thought was interesting. There are two other stories that I kind of flagged as of interest. One, which was a Kathryn, you wrote story about the billable attention units?

Kathryn Rubino: Oh, yes. I don’t think we’re there technology wise. But the fact that we’re even considering not even breaking stuff down by the hour or 10th of the hour as we currently do in the biddable model, there were some folks who want to explore breaking things down to the billable attention unit. Meaning, how much your brain is actually paying attention to the meter.

Chris Williams: Dear God.

Kathryn Rubino: Yeah.

Joe Patrice: And this is the crazy mad scientists who think they can create something that can track how often you’re actually engaged with the subject matter as opposed to when your mind is wandering. Obviously, we just —

Kathryn Rubino: Terrifying shit.

Joe Patrice: We just went through a remote bar exam where they flagged a third of the people as cheating because the tech can’t figure it out. So I don’t understand how they think they’re going to get to this, but it is — I think it is a real tech story in law.

Kathryn Rubino: Sure.

Joe Patrice: To the extent that it shows how Orwellian some of these people who are making decisions might really be.

Kathryn Rubino: Yeah, I think they’re all about “coulda” not about “shoulda”. Yeah.

Chris Williams: This is definitely a no nuance November take, but Elon Musk is somewhere behind this?

Joe Patrice: So —

Chris Williams: It sounds like Neuralink propaganda.

Joe Patrice: Well, yeah. I mean, that Neuralink would be the sort of thing that would do this. And the one other story of note was during the Ketanji Brown Jackson hearings. There was a Tom Cotton screw up, where he tried to get a “gotcha” moment on how she was representing somebody at Gitmo long after she was at the Public Defender’s Office. This, of course, was not true, but it drags back to Pacer. Pacer doesn’t actually update half the time whether or not you moved on from the case. So if you’ve been on the case and you leave, sometimes it’ll still say “you’re the attorney of record”. This is a problem.

I did have a meeting that was very interesting with the folks from Lex Machina Division. They have a system now that will actually go through and leveraging some AI. It can look at those records and be like, “No, this person’s gone”. And it can figure that out and give you actual information of who really is on the case, which I thought was a cool — like, it’s one of those things that it was cool to the extent that it’s so simple. That should not be a difficult thing. And yet we have to leverage AI to get there.

Kathryn Rubino: I mean, God bless at least we’re using it for something.

Chris Williams: Before we close, I wanted to know do you all have any — not even looking at what did well? Do you have any favorite stories of the year?

Joe Patrice: Right? Well, we are not even done with the topics, but that is a good one too. We are not closing because we also have another topic after this.

Kathryn Rubino: Yes.

Joe Patrice: So —

Chris Williams: Okay.

Joe Patrice: Let’s do that.

Chris Williams: I knew that everyone. I knew that. Yeah, yeah.

Joe Patrice: Yeah. Thanks for following along with the memo. So Legal Ethics.

Kathryn Rubino: Legal ethics was a hot topic. It’s hard to not to bring up Clarence and Ginni Thomas, when you’re talking about legal ethics in 2022. I think that one of my most trafficked headlines was, “Oh, look, another Clarence Thomas ethics scandal”.

Joe Patrice: Yeah.

Kathryn Rubino: They were they were many this year. His wife is also an attorney, but also a right-wing activist very involved in January 6-related stuff. Yes, he continues to hear cases about January 6-related matters. Certainly, there’s an ethical issue there. There’s also the disclosure issue that he hasn’t been forthright in a lot of his disclosures about how much money his wife is making as a result of these advocacy activities and who his wife is working for is also a big question.

(00:40:03)

And sort of the capper on the Ginni Thomas, Clarence Thomas ethics question mark on 2022 is adding the security bill to the defense budget that will add, that will make it a state secret to report on or to know about what the spouses of federal judges do for a living. There is a carve out for news reporting under that, but it is certainly true that this is a chilling thing that has — you know, now, we know that Ginni Thomas does all the stuff because of all the public records that have been available about who she works for and how much money she makes, et cetera, et cetera. But and so I think that we will continue to report on Ginni Thomas, but who knows, I think I’ve said before, who the next Ginni Thomas will be. Who the next spouse of a lifetime-appointed federal judge is doing and we have no way potentially of knowing that.

Joe Patrice: Yeah. The only other ones to talk about is we’re on the cusp of Rudy Giuliani being disbarred. DC disciplinary.

Chris Williams: Again? You all know what happened?

Joe Patrice: DC is —

Kathryn Rubino: When you’re barred in multiple places.

Joe Patrice: Yeah. So DC is looking at that. Obviously, this is —

Chris Williams: Well, him is like Pringles, you can’t just have one like —

Joe Patrice: Yeah, and John Eastman, speaking of January 6 stuff, obviously, he attempted for a couple of years to prevent anyone from getting access to the emails he put on his job server, plotting a coup. That has not worked out for him. He is still trying to fight that but that is another legal ethics thing. And I guess on that, I guess there’s also Jeff Clark who just tried to assert work product and attorney-client privilege over his own memoirs that he’s submitted to be published, which is a new one. Yeah, Legal Ethics was fun this year. All right. So let’s — I like Chris’ question. Real quick, what is your favorite story you did this year?

Chris Williams: How about you go first, Joe?

Joe Patrice: You know for me, I hate to be this person. But for me, it is absolutely — It’s a string of stories, I suppose. But it’s my —

Kathryn Rubino: The beat that you were on?

Joe Patrice: My favorite guy, Jonathan Turley. Jonathan Turley from George Washington Law has been so ridiculous in the hot takes he’s delivered throughout the year. And it’s just like — it’s the gift that keeps on giving every time I open it up. There’s another absolutely batshit crazy thing he’s going to say. So I think it’s probably that? Oh, no, actually, I reverse. My favorite thing was when Judge Pryor decided to —

Kathryn Rubino: Yes.

Joe Patrice: Call us out by name.

Kathryn Rubino: Name checked.

Joe Patrice: And try to stir up his fascist sock buddies against us by name. That was also a really fun story to cover.

Chris Williams: For the listeners in my mind, the rivalry between Joe Patrice and Turley is like Sasuke and Naruto. I’m just imagining at some point they’re going to have a nice get together, have some dinner be like, “Hey you know, I think it’s cool we fought. This is just nice”.

Joe Patrice: Mm-hmmm. Kathryn?

Kathryn Rubino: Certainly, my Ginni Thomas beat has been one of the most reliable wells I went to in 2022. You know, all the ethics issues that I’ve talked about, she also testified before the January 6 committee is wild stuff. But also the back and forth between Samuel Alito and Justice Kagan about the legitimacy question mark of the Supreme Court was also a fascinating story to talk about and sort of the back and forth the way they responded to one another. Justice Kagan saying that because of the Dobbs decision and the disrespect for president that is evident in the decision. That the court has squandered its legitimacy and Samuel at literally being like, “How dare you question the court’s legitimacy?” It’s like, “No, bro, you did that.” And I think that that back and forth, I think it’s going to create a real subtext that future court decisions we’re going to have to look for as well.

Joe Patrice: Yeah. Chris?

Chris Williams: Yeah. So just for context, undergrad, I did Africana studies. Currently Africana professor at some school in Jersey that isn’t Princeton. And because I think Princeton people always say that. Anyway, I got to interview. Martin Luther King’s son for one of the stories this year.

Joe Patrice: Wow.

Chris Williams: And that was fucking dope. I was like —

Joe Patrice: Yeah.

Chris Williams: As a responsible young man, inside I was fangirling. I’m like “Oh, my God, I love your dad’s work”. You know, and it’s also cool that like he followed in his footsteps. Like he’s also doing important civil rights work. So it’s just cool to talk to a child of legacy that is also his own legacy. And it was also cool to — I mean, also, I interviewed out Al Sharpton, that’s cool, I guess.

Joe Patrice: Mm-hmmm. Yeah.

Chris Williams: Also, I got to interview Kimberly Crenshaw.

Joe Patrice: Yup.

Chris Williams: And she was one of the — like if you’ve ever heard the word “intersectionality”, she’s probably the reason.

(00:45:04)

Unless you’re talking about like driving and you’re at an intersection. But yeah, she’s like a big thing. And like, race and gender studies. So it was it was cool to have an extended conversation with her.

Kathryn Rubino: Yeah. I took that class.

Joe Patrice: Yeah Kathryn —

Kathryn Rubino: With Kimberly Crenshaw on law school.

Joe Patrice: Kathryn’s professor.

Chris Williams: That’s what’s up. Your professor was dope.

Joe Patrice: Yeah.

Kathryn Rubino: Yes. Quite enjoyed her class.

Chris Williams: Yeah.

Joe Patrice: All right.

Chris Williams: Yeah.

Kathryn Rubino: Well, this has been 2022, you guys.

Kathryn Rubino: So yeah. So with that said, let’s move to our final conversation here which is you should subscribe to the show as already previewed. You should give it reviews, stars, write something always helps. You should be following Above the Law because that’s where you can read all these stories and the ones that we don’t even talk about here. You should be listening to the Jabot, Kathryn’s other podcast. I’m a guest on the Legal Tech Week Journalist Roundtable. You should listen to the other shows on the Legal Talk Network. You should be following us on social media which I will just do Twitter at this point. It’s @atlblog, @josephpatrice, @kathryn1 and @rightsforrent. But we also are on various other places. Pretty much everywhere else, I am @joepatrice. I don’t know about everyone else, but like we’re —

Chris Williams: At this point we’re about to make a B-reel.

Joe Patrice: Yeah, Mastodon. Yeah, I mean host–

Kathryn Rubino: Kathryn or Kathryn Rubino, but thanks so much.

Joe Patrice: Yeah.

Kathryn Rubino: And —

Joe Patrice: Yeah.

Kathryn Rubino: Happy 2023.

Chris Williams: See you next year.

[Music]

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