Who Needs Caselaw Anyway?

Episode Notes

Transcript

Joe Patrice:

Welcome to another edition of Thinking Like A Lawyer. I’m Joe Patrice from Above the Law. I’m joined by some of my above law colleagues, Kathryn Rubino.

Kathryn Rubino:

Hi

Joe Patrice:

Chris Williams.

Chris Williams:

That’s me.

Joe Patrice:

And we are here to do what we do every week, which is give a quick rundown of some of the big stories from the week that was in law so that you’re caught up at first. We begin with a little bit of small talk. I think I actually have a small talk question because I

Kathryn Rubino:

Haven’t. Wow. Does it have something to do with work?

Joe Patrice:

Yes.

Chris Williams:

This does not relate to big law or ai,

Joe Patrice:

So I wanted to know if the fire has gone out by Chris’s house. I haven’t caught up with him yet.

Chris Williams:

Oh yeah. So the low key doxing there, things are fine.

Joe Patrice:

I don’t know as though it’s doxing to say that fires exist. I’m pretty sure that just makes people think you’re in California, which you aren’t.

Chris Williams:

I’m not. So now we know there’s one place where I’m not. Okay.

Joe Patrice:

49

Chris Williams:

States left, 49 to go.

Joe Patrice:

But yeah, no, that was

Chris Williams:

Assuming the us. But yeah, things are all right. It made the news, which is newsworthy, I guess, got posted up in a Hilton, which is nice in theory, but I actually like my home more. I spent thousands of dollars customizing this place to be a place where I want to live. I want to see my shit when I wake up being my kitchen. So it’s better than dealing with toxic air, at least in that concentration. Chances are I’m still in the fallout of it every single day. It’s just that we could see the clouds of presumably lead and car parts that we were breathing in. So yeah, it’s one of those things. I remember being in undergrad and reading about environmental racism as an abstract concept, but I’m like, oh, that’s why this thing is blocks away from my house, but it’s not in Princeton, so as long as we can still talk about systemic living conditions before the administration clamps down on that from podcasts, but hey, it’s

Joe Patrice:

Life. Yeah. We are not a school, so we still can, but yeah, no, I

Chris Williams:

Did see. We’ll see. I like to think that this podcast is educational.

Kathryn Rubino:

Well, educationally, I’m going to riff off of that about my sort of small talk, which is that I have finished my book that I’ve been trying to read, the third book, annex Storm, the third book, and the Imperion series, which I was really excited to read. It’s very big on book talk, and I’ve been doing all that kind of stuff, but it took me, I consider myself a fairly quick reader. I will stay up all night if I’m in the middle of a book. I find it impossible to sleep if I kind of caught up in it. And this one, I went so slowly odd. I mean, maybe it’s a little having a toddler, sure, that’s certainly can’t discount that aspect of it. But also, I don’t know. I enjoyed it at the end, but the first third I would say of the book was just molasses to get through, and I was a little disappointed in that aspect, but it really did pick up. I would still recommend it, all that kind of stuff, but I was a little disappointed that I couldn’t just devour the book. That experience of being so wrapped up in a dystopian world that is not ours

Is really enjoyable, and I thought that I’d have a few days where I would just care about nothing but dragons and wive and war colleges, but I was a little sad that it took me,

Joe Patrice:

Hold on. Do I have a sound effect that just goes nerd really loud.

Kathryn Rubino:

Sorry.

Joe Patrice:

Wow. You said your name earlier,

Kathryn Rubino:

But seriously, that book I think I just read, was the fastest adult book to reach some selling milestone in 20 years, or a lot of people are reading it. It’s not just, I mean, I wish our country was filled with that many nerds.

Chris Williams:

I still want to say one thing before we end it, because Joe Small talk was asking me about my life. I did a fun thing over the weekend. Well, this is still, I think on Friday I found a name cousin, which is cool. So I was writing an article and it was for some reason I typed in just some Google, it’s easier to find the things we write when we search through Google sometimes, like Chris Williams Above the Law, Ruth Gator Ginsburg race, and then I find the article I was looking for, but then I also find a black Chris Williams who has an interest in race, who is teaching as a law professor, I think at University of Virginia or something like that. And I’m like, who is this person living my life? The reason I went to law school was because I wanted to teach law, wanted to teach jurisprudence. So I reached out, sent the email. I was like, Hey, name cousin just reached out. Things are well, and it was nice. That was quick little correspondence. So if you find a person who has your name online, reach out to them. You never know what’ll come up.

Kathryn Rubino:

That’s funny. I believe that there was a Kathryn Rubino in North Carolina, and she used to run track in high school because I would periodically get emails sent to the looking for the wrong Kathryn Rubino kind of thing. And I have not the most common spelling of my first name, and I’m always like, what are you doing down in North Carolina? It’s cool.

Joe Patrice:

So I just want to be clear for small talk. Chris talked about work. I just want to be clear because I get a lot of flack for that. I have no problem with it, but I just want to

Kathryn Rubino:

Clarify. You’re just mad because there’s no other Joe.

Chris Williams:

Yeah, the only other Joe Patrice is also him because he fucked up his naming on social media.

Joe Patrice:

That’s true. Anyway,

Chris Williams:

But yeah, I think my story is more couched in creating community than work, which you’re a small talk is like. Anyway, Chad, this article I’m writing, which we’ll talk about in two more minutes, I just had to mention it now. Simpson’s reference,

Kathryn Rubino:

Right? That is a low key damning impression of Joe. I

Joe Patrice:

See no problem with that,

Kathryn Rubino:

But you got to insert the Simpsons reference from like 10 years ago, not with it enough to know the current version.

Chris Williams:

Oh, 10 years ago. Simpsons reference, the recent ones

Kathryn Rubino:

Fair.

Joe Patrice:

Are we all quite finished? Oh, well, what do you know? It’s the end of small talk. Let’s move into our actual topics of the week. This one is one that we had. This is one of those things where I wrote a story, I think, I can’t remember if we talked about it on this podcast or not the other little bit ago about Elon Musk and his Doge folks screwing up their own website and how my issue with it was that’s not so much technically a legal story, but I couched it and I covered it as this is indicative of a problem because if you’ve given read write access to a bunch of programmers, you can’t run a website. It bodes poorly for the legal tech infrastructure of the government. It turns out that I was very ahead of my time, and the repercussions of that came very quickly. One of our biggest stories last week, the Securities and Exchange Commission found themselves without Westlaw access, which you would think that a enforcement body would need, but they don’t have

Kathryn Rubino:

It. Oh, that’s only if they’re going to do the enforcing Joe. Now who’s being that?

Joe Patrice:

Well, that’s fair. That’s fair. But they lost their access as part of Elon touting that they cut a $10 million Reuters contract with the SEC. This is part of the ongoing of all of these Doge cuts. A lot of them seem to have fixation on cutting subscriptions to media outlets. Originally, it was couched as this idea that the government pays media companies to give them good propaganda. It then turned out that all that was actually happening is a bunch of government workers had subscriptions to read the news, but then they doubled down and started canceling those subscriptions too. Then it got to a point where Reuters said something that the administration didn’t like. Elon and Trump started social media posts about how Reuters was involved in a long-term social distortion disinformation campaign with the government. They weren’t. That was actually a separate company, but that’s neither here nor there. That prompted them to send around a, everybody please, we’re going to cancel every government’s Reuters subscription, which ultimately manifested at the SEC in canceling Westlaw because Westlaw is owned by Thomson Reuters, which is not Reuters, but it is a company that also owns Reuters, the do service. So a cousin company.

Kathryn Rubino:

How disturbed are we? And I know the answer is just shades of a lot that retribution seems to figure prominently in a lot of policy decisions.

Joe Patrice:

That’s very disturbing. Don’t get me wrong, was disturbed,

Kathryn Rubino:

The word

Joe Patrice:

Was

Chris Williams:

Disturbed

Kathryn Rubino:

Word horrified.

Chris Williams:

I’m just clarifying if disturbed is the word. Not at all. That’s just been how things have been since 2008. What was it? I think there was a thing where Obama was talking. He made a joke at Trump’s expense, and then Trump just had this mean look on his face, and he was like, I’ll get you back. So all of this has been falling under Trump being disturbed for the last 12 some odd years,

Kathryn Rubino:

But generally speaking, policy decisions were not previous to 2025. Most policy decisions were not checking off my enemies list.

Chris Williams:

No, but everything Trump said he was going to do has been checking off my enemies though. So now that he’s in power that this is happening, it’s not surprising.

Joe Patrice:

Well, except

Chris Williams:

Or disturbing.

Joe Patrice:

No, except for instance, he ran an entire campaign about locking up Hillary Clinton and then didn’t prosecute her. There is definitely something different about this administration and the kind of petty revenge. I was going to go not even to that.

Chris Williams:

We’re only two months in Joe

Joe Patrice:

One. We’re only one, but

Chris Williams:

We’re only one month in Joe.

Joe Patrice:

Yeah, only one. It feels like more, but it is only one. Now. My concern was more it speaks to the real problem with, as a general matter, the problem with trying to pretend that this is some sort of government audit, which is what the dumb people who email me be like, I don’t understand why you don’t approve of Musk just trying to protect our spending, blah, blah, blah. This is not an audit. An audit would be a thoughtful long-term, months long process of going through all the government’s receipts and making some suggestions. This is haphazard speed running our way to poverty. With that said, what worries me about that kind of speed run is from a legal perspective, we just got rid of Westlaw. The one thing that they absolutely need, apologies to LexiNexis, but it is a product that SEC needs,

And it was cut on a whim because they misunderstood that it was the same thing as Reuters, which they also probably shouldn’t cut because that doesn’t make any sense other than pettiness. But it worries me that this is going to become a longer term problem where lawyerly things are getting cut because these idiots don’t understand what’s necessary and what isn’t. And while this was a legal tech story, apologies to Kathryn who hates, when we talk about that, it goes further. We also saw over the weekend, a lot of the JAG lawyers get fired at the DOD senior folks.

Kathryn Rubino:

The judge advocate generals at Army, Navy and Air Force were all fired,

Joe Patrice:

And the leadership of the military’s lawyers all getting fired. That spoke to a different question. Obviously I think that was done with intentionality that they don’t want to have senior lawyers there to say things like Geneva Convention, who but don’t know her, don’t know her. But so that’s done with intentionality. But between that with intentionality and what’s going on in these legal arms of the government people where products are getting canceled that are necessary, where people are getting fired, who are necessary, and they don’t realize how necessary they are to the functioning of the group, this becomes increasingly a

Kathryn Rubino:

Problem. And I think that you’re right that in this particular story, the lawyers are impacted and having non-law making these cuts really speaks to it. But it’s not just the lawyers who are bearing the brunt of people who don’t understand what’s happening, making cuts. There was all these stories about the only locksmith at Yosemite or getting fired, and people in charge of our nuclear arsenal getting fired and then trying to find them to rehire them when they realize who they actually fired, they don’t know who they fired.

Joe Patrice:

That’s a great point, and it allows us to segue into a story that wasn’t on our agenda, but could be.

Chris Williams:

Well, one thing prior to this non the segue, not this story, what’s going to happen is at some point within two weeks, Elon is going to make a tweet and said, I just fed Westlaw into rock, and then he’s going to have everybody used the Twitter ai. He ai. Well, he

Joe Patrice:

Already said that. Well, no, he didn’t say Westlaw. Yeah,

Chris Williams:

I’m saying it jokingly, but that is what I’m pulling on.

Joe Patrice:

But the issue, the quasi segueway is law professor Randy Barnett, who most recently had been the one who wrote the Wall Street Journal, op-ed of Birthright Citizenship is in the constitution. But our theory is what if it wasn’t? He has now come out apparently on the firing of some of these national park workers and said, well, this is just malicious compliance arguing that the reason why there’s no one to open the door at the south entrance of the Grand Canyon is because there are plenty of other park rangers who could do it, but they’re following maliciously complying and saying like, well, that’s not my job, so I’m not going to do it. And that that’s really a way in which government workers are fighting back against this and it’s destructive and awful and whatever. First of he has no evidence for this and he’s making all this shit up, which is problematic. But it also brought me back to wherein people don’t understand how big the Grand Canyon is. Wait,

Chris Williams:

What was the first word before canyon?

Joe Patrice:

It’s grand. It’s right in there. It’s grand. It’s in the name. It’s literally in there.

Chris Williams:

The Canyon only needs two employees, but the grand one needs,

Joe Patrice:

Yeah, yeah. A little canyon, petite canyon. Yeah. No, so the south entrance, which is the most popular one, they fired, apparently accidentally. They fired just the people who worked at that one. And then they are confused as to why it’s not getting opened by the other people who work at the Grand Canyon. And part of that is that it’s hours away to get to the other entrances because it is, say it again with me, A Grand Canyon. And you can’t just say, Hey, person in another state drive all the way around this big hole in the ground that has no bridge over it to get here.

Chris Williams:

Well, I think the real solution is Trump just needs to rename it the Canyon of America and then it alone be the naming issue and one person can staff it.

Joe Patrice:

There’s some person who’s assigned to the north entrance who has to take a burrow every morning down through the canyon, a backup. But I mean, this is problematic, why? This is kind of a non-related story, but one that I thought made sense as you were talking about as you were talking about it, we have law professors who are saying this stuff that is not their wheel of influence, so they don’t really have a place to talk about it, but also that makes no sense, and they’re just posting it, dragging down kind of the reputation, the sterling, the hither, two sterling reputation that lawyers have for honesty. And

Kathryn Rubino:

Yeah, I mean it’s really very wild what we’ve seen. Obviously you referenced at the top, you talked about Randy Barnett. He also wrote that birthright citizenship article that was just dragged by a bunch of people about its factual and historical inaccuracies from the right and the left. That was really kind of the heartwarming part about that story is that it wasn’t just liberals who were mad at him for writing it. It was a bunch of conservatives too. So maybe he’s really, he’s a uniter in a weird way.

Joe Patrice:

Alright, so speaking, speaking of people who have hurt the reputation of lawyers, you have a story about Alex Kazinski?

Kathryn Rubino:

I sure do. Yeah. Disgraced former federal judge Alex Kazinski must. I think it must

Joe Patrice:

Hurt to every time somebody gets, it hurts when every time you get referenced, everyone’s immediately goes to the word disgraced right before your name.

Kathryn Rubino:

Yes. I believe that’s the only appropriate title for

Joe Patrice:

It’s in the Style book.

Kathryn Rubino:

Yeah. Yeah. Listen, I wrote about Alex Kki for years and sort of his fall from Grace for those who perhaps don’t remember, was a tremendously large sexual sexual harassment scandal brought by several of his former clerks, corroborated by I think 12 people before it was all said and done. And then he just retired. He just retired, which means because we have not the best ethics system for the judiciary means the investigation into his behavior was abruptly stopped. So he was without a job after being sort of this bright light in the conservative jurist movement. And since then he’s been trying to, I don’t know, get back into the spotlight is the best way that I can possibly think of it. And he wrote a piece in the Wall Street Journal basically asserting not many facts even there that maybe we’ll cancel the next election in this country.

Joe Patrice:

Yeah. Well mean we might,

Kathryn Rubino:

Sure. And I think all it could possibly do is be sort of laying the groundwork for that sort of thing. But it’s wild that this man who wrote this article was respected as a writer at any point because he spends about half of it kind of relaying an anecdote about his Romanian citizenship, which cool, whatever. But Romania did in fact cancel their elections. And it’s just kind of the story about how this happened. Not even what happened in Romania, just how he was thinking about maybe voting in the Romanian presidential election for the first time, and then it turns out it was canceled anyway. People on the left want to cancel people on social media that they don’t agree with, and maybe we’ll cancel the election. That is really the logical, it’s extreme of consciousness kind of ridiculousness here.

Chris Williams:

What’s the other judge that did something similar? There was a different sort of material definitely. But the argument by comparison, they were like, oh, people who protested were harmed and judges could be harmed by X, y, z. I think it was a story Joe covered,

Joe Patrice:

The chief justice in Chief did. Chief Justice Roberts annual report made a bunch of logical leaps in defense of John Roberts, his logical leaps. He spends a good deal of time trying to pretend that they aren’t logical leaps. I don’t really feel like I got that impression from this.

Kathryn Rubino:

No.

Joe Patrice:

This was just like, here’s a leap. Come with

Kathryn Rubino:

Me,

Joe Patrice:

Film and Louise style. Just grab my hand and we’re going to take a leap into it. Yes,

Kathryn Rubino:

It is. People had community notes and were shamed for thinking the wrong things about the Covid vaccine, and they were canceled. And then it’s like, speaking of canceled, could American elections be next? And I was like, no, no, no, they can’t. And also the difference between colloquially being canceled and actually physically canceling the US elections is bad, should

Joe Patrice:

Be different.

Kathryn Rubino:

And it is a very poorly written piece that I’m, well, I’m not shocked that the journal put it up there, but it is just a wild read in a lot of ways, and it makes you kind of wonder why

Joe Patrice:

I’m going to pull back and just say, there’s something fantastic about the fact that you just said and none of us stopped to make note of it. It’s an incredibly terrible thing. So it doesn’t shock me. It’s in the Wall Street Journal, which says quite a bit about where they are these days.

Kathryn Rubino:

And sort of how I even found out about this piece is Mike Sacks put out on social media that he’s like, is this the judge intimating that Democrats may cancel elections as pure projection so as to lay the groundwork for Trump’s defensively canceling elections. And that appears to be the only logical reason why this is ever put to paper, let alone actually printed in a quote, respectable publication. And listen, we’ve talked on this too, about this podcast, about the 22nd Amendment and Trump’s 22nd Amendment problem doesn’t matter. He doesn’t have to run for a third term if we just cancel all future elections.

Joe Patrice:

Well, CPAC has been the conservative conference that just ended. They had, there was a movement there that had swag and everything, like a logo that is talking about the third term movement to try to get it so that he can run again. And they’re openly comparing him to Caesar in these ads, in this movement initiative, which I don’t

Chris Williams:

Know, do they not know what happened to Caesar?

Joe Patrice:

Yeah, things didn’t work out for him. Who’s Brutus? I mean, maybe the argument is that it’s Augustus, he lived till ripe old age, but

Kathryn Rubino:

I guarantee don’t they are, don’t think That’s not what they mean. They don’t dunno

Joe Patrice:

The distinctions. Yeah,

Kathryn Rubino:

No they don’t.

Joe Patrice:

Everybody always talks about Julius Augustus had a much better run. I feel like that’s who you should be comparing yourself to.

Chris Williams:

He got a month.

Joe Patrice:

Well, he did get a month. That’s fair.

Chris Williams:

You know what, Caesar got a casino. He also got a

Joe Patrice:

Month.

Kathryn Rubino:

July. He also

Joe Patrice:

Got a month. They

Chris Williams:

Both got he first. I’m not going to let these facts get in the way of the point I’m trying to make. Anyway,

Kathryn Rubino:

Maybe you do have a bright career. As a conservative talking head.

Joe Patrice:

I’m getting the Bitcoin ready. Thank you. Thank you for tuning into this episode here in the third week of Trumpia. See, I like getting, yeah,

Kathryn Rubino:

Yeah.

Joe Patrice:

I mean it’s possible that we’re going to get a month. I mean, we changed the Gulf of Mexico’s name. Why not just a month calendar year. They’re trying to rename. Oh, they’re trying to do the holiday forum. I think there’s a movement afoot to try and name Dulles after him

Kathryn Rubino:

Too. Yeah, I think that is also true.

Joe Patrice:

Anyway,

Kathryn Rubino:

And they want to carve him into

Joe Patrice:

Rushmore

Kathryn Rubino:

Rush.

Joe Patrice:

Yeah. Alright. All stories Ultimately as hard as annoying as it is, all stories are at least tangentially related to this administration these days. And this one, even though it’s really about law schools, is as well. Chris, you covered, there’s a lot of angles related to this, but let’s focus on the story by way of entry. Let’s focus on the story that you wrote about law schools and their websites.

Chris Williams:

Sure. So wouldn’t be surprised if there were more, but at least Cornell, Vanderbilt, university of Virginia and Fan favorite as Law decided to scrub mentions of diversity from their websites, which isn’t really surprising after the Department of Education is basically like, Hey, if you do any of these DEI, shit, after Black History Month, we’re cutting all your funding. So they were like, Hey, we like funding. So they got rid of it.

Joe Patrice:

And it’s not just funding because student loans are implicated by these particular funds because the way student loans work, it’s not like you get it from the government. The school gets money that they from the government that then they forward you. So kids student loans go away if they get their money cut by the DOE. So there’s some level to which even they can’t really take a righteous stand without hurting students who have nothing to do with it. But it is disturbing. It follows on. We talked earlier about the k and L Gates story where a law firm had scrubbed references to diversity in a seeming means of avoiding getting in trouble with the administration. And the final shoe that dropped was, well, not final, I’m sure not final, but the next shoe that dropped was on Friday. We had the A voting to no longer enforce because currently the A BA requires certain diversity benchmarks to be met for a law school to reach accreditation. They are not enforcing that anymore, largely because for the same reasons. They understand that the law schools themselves for a variety of funding reasons are going to have to stop complying. And so they can’t revoke the accreditation of every law school just because the DOE is doing this. So they’ve voted to suspend that.

Chris Williams:

My thing is just thinking about just at the level of discourse, how this is being discussed. We have different, I’m notion we have different thresholds for being disturbed. My angle in the article was like, finally this happened. It’s relieving that we don’t have to wait for this to happen anymore. It was like a year or two ago, and I was like, this is what’s up. So it’s nice knowing that, okay, the plan we all saw being implemented, it’s finally been implemented. Now we can focus on what’s the response rather than waiting. But yeah, this is imminently predictable. All of the things that are happening are super predictable. It’s funny just seeing articles from 2018 saying, Hey, Trump is going to attack the rule of law. Trump is using racism to implement policy, and now that this stuff’s happening again, people are like, oh my God,

Joe Patrice:

That’s good that you brought up note of optimism to close us out. It’s a relief. Now we could move on. This is a fairly doom and gloom episode. So you brought us full circle to some measure of optimism. Look at

Chris Williams:

You. I would call it realism. It’s a question of the glass being full or what have you. But if it helps you drink the contents, then feel free.

Joe Patrice:

I mean, I was prepared to just be, it’s a never ending disaster and there’s no hope. So you’ve gone far beyond my pessimism. So anyway, so yeah, that is going on. We are going to, of course, continue monitoring both at big law and at law schools as this progresses and whatever happens, we’ll have it first.

Chris Williams:

And speaking of endings, I don’t know if it’s actually been said in the podcast yet, but Happy Black History Month. This is the last episode of the month and it’s nice while it lasted. I’ll give it, I don’t think we’ll have a Black History month in 2026.

Joe Patrice:

Well, right. We’re going to rename the month after Trump. That’ll be how it works. I mean, it is interesting that they decided to wait on enforcing all of this until the end of Black History month. It’s almost like they wanted, it was almost more cruel. But to throw everybody the freebie of, well, maybe we will let you finish the month before. We never have this again.

Chris Williams:

The only one more deliberate about dropping disc tracks on particular days is Kendrick Lamar, what was it? The inauguration was on Martin Luther King Day, and then the Department of Education letter was on Valentine’s Day. And all this black shit needs to get wrapped up by the end of Black History Month. I don’t know what’s going to happen on May to all the Mexican folks out there. I fear for you, but it’s over. It’s over. Put in a joyous manner.

Kathryn Rubino:

I thought we were ending this on a high note.

Chris Williams:

Yeah, supposed to end on some measure. Yeah, yeah, I am. You can only endorse so much sorrow before the tears turn into laughter. And that’s where I’m at. So it’s a thing you move beyond to get above. Shout out to Ante on that note.

Joe Patrice:

Yeah, so thanks everybody for listening. You should subscribe to the show, so get new episodes when they come out. You should be leaving reviews stars, write things. I know you hear this all the time, not nobody but lots of people. Then don’t do it because it’s a thing that every podcaster says, but it really is useful. Take a second and give some stars. Write something. It always helps. You should be following some other podcasts. Kathryn’s the host of the Jabot. I’m a guest on the Legal Tech Week journalist round table for the Legal Tech heads out there. There are also several shows on the Legal Talk Network that we aren’t on that you should check out. You should be reading Above the Law. Always You read these and more stories before we even talk about them. Follow social media. It’s Above the Law dot com on Blue Sky, I’m at Joe Patrice Kathryn’s at Kathryn one. Chris is at writes for Rent. Same deal over at Twitter though. I’m Joseph Patrice over there. I only really hang out there to see what fresh horror is coming from Doge next. But sometimes you can see me say something in response to that. And with all that said, we’ll talk to you all later. Bye Peace.

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