Above the Law - Thinking Like a Lawyer

Alex Jones is not going to be paying anything near what the jury determined. While slapping Alex Jones with $45 million in punitive damages for defaming the families of Sandy Hook Elementary shooting victims. But the state of Texas makes juries deliberate and then substitutes its own cap for their decision. Thanks for your jury service, but we've decided to go in a different direction! Now get out! We also talk about the tax controversy surrounding Ivana Trump's final resting place, the Supreme Court's legitimacy woes, and Brittney Griner's Russian sentence.

This podcast must vest, if at all, within 21 years... The bar exam decided to ask a couple of rule against perpetuities questions, obliterating its last claim to legitimacy -- that it teaches real-life practical law. Another reminder that licensing is broken and we need to take bold steps to reform it. Clarence Thomas opted to give up his cushy seminar at George Washington Law and some people are whining about that. And Nicholas Sandmann's "epic" defamation lawsuit against the entire mainstream media ended with a thud... just like we said it would.

Mistakes were made. A lawyer tried to get away with a little misogynistic insulting in open court. It did not end well for him. Meanwhile, a Biglaw partner laments low hours and associates skipping out on the office. This should be a warning to associates as the economy cools because whether or not this is fair, this is the sort of thinking that guides layoff decisions. And the bar exam is here and so are all the indignities. Like asking applicants to spend over $100 on lunch.

Due diligence is your friend, Elon. Twitter has sued Elon Musk for walking away from his plans to purchase the company and it's hard to see how Musk gets out of this unscathed. Twitter's deal lawyers negotiated a pretty ironclad agreement, Musk's complaints fail basic logic, and Delaware law is roundly against him. But other than that, he's doing great! We also talk about the value of impeaching Supreme Court justices for lying during the confirmation process -- even if there's no hope of removal -- and we chat about the value of a good video deposition angle.

Plus Texas targets Biglaw. Since the Dobbs opinion came down, Supreme Court justices have faced protests outside their homes and outside their favorite restaurants. The Supreme Court asked local officials to clamp down on it and Morton's Steakhouse used its JD from the Filet Mignon School of Law, but the Court's problem is its own pesky precedents catching up with it. We also discuss the threat Texas legislators sent to Sidley Austin suggesting it would go after the firm for its health plan covering health care travel and the future of state border-crossing laws and guns and briefly preview Elon Musk's Twitter fight.

January 6 hearings invite a more hearsay mistakes than the bar exam. Hearsay isn't the easiest concept in the world in application, but compared to the "fertile octogenarian" it's at least straightforward. The complexity is in all the exceptions, not hearsay itself. And yet the January 6 hearings invited a lot of hearsay talk that wildly missed the mark. The gang also takes a look back at the now concluded Supreme Court Term -- and the nightmarish preview the justices dropped on the last day -- and chats about the latest in the Britney Spears litigation.

Constitutional law is more of a vibe now. Well there's not much to talk about in the legal world besides the Supreme Court so... let's do that. The Court ruled that state legislatures are both free to craft the laws that suit their state and that state legislatures are dangerously lawless entities that must be crushed by judicial fiat... WITHIN A DAY! The half century of Roe isn't a historical tradition, but a 111 year old gun permit statute is not as historically rooted as a 14 year old Supreme Court opinion. It's a wild time to try to untangle the rule of law. Also, Biglaw firms are scrambling to react to the Dobbs opinion, and former Solicitor General Paul Clement throws a pity party in the papers.

Starting to notice a pattern? The January 6 Committee is very interested in speaking with Ginni Thomas following revelations that she had a correspondence with John Eastman about election shenanigans. But more interesting is the revelation that Eastman was telling his buddies that he had inside information about closed door Supreme Court meetings casting an even brighter spotlight on Thomas. It's still anyone's guess who leaked the Dobbs opinion, but it's worth noting that Occam's Razor is undefeated. We also discuss the latest religious schools opinion from the Supreme Court and UCLA's Absent-Minded... or just plain absent... professor.

Also, people don't want to go back to the office. At all. The latest edition of the ATL Top 50 Law Schools ranking is out and provides some interesting insights into legal education. As the ATL system privileges "outputs" by focusing on job placement and costs rather than incoming student GPAs and LSAT scores, the ranking gives prospective students a look at the best bang for their tuition buck and gives law schools a great way to game the system: be cheaper and get your grads jobs that will let them pay off debt. We talk about the rankings and some curious schools dropping down the list. We also discuss associate resistance to the "3-day in-person work week" model. It seems as though lawyers don't want to return to the office at all and that might not be in their best interest.

The bar exam is a daunting obstacle, but it doesn't have to be. Joe and Elie chat with Rich Douglas, COO of Themis, about the bar exam and how to conquer it. Rich also tells us about the Themis Law School Essentials program of free review materials for law school courses and we discuss the impact the GRE is going to have on law school admissions.

"PODigal"... get it? Whatever. The original Thinking Like A Lawyer hosting team is back for a limited engagement! With the team depleted by holiday vacations, Joe is joined by Elie Mystal of The Nation to talk about the Supreme Court, touching on everything from Shinn -- deciding that "actual innocence isn't enough" when it comes to getting people off death row -- to the coming Bruen opinion that will stifle even the mildest of gun regulations across the country. We may even have a little to say about leaking draft Supreme Court opinions.

Yale. Again. 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.

Does the new Texas social media law banning platforms from moderating content really require you to listen to this episode? Well, it's on Twitter so now you're compelled! Frustratingly, this reasoning is just as stupid as the Fifth Circuit's crayon-scratched opinion rubber stamping the statute. It's an opinion so bad that Justice Alito immediately swooped in to get the appeal rolling. Meanwhile, we also talk about the changing nature of in-house counsel and the growth of "legal operations" as the chief operating officers of legal departments, a judge with a penchant for handcuffing lawyers, and the latest law school dean hypocrisy. Special thanks to our sponsor, Posh Virtual Receptionists, LLC.

A leaked draft opinion informed the world that the far-right wing of the Supreme Court has broken from Chief Justice Roberts and intends to overrule Roe v. Wade outright based on... "we've got five votes now, so suck it." The gang discusses the opinion, the demise of stare decisis, the obsession with the leaker, and a law professor's problematic response to it all. Joe didn't even use the sound board this week, so you know it's serious. Special thanks to our sponsor, Posh Virtual Receptionists, LLC.

If you're tuning in today to hear our thoughts on the leaked Dobbs opinion and what that means for the future of both reproductive rights and the entire superstructure of the 14th Amendment going forward... well, you'll have to wait a week. Putting together a quality show takes time and that means we recorded this before that revelation. But that doesn't mean there wasn't a lot to cover! We have a breakdown of the latest Am Law 100 ranking of law firms, recaps of the "interesting" lawyering both in and before the Johnny Depp/Amber Heard trial, way too much talk about the legal woes facing Ron DeSantis as he goes after Disney, the racist standup career of Alex Jones's lawyer, and some pointers on how and how not to report on legal news. Special thanks to our sponsor, Posh Virtual Receptionists, LLC.

That was an exhausting week for legal happenings! Marjorie Taylor Greene flummoxed a poor judge during a hearing into her ability to satisfy the 14th Amendment's proscription against seditionists in office. Justice Kagan had just about enough of Neil Gorsuch and let us all know. Alex Jones took his defamation woes to Bankruptcy Court -- after transferring millions among different legal entities, of course. The Biden administration set its sights on undermining Miranda rights, Johnny Depp has a better grasp on hearsay than most law students, and we got a major arrest in the Dan Markel murder case. And all that's before we even get to one of the least qualified federal judges in American history deciding that there's no statutory basis for the CDC to regulate proactive public health measures based on... some curious wordplay. Phew. Special thanks to our sponsor, Posh Virtual Receptionists, LLC.

Penn Law's Amy Wax is back at it, appearing on Tucker Carlson to talk about the problem with Black people and Asians. We cover Wax's shenanigans and the impact they have on the law school's credibility a lot, but it does make us wonder where we draw the line between informing the public and just feeding a troll. We also talk about Kim Kardashian's ongoing quest to become a lawyer reaching a new high water mark and Pharma Bro Martin Shkreli losing his Biglaw attorneys. Special thanks to our sponsor, Posh Virtual Receptionists, LLC.

There's not an explicit rule of professional responsibility for this, but the general commandment to serve the public ought to stretch far enough to keep the Court from running a propaganda arm. Amy Coney Barrett blasted a sound byte reassuring the public that the Court isn't a corrupt, partisan institution because it issues "opinions," knowing full well that she was about to obliterate half a century of environmental regulations on the strength of an unsigned paragraph that very week. We also have to revisit the Yale Law School culture fight, which seems less a fight than a unilateral assault on free speech in favor of "you have the right to shut up and listen." Special thanks to our sponsor, Posh Virtual Receptionists, LLC.

US News and World Report released its annual law school rankings last week and delivered chaos upon the legal world, dropping Harvard from its top three perch. As we break down some key insights from the rankings, we remind everyone not to get too hung up on these numbers. Speaking of numbers that lawyers should get hung up on, it looks like a lawyer screw up cost a bank around $600M so that's not great. And speaking of being the opposite of great, unhinged text messages from Ginni Thomas raise questions about the fitness of Clarence Thomas to serve on the Supreme Court. Don't worry, no one will end up doing anything about it. Special thanks to our sponsor, Posh Virtual Receptionists, LLC.

Free speech is rarely pretty. But there was no shortage of hand-wringing last week over Yale Law students who -- checks notes -- protested an event and then left promptly when asked by faculty. If that doesn't sound bad, but that's because you're not vested in the ongoing effort to redefine free speech as protecting the people with microphones and punishing dissent. We also talk about a wildly inappropriate in-house counsel and the story of a town that ticketed an elderly couple to the tune of $30K and the federal judge who was not pleased about it. Special thanks to our sponsor, Posh Virtual Receptionists, LLC.

Before its fight with AT&T is over, One America News will owe Vedder Price a good deal in billables. But is it worth it for Vedder Price? The gang discusses the pros and cons of taking on civil work -- especially questionably winnable work -- for unpopular clients when other clients are begging for a squeaky clean counsel reputation. Meanwhile, law enforcement routinely pushes probable cause to the limit, but arresting 64 people for an ounce of weed proved too far. Finally, remember to vote in the annual Above the Law bracket! Special thanks to our sponsor, Posh Virtual Receptionists, LLC.

Joe and Chris discuss the latest nonsensical efforts to derail Ketanji Brown Jackson's nomination and ask the audience to guess which baseless attack comes next. They also breakdown the happenings between ABA TECHSHOW and Legalweek 2022, which marked Chris's first foray into the wild world of legal technology. And Joe has a nasty non-COVID cold that he caught at these shows so don't let that throw you off. Special thanks to our sponsor, Posh Virtual Receptionists, LLC.

Cravath proved they’re still the Biglaw compensation leader by coming over the top of Davis Polk’s raises. Now the question is — who will follow them? Which lawyers are still working for Russia? A British politician goes ahead and NAMES NAMES. The dog whistles are getting LOUD: it sure is interesting that the only Supreme Court nominee that is fielding questions about her LSAT score is a Black woman. Special thanks to our sponsor, Posh Virtual Receptionists, LLC.

As it happens, all three of your hosts competed on high school or college debate teams. So did Ketanji Brown Jackson. This is why you should just turn over your whole governance to the people making jokes about "uniqueness." We also talk about law firms disentangling themselves from Russia and the retrograde nonsense of the Virginia Bar Exam. Special thanks to our sponsor, Posh Virtual Receptionists, LLC.

After weeks of waiting, Davis Polk enters the salary increase game and re-raises, offering higher numbers for mid-level and senior associates. Is this the new normal, or could the market sustain one more shock to the system? Meanwhile, "Hobbit Law" aficionado Paul Davis gave Business Insider an interview that reads suspiciously like a rehabilitation attempt from a thoroughly embarrassed lawyer. Finally we discuss the latest Voting Rights Act case out of Arkansas and the trouble with judges getting too big for their robes. Special thanks to our sponsor, Posh Virtual Receptionists, LLC.

The Supreme Court returned to the shadowy depths to issue a 5-4 ruling allowing a racial gerrymander to continue through the next election. The Chief Justice dissented, lamenting the idea that a shadow docket ruling could effectively rubberstamp a "freebie" violation of the Voting Rights Act. You know... we used to have a mechanism to prevent this sort of thing, JOHN. We also discuss the latest Georgetown Law racial slur incident, which mercifully didn't end in bad "academic freedom" takes. And we talk about Kirkland's return to office announcement, which landed with a thud when the firm didn't package it with some market matching raises. Special thanks to our sponsor, Posh Virtual Receptionists, LLC.

Taking its lead from Neil Gorsuch's Supreme Court shenanigans, a Fifth Circuit panel told attorneys to go maskless. In Louisiana. The state that just edged past New York in COVID deaths per million. Though at least some of its judges care enough about freedom to respect the judgment of counsel. Joe Rogan is still, unfortunately, in the news and he's basically the poster child for how little people seem to understand about free speech. Meanwhile, the Milbank raises still have a lot of notable holdouts. When is the market going to catch up? Special thanks to our sponsor, Posh Virtual Receptionists, LLC.

Stephen Breyer plans to step down at the end of the Term. But we didn't get much time to celebrate his legacy before the national conversation shifted to denigrating his hypothetical replacement. Georgetown Law found itself thrust into the center of the story when its newest hire branded Breyer's not-yet-chosen successor as a "lesser Black [woman]." Speaking of law schools dealing with racism, Penn Law professor Amy Wax says she's not retiring amid a disciplinary inquiry into what the dean describes as her increasing "promotion of white supremacy." Meanwhile, Goodwin instituted a new vacation policy that should help associates actually unplug for a little bit. Special thanks to our sponsor, Posh Virtual Receptionists, LLC

Just when you thought law firm salaries had settled into a nice equilibrium, Milbank announced another round of base salary hikes and the whole cycle began again. But with some notable hold-outs, the industry is left wondering if this is the last word on the matter or if another raise is on the horizon. We also talk about Elon Musk's effort to get a law firm to fire an attorney for being mean to him when he was back pushing the envelope of SEC regulations, and a state judge who refused to get vaccinated and an unvaccinated former VP candidate who sunk her high profile trial by catching COVID.

Elie Mystal rejoins the Thinking Like A Lawyer crew to reflect on how Neil Gorsuch chose stupid over wrong and the bizarre fixation his acolytes have on doubling down in his defense. Justice Gorsuch asked the government why COVID amounted to an emergency when the flu kills a comparable number of people. The thing is, it doesn't. But rather than be wrong, Gorsuch contends he said something else... that makes no sense and, if true, makes him look stupid. Quite the quandary!

Yale Law School's Jed Rubenfeld isn't letting his suspension following a sexual harassment investigation slow down his quest for the spotlight. And while media outlets don't need to invite the scrutiny by inviting a suspended professor to talk about run-of-the-mill legal takes, the Wall Street Journal is ready to roll out the red carpet for anyone willing to provide spicy "vaccines are socialism" takes! Pairing with an award-winning virologist also at the nadir of his professional standing, Rubenfeld explains how omicron means vaccine mandates are unconstitutional... or something. We also talk about the wrong way to handle a holiday party -- don't slap guests! -- and how the Ghislaine Maxwell verdict may fall apart over jury selection. Special thanks to our sponsors, Lexicon and Nota.

The Chief Justice released his year-end report on the federal judiciary and informed us that everything is fine and there's nothing to see there. While multiple issues threaten the legitimacy of the courts, Roberts assured the country that he's got some webinars that can solve everything from sexual harassment to market manipulation. Alan Dershowitz also closed off 2021 with not one, but two embarrassing TV appearances as he struggles to maintain relevance. Welcome to 2022! Special thanks to our sponsors, Lexicon and Nota.

We've made it through another year. Well, almost. We probably shouldn't start counting our bats and pangolins before they've hatched. Joe and Kathryn look back at the wild ride of 2021 and make some predictions about what 2022 holds. Also... it's that time of year to send in your Lawyer of the Year nominations. Special thanks to our sponsors, Lexicon and Nota.

As the year winds down, folks seem a little extra agitated. A judge called her colleagues names and got booted from the bench. A partner bailed on his firm rather than get the scientifically proven vaccine. Meanwhile the legal press jumped on news of another round of salary raises as an extra dose of year-end drama that didn't actually happen. 2021 is bad enough, folks... don't try to make it any extra. Special thanks to our sponsors, Lexicon and Nota.

Last week, a handful of Biglaw firms contacted Above the Law trying to rewrite their whole firm image. International firms still headquartered overseas trying to rebrand as American and firms historically embraced as for growing up outside the NYC white-shoe culture wanted to be portrayed as Knickerbocker blue bloods. Who thinks this will work? Also, we discuss Latham's holiday party COVID debacle and have an extended discussion of the canons of statutory interpretation and the Formula 1 season finale that could end up in an international court. Special thanks to our sponsors, Lexicon and Nota.

After more than a week of wondering when firms would start playing follow the leader with Biglaw bonuses, Davis Polk finally set a standard that the rest of the industry felt comfortable following. In unrelated large firm news, Cravath announces a change to its partnership model... could this be the final nail in the lockstep compensation coffin? Joe, Kathryn, Chris also talk about a salty exchange between Ninth Circuit judges and holiday gifts for lawyers. Special thanks to our sponsors, Lexicon and Nota.

We thought we entered Biglaw bonus season last week, but after Cravath rolled out a higher bonus schedule, the majority of firms responded with silence. What's going on, and is someone finally going to break that logjam? We also talk about the verdict in the Arbery murder and continue last week's discussion about the troubling balancing act when it comes to prosecutorial discretion. And an Ivy League school settles with students over COVID tuition. Should schools really have charged less during the pandemic? Special thanks to our sponsors, Lexicon and Nota.

Joe and Chris discuss the Rittenhouse verdict and the limits of self-defense standards. Specifically, at what point can stripping a case of all its context rob it of value. Meanwhile, Sheriffs are refusing to enforce laws -- usually vaccine and mask requirements. What are the limits of prosecutorial discretion and, how in the world is it okay for an activist group to offer scholarships to law enforcement for neglecting their duties? Finally, we check in on NYU's FedSoc chapter where board members resigned after learning that the group is doing... exactly what the Federalist Society is created to do. Special thanks to our sponsors, Lexicon and Nota.

Is there a significant crossover between this podcast's audience and Taylor Swift? I guess we'll find out this week as we discuss her latest re-release and the intellectual property issues driving her new recording strategy. Because everything comes back around to the law... even pop music. We also talk about Above the Law's role in the latest inquiry from the House Judiciary Committee and the tech issues on display in the Rittenhouse killings case. Special thanks to our sponsors, Lexicon and Nota.

Sidley is offering associates firm branded AirPods and jackets as a token of appreciation after bringing lawyers back to the office. Putting aside whether or not that's a fair deal for associates, what exactly makes for a good branded gift? Not all swag is created equal. We also chat about a town in California that has declared itself an independent Constitutional Republic (that's not a thing), the moral authority of Big Bird, and Lin Wood's emails. Special thanks to our sponsors, Lexicon and Nota.

The Supreme Court heard from the braintrust behind SB8 in Texas and unleashed some withering contempt for the novel effort to craft a statute that avoids over 100 years of precedent. Meanwhile, Trump's new social media endeavor runs afoul of copyright law and Biglaw is going big when it comes to paying for key talent... but will it translate to the rest of the associates? Special thanks to our sponsors, Lexicon and Nota.

Yale just can't keep out of the legal news. Over the last several months we've had high-profile fights with professors, a student club behaving badly, and now this. This time it's the school's commitment to outside counsel Day Pitney, a firm making quite a name for itself pulling discovery shenanigans in the Sandy Hook mass shooting trial. Meanwhile, we have new rankings out featuring the best law school deals and the coolest Biglaw firms. Finally, conservatives have a plan to fix the Supreme Court and it's... renaming the building. Special thanks to our sponsors, Lexicon and Nota.

A lot of folks would plead the First Amendment last week, and it was all nonsense. Yale Law School's Federalist Society advertised an event by throwing a whole mess of racist stereotyping at the wall just to see what would stick and when other students asked how this fit within the private school's standards for student organizations... First Amendment! Conspiracy theorists are convinced that Merrick Garland is using the Justice Department to enrich himself by silencing parents just because they threatened school officials... First Amendment! And Virginia public school teachers want the right to refuse to use a student's personal pronouns... First Amendment! Nope. Nope to all of it. Special thanks to our sponsors, Lexicon and Nota.

This week's top stories were all about the judges. Should judges be held to a higher standard when it comes to vaccines? Should they at least endeavor to hire clerks that don't have resumes drenched in red flags? How much should clerkships matter anyway? And we got judges making some tough talking threats. All that and a couple of sound effects -- what more could you ask for? Special thanks to our sponsors, Lexicon and Nota.

What's the next Supreme Court Term going to look like? Not great! We've got full-on assaults aimed at abortion, gun regulations, and affirmative action and that's just in the first handful of cases. Which you know if you've taken our Supreme Court quiz. Joe and Kathryn welcome ATL's newest editor Christopher Williams to break down these and other cases primed for this Term. Special thanks to our sponsors, Lexicon and Nota.

Did you know you could sue for $100 million for breaching an NDA that says breaches cannot be monetized? Neither did we. But Donald Trump has found a new lawyer willing to help him file that claim. He's arguing that his niece stole the documents that suggested a history of tax fraud, thereby unintentionally confirming the documents which is... a choice. Meanwhile, the Biden administration proposes a massive increase in bank monitoring for tax purposes even though the numbers seem a bit screwy. Finally, there's a law firm facing some very salacious allegations. Special thanks to our sponsors, Lexicon and Nota.

Joe and Kathryn break down the long-awaited John Durham indictment that tagged former Perkins Coie partner Michael Sussmann and find it... less than persuasive. Emory Law School has yet another racial slur in class incident, forcing the gang to ask if there's something in the water down there. But given that the most recent incident involves the brother of another repeat offender on this score, maybe it's just a family thing. And finally, Above the Law looks back at the day that launched an internet trend and renamed a law school forever. Special thanks to our sponsors, Lexicon and Nota.

We talk about misbehaving lawyers a lot, but there must be a full moon (per statute a moon "at least 95 percent wholly spherical when measured by appropriate telescopic instruments") or something for lawyers right now because they're wild this week! We've got Biglaw attorneys injecting food with blood, lawyers waving loaded guns around over COVID protocols, a deeply scandalous and tragic situation out of South Carolina, and Justice Amy Coney Barrett running her mouth off with the lack of self-awareness you'd expect from someone who spread a deadly infection to the White House. Special thanks to our sponsors, Lexicon and Nota.

In light of the Supreme Court's abortion ruling, we talk about the nature of the mysterious shadow docket and how it's been transformed over the last few years. The dismantling of Roe is in full swing, reigniting Court expansion talk, which we think is a bad move. Joe and Kathryn also check in on the annual law school scholarly impact ratings to see which law school rules the Ivory Tower. Special thanks to our sponsors, Lexicon and Nota.

Big firms are experimenting with hybrid and flexible office models in the hopefully waning days of COVID. And there's a lot of momentum behind transitioning this into a permanent 3- or 4-day work week long term. Except there are some of you out there screwing this up for the rest of us and intentionally not getting the vaccine in an effort to stay home thereby confirming why some firms think everyone needs to be forced back to the office. We also discuss the sentencing -- if you can even call it that -- of the South Dakota AG who killed a man several months ago. And Joe talks about legal technology and Las Vegas for a bit. Special thanks to our sponsors, Lexicon and Nota.