Welcome to another edition of Thinking Like a Lawyer.
Are you of Above the Law?
Oh, interesting.I work there, too.
Nice.I was going to make a joke about Joe being Above the Law.I was like, wait, you're not Donald Trump. But I'm Chris Williams with the Smarty Comments.
Yes, and we are all editors at Above The Law.And we have this show every week to give you a quick rundown of some of the biggest stories in the world of law from the week that was.But first, as usual, we have a little bit of small talk.
Well, it's Halloween.Small talk.It's Halloween small talk.
That is the opposite of kind of the vibe I try to get to when I do small talk, but... Sure, but what else did I have for Halloween?I don't know, but maybe give a girl a warning.
But then that would have ruined the effect, see?Well, part of Halloween is the scare.Right.
Boo.See, that's better.No, boo.It is almost Halloween.This episode will be out right before Halloween, but I think as has kind of become a tradition in this country, the weekend before Halloween is kind of when all the hijinks occur.
I like it during the day.
mid midday, you know, like bum off of work to know the day of.
I mean, I'm OK with that.Like the 31st.
Well, I mean, sometimes things happen that require people to not be at work and or school.
So that said to everyone working at Jones Day, if any of your colleagues come in with costumes, let us know any any offer my.
I am not particular.I took actually a good little plug for the of the law's annual legally themed Halloween costume.Every year we have sort of a little contest.Feel free to send them in.
You can always send the attachments to us at tips at above the law dot com.We'll take a look at them.There's some, you know, funny, legally themed stuff out there, and we'd love to see them.
Yeah.Also, personal caveat, this isn't against the competition or anything, for free, but no more RBG costumes.I'm tired of those little doilies.Get more creative than a plecture in a doily.We get it, you've been to a thrift store, huh?
But yes.They are definitely called jaboes. And that is why your podcast is called Jebo.
I've always wanted it.Yes, it is named in honor of RBG and her descent Jebo specifically, but yeah.
You can post a costume dressed as a Jebo podcast speaker.So that's cool.
That's fair.You'll get full points from me, who is not actually the judge, but I will appreciate it.Yeah. Yeah.But the point was that this was the weekend before Halloween.So I know I did some Halloween themed fun things.My town has a spooktacular.
It's not actually that spooky happens during the day.It's a bit of a costume contest, kind of a they had a DJ.They, you know, have a little parade for all the kiddos, which is really cute.
We went as the three little pigs, because my baby's favorite stuffed animal at the moment is a stuffed pig.So she had her little stuffed pig.She was dressed as a pig, even though she refused to wear the headpiece for it.Cried a lot when I tried.
I was like, but it kind of makes the costume, kiddo.And then I had some pig ears and some pink clothing.And so it was real cute.I really enjoyed it.Yeah.
Uh, yeah, I didn't.Uh, I didn't have any of that because I understand the actual Halloween weekend is next weekend because it's over.
Then we're into the Christmas season.
No, I think speaking of early celebrations, you're getting it wrong.Right now, you're bah humbugging October's thing.That's a Christmas thing.You're supposed to bah humbug Christmas, unless you're dressed as Scrooge, in which case, good job.
You're already doing it early.
See, you want next week to be Halloween weekend because that's the weekend you get an extra hour for nighttime hijinks.
Did you do anything Halloween related on the non Halloween weekend, Chris?
I did, actually.I went as a chef that, though is a good cook, is frequently fired for his the things he makes.So I showed up.I had a I had a chef hat. And I had a apron and I had a spatula and then I had a little container of cumin.
And I said, I kept getting fired because I kept coming to food.Oh my God.It was a, it was a, it was a, yeah.
I apologize for trying to extend this segment to our listeners and my co-host over here, Joe Patrice, who definitely gave me a dirty look when I was trying to ask, you know, the normal kind of conversation starters here.
Yeah.Well, all right, Willie.Would have been better next week. Yeah, I missed I missed last week because I was at a conference, as you may have mentioned on the show.I don't know.Sure did.Yeah.
But at the conference, I I met one of our listeners from on the other side of the world.So shout out on the other side of the dateline to our Australia listeners.
So kind of exciting to meet folks who still listen to us, even though they're far, far away.It's kind of fun.All right.Well, I know we done with small talk.Yeah. All right.What's what's on the agenda today?
Well, let's kind of keep in line with our Halloween theme.And we saw some stuff on social media.I'm sure we'll have some posts about it during the week as well.But sort of a social media ad on what are four words that would scare your lawyer?
Like, I'm not a lawyer.Dot, dot, dot. I don't know.OK.Yeah.Or like a legal said it was OK.
Oh, my thought was like things that the client would say to their lawyer.Sure.Sure.
Sure.Like the legal department was OK with it.Yeah.Stuff like that.
Oh, no.Like the camera was on. I mean, never checked with legal is a good one.Never checked is better.You're right.
Personally, you know, you always sit back for bad legal takes reposted.Coming up as a notification is a pretty, pretty rough one.
I like a Trump will pardon me.
Oh, oh, fair, I like that one as well.Or it's in the attachment.
Yeah, no, there's- Y'all are thinking more transactional than criminal, I respect it.
Yeah, well, that one was probably criminal.Transactional, let's see.Yeah, I don't know.They changed attendance again? Well, this involves an abbreviation, so it's not quite perfect, but venue is ND Texas.It's a pretty terrifying one.
Or I made some changes. Well, it's a good thing to keep in mind and be sure to add us on social media.If you can come up with your own, you may be featured in a future episode, either of this podcast or on the website proper.
So feel free to send that along.Again, it's tips and above the law dot com.And I guess that will just kind of lead us right into our first real segment.There is some hijinks at Harvard that Chris wrote about.
Yeah, there was some alleged protest, and I say alleged because it's not really clear if it counted.So there were a it was a group of students.They having a study group.That's the story.Oh, wow.
That's a study group at Harvard.
Yeah, you think. Um, you know, what's the, what's the saying?Staying how you got in.So yeah.So there were a group of students, they were studying in the university library.
Nothing crazy there, but it turns out some of the students were wearing, what are those scarves like?Keffiyehs?I'm not sure how to say it. Wearing Palestinian scarves, and they had some things on their laptops that said things.Like signs.
Stickers, signs, that kind of thing.
Stickers and signs, but I don't know if you've been around people in undergrad.People have stickers on their laptops all the time.
Yeah.Yeah.People have stickers on their laptops.Having a sign on your laptop isn't that far off a sticker.Sure.Especially if there's some tape on it, you know, and people wear scarves.
Like it's one thing for a student to get kicked out of a library for a dress code violation.I'm not sure what that would look like in undergrad.But these students were kicked off for protesting.And it was a silent protest, scare quotes.
They were really just studying.So it was really the fact that they were there with things on their laptop and the clothing they were wearing.
What's happening here is this is an evolution of what was going on last year, last academic year I should say, I guess it was this year in the spring.
In the spring there were a lot of on-campus protests, there were police got called in up at Columbia, there were a lot of
grandstanding folks on social media claiming that they were going to cut off all funding to schools that allowed students to protest vis-a-vis the Gaza conflict.
We had federal judges say they weren't hiring anybody from certain schools anymore because those schools didn't immediately crack heads over protests, as well as a lot of accounts
Of these protests, whether that was the general theme or not, becoming hotbeds of anti-Semitic activity just because it becomes a decent cover that you could, that bad actors can utilize to go around and just be anti-Semites.
So we had a bunch of things going on.
This now has evolved into the new year, new school year, into a situation at Harvard where they determined not to do all of the public facing protests that caused all those issues and instead have a silent study group that was a performative and symbolic group to the extent that people walking by them could see a conglomeration of people all with these same symbols, but otherwise it was non-confrontational.
And what did the school do in the face of this fairly respectful and quiet protest?
Well, the school suspended the students.That sounds right.Then at least two professors came out and wrote in the Crimson, coming at the students' aid, saying what these students were doing was studying.
This is no different from what the professors have done in the library.What's next?Are you going to punish professors? As it turns out, the school said yes.
And the professors are also suspended from the same library for reading things about the importance of having different ideas politically.But they were just reading.They were just reading the sort of stuff you'd expect students and teachers to do.
And it is so part and parcel of the enterprise of being a student and a professor at a university. If you police this, what can you do?What are the acceptable forms of dissent that are left?
I'm one of those people who has said consistently that protest is free speech, needs to be generally respected by government agents.Obviously, schools are not those things and have more latitude to do stuff.
But there's also some, even if it's not the First Amendment, some Moral reasons why a school, especially someone that's trying to be an academically open institution, would want to respect free speech.
That said, time, place, manner restrictions are entirely reasonable and necessary to facilitate the orderly process of the educational mission.
But part of embracing a world in which protest can be respected while still maintaining those sorts of respect for time, place, manner restrictions is you have to start recognizing that when protests are within those rules, they're okay.
And when the protest moves from camping outside for hours on end and making noise into silently studying in the library, you kind of have to sit back and go, good job, you've cracked the code.
You now have a protest that meets all of the necessary rules to avoid crossing the line into becoming a disruption.
Yeah, and I think that what's really interesting about how Harvard has handled this is that they seem to make it really clear that they just don't want protests on campus.Period.Right, period.Full stop.
It used to be that they didn't want disruptions, they didn't want to interfere with other people's academic journey, all which kind of makes sense within the context of a university.
But here, I think for the first time, we have a major institution saying, no, no protests.
I'm not wearing a hat right now, but hats off to any poli-sci instructor that has to talk about the black armband protests against the Vietnam War or just the raising a fist at the Olympics.
Because they'll be like, oh, these were great for their time, and they meant things.And sure, but now you can't even sit and read in a library.How do you go between those realities?
It was supposed to be happening in theory, and then in practice, you see crackdowns. Because God forbid a student walks around wearing a shirt that says something like, I don't know, stop bombing children.
Will they get in trouble for that if they're walking around wearing that shirt on campus?
Yeah, I mean, that is the thing.This opens the door to kind of a slippery slope of, as Catherine was saying, there's one thing to say we want to maintain an orderly, again, orderly campus, quiet.
And it's another to try to push that rule to squelching all forms of protest.And when you get Down that road, it becomes a really dangerous road and one that gets to the slippery slope issues that Chris was just talking about.
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I think we have some more things to say about law school life.
President Donald Trump, during one of his campaign stops, was introducing his daughter, Tiffany Trump, who, you know, regular readers of Above the Law certainly are aware, is a graduate of Georgetown Law Center, and introduced her saying that she graduated number one in her class.
That seems hard to do. It is, it is particularly- Almost impossible to do even.
It actually is because Georgetown doesn't rank their law students.
Yeah, and that sounds about right.
Well, to be fair, and this is the part that I find interesting, and oh, this feels strange to say, but in Trump's defense, For years now, U.S.news world ranking has been having like Yale, Harvard, and Stanford as a tie.
And if they can say all those schools are number one, and all the graduates from California are unranked, then that's number one, damn it.
I mean, they do have an honors designation for certain graduates who, whatever, meet these standards.And to be clear, Tiffany Trump is not on the list of students that have graduated with honors. Yeah.
Everyone's equal, but there are some people that are more equal when they graduate.
And the thing of it that gets me, you know, part of it, you almost want to think like, oh, like it's just a good dad bragging on their kid, because that's the sort of thing that I'm sure millions of parents might do on behalf of their child, talking them up, not really understanding, you know, the nuances of their
job or life or school or whatever it is and saying something, it's like that's not as nearly as that's way better than what I'm actually doing here, dad.
But but, you know, it's different when you're running for president and you're in the midst of what I think we've documented as a pretty clear cognitive decline.It just it's not it's not great.
Ranking of students is kind of dumb anyway.Your grades are your grades.Law firms are capable of, and other employers are capable of looking at them and divining how good a student you are.
It is not particularly necessary for a school to go through and explain how one set of a bunch of A's is slightly ahead of another set of bunch of A's. it's not useful on that front.
Like, look, I get valedictorians and stuff like that, but at a certain point, the ranking doesn't actually matter.
Your consistent success- The difference between the 110th student and the 120th student probably is nonexistent in a real way.
And grades, you know, we can figure out what grades mean.And they mean different things in different contexts.If I'm hiring somebody for a particular task, you know, if I'm hiring a contracts lawyer,
There's somebody to be on my m&a group if they are great across the board, but had a really bad grade in crim law I'm not all that worried about that.
They're not going to be practicing that and God willing my general counsel will keep them out of being a criminal on the other hand but That's a thing.There's no real reason to be going down the road of ranking law students anyway.
And so good that Georgetown doesn't do that.And poor Tiffany.We've generally at Above the Law had a more lenient attitude towards Tiffany.We feel kind of bad for her.
She seems to have more or less tried to go about her life in a relatively normal way and has been dragged into this because of
Yeah.Yeah.Which, yeah, it's never great.So, yeah.But that was a big story of the last week.So we wanted to touch on.
I mean, I think that it's kind of an interesting kind of slice of election stories.And I'm sure we'll be covering them more sort of over the next week and a half or so as we get gear up for Election Day.
But I think our philosophy at Above the Law has always been to try to find the legal aspect. of it and bringing up things like, actually, that's not a law school that ranks its students.
So even if you were to believe that she were the best at Georgetown Law, that wouldn't be the designation that she would have at all.
Well, let's just see if she gets a federal judgeship if you were to win.And look, you would say that's ridiculous, she just graduated law school.But I mean, we saw with Judge Beisel, he's not above
putting people on the bench when they're mere associates who just got done with their clerkship, so.
Yeah, it could happen.It could happen.Yeah.
Hey, I mean, I think further than that, like Barrett's on the court with like no experience.Well, Barrett was on the Seventh Circuit brief for a while.But comparatively.Comparatively, I mean.
I don't know, like, and she's a law professor for a long time.Like, I don't find her resume as galling as some of these other folks.I'm also one of those people.
Well, I see.And I'm one of these people who this is actually an interesting conversation that is a we've gone a little afield of Tiffany, but whatever.
There is definitely – and whenever there's a new nominee for something, there's always pushback at the Judiciary Committee, especially if it's not somebody who's a career prosecutor or had been a state judge or something like that.
And it bugs me because I do think that one of the – while you do want people with experience, I do think that the federal judiciary is weaker for its reliance upon people with those backgrounds.
Well, I think a couple of things.I think, first of all, once you start building up and have a critical mass, it's easier to compare resume to resume and say, well, they've had X number of years here.They've had Y number of years here.
So I think that there's part of a natural kind of human tendency to categorize that as part of it. But that's not entirely true, right?Like, Kagan didn't have a traditional path to the court and didn't get this kind of pushback, right?
Like, even Antonin Scalia said, you know, that she was an incredible mind and was happy to share the bad news with her.
And that's the thing.I think... I think her path from academia into the Supreme Court would have been bumpier, but for A, the solicitor general role, and B, Scalia explicitly saying, this is who I want the liberals to take.
I think that greased a lot of those wheels.And I think for the better.I think we do want people who have been law professors on the court more. people from private practice, but not necessarily the same practice groups that keep producing people.
And defense attorneys, which is the first time we had that in a good long while, currently.
Well, or public defenders, at least, anyway.I mean, we do have lots of defense attorneys, but there are defense attorneys who are former prosecutors who do white-collar work and stuff like that, which, hey, look, not gonna knock that.
That's a perfectly good career.I enjoyed it.
You can we can diversify a little bit and so I do think that for all the problems with Barrett I kind of do support the idea that we pulled somebody from academia gave them a couple years on a appellate court yeah you know.
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So speaking of the Supreme Court, I've heard of them.Yeah, it's a weird thing.It's also kind of an election story.
I wrote about a series of three states that have decided to have ballot referendums about gay marriage, which one would think they wouldn't need to do at this juncture. Yeah, you know, and maybe they wouldn't.
But the Supreme Court, I think, has made pretty clear in the Dobbs decision that that is not the only right that they're potentially going after, right?
The Alito majority calls makes analogous same-sex marriage and same-sex sexual consensual contact and contraception makes these all sort of as not deeply rooted in history rights that are therefore necessarily suspect.
And the concurrence that Clarence Thomas wrote specifically said that he thinks that the Supreme Court should revisit those bits of precedence.So California, Colorado, and
Hawaii at various points had written into their state constitutions that marriage was limited to only opposite-sex couples.But obviously, that didn't matter once Obergefell came down, and that was the new law of the land.
But if the Supreme Court is potentially going to revisit that, those states would like to clean up their constitutions.
Yeah, on the one hand, good that they're doing it bad that it seems like it's for a scary reason.
On the other hand, there is something to be said for and this goes back to kind of the old school, critical legal studies argument that there is an advantage to a world in which
The court is no longer relied upon as the sole arbiter of where rights are and there is value in a world where we understand that there's kind of a one might say hollow hope of relying upon the courts and that state legislatures shouldn't.
Basically shrug off the job of protecting people's rights by saying and we'll leave that to courts because courts are not Responsive to the electorate at least directly and you know can do kind of dangerous things with more repercussions in like the you you good example with dobs like they can put out opinions that have broader repercussions than just what they're dealing with whereas state statutory fixes don't necessarily have that so it is
Go in or amendments in this case so in on the one hand that's good it's also i think good.In that we all i think everyone looks a little askance at states like what was it mississippi that like.
Finally passed a law about desegregating like a couple years ago because. It wasn't really necessary, but it's also one of those things that the longer it lives on your books that you haven't done that, the more a little worrying it is.Sure.
I mean, I think a couple of things, you know, state legislators and state governments have finite resources.There's only so much time, so much money, so much effort that can be put into things.
Why spend time, money and effort doing something that has already been done on the federal level?And I think that what the lessons of Dobbs is that you really have to clean this nonsense up.
You know, there are all these zombie laws that came into effect post Dobbs.And I think that the lesson that people have rightly taken away is don't be caught flat-footed.
And I think that it's good that, you know, folks, activists are taking that lesson to heart, at least in those states.
Well, we'll see how all of that plays out in the next couple of weeks then.
Yeah, yeah, I'm sure we'll have some interesting things to say before it's all said and done.
Well, with all that said, I think we've come to the end of another episode.Thanks, everybody, for listening.We encourage you to subscribe to the show so you get new episodes when they come out.You should leave reviews, stars, write something.
It always helps more people find the show.You should listen to The Jabot, Catherine's other show that we talked about.I'm also a guest on the Legal Tech Week Journalist Roundtable where you can hear all my legal tech thoughts.
You should be listening to the other offerings of the Legal Talk Network, of course.You should be reading above the law because that is where we talk about, where we write about all these stories and others before we talk about them here.
You should follow on social media at ATL blog.I'm at Joseph Patrice.She's at Catherine One.He's at Rights for Rent.Over at Blue Sky, I'm just Joe Patrice.Otherwise, everything's basically the same.
And with all that said, we will talk to you all next week and happy Halloween, I guess.Peace.Peace.
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