On Tuesday, the U.S. Court of Appeals for the Fifth Circuit released the latest opinion in UT v. Fisher, the ongoing battle over the role of race-based preferences in the University of Texas at Austin’s undergraduate admissions policy. Last year, the U.S. Supreme Court ruled that the Fifth Circuit had failed to apply the proper strict scrutiny standard to its earlier review of UT’s admissions scheme. Justice Anthony Kennedy wrote the court “must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.” He cautioned that, if a non-race-discriminatory approach could bring about UT’s stated goal of a “critical mass” of campus diversity, “then the university may not consider race.” The Court remanded the case back to the Fifth Circuit. This week, two of the three judges on the Fifth Circuit panel concluded that the use of race was, indeed, necessary.
Judge Emilio Garza’s dissent (beginning on page 44) criticizes the majority opinion for deferring impermissibly to UT’s claims, despite the Supreme Court’s instruction. He writes, “Although the University has articulated its diversity goal as a ‘critical mass,’ surprisingly, it has failed to define this term in any objective manner.” He later writes, “The majority entirely overlooks the University’s failure to define its ‘critical mass’ objective for the purposes of assessing narrow tailoring. This is the crux of this case — absent a meaningful explanation of its desired ends, the University cannot prove narrow tailoring under its strict scrutiny burden.”
How much diversity is a critical mass of diversity? Is this a unit of measure like a team of oxen or a murder of crows? How can a court possibly determine whether a given policy is necessary to achieve critical mass if we don’t know what that is? UT isn’t exactly the International Bureau of Weights and Measures, but a little bit more precision would be helpful.
The concept of critical mass is problematic for many reasons. Its vagueness provides a poor measure for reviewing courts. It packs in several dubious assumptions about the meaning of race. Here’s one more reason why “critical mass” is such a critical mess . . . .
* Man claims his former employer discriminated against him because he was an atheist. Yep, this Hobby Lobby thing isn’t going to have any repercussions at all. [Lewiston-Auburn Sun Journal]
* Speaking of atheists and SCOTUS, the Court may have authorized the Town of Greece to get all religiousy at town board meetings, but an atheist is stepping up to the plate to deliver an invocation. Freedom of religion does mean he gets a turn. [Rochester Homepage]
* There’s an icky sexual harassment story coming out of an elite L.A. school. And they’ve hired an elite law firm to investigate. [Gawker]
* Cops do hear some pretty funny stories when they pull people over. [Legal Juice]
* If you’re out of work, here’s an idea: this solicitor-to-be posted a selfie with a pigeon on Facebook and got an offer — along with a lot of publicity. [Legal Cheek]
* Is the future of legal education online? Perhaps the better question is, “How will law schools overcharge when they no longer have brick-and-mortar facilities?” [Tipping the Scales]
* A judge explains that incest and pedophilia aren’t such big deals anymore because gay people are accepted. Wow. [Jezebel]
* Are you keeping up with Kirby v. Marvel? Because Jack Kirby’s estate is making a run at the Supreme Court in a case that affects billions. Embed below… [Bloomberg]
I’m back for more, to celebrate the Fourth in style.
When asked, how do I describe my current living arrangements?
“I have an apartment in Chicago and a flat in London.”
Isn’t that odd? I automatically translate from American English — “apartment” — to British English — “flat” — as my brain imagines the transatlantic journey.
I also now naturally think in Celsius — 0 is freezing; 20 is room temperature; 35 is miserably hot — without doing a mental detour through Fahrenheit. But I still think in dollars. When I see that a half dozen eggs cost two pounds, I’m outraged that I’m being charged nearly three fifty for the item in my shopping cart. I don’t (yet) naturally think in sterling.
So I’ve generally adjusted to my new life, but things can still occasionally get spooky . . .
The ceiling of a Columbia dorm room collapsed on a student, giving her a herniated disk and persistent headaches. She claims the back injury compromised her ability to get a decent night’s sleep and forced her to take muscle relaxants to deal with the pain.
Now the newly minted lawyer is suing the school over her injuries, and the school’s lawyer is suggesting that the victim can’t really have this back injury because she kept getting good grades.
Are you tired of getting the same questions over and over again from prospective or existing clients? Should I choose an LLC or incorporation? Will I lose my house in bankruptcy? What is a power of attorney? How long will my divorce take? Rather than respond to these same questions over and over, why not school your clients instead?
These days, schooling clients is easy. With the rise of online training and college courses, a broader segment of the population is now familiar with online education. Plus, there are a variety of powerful free tools to create online educational programs to educate clients so that they’ll have a grasp of the basics.
This week, a Los Angeles County Superior Court found that five of California’s laws governing teacher retention violated the rights of schoolchildren under the equal protection clause of the California Constitution. Judge Rolf Treu issued a tentative decision in Vergara v. California, agreeing with plaintiffs that the provisions on firing public-school educators resulted “in grossly ineffective teachers obtaining and retaining permanent employment, and that these teachers are disproportionately situated in schools serving predominantly low-income and minority students.”
The United States Constitution, of course, provides no fundamental right to education. (Franklin Roosevelt’s “Second Bill of Rights” doesn’t count.) For example, in San Antonio Independent School District v. Rodriguez, the U.S. Supreme Court refused to apply strict scrutiny to a claim that the Texas funding scheme for public schools violated the equal protection rights of poor and minority students. The Court did so in part because it found no federal fundamental right to education.
The California Constitution, though, does provide for a fundamental right to education in its Article 9, Sections 1 and 5. In light of that, Judge Treu applied a strict scrutiny standard to the laws in Vergara. He concluded that the laws caused a violation of California children’s right to equality of education…
* This failed firm’s drama is the Biglaw gift that keeps on giving: Dewey & LeBoeuf’s bankruptcy trustee filed an amended complaint against Steve DiCarmine and Joel Sanders seeking the return of more than $21.8 million. [WSJ Law Blog]
* Norton Rose Fulbright elected someone who “love, love, love[s] the law firm” as U.S. managing partner, and she’s the first woman to ever serve as U.S. chair of its management committee. We love, love, love this news! [National Law Journal]
* According to a California judge, tenure laws are unconstitutional and are depriving students of the high quality of education they deserve. The end is nigh, law professors. Enjoy it while it lasts. [New York Times]
* Not all states have legalized the recreational use of marijuana, but it’d be a lot cooler if they did. The tide is turning across the United States, and we’ll soon see which states’ drug laws go up in smoke. [Slate]
* “Document review attorneys are in demand now but the demand will gradually decrease.” Sorry to be the bearer of bad news, but the one job you were able to get soon won’t need or want you. [InsideCounsel]
I agree with some of LSAC’s past policies and am happy to see others, like the flagging of score reports, go. I think that it’s hard, though, to contribute much to this conversation by worrying about people faking their way through an ADD exam . . . without knowing what an “ADD exam” means in this setting. It’s hard to move the issue forward by insisting that LSAC discourage abuse without being unfair. . . without knowing what LSAC has done in the past and why.
I’ve worked as a clinician administering many of the tests used to assess learning disabilities and difficulties, and I’ve helped individuals whose tests show they need intervention. (My favorite may be the Woodcock – Johnson Battery, just because of its name.) I currently use cognitive science to study how people best learn in law school. I may not be an authority like Dick Woodcock, but you could do a lot worse than me on a legal blog. So, I’d like to fill out the picture in the LSAC story a bit more….
I’m not sure whether or not this adds to the debate over affirmative action programs in schools, but in a truly stunning display, a student turned in a constitutional law paper on the Reconstruction Amendments with a small aside about her personal struggle with discrimination as a black woman.
Except she’s white.
Maybe she’s laying groundwork early to get on a law review somewhere other than Chicago?
If you are considering a virtual law practice, you know that many of today’s solo firms started that way. But why are established, multi-attorney law firms going virtual?
Many small firms are successfully moving part—or even all—of their practice to a virtual setting. This even includes multi-jurisdictional practice spanning several states and practice areas, although solo and small partnerships are still the largest adopters of virtual law.
Can you do the same? The new article Mobile in Practice, Virtual by Design from author Jared Correia, Esq., explores how mobile technology bring real-life benefits to a small law firm. Read this new article—the next in Thomson Reuters’ Independent Thinking series for small firms—to explore how a mobile practice:
Reduces malpractice risk
Enables you to gather the best attorneys to fit the firm, regardless of each person’s geographic location
Leverages mobile devices and cloud technology to enable on-the-spot client and prospect communication
Transitioning in-house is something many (if not most) firm lawyers find themselves considering at some point. For many, it’s the first step in their career that isn’t simply a function of picking the best option available based on a ranking system.
Unknown territory feels high-risk, and can have the effect of steering many of us towards the well-greased channels into large, established companies.
For those who may be open to something more entrepreneurial, there is far less information available. No recruiter is calling every week with offers and details.
In sponsorship with Betterment, ATL and David Lat will moderate a panel about life in-house and we’ll hear from GCs at Birchbox, Gawker Media, Squarespace, Bonobos, and Betterment. Drinks, snacks, networking, and a great time guaranteed. Invite your colleagues, but RSVP fast, as space is limited.
Ed. note: The Asia Chronicles column is authored by Kinney Recruiting. Kinney has made more placements of U.S. associates, counsels and partners in Asia than any other recruiting firm in each of the past seven years. You can reach them by email: email@example.com.
It’s that time of year again when JDs are starting to apply for 2L summer jobs and 2L summers are deciding which practice area to focus on.
For those JDs with an interest in potentially lateraling to or transferring to Asia in the future, please feel free to reach out to Kinney for advice on firm choices, interviewing and practice choices, relating to future marketability in Asia, or for a general discussion on your particular Asia markets of interest. This is of course a free of cost service for those who some years in the future may be our future industry contacts or perhaps even clients.
For some years now Kinney’s Asia head, Evan Jowers, has been formally advising Harvard Law students with such questions, as the Asia expert in Harvard Law’s “Ask The Experts Market Program” each summer and fall, with podcasts and scheduled phone calls. This has been an enjoyable and productive experience for all involved.