The Federal Lawyer: Winter 2023

Criminal Law in Ancient Greece: Draconian to Solonian

CAPITOL HILL DAY

March 23, 2023

Plan to participate in this event as FBA leaders from across the country meet with House and Senate offices to discuss important FBA legislative issues that impact the administration of justice and the federal courts. During these meetings, FBA participants will discuss issues critical to the Third Branch of government, including: adequate funding for the federal courts, filling judicial vacancies, adding new judgeships, and establishing an independent immigration court.

FBA Capitol Hill Day is becoming more popular each year. Don’t miss out on this opportunity to broaden the FBA’s visibility and influence in Congress.

Training and materials will be provided to Capitol Hill Day participants in advance of the event.

Visit www.fedbar.org for additional information and to register.

Calendar of events

January 24, 2023: An Introduction to Capitol Hill Day and FBA Advocacy Priorities (Recording available on fedbar.org)

March 20, 2023: Capitol Hill Day Preparatory Briefing (Virtual, 4:00 pm ET)

March 23, 2023: Capitol Hill Day Kickoff on Capitol Hill (7:30-9:30 am, Ford House Office Building, H2-108)

March 23, 2023: Meetings with Lawmakers and Staff (All day)

EDITORIAL BOARD

Editor in Chief Andrew Doyle andrew.doyle@usdoj.gov

Associate Editor James W. Satola jsatola@roadrunner.com

Managing Editor Heather Rigby (240) 404-6488 social@fedbar.org

Book Review Editors

Elizabeth Kelley

Peter M. Mansfield

Judicial Profile Editors

Hope Forsyth

Hon. Karoline Mehalchick

Articles Editors

Kristine Adams-Urbinati

Anna Archer

Sara L. Gold

Niles Illich

Jon Jay Lieberman

Bruce A. McKenna

Jeffrie Boysen Lewis

Amanda Thom

Stewart Michael Young

Columns Editor Ira Cohen

Senior Proof Editor

Ellen M. Denum

Proof Editors

Melanie L. Alsworth

Tamar Rebecca Birckhead

John Black

Leonid Feller

Reid Jones

Michelle Quist

Kirsten Samantha Ronholt

Benjamin R. Syroka

The Federal Lawyer (ISSN: 1080-675X) is published bimonthly six times per year by the Federal Bar Association, 1220 N. Fillmore St., Ste. 444, Arlington, VA, 22201 Tel, (571) 481-9126, Fax (571) 481-9090, Email: social@fedbar.org.

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Editorial Policy: The views published in The Federal Lawyer do not necessarily imply approval by the FBA or any agency or firm with which the authors are associated. All copyrights held by the FBA unless otherwise noted by the author. The appearance of advertisements and new product or service information in The Federal Lawyer does not constitute endorsement of such products or services by the FBA. Manuscripts: The Federal Lawyer accepts unsolicited manuscripts, which, if accepted for publication, are subject to editing. Manuscripts must be original and should appeal to a diverse audience. Visit www.fedbar.org/ tflwritersguidelines for writers guidelines.

By Ira Cohen

By Jona Goldschmidt

Improving Law School Engagement

By Matthew Moschella

Matthew C. Moschella

is chair of the Litigation Department at Sherin and Lodgen and a partner in the firm’s Litigation and Employment Departments. He represents companies and individuals in a wide variety of civil matters in state and federal courts across the country as well as in arbitration proceedings. Moschella also represents employers concerning complaints filed against them with state and federal administrative agencies. In addition to representing clients in various types of civil litigation, he counsels clients in a wide variety of industries on employment risk management issues. Moschella is also an adjunct professor at New England Law Boston, where he teaches contract drafting. Following law school, he was a law clerk to Hon. Judith Gail Dein, U.S. magistrate judge, U.S. District Court for the District of Massachusetts.

This edition highlights the great efforts of three groups within the FBA that have worked, and are continuing to work, collaboratively to advance the goal of increasing the FBA’s law school presence throughout the country. Those groups are the Law School Engagement Working Group; the Circuit Vice Presidents; and the FBA’s fantastic staff. Following the National Board of Director’s vote in October to make law student membership free for a student’s entire time in law school and one-year post-graduation, these three groups have been able to create and implement a comprehensive and methodical plan to connect with every American Bar Association accredited law school in the country and take steps to increase the FBA’s presence at each school within the next few years.

The Law School Engagement Working Group is a newly formed group that meets monthly to talk about how to best engage law students. The group is composed of:

• The FBA’s three national officers;

• The chair and co-chair of the Circuit Vice Presidents;

• The chair and co-chair of the Section/Division Council;

• The chair and co-chair of the Membership Committee;

• The chair of the Judiciary Division (and several members of the division);

• The chair of the Clerk’s Committee;

• The chair of the Law Student Division;

• The chair of the Younger Lawyers Division; and

• Staff Liaisons Stacy King and Mike McCarthy.

Working together, this group created the Law School Status Report template below. The group’s plan and expectation is that each professional chapter’s law school liaison will submit the report on a monthly basis to the professional chapter’s assigned chapter vice president. The group has recognized that there will likely be different levels of engagement and involvement by different law schools at different times. Accordingly, the group has nominally identified five phases of law school participation and the report is designed to gauge each law school’s status and progress towards the next phase each month.

Phase A is entitled “Exploration/Confirmation” and has a target completion date of Feb. 2, 2023. During this phase, the professional chapter’s law school liaison will make first contact with the law school to:

(a) Determine if the law school has an existing FBA student chapter;

(b) Determine if the law school group is in good standing with regard to school requirements;

(c) Determine if the law school group has an organized leadership structure;

(d) Determine if the law school group has a faculty liaison; and

(e) Determine if law school currently permits an FBA professional chapter member to attend student orientation/initial meetings to promote the FBA and suggest students become members.

Phase B, entitled “Formation,” has a target completion date of March 1, 2023. During this phase, the professional chapter’s law school liaison will:

(a) Work with the school/students to generate interest in having an FBA student chapter;

(b) Communicate with the law school to determine requirements for a group to be in good standing with regard to school requirements;

(c) Identify potential student leaders for the group;

(d) Identify and establish a faculty liaison;

(e)Work with student leadership to ensure a leadership ladder/succession plan is in place;

(f) Determine if the law school will permit an FBA professional chapter member to attend student orientation/initial meetings to promote the FBA and suggest students become members.

(g) Determine if the law school will participate in Judicial Intern Academy, which is a summer internship program overseen by the Judiciary Division that provides learning opportunities for rising 2L students who are unable to devote the summer to a full-time, 40-hour per week judicial internship. The student commits to 20 hours each week. Each intern is paired with a former federal judicial law clerk who has agreed to serve as that intern’s advisor during the internship.

Phase C has a target completion date of March 15, 2023, and is entitled “Promotion.” During this phase,

the professional chapter’s law school liaison will work with the FBA student leadership at the law school to generate broader student interest in the FBA student group.

Phase D is entitled “Programming” and has a target date of April 1, 2023. During this phase, the professional chapter’s law school liaison will work with the law school’s FBA student group to plan events at the law school and with other local law schools as professional chapter-wide events. The professional chapter’s law school liaison will also work with local courts and law school(s) on the Judicial Intern Academy and communicate with a professional chapter representative who liaises with local federal courts for this program.

Phase E is the final phase, and the one where the group would like to see all law schools within the next few years. It is entitled “Ongoing” since the phase contemplates that there will be indefinite ongoing synergy between the FBA and the law school. During this phase, the professional chapter’s law school liaison will remain in contact with the law school faculty liaison and student leadership to ensure that the student group remains in good standing with regard to its school requirements; remains active; has leadership succession; is continuing to recruit new student members; and has active programming.

Upon first contact, some schools may already be at phase B or above, and that is great. If so, the professional chapter’s law school liaison will work with the school to advance to the next phase. Also,

the group recognizes that not every item in each phase will be feasible at every law school, and that is fine. The overall goal is to increase the FBA’s presence at each law school, so whatever works with any particular school in any particular circumstance is great and more than accomplishes the group’s goal.

The reports were disseminated by the chapter vice presidents to the professional chapters in December of last year, and the first scheduled submission date is the end of January. The LSEWG is looking forward to receiving the reports each month as they will guide the continued outreach approach. The group also has created a chart with all ABA accredited law schools and is tracking progress for each one. The reports will play a key role in this process.

If you are a professional chapter leader and have not yet assigned a law school liaison to connect with law schools in your professional chapter’s geographic region, please assign someone as soon as you can. Also, if you have not yet connected with your CVP or obtained the report template, please contact your CVP. If you are a law student or work at a law school and are interested in furthering the FBA’s involvement with your school but have not yet connected with your professional chapter’s law school liaison, please contact either your professional chapter’s leadership, or me, and we will get you to right place.

Federal Bar Association Monthly Law School Status Report

Date: Law School Chapter: Professional Chapster:

Submitting Professional Chapter Liaison: Circuit/Circuit Vice President:

(a) Determine if the law school has an existing FBA student chapter

(b) Determine if the law school group is in good standing with regard to school’s requirements

A

(c) Determine if the law school group has an organized leadership structure

(Exploration/ Confirmation)

(d) Determine if the law school group has a faculty liaison

(e) Determine if law school currently permits FBA professional chapter member to attend student orientation/initial meetings to promote the FBA and suggest students become members.

(a) Work with school /students to generate interest in having an FBA student chapter

(b) Communicate with law school to determine requirements for group to be in good standing with regard to school’s requirements

(c) Identify potential student leaders for the group

B (Formation)

(d) Identify and establish a faculty liaison

(e)Work with student leadership to ensure leadership ladder/ succession plan is in place

(f) Determine if law school will permit FBA professional chapter member to attend student orientation/initial meetings to promote the FBA and suggest students become members.

(g) Determine if law school will participate in Judicial Intern Academy

C (Promotion)

D (Programming)

E (Ongoing Activity/ Collaboration)

Work with FBA student leadership to generate broader student interest in the FBA student group

Work with FBA student group to plan events at the law school and with other local law schools as professional chapter-wide event

Work with local courts and law school(s) on the Judicial Intern Academy and communicate with chapter representative who liaises with court on this program

Remain in contact with law school faculty liaison and student leadership to ensure group remains in good standing with regard to its school’s requirements; remains active; has leadership succession; is continuing to recruit new student members; and has active programming

A Government Relations Review and Preview

By Cissy Jackson and Dan Renberg

Taking a cue from the ancient Roman god Janus, in this issue we will look back at the FBA’s government relations efforts and accomplishments in 2022 and look ahead to our priorities and plans for 2023.

Early in the year, the FBA’s Government Relations Committee reorganized its Policy Priorities website to distinguish between Advocacy Priorities (also known as the Issues Agenda), Public Policy Core Principles, and Public Policy Position Statements. As the name suggests, the first category pertains to issues in which the FBA is actively engaged in advocacy. In 2022, FBA members supported legislation to increase judicial security, amend the FBA Foundation’s Charter, add seats to the federal bench, create an independent immigration court, and provide sufficient funding for the federal courts.

Cissy Jackson served as counsel and national security adviser to Sen. Doug Jones, D-Ala. before joining ArentFox Schiff. She also has extensive experience in the private practice of law, handling white collar, False Claims Act, grand jury investigation, and commercial property tax appeal matters. Jackson has represented multinational corporations, small businesses, and individuals in high-stakes civil and criminal litigation.  Dan Renberg, a former senior Senate staff member and presidential appointee, has helped numerous clients since joining ArentFox Schiff as a partner in 2003. Recognized as a top federal lobbyist, one of Renberg’s advocacy efforts was included as one of the “Top 10 Lobbying Triumphs of 2009” by The Hill, and he has been listed annually since 2014 in The Best Lawyers in America.

In 2022, the committee achieved two of its top advocacy priorities and made significant progress toward a third. In doing so, the committee mobilized dozens of individual FBA members and collaborated with other stakeholder groups to make hundreds of connections with elected representatives across Capitol Hill in person, on video, by phone, and by email.

The FBA played a pivotal role in the enactment of the Daniel Anderl Judicial Security and Privacy Act by demonstrating the significance and urgency of the legislation through a sustained campaign that began with virtual Capitol Hill Day meetings followed by letters, emails, and additional meetings throughout the year, until Congress presented the bill to the President as part of the National Defense Authorization Act on December 22. With outside counsel, and inspired in particular by Judge Esther Salas, the FBA assisted the Federal Judges’ Association, the National Conference of Bankruptcy Judges, the Federal Magistrate Judges’ Association, and the Administrative Office of the U.S. Courts in showing their members’ support as well. The list of FBA members who participated in this effort is too long to include here, but we congratulate and thank each of you for your contributions. The importance of the Anderl Act to our federal judiciary and to our federal legal system cannot be overstated. As Judge Roslynn Mauskopf, director of the AO,

has said, “Our democracy depends on judges who are free to make decisions without fear of reprisal or retribution… [The Anderl Act] recognizes the unique position judges occupy and will help protect them and their family where they are most vulnerable, at home.” Not resting on our laurels, in 2023, we intend to work to ensure that Congress appropriates sufficient funds to fully implement the protections provided by the Anderl Act.

FBA also made some inroads in its lengthy effort to amend the FBA Foundation’s Charter, which necessitates an act of Congress because Congress bestowed the Charter in 1954. Although the Charter Amendments bill passed the House, as it has in previous Congresses, it encountered strong headwinds in the Senate, as has also happened in the past. With persistence and help from FBA members with close relationships to their members of Congress, FBA identified the source of the Senate “holds” and is looking forward to resolving any residual Senate concerns in the 118th Congress. This will undoubtedly require assistance from FBA members in several key states.

The FBA considers it a win that Congress’ appropriations for the judiciary—$8.573 billion—exceeded the previous year’s total enacted amount by almost $587 million, even though the amount was slightly less than the AO’s request of $8.641 billion. We are monitoring carefully the comments both sides are making in this new, divided Congress regarding the upcoming FY2024 budget/appropriations process and possible restraints on federal spending, and we will be working hard to convince both parties of the need to support the federal courts robustly.

Two of the FBA’s Advocacy Priorities, the addition of new federal judgeships and the creation of an independent immigration court, did not receive significant Congressional attention during 2022. Based on recent conversations with relevant players, we anticipate reintroduction of those bills, and we intend to keep them at the top of our list for 2023. Notwithstanding a drop in filings in 2022 as reported by Chief Justice Roberts, and as many of you know from personal experience, our federal courts are still facing enormous

caseloads, and the backlog is adversely impacting both access to and the administration of justice. As some of you also know, the FBA has spent years helping draft legislation, using Congress’ Article I power, to establish an independent immigration court. An independent immigration court would provide needed transparency regarding removal proceedings, judge conduct, and discipline and would free judges to manage their caseloads without the political pressure that accompanies their current place in the Department of Justice. The FBA continues to believe that both these issues can and should be addressed by Congress, and we invite each FBA member to join us in working to focus Congressional attention on them this year.

When constituents convey their priorities appropriately and persistently, members of Congress pay attention. A new Congress presents new opportunities to establish the FBA further as a trusted, nonpartisan adviser on issues affecting the federal legal system and the administration of justice, and the FBA is ideally positioned to speak on behalf of public and private federal practitioners, the federal judiciary, and the public. With seven new senators and 74 new representatives from Alabama to Wyoming, as well as new leadership on many House and Senate committees, the possibilities for developing and strengthening the FBA’s relationships with Congress abound. We encourage all FBA members—especially members from those jurisdictions with newly elected representatives—to join us for Capitol Hill Day on March 23 and to keep your eyes on your inboxes for requests for your assistance throughout the year. 

Editorial Policy

The Federal Lawyer is the magazine of the Federal Bar Association. It serves the needs of the association and its members, as well as those of the legal profession as a whole and the public.

The Federal Lawyer is edited by members of its Editorial Board, who are all members of the Federal Bar Association. Editorial and publication decisions are based on the board’s judgment.

The views expressed in The Federal Lawyer are those of the authors and do not necessarily reflect the views of the association or of the Editorial Board. Articles and letters to the editor in response are welcome.

HYBRID QUI TAM CONFERENCE

FEBRUARY 16-17, 2023

New Frontiers: Redefining the Landscape of the FCA

Join

This annual event, dubbed “the Oscars for False Claims Act nerds” by a 2020 panelist, provides timely perspectives from all sides of the FCA ecosystem: prosecutors, relator-side attorneys, defense counsel, inspectors general, federal judges, and in-house counsel.

Register Today at https://www.fedbar.org/event/quitam23

Finding the Route to Post-Pandemic Attorney Wellness Through Service

By Anna Archer

The pandemic intensified stress levels for many lawyers, and returning to normal—already elevated—stress levels is a slow process. While not a panacea, many specialists recommend that those who are experiencing greater than normal levels of stress focus more on self-care. This column will first discuss the pandemic’s impact on the mental health of attorneys. It will then introduce the “wheel of self-care” and discuss specific ways lawyers can improve outcomes on some of the spokes of the wheel through service to others.

Pandemic’s Impact on Attorney Wellness Law

is unquestionably a stressful occupation. Most people who enter this field are perfectionists, and practicing lawyers frequently deal with issues that have profound effects on the lives of their clients, making the drive to be perfect even stronger.1 This contributes to an increased prevalence of depression, anxiety, alcoholism, and burnout in the profession. Prior to the pandemic, at least 21% of licensed lawyers were problem drinkers, 28% struggled with depression, and 19% exhibited anxiety symptoms.2 These numbers are significantly higher than the percentage of Americans, in general, who misused alcohol or suffered from anxiety and depression during the same timeframe: 14% of Americans were considered “problem drinkers,”3 8% of Americans over the age of 12 had moderate to severe depression,4 and 18% of Americans had an anxiety disorder5 (with 4% considered severe).6

The pandemic had a major impact on the mental health of Americans. Mental Health America reports that use of its online screening tool for anxiety increased 634% from January to September of 2020, and use of the depression screening tool increased 873%.7 In 2020, 8.4% of American adults had a major depressive episode, with many of these episodes left untreated.8 According to the CDC, the “average anxiety severity score increased 13% from August 19-31, 2020 to December 9-21, 2020,” and the “average depression severity score increased 14.8% from August 19-31, 2020 to December 9-21, 2020.”9 No statistics are available indicating that the already higher percentages of depression, anxiety, and alcohol abuse in

the lawyer population increased, or that the severity of those challenges increased for lawyers; however, since studies have found that lawyers are more likely than people in other occupations to suffer from depression and anxiety, and some studies indicate that lawyers are five times more likely to abuse alcohol than those in the general population, it is fair to conclude that the pandemic was rough on the mental well-being of lawyers.10

This conclusion is supported by pandemic-related statistics for broader categories of mental health concerns that adversely impact lawyers. In a survey conducted by The American Lawyer in 2021, 70% of lawyers reported that the pandemic had a negative effect on their mental health.11 Those who reported a decline in well-being often felt they could not disconnect from work and reported a heavier workload and more trouble focusing at work than those who did not have a decline in well-being during the pandemic.12 Additionally, according to a recent Workload and Hours survey conducted by Bloomberg Law, “lawyers have consistently felt burnout at their jobs at least 44% of the time since January 2021.”13 While that percentage decreased throughout 2022, it is still concerning. These statistics signal to employers the importance of emphasizing more wellness initiatives to ensure a healthy workforce and caution lawyers to consider ways to improve their mental well-being.

The Wheel of Self-Care

The statistics reiterate that lawyers already have stressful jobs, and the pandemic made it even harder. But what is the solution? While reading a column in The Federal Lawyer cannot alleviate the readers’ stress levels, perhaps it can provide some insight. Most people, including lawyers, will concede a need to do a better job at self-care, but figuring out practically how to fit that into a busy schedule is more challenging. The “wheel of self-care” may help.14

This wheel is comprised of six categories—or spokes—of self-care: physical, personal, mental, emotional, spiritual, and professional. While these categories are mostly self-explanatory, examples of the

Anna Archer is a member of the editorial of board of The Federal Lawyer and serves on the board of directors for the Southern District of Texas Chapter. She is a career law clerk for Sr. Judge Gray H. Miller in the Southern District of Texas. In her spare time, Anna hosts a podcast for the Houston Bar Association called “Behind the Lines: The Houston Lawyer Podcast,” and she learned about the wheel of self-care from a guest on that podcast.

types of activities that may be of interest to lawyers and also fulfill each category are as follow:

• Physical: exercising, getting enough sleep, going to the doctor regularly;

• Personal: setting goals, budgeting, connecting with people at work, spending time with family;

• Mental: journaling, talking to a confidant about stressors, relaxing, going to therapy;

• Emotional: laughing, crying, finding a hobby, forgiving;

• Spiritual: meditating, doing pro bono work, volunteering; and

• Professional: taking time for lunch, setting boundaries, taking a vacation.15

Lawyers are busy. Thinking about what one should be doing to improve one’s mental health can be overwhelming, mostly because it is often a low-level priority. But taking a few minutes of time to sit down and make out a list—or draw a wheel—noting areas where selfcare needs are being met and areas where small changes might make a big difference is a worthwhile exercise.16

Alleviating Stressors by Helping Your Community

Helping our neighbors is part of our national identity,17 and being a part of that tradition improves multiple spokes of the wheel of selfcare, including the emotional and spiritual spokes. Certainly, service to others is not an answer to all of the challenges lawyers face that have intensified due to the pandemic and associated stressors, but continuing the tradition of service to our community is one way in which lawyers can practice self-care and improve their mental well-being.

Taking a pro bono case is a traditional form of giving back that is often encouraged by firms and bar associations, but there are times when lawyers, particularly those who are most in need of a mental health boost, do not have the bandwidth to take on a case.18 It is also sometimes difficult for those who work in the federal judiciary to find pro bono opportunities that do not conflict with ethical standards.19 There are, however, other ways lawyers can give back to their communities that will also help with general emotional fulfillment levels.

Volunteering at Your Local, State, and National Bar Associations

One way to give back to one’s community, that would also boost the personal and spiritual spokes of the wheel of self-care, is volunteering through local, state, and national bar associations. For example, most bar organizations offer continuing legal education opportunities, and by volunteering for a committee or group that plans these programs, lawyers can give back to the legal community and also interact with other attorneys. Local bar organizations also often offer opportunities to work with other lawyers on community service projects, such as volunteering at a food bank, cleaning up a park, or building a house for Habitat for Humanity. These are usually short-term commitments that are easy to work into one’s schedule, and working together with other lawyers to make the world a better place for people in your community can significantly improve several spokes in the self-care wheel.

Formal and Informal Mentoring Programs

Another way to give back and improve the emotional, spiritual, and personal self-care spokes is by participating in formal mentoring

programs or informally mentoring a student, new associate, or young lawyer. The amazing benefits to mentees who find the right mentor are well known, but lawyers at all levels who act as mentors also benefit by gaining self-esteem, leadership skills, and confidence while playing a role in the careers of younger lawyers or law students.20 Generally, mentoring does not require a large time commitment, but the wisdom more seasoned mentors have gained along the way is invaluable to younger lawyers and students—who often are uncertain about the same decisions that their mentor, or those in their mentor’s network, made years ago. Hearing about how others have handled these challenges is immensely helpful to the mentee, and watching a mentee be successful and thrive is extremely rewarding to the mentor.

There are multiple types of mentoring opportunities for those who are interested in this method of boosting the levels on their wheels of self-care. Informal mentoring usually happens organically, but spreading the word that one is willing to help encourages these mentoring relationships to develop. As to formal mentoring, many law schools, firms, and organizations have programs and are in need of alumni or employee volunteers. Additionally, local, state, and national bar associations usually have mentoring programs.21 For example, the Federal Bar Association has a Lift Up Leaders Mentorship Program that focuses on “creating pathways to leadership in the professional community as well as in the association.”22

Know When to Say No

The wheel of self-care looks different for everyone, and lawyers should consider the extent to which they are able to take on additional obligations. It is imperative not to lose sight of the forest for the trees—the end goal is to take care of oneself and be a healthier and happier lawyer. If planning a vacation to fulfill the personal spoke or going to a networking event to improve the professional spoke causes more stress than benefit, there are likely ways to improve those spokes that fit within the comfort level of the individual lawyer; everyone is different. Importantly, remember that overcommitting may cause more harm than good. Know when to say no—which, by the way, improves the professional spoke of the wheel.23

Considering how to improve the spokes on the wheel of self-care, as modified to fit each lawyer’s own personal style, is an important tool in warding off the stressors inherent in this profession. For lawyers who find that attempting to improve the spokes on the wheel is not enough, and are feeling overwhelmed, depressed, or burned out, resources offered by each state’s lawyers’ assistance program, employee assistance programs, or peer-to-peer support groups like the Lawyers Depression Project, may help.24 Help is available. And if your levels on the wheel are mostly full, maybe you can lend a hand to a lawyer who is struggling through one of these programs and boost your spiritual spoke a bit more. We may at times be adversaries, but we are all human beings, and we are in this profession together. 

Endnotes

1Leslie A. Gordon, How Lawyers Can Avoid Burnout and Debilitating Anxiety, ABA J. (July 1, 2015, 6:00 AM).

2See Kendra Brodin, On the Heels of a Global Pandemic, WellBeing Week in Law Is More Important Than Ever, ABA J. (May 3, 2021, 9:00 a.m.); see also ABA Nat’l Task Force on Lawyer Well-Being, The Path to Lawyer Well-Being: Practical Recommendations for Positive Change (2017)

Winter 2023 • THE FEDERAL LAWYER • 9

(recommending positive changes to help reduce these statistics). Another study found that lawyers suffered depression 3.6 times more than those in 100 other studied occupations. See Gordon, supra note 1 (citing a 1990 Johns Hopkins University study).

3Associated Press, 33 Million Americans Are Problem Drinkers, or 14 Percent of U.S. Adults, Wash. Post (June 8, 2015).

4Which Americans Suffer Most from Depression?, CBS News (Dec. 3, 2014).

5Jamie Ducharme, A Lot of Americans Are More Anxious Than They Were Last Year, a New Poll Says, Time (updated May 8, 2018, 9:36 PM).

6Neighborhood Psychiatry & Wellness, Why 75 Percent of Anxiety Sufferers Fail to Get Proper Care, Psych. Today (Aug. 13, 2018).

7Number of People Reporting Anxiety and Depression Nationwide Since Start of Pandemic Hits All-Time High in September, Hitting Young People Hardest, Mental Health Am. (Oct. 20, 2020).

8Major Depression, Nat’l Inst. of Mental Health (Jan. 2022); Depression Facts & Statistics, Anxiety & Depression Ass’n of Am. (July 5, 2022).

9Haomiao Jia, et al, National and State Trends in Anxiety and Depression Severity Scores Among Adults During the COVID-19 Pandemic—United States, 2020-2021, CDC (Oct. 8, 2021).

10See Billie Tarascio, Depression Among Lawyers: The Statistics, Modern Law Practice, (last visited Nov. 16, 2022) (discussing a study from Johns Hopkins University published in the Journal of Occupational Medicine); Silent Suffering in the Courtroom: Lawyers Substance Abuse, Addictions.com (Sept. 16, 2021).

11Dylan Jackson, Legal Professionals Were Already Struggling with Stress and Isolation, and the Pandemic Has Made Things Much Worse, Am. Law. (May 3, 2021, 5:00 AM).

12Debra Cassen Weiss, Surveyed Lawyers Report They Experience Burnout in Their Jobs More Than Half the Time, ABA J. (Mar. 8, 2022, 8:43 AM), (discussing the Bloomberg Law survey from the last quarter of 2021).

13Jessica R. Blaemire, Analysis: Attorney Burnout Abating, but Not Extinguished, Bloomberg L. (Sep. 19, 2022, 4:00 AM). The sample size for this survey was 638 attorneys. Id.

14Thanks to Alicia Freeman of Texas Lawyers Assistance Program (TLAP) for introducing the author of this column to the Wheel of Self-Care on the Behind the Lines: The Houston Lawyer Podcast See Behind the Lines: The Houston Lawyer Podcast, Overcoming the Impact of Vicarious Trauma, Hous. Bar Ass’n, at 51:44 (Aug. 31, 2022). While this column relies on the wheel used by TLAP, there are other versions of the wheel that categorize the self-care concepts embodied in the wheel differently. Whichever version one chooses, organizing self-care needs into categories is helpful.

15Id.

16E.g., Jeremy Sutton, The Self-Care Wheel: Wellness Worksheets, Activities & PDF, Positive Psych. (Aug. 13, 2020).

17See Robert W. Gordon, The Citizen Lawyer—A Brief Informal History of the Myth with Some Basis in Reality, 50 William & Mary Law. Rev. 1169, 1181 (2009) (discussing how “American lawyers have an exceptionally robust tradition of public service and public involvement”).

18Consider, also, that not all pro bono work involves taking an entire case. Local bar associations may offer opportunities that require less time commitment such as a will-a-thon or helping seal juvenile records.

19E.g., Fed. Jud. Ctr., Maintaining the Public Trust: Ethics for Federal Judicial Law Clerks 20-21 (4th ed. 2013) (“You may act pro bono in certain civil cases (although you may not enter an appearance in any state or federal court or administrative agency).”).

20See Nicola Cronin, The Positive Impact of Mentoring on Mental Health, Guider (Feb. 3, 2022); see also Jonathan B. Amarillo, A Virtuous Cycle: The Mutuality of Mentoring, Chi. Bar Ass’n, Rec. 48 (Oct. 2014) (“What many non-mentors don’t realize, however, is that the personal development that attends mentoring is mutual.”); Elizabeth A. Wright, Survey Says . . . Mentors Reap Benefits of Mentoring, Utah Bar J. 35 (July/Aug. 2012) (“The benefits of mentoring include building leadership skills, expanding horizons, revitalizing an interest in one’s own career, and expanding one’s professional network.”).

21E.g., State Mentoring Programs, Am. Bar. Ass’n (last visited Nov. 21, 2022).

22Lift Up Leaders Mentoring Program, Fed. Bar Ass’n (last visited Nov. 18, 2022).

23See Martha M. Newman, Take Control: How to Prioritize Your Schedule and Get Marketing Results, 80 Tex. Bar J. (Sept. 2017) (“Train yourself to confidently say, “No” to participation in outside activities that compete for your valuable time and do not qualify as priorities.”).

24See Brian Cuban, The Lawyers Depression Project: A Support Group for Legal Professionals, Above the Law (Oct. 10, 2022, 11:00 AM); see also, e.g., Texas Lawyers’ Assistance Program; California Lawyer Assistance Program; New York Lawyer Assistance Program; Illinois Lawyer Assistance Program.

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•Promote and support legal research and education

•Advance the science of jurisprudence

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Your Foundation at Work

By Aaron Bulloff

In my first column, I discussed what the Foundation of the Federal Bar Association is. In this column, I discuss part of what the Foundation does. Simply put, the Foundation does three things: It attracts funds to add to its corpus, it invests those funds, and it disseminates some of its funds in support of its mission. I shall write about the first two aspects in future columns; this column focuses on the third.

to Barbara Bowens, an AUSA in the South Carolina U.S. Attorney’s Office.

Aaron Bulloff is a long-tenured FBA and National Council Member who has held numerous Chapter and National positions.  He is a Charter Life Member of the Foundation’s Fellows and in 2015 received the Earl Kintner Award.

Before the start of each fiscal year, the Foundation board votes upon a budget for the upcoming 12 months. For the last few years, that budget reflected a prudent amount for mission support from a foundation sized at approximately $900,000-$1,000,000. In the last two years, sizable contributions from the Federal Bar Building Corp. substantially increased the financial picture of the Foundation. Like everyone else, however, the Foundation incurred investment losses in 2022—it presently hovers in the $1.6 million to $1.75 million range, depending upon market fluctuations. At that quantum level, the Foundation was able to make a significant impact in the last year.

The Known Past Continued Support

The Foundation continued to fund and present four annual public service awards at the FBA’s National Convention. They are the Ilene and Michael Shaw Public Service Award, the Ilene and Michael Shaw Younger Lawyer Public Service Grant, the Elaine R. “Boots” Fisher Award, and the Peter J. Mazza Outstanding Federal Lawyer Award. The recipients are selected by committee review of nominations.

• The Shaw Public Service Award, in the amount of $10,000, was awarded to the South Carolina Chapter for its “Civics Day” program.

• The Shaw Younger Lawyer Grant, in the amount of $10,000, was awarded to the Massachusetts Chapter for its “Annual Bill of Rights Student Essay Contest.”

• The “Boots” Fisher Award, in the amount of $1,000 donated to a charity of the recipient’s choice, was awarded to Betty Stevens, an FBA member in Northern Virginia.

• The Mazza Award, in the amount of $500 donated to a charity of the recipient’s choice, was awarded

The Foundation continued to support the annual Thurgood Marshall Moot Court Competition held each spring, and co-sponsored—with the Federal Judges Association—the Civics Essay and Video Contest for high school students. This year’s contest asked “In light of the First Amendment, what type of social media posts should schools be allowed to punish as cyberbullying?” The Foundation hosted the trips of essay winner Evan Hsiang from Corpus Christi, Texas, and video winner Paola Perez from Palmetto Bay, Florida, to the awards ceremony held at the Federal Judges Association Quadrennial Conference in Washington, where the students met Justices Ketanji Brown Jackson and Stephen Breyer.

Grants

Two Foundation committees review applications for Chapter Community Outreach Grants and Diversity Grants. Each committee has an annual budget in determining what grant applications to recommend semi-annually to the Foundation Board of Directors for a vote to accept or decline. The Foundation board funded six Chapter Community Outreach Grants and 15 Diversity Grants.

Outreach Grants went to:

• Eastern District of Michigan Chapter: “Chapter Mission Fulfillment through Youth Outreach”

• Kansas and Western District of Missouri Chapter: “FBA Civics and Diversity Summer Reading Contest” (a second grant for the creation of its civics and outreach videos)

• San Diego Chapter: “Pathways to a Federal Career: Mentoring the Next Generation”

• San Joaquin Valley Chapter: “Law Day Yosemite 2022”

• South Florida Chapter: “Civil Discourse and Difficult Decisions Program”

Diversity Grants went to:

• Broward County Chapter: “DEI Summit & Reception”

• Civil Rights Section: “Civil Rights FBA Diversity

Membership Campaign”

• Lisa Eschleman (FBA member): “Law & Leadership Institute, LLC”

• Kansas and Western District of Missouri Chapter: “Prelaw Fellowship”

• Northern District of Ohio Chapter: “Distinguished Author Speaker Program”

• Oklahoma City Chapter: “History of Legal Racism Against AAPI Citizens”

• South Carolina Chapter: “2022 Charleston Forum Programming”

• Bernadette Gargano (FBA member): “Discover Law Undergraduate Scholars Program at the University at Buffalo School of Law”

• Utah Chapter: “UCLI 2022 Utah Law Student Mentorship”

• Younger Lawyers Division: “Staying in the Game”

• FBA LGBTQ+ Law Section: “Law Student Fellowship”

• Northern/Eastern Oklahoma Chapter: “University of Tulsa School of Law Diversity Day”

• Sacramento Chapter: “Sacramento Region Diversity Career Fair”

• San Diego Chapter: “History of the Diversity of the Court in the U.S. District Court for the Southern District of California”

• Southern District of New York Chapter: “Bias Training: What Lawyers and Judges Need to Know and Why”

Scholarships

The Foundation doubled its annual scholarship awards, again made after committee recommendation and Board vote, giving two Law Student Scholarships, two Diversity Scholarships, and two Public Service Scholarships. These scholarships included:

A $5,000 Earl W. Kintner Public Service Scholarship, which assesses community service, academic excellence, and meaningful extracurricular activity, was awarded to both William Mitchell of Fairfax, Virginia, and Alexa Settel of Scottsdale, Arizona.

The Dr. J. Clay Smith Jr. Diversity in the Legal Profession Scholarship was awarded to Abigail Hall—a first-year law student at Harvard who is the daughter of a single-mother Jamaican immigrant, and to Kathleen Kivarkis—a first-year student at Loyola Chicago School of law who is the daughter of Middle Eastern immigrants. These scholarships, each in the amount of $15,000 disbursed over three years of law school enrollment, seek to promote diversity in the legal profession and to support minority students in their legal education. Recipients also receive a complimentary FBA law student associate membership.

The Robert A. McNew Law Student Scholarship supports law students who exhibit extraordinary character, professionalism, and public service activity. Scholarships in the amount of $5,000 were awarded to Janessa Doyle—a third-year law student at Arizona State University, and Megan Glassman—a second-year law student at the University of Utah.

As you can see, Foundation funds impact sections, divisions, chapters, and individuals throughout the United States from various walks of life. Hopefully, this recitation gives you ideas for future programming, whether solely through FBA auspices or in conjunction with other groups whose missions may mirror our own. Note also that the receipt of one grant does not prevent a second grant to the same recipient during the year. To obtain further details about the above-listed awards, I encourage you to contact me or Foundation Manager Cathy Barrie.

The Unknown Future

It is a substantial likelihood that, as a result of the sale of the business condominium owned by the Federal Bar Building Corp. and leased to the FBA, the Bar Association and the Foundation will each receive substantial disbursements as the FBBC’s purpose of holding real estate ends. The upshot is a further likelihood that the Foundation will be quantitatively different than it presently is; our corpus may be substantially larger, and our budget for programming and scholarships is likely to reflect the increase. The Foundation Board is engaging in strategic planning this year and is discussing how a potential distribution will be used.

So, in preparation for our strategic planning retreat, I ask our FBA readership to reflect upon various questions:

• Do you feel that the Foundation’s efforts match your ideas of how it should be spending its dollars?

• Do you have any concerns that any of its expenditures are outside the scope of its mission?

• Are there specific efforts that should be expanded? Contracted? If so, why and how?

• Are there projects of national import the Foundation should consider undertaking? For instance, the Foundation’s largest historical expenditure was the sponsoring of two “white papers” in 2001 and 2005 regarding judicial pay. Only one white paper— regarding Magistrate Judges in 2014—has since been issued. Should there be more white papers as important issues arise? As another example, the Foundation deferred on the idea of hosting an annual symposium on the state of American jurisprudence, in large part because of cost. Should such a program or others of similar ilk now be seriously considered?

• What examples of “outside the box” thinking do you think the Foundation should consider?

I re-posted a quote in my first column which suggested the way to a good idea is to have many ideas. Our strategic planning retreat is set for the end of January. The success of this process will be maximized by having as much input from FBA membership as possible beforehand to help shape the discussion. It’s your Foundation—our Foundation. I invite your thoughts on any or all our current and future efforts. My email is canoelaw@gmail.com, or please contact any Foundation Board member or Cathy Barrie at cbarrie@fedbar.org.

Cheers, Aaron

A Day in the Life of a Tribal Prosecutor

By Tamera Begay1

She is currently an Assistant Prosecutor for the Puyallup Tribe of Indians. Prior to that position, she was an Attorney-Prosecutor for the Navajo Nation and a Legislative and Government Affairs Associate for the Navajo Nation Washington Office in Washington, D.C.

It’s a Tuesday evening, and I lock the door to the prosecutors’ office after my staff has left for the day. I just wrapped up a day in court with pre-trial conferences and bail hearings. Much like my federal and state counterparts, my entire day was spent in the balancing act between negotiating with defendants, ensuring justice and safety for victims in my community, and being mindful of the need to preserve judicial resources. When I look out my office window at the end of a long day, instead of skyscrapers and taxis, I see a pack of horses nibbling on the vegetation that grows near the courthouse. This is a routine sight for me now—I moved back to Crownpoint, New Mexico, my hometown, to serve as a tribal prosecutor for the Navajo Nation.

A full day in court has left me mentally exhausted, but the day is not over yet. The Navajo Nation has a three-year statute of limitations on criminal matters,2 and I need to continue working to address the back log of police reports. For a time, the Crownpoint office did not have a prosecutor—the remote location makes it hard to fill these positions, and hard to find suitable housing and resources once the position is filled. The backlog of police reports I inherited means my criminal docket has the potential to climb to 800 cases.

The first police report I read is a domestic violence case—a strangulation—which triggers 18 U.S.C. § 1153(a) and § 113(a)(8), the federal statutes governing this crime when it takes place in Indian country. This report was submitted a year-and-a-half ago, but I don’t have any records of the FBI stepping in to investigate the case. Before I can determine if I can file a complaint for this case, the technicalities of criminal jurisdiction in Indian country cross with the work of a prosecutor and require me to ask a number of predicate questions: Does the reporting officer still work for the Nation? Can I locate the victim? Does any evidence exist beside witness testimony? Does the victim want to cooperate? I notice a gap with the evidence that will likely mean a declination in prosecution from the U.S. attorney general’s office, but I may still be able to proceed in tribal court.3 First, I need to see if I can locate the victim, because most victims don’t maintain the contact information we collect at the time of an incident.

A woman answers the listed number, and I

introduce myself and ask for the victim. The woman responds in Navajo, and then says I don’t speak English very well. Here is an unexpected—if not uncommon—hurdle in my work: The victim needs a translator. Although I am Navajo, I am not fluent enough in my language to serve as a translator. I do my best to respond and tell the woman I will call back tomorrow. One of my legal secretaries has worked for this office for over 30 years, and in addition to carrying a wealth of institutional knowledge, can serve as an initial translator for the case.

I pull the next report and recognize the alleged perpetrator’s name—he’s been convicted multiple times for domestic assault in tribal court. Seeing no glaring evidence issues, I do some research, including on the Indian law resource blog “TurtleTalk,” for recent cases and scholarly articles about United States v. Bryant. Bryant held that uncounseled tribal court convictions which complied with the requirements of the Indian Civil Rights Act (ICRA), could be used as predicate offenses for federal prosecution under 18 U.S.C. § 117(a).4

However, I have not yet been successful in getting the U.S. attorney general’s office to take a Bryant case referral from my office. There has been a lot of criticism on the Bryant decision: A lack of common understanding of the protections of the ICRA has led to advocates concerned that Indian defendants’ basic rights would be ignored.5

I am acutely familiar with the pro se defendants common in tribal courts—I negotiated with seven of them today. As a tribal prosecutor who is also a member of my community, I don’t take my duties lightly; it is not only my job to ensure justice for victims, it is also my responsibility to ensure that it is done while upholding the federal and tribal due process rights of the alleged perpetrators. The tribal courts I practice in likewise work every day to uphold the rights of all defendants, including those pro se.

Like my state and federal counterparts, I worry about how to keep my community members safe, given the limited judicial and governmental resources at my disposal. However, because ICRA limits sentencing to a maximum of three years per charge, and a maximum of nine years collectively, I also must contend with the options available to me in tribal

The

court.6 I brainstorm some non-judicial ways to address the problem of domestic violence in my community. While a majority of my cases are petty crimes involving substance abuse, this is my fourth domestic violence case this week.

When my office-issued cell phone begins to ring, it’s a Navajo Criminal Investigator,7 which after-hours usually means there is a homicide. I ask the investigator my requisite jurisdictional questions first, the answer to each of which changes the question of which governmental office has prosecutorial authority: Do we know whether the incident has occurred within Indian country, the enrollment status of the victim, and the enrollment status of the alleged perpetrator? My district is on the eastern side of the Navajo Nation, which is full of checkerboard lands. Some of these lands are individual Indian allotments, some are lands held in trust for the Navajo Nation by the United States government, and some are private lands held in fee by non-Indian landowners.8 The Major Crimes Act, codified at 18 U.S.C. § 1153, gives the federal courts jurisdiction (exclusive of the states) for the crimes enumerated in the section—if the crime takes place in Indian country and the defendant is Indian. The investigator responds that he will know more once he gets to the site. I remind him again of the main reason that United States federal prosecutors often decline cases from tribal communities—insufficient evidence.9 I always remind my investigators and officers about the critical importance of collecting and preserving evidence. I ask the investigator to keep me updated, and I hang up the phone. Tomorrow is another day, and I will continue this work, balancing the unique needs of my tribal community with the jurisdictional complications of practicing in Indian country. 

Endnotes

1I served as a prosecutor for the Navajo Nation from 2018-2019. The views in this essay are my own and they do not represent either the Navajo Nation or my current employer the Puyallup Tribe of Indians.

217 Navajo Nation Code Ann. tit. 17, § 205(B) (2000).

3See United States v. Wheeler, 435 U.S. 313 (1978) (“[T]he power to punish offenses against tribal law committed by Tribe members, which was part of the Navajos’ primeval sovereignty, has never been taken away from them, either explicitly or implicitly, and Is attributable in no way to any delegation to them of federal authority.”) (holding that successive tribal and federal prosecutions do not violate the Double Jeopardy Clause of the United States Constitution).

4United States v. Bryant, 579 U.S. 140 (2016).

5Barbara Creel and John P. Lavelle, High Court Denies Rights of Natives, Albuquerque J. ( June 26, 2016), https://www.abqjournal. com/798285/high-court-denies-rights-of-natives.html.

6See 25 U.S.C. § 1302.

7Navajo Criminal Investigators for the New Mexico side of the Navajo Nation Reservation investigate major crimes occurring within their jurisdiction. These investigators are federally deputized and have Special Law Enforcement Commission from the Bureau of Indian Affairs. Navajo Patrol Officers are often the first to respond to a crime scene; once the Patrol Officer determines it is a major crime, a Navajo Criminal Investigator is dispatched.

8See 18 U.S.C. § 1151 (defining Indian country).

9See U.S. Dept. of Just., Indian Country Investigations and Prosecutions (2019), at *30, available at https://www.justice.gov/ media/1146971/dl?inline=.

Registration Now Open!

View the webpage for session details and hotel information.

www.fedbar.org/event/indianlaw23

48th

Annual

INDIAN LAW CONFERENCE

April 17-18, 2023

Sandia Resort

Albuquerque, New Mexico

Empowering Indian Country Through Action

In the past year, Tribes have faced extreme highs and lows engaging in government-to-government relations at every level. As more critical issues come before the courts, it is essential that Indigenous Law practitioners are at the ready to protect the rights of Tribal nations, members, and lands. This conference will address how practitioners can help Tribes and Indigenous individuals protect their rights, lands, communities, and culture while maintaining collaborative efforts with the state and federal governments. Panelists will include practitioners who have been involved in recent pivotal cases before the Supreme Court, those who have forged the path for Indigenous presence in the federal judiciary, legislative, and executive branches, and those working directly to represent Tribes on critical issues faced by Tribal governments on a daily basis.

Interested in Sponsoring or Becoming an Exhibitor? Take advantage of timely marketing deliverables with a national audience and contact sponsor@fedbar.org for more information.

UNIDROIT: An Independent International Institute for the Unification of Private Law

By Bijan Kasraie

Dr. Bijan Kasraie has over 30 years of legal and executive business experience in several industries, including banking, finance, energy, real estate, manufacturing, recycling, IT, and pharmaceuticals. He has resolved legal, financial, corporate, and political issues around the world. He holds several degrees, including a Ph.D. in engineering and a J.D. He is the national chair for the International Law Section of the Federal Bar Association.

At the end of World War I and when the League of Nations was being formed, it became apparent that the world had changed. Business among so many countries with different legal, economic, and political systems and various cultural backgrounds needed to be standardized. It was also clear that such a task required extensive study first. Therefore, UNIDROIT was formed as an auxiliary organ to the League of Nations. But, as the League of Nations fell apart, so did UNIDROIT. However, in 1940, UNIDROIT was reestablished as The International Institute for the Unification of Private Law. Interestingly enough, unlike most other international organizations, which are located in Geneva, Switzerland, UNIDROIT’s headquarters is in Rome.

Structure

UNIDROIT has three sections: the Secretariat, a Governing Council, and a General Assembly.

The Secretariat is the executive part of UNIDROIT and is responsible for carrying out its work program. UNIDROIT’s president recommends an individual as secretary-general to the Governing Council, where the council ordinarily appoints that candidate to lead the office of the Secretariat. As of 2022, UNIDROIT consists of 63 member entities.

The Governing Council is a combination of the previous ex officio members of the institute, the president of the institute, and 25 people, mostly judges and attorneys. The members of the council are elected every five years by the General Assembly. The president is the chairperson of the Governing Council. The function of the Governing Council is to outline a work program for the Office of the Secretariat and supervise its execution.

The General Assembly of UNIDROIT consists of one representative from each member state. The organization makes all critical decisions, such as the institute’s budget and work program approval, and elects the Governing Council. Its president is chosen among the members for one year, and it rotates annually.

Achievements

During the past several years, UNDIROIT has drafted several instruments involving international conventions, principles, legal and contractual guides, and model laws. Some of these have been adopted and are already in use today. Usually, member states of the UNIDROIT adopt a convention through diplomatic conferences.

Some UNIDROIT studies have been used as the basis for other international organizations’ instruments. Some of these instruments have already been approved and are in use.

UNIDROIT’s fundamental goal is to prepare uniform and, if possible, harmonized rules that are understandable in a broad sense. However, UNIDROIT frequently gets involved with public law when member states request it. These circumstances occur when transactional law and regulatory law tangle with one another.

UNIDROIT’s independent status among intergovernmental organizations has enabled it to pursue working methods that have made it a particularly suitable forum for tackling more technical and correspondingly less political issues.

UNIDROIT has been designated as the Depositary to its most recent instruments: the 2001 Cape Town Convention (pursuant its Article 62(1)) and the 2001 Aircraft Protocol (pursuant to its Article XXXVII(1)), both entering into force on 1 March 2006; the 2007 Luxembourg Rail Protocol (pursuant to its Article XXXIV(1)); the 2012 Space Protocol (pursuant to its Article XLVIII(1)); and the 2019 MAC Protocol (pursuant to its Article XXXVII(1)), none of which have entered into force; as well as the 2009 UNIDROIT Convention on Substantive Rules for Intermediated Securities (pursuant to its Article 48 (1) (also not yet in force).

UNIDROIT’s responsibilities as Depositary under those instruments are specified in each instrument and include the operation of a system for the receipt and notification of all instruments of ratification, declarations, and other documents lodged with the Depositary. UNIDROIT provides information for the assistance of States that are contemplating becoming the Contracting States to them.1

Factors Determining the Eligibility of Subjects for Uniform Law Treatment

With the development of new technologies and the new mode of international business transactions, it became necessary to create a common practice among the parties involved. However, such harmonization greatly depends on the willingness of the member states. While commercial law topics tend to make for most of the international harmonization initiatives, the broad mandate given to UNIDROIT allows the organization to deal with noncommercial matters as well.

Factors Determining the Choice of Instrument to Be Prepared

Originally, UNIDROIT created its rule by drawing from existing international laws. Such rules always consider the commercial laws of the member states. However, more and more member states became agreeable to working with new model laws. However, parties are not bound to such model laws, and unique harmonization can be used.

Working Methods2

Preliminary Stage

A given subject is entered into the work program. Then, the Secretariat, with the help of the experts in the respective fields, decides if the given law needs to be harmonized and, if so, prepares a draft and presents it to the Governing Council. After studying the report, if the council accepts it, it will formally ask the Secretariat to draft a whole convention.

Intergovernmental Negotiation Stage

Once the study group presents the result to the Government Council, the group asks the council for advice and guidance regarding the next appropriate steps. The council usually refers the matter to the Secretariat. The Secretariat invites member state experts to finalize the convention for presentation to the member state conference for final approval.

All UNIDROIT member states have the authority to contact the committee of member state experts. The final convention will be presented to the Governing Council for approval by member state experts.

Cooperation With Other International Organizations3

Throughout the years, UNIDROIT has cooperated with other international organizations, such as the Hague Conference on Private International Law and the United Nations Commission on International Trade Law (UNCITRAL). Frequently, such organizations have asked UNIDROIT to study and prepare legal conventions to harmonize specific private laws.

UNIDROIT’S Primary Concentration

UNIDROIT’S primary foci are Agriculture, Capital Markets, Civil Procedure, Contracts, Cultural Property, Factoring, Secured Transactions, and Law & Technology

Agriculture4

Food security is one of the main concerns of UNIDROIT in the agriculture sector. To regulate the International Commercial Contract (ICT) regarding agricultural production, trade financing, and investment, UNIDROIT has developed several instruments.

In recent years, to make financing in the agricultural field easier by facilitating access to warehouse receipts, UNIDROIT created sets of instructions for different member state legislative bodies.

Furthermore, between 2020 and 2022, UNIDROIT set up a work group to advise agricultural businesses on what business model works best for them and the challenges and opportunities they may face in multinational agrarian trades.

Capital Markets5

UNIDROIT’s efforts in capital markets are primarily focused on private law. In 2001, UNIDROIT established several procedures in order to facilitate access to cross borders capital for small to medium size entities. This was titled work in capital markets, focusing on private law aspects of the holding and transfer of securities, intending to identify best practices and enhance legal certainty in the sector.

Civil Procedure6

One of the main principles of UNIDROIT is to harmonize the civil procedural rules intended to apply in transnational disputes and to guide domestic law reforms.

In 2004, UNIDROIT and the American Law Institute adopted the first instrument in this area. UNIDROIT also worked with the European Law Institute and developed a Model Rules of Civil Procedure.

Contracts7

Several models and conventions in the fields of international financial leasing, international factoring, international commercial contracts, model franchise disclosure law, and international master franchise arrangements have been developed by UNIDROIT’s Principles of International Commercial Contracts.

Cultural Property8

UNIDROIT has also worked to create uniformity of laws for certain criminal acts. For example, the theft of works of art has been around for centuries and is a significant crime across the globe. Unfortunately, different states have different sets of laws dealing with this crime. UNIDROIT has been working to find a solution to this diversity of laws and come up with a uniform response in dealing with this crime.

Factoring9

Throughout the ages, factoring has been a procedure in which a business may receive immediate cash or cash equivalent against that business account receivable. However, every culture has its own system. As companies became more international, it became necessary that a harmonized procedure be developed. UNIDROIT, from 1976 to 1987, had developed more than 30 models to help global business factoring contracts.

Secured Transactions10

UNIDROIT has been very successful in this field. It has developed several conventions, model laws, legislative guides, and other instruments in this area. One of the most important achievements of continued on page 24

State Tax Considerations for Travel Insurance Premiums

By John Forni, Andy Koutroumanis and Sam Fowler

Travel insurance has been around for over a century. However, its popularity has expanded over time and has been steadily increasing in recent years. In 2020, consumers spent approximately $1.72 billion on travel insurance policies according to the U.S. Travel Insurance Association.1 Travel insurance policies are priced based on trip length, destination, and the age of the policyholder, and typically cost between 4-8% of a trip’s total price.2 In general, travel insurance policies protect against financial loss that may arise before or during a trip, such as trip cancellations, interruptions, or delays, medical emergencies, and lost, damaged, or stolen luggage, among other things.

John Forni—Insurance Tax Leader, Andy Koutroumanis—State Tax Director, and Sam Fowler—Tax Manager at Grant Thornton in Chicago have more than 50 years of combined experience with multistate and multinational tax matters, including reporting, compliance, controversy, planning, audits, and corporate income, sales, and premium taxes.

Although travel insurance policies vary, some of the most common policy exclusions include pre-existing health conditions, pregnancy and childbirth, pandemics, civil and political unrest at the traveler’s destination, and coverage for those engaging in extreme or high-risk activities (e.g., bungee jumping).3 For reference, approximately 47% of trip cancellations were due to coronavirus in 2020.4 However, in many instances, if a policy was purchased after the World Health Organization declared coronavirus a pandemic (March 11, 2020), resulting claims for cancellation or trip interruption were likely excluded from coverage. Today, most insurers consider coronavirus a foreseeable risk and exclude it from coverage.5

Over the last decade, the insurance industry has been promoting the development of a regulatory framework based on travel insurance products not fitting into standard interpretations of current state insurance laws. Travel insurance has often been classified as a “limited line” of insurance. A limited line of insurance is a line of insurance other than one of the six major (or general) lines defined by the National Association of Insurance Commissioners (i.e., life, property, accident, casualty, variable life, and personal lines of insurance). It is often offered with non-insurance services, such as lost luggage assistance, concierge services, travel reservation services, transportation arrangement services, translation services, and lost passport assistance.

In 2018, the NAIC created a Travel Insurance Model Law (Act) based largely off of a version that was

being developed by the National Council of Insurance Legislators.6 The NCOIL is a legislative organization composed principally of legislators that serve on state insurance and financial institutions committees across the United States.7 The NCOIL often works in tandem with the NAIC.8 The NCOIL helps to develop state policy when it comes to insurance and educate state legislators on current and perennial insurance issues. 9The Act was developed to protect the public welfare and outlines rules regarding policy coverage and licensing for those that wish to offer such coverage.10 The Act classifies travel insurance as an inland marine line of insurance for purposes of form and rate filings.11 Some consumer protections outlined in the Act include prohibiting opt-out sales, instituting a look-back period for full refunds, requiring consumer disclosures to ensure the consumers understand what they are purchasing, and clarifying the type of information provided to consumers.12 The Act also includes consumer disclosure and sales practice requirements which support the prohibition against deceptive insurance policies, opt-out sales formats, and blanket travel insurance policies that are marketed as free, among other things.13

Since the adoption of the Act, a common legislative trend among a large number of states has been to revise their travel insurance rules and regulations, modeled in full or in part on the Act. These states have formally included travel insurance as part of their premium tax statutes. In general, these laws provide definitions, require insurers to pay tax on certain travel insurance premiums paid by (1) an individual primary policyholder who is the resident of the state; ( 2) a primary certificate-holder who is the resident of the state and elects coverage under a group travel insurance policy; and (3) a blanket travel insurance policyholder that is a state resident or has its principal place of business or the principal place of business of an affiliate or subsidiary that has purchased blanket travel insurance in the state for eligible blanket group members.14

For state tax purposes, insurers are typically taxed on the amount of premiums written and will pay premium tax based on the state tax rate established

for such premium. Some states impose a fire premium tax that may use the line of business (inland marine) for purposes of allocating taxable premium as part of their allocation formula for reporting fire premium and calculating the associated fire premium tax. An increase in fire premium tax may result in states adopting the Act in whole, which classifies travel insurance as part of the inland marine line of business as opposed to another line of business not subject to fire premium tax. Under the Act, a travel insurer must document the state of residence or principal place of business of the policyholder or certificate holder.15 Only the amount allocable to travel insurance and not any amounts received for travel assistance services or cancellation fee waivers are reported as premium.16 If a travel protection plan is offered for one price, it must clearly describe and delineate that the price includes the travel insurance, travel assistance services and cancellation fee waivers, as applicable.17 Travel assistance services are those services for which a consumer is not covered if an event occurs, and where providing the service does not result in a transfer or shifting of risk that would constitute the business of insurance.18 These services are not insurance or related to insurance and are not intended to be subject to the premium tax. With numerous states adopting travel insurance legislation, insurers should be aware of potential state taxation issues.

For example, in Texas, a premium tax is imposed on each insurer that receives gross premiums.19 A tax rate of 1.6% is applied to the insurer’s taxable premium receipts for a calendar year.20 Taxable premium receipts include the total gross amounts of premiums, membership fees, assessments, dues, revenues, and any other considerations for insurance written by the insurer in a calendar year from any kind of insurance written by the insurer on each kind of property or risk located in Texas.21

In a recent Texas administrative decision, an insurer was assessed premium and maintenance tax on travel insurance services.22 In this petition, the taxpayer was audited for insurance premium and maintenance tax compliance for the audit period 2014 through 2017.23 During the period at issue, the taxpayer was an underwriter of property and casualty insurance coverage, including travel insurance policies.24 In the transactions at issue, the taxpayer sold travel protection plans, which included travel insurance and travel assistance services for a single lump-sum charge.25 The taxpayer reported as premium only the amount of the total charge that it argued was allocable to travel insurance (i.e., taxable premium).26 It did not report as taxable premium the portion of the charge that it argued was allocable to travel assistance services.27

The auditor determined that the total amount of the lump-sum charge should have been reported as a premium subject to insurance premium and maintenance tax and performed an estimate to determine the additional fees.28 The auditor reviewed one sample policy and calculated an error percentage by taking the difference between the total charge and the amount reported and then divided the difference by the amount reported.29 The error percentage was multiplied by reported premiums to calculate additional taxable amounts.30

In support of its petition, the taxpayer raised three arguments.31 First, the taxpayer argued that it could only be taxed on premiums received, not simply written.32 However, the administrative law judge noted that property and casualty insurance premiums are reported and taxed on a premium written basis, not on a premium received basis. Tax is due on insurance written regardless of whether the premium is collected or received.33

Second, the taxpayer argued that the travel insurance model acts adopted by the NAIC/NCOIL make a distinction between travel insurance and travel assistance services.34 However, the judge determined that Texas is not bound by model acts and must follow the requirements set forth in the Texas Insurance Code.35 Additionally, the instructions for the Texas Annual Insurance Premium Tax Report state that when completing tax reports using NAIC information, any reported information must be complete and consistent with Texas tax statutes and rule requirements.36

Finally, the taxpayer argued that Texas House Bill 2587, which took effect September 1, 2019 and was enacted as new Chapter 3504 to the Texas Insurance Code, provides a comprehensive regulatory framework for travel insurance based on the NAIC/NCOIL model acts.37 The taxpayer noted that Section 3504.0004 requires that a travel insurer is to pay premium tax under Section 221.002 on travel insurance premiums, and that it shall report as premiums only the amount allocable to travel insurance and not amounts received for travel assistance services or cancellation fee waivers, regardless of whether these are offered separately or for a combined price.38 However, Chapter 3504 of the Texas Insurance Code was not in effect during the audit period, and is not retroactive.39 Thus, the judge found this new chapter was not applicable to the petition.40

Ultimately, the judge found that the auditor did not err in determining as taxable gross premium receipts the portion of the premiums written with respect to the travel assistance services. Prospectively, insurers should be aware that many states are adopting travel insurance rules based on the Act and this trend will likely continue based on the volume of states having enacted such legislation in the last few years. Insurers should review these new state rules, premium classifications, and invoicing procedures, to ensure premium tax is only being reported and paid on taxable premium and not for other items such as travel assistance services. 

Endnotes

1Consumers Spend $1.72B on Travel Protection in 2020, According to New UStiA Study, U.S. Travel Ins. Ass’n, https://www.ustia.org/ consumers-spend-172b-on-travel-protection-in-2020-according-tonew-ustia-study.html (last visited Aug. 12, 2022).

2FAQs, U.S. Travel Ins. Ass’n, https://www.ustia.org/faqs.html (last visited Aug. 12, 2022).

3Travel Insurance, NAIC, https://content.naic.org/cipr-topics/ travel-insurance (last updated June 23, 2022).

4Id.

5See, Coronavirus (COVID-19) and Travel Insurance FAQs, New York State Dep’t of Fin. Servs, https://www.dfs.ny.gov/ consumers/coronavirus/travel_insurance_faqs, (last visited Aug, 12, 2022).

6Travel Insurance Model Act (#632), (NAIC 2018).

7History & Purpose, NCOIL, https://ncoil.org/history-purpose/, (last visited Aug. 12, 2022). 8

How Men Unwittingly Display Disrespect to Female Colleagues at Work — And Some Suggestions on How to Fix This Problem

By Charles Huddleston

Charles has more than 40 years of experience trying cases in federal and state courts and has helped clients win multimillion-dollar jury verdicts and has obtained defense verdicts or summary judgments when defending clients. He has been recognized by Georgia Super Lawyers and Georgia Legal Elite and litigates commercial, employment, election, and zoning disputes, drafts employment agreements and restrictive covenants, and conducts training on preventing discrimination and harassment and managing diversity. In addition, Charles has experience representing companies before governmental agencies.

Most men, including most male lawyers and judges, suffer from a hidden disease (assumed male dominance) that manifests itself in three ways during group conversations that are blatantly sexist and often make their female colleagues feel disrespected and relegated to a secondary status. But, sadly, most men are not even aware that this disease has infected them, so here is a checklist to see if you may suffer from any of the three symptomatic behaviors of this disease, plus some suggested “cures” for this widespread disease.

Manterruptions

This is when a man cannot stop himself from constantly interrupting women when they are talking. It has been found to thrive at even the highest and most formal levels of our own legal profession. In a 2017 empirical study of 15 years of transcripts of U.S. Supreme Court oral arguments, it was determined that male justices interrupted female justices three times as often as they interrupted their male colleagues on the Court during oral arguments. And despite rules mandating that advocates should stop speaking immediately when a justice starts to speak, some male advocates did interrupt justices from time to time (usually a female justice), but no female advocates did so.

Possible Cures: Men need to learn to check themselves and try to focus on listening and waiting for a female speaker to fully complete her statement before responding or adding their own thoughts. In addition, men who are aware of this spread of unwanted manterruptions can become a true “ally” with their female colleagues by calling out male colleagues who interrupt their female colleagues with comments like, “Joe, let’s let Susan finish her thought.” Our female colleagues should also feel empowered and respected enough to say “Excuse me, Joe, but I was not finished.” But, that is harder to do if the male interrupter is of higher rank or perceived to be more

powerful than the female speaker. In addition, if the meeting or conversation has someone serving in the role of its chair, moderator, or convenor, that person should exercise their power by stopping the interruption, gently, and saying, “Joe, let’s let Sue finish what she was saying, as I don’t think she was done.”

In regard to the empirical study of the manterruptions that were prevalent at the Supreme Court over a 15-year period, observers have reported that after the study was discussed in publications like the Harvard Business Review, the male justices must have taken note, because the number of times they interrupted a female justice dropped considerably. In addition, over time, the female justices learned to not begin their questions with prefatory words like “May I ask,” “Can I ask,” “Excuse me,” or by first stating the advocate’s name, as these lead-in comments seemed to provide an opportunity for another justice, typically a male, to jump in before the female justice got to the actual substance of her question. Maybe our female colleagues could also benefit from not being polite in the beginning of their comments, if they often use such prefatory remarks, and instead speak with substance from the beginning of their comments.

Mansplanations

This is when a man feels like he must explain what a female colleague just said, even though she is fully capable of answering any questions that others may have herself, and no one has yet asked her for any clarification. Men, if you think a comment by a female colleague was unclear as stated, maybe you need simply ask the female speaker a question as opposed to taking control over the meaning of what she said by volunteering to explain it.

Cures: Men should not assume they are the only person who understood what a female colleague just said because they believe she did not state

her thoughts clearly enough. Men should either wait to see if the additional discussion indicates some lack of understanding. And, if it does, men can then ask the female speaker a question to clarify because asking her the question leaves her in control of her statement and its further clarification and prevents you, as a male, from adding your own interpretation of her statement, which could deviate from her intended meaning.

Bropropriations

This is the worst of the three symptoms, and it occurs when a woman states an idea early in the group’s conversation, but no one seems to want to support her idea so it gets dropped. But later in the group discussion, a man basically repeats the same idea, and his mention of the same idea generates immediate positive feedback. And then he begins to receive, and he gladly accepts, the sole credit for generating the idea, even though it was first floated by his female colleague.

When this occurs, the man who repeats the woman’s original idea should immediately correct anyone’s attempt to credit him as the sole generator by saying something like: “Let’s remember I was not the person who first thought of this solution, it was Sue. I just brought it up again for further discussion.” But if the Bropropriator himself appears to be totally willing to take the sole credit for the idea even though it was previously expressed by a female colleague, other participants (regardless of gender) in the conversation should jump in to remind him and the group of that fact by saying, “Joe, I am sure you remember that that idea was first put on the table by Sue, so let’s not forget the source.”

Be an Ally: Help Level the Playing Field for Our Female Colleagues

These three male habits of often unconscious male dominance, namely Manterruptions, Mansplanations, and Bropropriations, have been with us for a long time, and most men don’t realize when they are guilty of these sexist traits. So, men, let’s try to be more aware and stop committing these three habits at the expense of our female colleagues. And, when called for, let’s also be willing to step up and become a true ally for our female colleagues by correcting our male colleagues when these problems happen in front of us. 

International Files continued from page 19

UNIDROIT is the Cape Town Convention System, one of the most successful commercial law systems. It is set up to enhance security for acquiring and financing high-value equipment. It presently has over 80 contracting states and the European Union. The Cape Town Convention is probably the most important commercial treaty law of the past 50 years.

Law & Technology11

With the increasing impact of technology in international commerce, the advent of block chain, and the inheritance of digital properties, UNIDROIT has been under pressure by member states to develop a model law for these issues. Furthermore, several UNIDROIT member states have sent proposals for developing a model law. However, this is a work in progress. 

Endnotes

1UNIDROIT website/home/instrument, https://www.unidroit. org/instruments/, Depository Function of Unidroit, MAC Protocol, https://www.unidroit.org/instruments/security-interests/macprotocol/depositary/

2UNIDROIT website/Overview/working Methods, https://www. unidroit.org/about-unidroit/overview/.

32012 Annual Meeting of the American Association Of Private International Law (LIMA, 8-10 November 2012) https://www.unidroit. org/?s=cooperation+with+other+international+organization.

4UNIDROIT Law International Fund for Agricultural Development Rome, 2021, https://www.unidroit.org/wp-content/ uploads/2021/10/ALICGuidehy.pdf , UNIDROIT, FAO, and IFAD. 2015. UNIDROIT/FAO/IFAD Legal Guide on Contract Farming. https://www.unidroit.org/wp-content/uploads/2021/06/Contractfarming-legal-guide.pdf.

5Geneva Convention UNIDROIT Convention on Substantive Rules for Intermediated Securities, https://www.unidroit.org/

Thought Sponsor continued from page 21

15Id.

16Id.

17Id. at § 6.

18Id. at § 3.

19Tex. Ins. Code § 221.002(a).

20Id.

21Tex. Ins. Code § 221.002(b).

22Texas Comptroller of Public Accounts, Accession No. 202202021H, SOAH Docket Nos. 304-21-3340.72, 304-21-3341.71, CPA Hearing Nos. 117,378, 117,379 (Feb. 25, 2022). 23

instruments/capital-markets/geneva-convention/, UNIDROIT Legislative Guide on Intermediated Securities, Implementing the Principles and Rules of the Geneva Securities Convention, https:// www.unidroit.org/instruments/capital-markets/legislative-guide/ 6ALI/UNIDROIT Principles of Transnational Civil Procedure, © 2006 The American Law Institute and UNIDROIT, https://www. unidroit.org/instruments/civil-procedure/ali-unidroit-principles/. 7Tripartite Legal Guide to Uniform Legal Instruments in the Area of International Commercial Contracts (With a Focus on Sales), 2016, https://www.unidroit.org/instruments/commercial-contracts/ tripartite-legal-guide/; Unidroit Principles of International, Commercial Contracts, 2016, https://www.unidroit.org/ instruments/commercial-contracts/unidroit-principles-2016/;

UPICC Model Clauses, Model Clauses for the Use of the Unidroit Principles of International Commercial Contracts 2021, https:// www.unidroit.org/instruments/commercial-contracts/upicc-modelclauses/; Principles on Choice of Law in International Commercial Contracts, (approved on Mar. 19, 2015), https://www.hcch.net/de/ instruments/conventions/full-text/?cid=135

8Unidroit Convention on Stolen or Illegally Exported Cultural Objects (Rome, June 24, 1995) https://www.unidroit.org/ instruments/cultural-property/1995-convention/; Texts - Unesco - Unidroit Model Legislative Provisions on State Ownership of Undiscovered Cultural Objects (2011), https://www.unidroit.org/ instruments/cultural-property/2012-model-provisions/.

9Unidroit Convention on International Factoring (Ottawa, May 28, 1988), https://www.unidroit.org/instruments/factoring/.

10Secured Transactions, Unidroit Work and Instruments in the Area of Secured Transactions 2021, https://www.unidroit.org/securedtransactions/.

11Unidroit Work and Instruments in the Area of Law & Technology, 2015-2018, https://www.unidroit.org/law-technology/; Digital Assets and Private Law, https://www.unidroit.org/work-inprogress/digital-assets-and-private-law/.

47th Annual Tax Law Conference

March 3, 2023 • Ronald Reagan Building, Washington, D.C.

March 6–7, 2023 • Virtual Broadcast

www.fedbar.org/event/taxlaw23

Join the Section on Taxation for the 47th Annual Tax Law Conference in March. This newly formatted two-day program will offer the same great content in-person and online. Programming will be held exclusively in-person on March 3 and exclusively virtually on March 6–7.

Examine important tax developments and emerging policy issues in over 15 educational sessions featuring notable speakers from the Internal Revenue Service, Treasury Department, and Congress. Programming will include a keynote address and awards presentation for the prestigious Kenneth H. Liles Award for Distinguished Service to an eminent tax practitioner.

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Friday

5 General Sessions

Including Legislative Update and Ethics Panel

Monday

Hot Topic Track

International Track

Tuesday

Corporate Track

Practice & Procedure Track

More panel information posted online!

VIRTUAL PACKAGE

Includes access to Monday (Virtual), Tuesday (Virtual)

Member

Hon. David Briones

Judge, Western District of Texas

by Ricardo Gilb

Judge David Briones is known for his efficiency on the bench. I’ve even heard him tell a joke about himself that goes something like this: “Okay, attorney, you need 10 minutes for your opening?” To which the attorney says yes, and he, the joke-Judge Briones, replies: “Okay then, you’ve got five.” Yet, Judge Briones is never in any rush when telling stories about his hometown or about all the twists and turns in his impressive career. That career has been marked by bits of luck, converted into opportunities by his unquestioned intelligence, ability, and affability.

Judge Briones can, from his grand seventh floor office in El Paso’s federal courthouse, still see the spot where his family lived when he was born in 1943. He was the second oldest of 10 children born between 1941 and 1960, all of whom would go on to graduate from college. His mother, a homemaker, attended Bowie High School, and his father, a bookkeeper, attended Cathedral, both in El Paso. Briones himself attended El Paso High School, deterred by the fact that Cathedral, a private school for boys in El Paso, had “no girls and a bad football team.” Briones proudly declares that as a lineman for the El Paso High football team he was All-District, “offense and defense,” even though he was, he says, “the smallest guy on the team.” His yearbook features him in a dapper pinstripe suit, Senior Class Favorite for the graduating class of 1961. While in high school, El Paso elected Raymond Telles as its first Mexican American mayor, a major moment for a Mexican American community woefully underrepresented in the city’s government and legal establishments. But Judge Briones, who would later become the city’s first Mexican American federal judge, says he was too busy having fun to think much of it.

He was, by his own description, a “partier” during high school and during his first year and a half at Texas Western College in El Paso, frequenting the bars in Juárez where—unlike Texas before 1969—liquor could be served by the glass. But the threat of the draft changed his course, if not in a predictable way. Judge Briones volunteered for the draft and knew he would soon, though not immediately, be headed into

California, and even, for a short time, into Mexico. A chance encounter at a Santa Monica beach with a young man wearing a Texas Western sweatshirt, who turned out to share some friends with Briones, would lead him into his career. Briones returned to El Paso briefly before being called up to fulfill his two-year commitment to the US Army, and during that time started working with a brother of that man on the beach. That brother was Paul Moreno, an attorney in El Paso who would be elected to the Texas Legislature in 1967 and stay there for 40 years, and with whom Briones began a lifelong partnership.

After his service, Briones returned to El Paso to finish college at Texas Western, which had just etched its name into history by winning the NCAA Men’s Basketball Championship with an all-Black starting lineup, and which would within a year change its name to the University of Texas at El Paso. Before he obtained his degree, Paul Moreno, newly elected to the Texas Legislature, hired Briones as an aide during the 1967 legislative session. Briones took a few classes at University of Texas at Austin while working for Rep. Moreno, then returned to El Paso to graduate from UTEP in January of 1969. He returned to Austin to continue working with Rep. Moreno, who encouraged

Ricardo Gilb is a litigation associate at Krevolin & Horst in Atlanta, Georgia. He went to law school at the University of Texas after a decade as a teacher, musician, and freelance editor. His clerkship with Judge Briones brought him back to El Paso, the city where he grew up. He lives with his wife and their two young sons, who are now lifelong fans of El Paso.

him to attend law school. Briones was initially denied admission, but after a meeting with a law school dean was allowed to take summer classes to prove he was capable. He proved more than capable, and he was admitted and then excelled during the two and a half years it took him to graduate as one of a miniscule number of Mexican American students at the school. Judge Briones persuaded Rep. Moreno to put another of those students on his legislative payroll to help him with financial difficulties that threatened to prevent his graduation.

After graduating from law school in 1971 and passing the bar, Briones became Moreno’s law partner in El Paso and took on all kinds of cases, civil and criminal, probate and murder. He even worked on a multitude of competency determinations, taking one all the way to a jury. Judge Briones recalls that during that time, he tried a case—and repeatedly objected to decisions—in the courtroom of Judge John Wood. Briones defended—successfully, after an appeal to the Fifth Circuit—an attendee of the La Raza Unida Presidential Convention, held in El Paso in 1972. Judge Wood’s seat would eventually be occupied by Briones. He remained in private practice for more than two decades, during which time Judge Briones also started a family, raising a son who would later follow in his footsteps, attending the University of Texas Law School and becoming a lawyer.

Briones ran unsuccessfully for the position of municipal judge in 1979, but in 1991 another opportunity to join the bench appeared. County Court at Law Judge Philip Martinez—later a close friend and colleague on the federal bench—was appointed by Governor Ann Richards to fill a vacancy on the state district court in El Paso. County Judge Alicia Chacon, herself the first Mexican American woman to hold that office, asked Briones if he was interested in the seat. Soon after, Judge Robert Galván, who’d been doing double duty on the county court, excitedly administered the oath to Judge Briones, inaugurating his decades of distinguished service on the bench.

Judge Briones would keep that seat through two elections. Then, in 1994, he was nominated for a seat on the federal bench by President Bill Clinton. Judge Briones was helped through the slow and somewhat opaque process of confirmation by Judge Lucius Bunton. Judge Bunton passed Judge Briones advice and assurances from a mysterious friend named “Joe,” who Judge Briones only later understood was the Joe who was then head of the Senate Judiciary Committee and would later become President. At the time of his confirmation, Judge Briones was responsible for cases in El Paso and Pecos, Texas as well, while Judge Royal Furgeson, a friend and big supporter of Judge Briones’s career, was responsible for El Paso and Midland, Texas. Briones fondly remembers that his first trial, in Pecos, featured “400 pounds of marijuana in a concrete mixer” and resulted in an acquittal. When the Fifth Circuit, six months later, determined that El Paso and Pecos needed resident, full-time district judges, he graciously volunteered to move to the latter region, allowing Judge Briones to become, as he was perhaps destined to be, a full-time El Pasoan.

A chance encounter at a Santa Monica beach with a young man wearing a Texas Western sweatshirt, who turned out to share some friends with Briones, would lead him into his career. Briones returned to El Paso briefly before being called up to fulfill his twoyear commitment to the US Army, and during that time started working with a brother of that man on the beach.

Judge Briones is quite content with his work a trial judge. He recalls overseeing the nine-week Bieganowski trial with a mix of pride and horror as something he doesn’t think he could do again. He credits the quality of the lawyers that have practiced before him and his clerks—once of his favorite perks of being a federal judge—with making his job as a judge easier. By 2018,

Judicial Profile Writers Wanted

Judge Briones had tried some 371 jury trials and disposed of a further sixteen thousand criminal and three thousand civil cases. It was once suggested to him that he seek to fill an opening on the Fifth Circuit, but Judge Briones wasn’t the least bit tempted: “I’m a trial judge,” he said. “I can’t picture myself reading briefs and records for the rest of my career. So, I’ll stay with trial.”

In addition to handling cases, Judge Briones oversaw the selection of a plan and the building of El Paso’s current federal courthouse, the Albert Armendariz Sr. Federal Courthouse. When it was suggested to him that the selection be left in the hands of architects, Judge Briones said, with a confidence gained from living up to just about every challenge he’s faced, “I know a good building when I see one.” Judge Briones took senior status in 2009, leading to the appointment of Judge David Guaderrama. As a Senior District Judge, he has maintained a steady load of cases, though he has, to some sadness, had to give up golfing. He was also able to give up certain administrative duties, but says he’s kept responsibility for swearing in new attorneys because he enjoys seeing all the new faces.

His decades on the federal bench have created a full roster of former clerks who’ve moved into all kinds of legal careers and remember working for him with great fondness. And Judge Briones’s decades in El Paso have made it difficult to find anyone in town who doesn’t have some connection to him or to his wife Delia Briones, the El Paso County Clerk. He is a regular at many of the city’s restaurants, though even with new places popping up regularly, his favorite remains the enchiladas at L&J’s, filled with onions and topped with two eggs.

Although Judge Briones’s career has earned him immense respect and numerous accolades from colleagues and coworkers, one honor stands out. In 2018, the Fifth Circuit dedicated its Judicial Conference to Judge Briones, citing “his consistent fidelity to the rule of law, his strong commitment to equal justice under the law for all citizens, and for the numerous professional and voluntary ways he has enriched the entire legal community.” Judge Briones counts the dedication as his proudest moment, saying that there’s nothing better than “to be recognized by your fellow judges.” He remains, decades after those photos in the yearbook, a favorite among those who know him.

The Federal Lawyer is looking to recruit current law clerks, former law clerks, and other attorneys who would be interested in writing a judicial profile of a federal judicial officer in your jurisdiction. A judicial profile is approximately 1,500-2,000 words and is usually accompanied by a formal portrait and, when possible, personal photographs of the judge. Judicial profiles do not follow a standard formula, but each profile usually addresses personal topics such as the judge’s reasons for becoming a lawyer, his/her commitment to justice, how he/she has mentored lawyers and law clerks, etc. If you are interested in writing a judicial profile, we would like to hear from you. Please send an email to social@fedbar.org.

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Criminal Law in Ancient Greece: Draconian to Solonian

IRA COHEN, B.A., J.D., LL.M.

We may fairly, and reverently, gaze backward in time to ancient Greece as both the nursery and experimental laboratory for a number of the most enduringly important legal teachings regarding our corpus of criminal jurisprudence. We do not, however, need to look very far away for proof positive that the spirit of Draco, the feared and reviled Athenian Lawgiver, still is well and alive today.

In the hermit kingdom that is North Korea, the tyrant2, Kim Jong Un, rules with an iron fist over an impoverished land and a beleaguered populace. Indeed, the pusillanimous pipsqueak of a despot is the poster boy for ruling over a Draconian legal system. How many poor souls are on his blood-stained hands is hard to say, but the head of the snake’s great affinity for the death penalty for all manner of crimes surely contributes mightily to the victims’ body count. Recently, it was reported that two minors (ages 16 and 17) allegedly were the victims of the repressive regime’s brand of quick and cruel justice. The unfortunate juveniles apparently were summarily sentenced and shot to death in front of the town’s residents in Hyesan. What were the teenagers’ awful transgressions one might reasonably

inquire? As it turns out, their heinous crimes: watching or distributing South Korean movies and dramas.3

Equal treatment under the law and prohibitions against cruel and unusual punishments are two time-tested legal principles that retain their importance down to modern times. Nowhere are those precepts more important than in the enactment, the promulgation, and the administration of criminal law. Moreover, the presumption of innocence and the right to a fair trial also have been, and remain, of paramount importance.

Crime and punishment doubtless have been of great concern to many societies and governmental authorities from time immemorial. So, too, the issues of the use, application, and methods of execution for the death penalty in capital offenses have been ever-present topics of consideration and, more recently, studied debate and legislative reform.

It has, needless to say, been an evolutionary process and, in some respects, progress admittedly has been glacial in its discernible motion. Indeed, as discussed, supra, there still are quite a few countries today where criminal laws are repressive and unforgiving in nature and where the death penalty is meted out with seemingly mindless depravity, reckless indifference to justice, and gross insensitivity to humaneness.4

Before the giants of Greek legal lore, there were other juridical visionaries. Hammurabi’s Code, in ancient Babylon, a collection of 282 rules (which, among other things, set fines and punishments), was a legal text composed between 1755-1750 B.C. That work of

“There is no greater tyranny than that which is perpetrated under the shield of law and in the name of justice.” Charles de Montesquieu1

codification stands out as perhaps the best—and most well-known— example of the ancient law of “lex talionis” (the law of retribution), as exemplified by:

Rule 196. If a man destroys the eye of another man, they shall destroy his eye.

Rule 197. If he breaks another man’s bone, they shall break his bone.

In the days of yore, the convicted perpetrators of capital crimes typically met with gruesome deaths (e.g., burning, impaling, hanging, or beheading). Crimes that did not admit of standard proofs or evidence, such as sorcery, found the accused sentenced to trial by ordeal (e.g., being thrown in the river).

However, in what seems to be a repeat performance throughout history, which law, and what penalty, is applied could vary widely depending upon the accused’s class and status. Not surprisingly, then, the rich and powerful typically would be fined rather than subjected to physical punishment, dismemberment, or enslavement. It also depended upon one’s gender; for example, although philandering men could freely consort with their slave girls and handmaids, unfaithful women (along with their lovers) would end up bound and tossed into the Euphrates River to drown.

On the plus side of the ledger for Hammurabi’s Code, it is one of the earliest documents to lay down the landmark legal doctrine of the “presumption of innocence” (that is to say, a man is innocent until proven guilty). In addition, there was a procedure furnished in order to allow parties to bring their case before a judge and provide evidence and witnesses in order to prove their claims. There was one more, very interesting—and quite deadly—safeguard, which was designed and imposed mainly to deter false accusations: If someone accused another person of a capital crime, the onus probandi (burden of proof) was placed squarely on the shoulders of the accuser; then, if the case was not proven, the accuser was put to death.5

The Old Testament’s most vintage sections are believed to date back to the sixth and seventh centuries B.C., just prior in the timeline to Draco and Solon, both Athenian lawgivers, as we shall discuss, infra. Quite apart from the Old Testament’s aggregate total of 613 commandments (including the Judeo-Christian’s understanding of “The Ten Commandments”), the Biblical text also was quite generous in its doling out the death penalty for multiple offenses, ranging from heinous crimes such as murder, rape of a betrothed virgin, and kidnapping, to purely sex-related offenses such as adultery, bestiality, and the bride not being a virgin on her wedding night. The list of capital crimes droned on encompassing witchcraft and worship of other gods, all the way down to picking up sticks on the Sabbath, cursing one’s parents, or taking the Lord’s name in vain.

Approximately 3,000 kilometers away from the Holy Land of Israel, on the far side of the Mediterranean Sea, in ancient Greece, Draco was the given name of several physicians in the family of the great Hippocrates, renowned in Western civilizations as the Father of Medicine. Our focus here, however, falls on Draco the Lawgiver, the seventh century B.C.E. legislator in Athens, a larger-than-life authoritarian from whose name the term (and adjective) “draconian” is derived. Draco’s name—and legacy—are inextricably intertwined with his creation and institution of a cruel and, literally, quite deadly penal code, the rules of which were both ruthless and uncompromising for even trivial contraventions. As any devoted fan of the Harry

Potter® franchise can tell you, Draco is the Latin word for dragon or serpent.6

In the mythology of the Greeks, around the 10th century B.C.E., Cecrops (a creature who was, fittingly enough, half man and half serpent) founded Athens and was its first king. In the history books, Theseus is credited with Athens’ founding (c. 1,300 B.C.E.). For some measure of chronological and historical context, Homer’s epic Greek poems, The Odyssey and The Iliad, were written in the eighth or seventh century B.C.E. The first Olympic Games were held in Greece in 776 B.C.E. It was then that Draco lived, and legislated, during the seventh century B.C.E.

There always have been—and always will be—lawbreakers. As Aristotle observed, “[a] virtuous human being is the best of all animals, but one who has distanced himself from law and justice is the worst of all.”7 For Euripides, “the duty of the virtuous men is to serve justice and to always, in every occasion, punish the evil ones.”8

Prior to Draco’s ascendance to political power, the “law” in ancient Greece was comprised of oral traditions and blood feuds. Depending upon one’s class, power, amount of property, and/or wealth, the laws were arbitrarily and capriciously interpreted and applied. Injustices, thus, were commonplace. The oral laws were, for all intents and purposes, the prerogative of the aristocrats of ancient Athens. The temperature of the Athenian populace turned feverishly rebellious.

In a great development that, for better or worse, was a turning point in Athenian democracy, Draco was a legislator turned “lawgiver” at the request of his fellow citizens of that Greek city-state. It is important to note that he was no tyrant; he did not foist himself on the people, but little did they know that Draco’s “medicine” would soon, in many instances, be “worse than the disease.”9

Draco would go on to impose upon all Athenians a bundle of laws, sometimes referred to as the “Draconian Constitution,” the most memorable and mournful element of which was its severity and indiscriminate application of the ultimate sanction for virtually all levels and types of offenses. As Sophocles mused, “[t]his just penalty ought to come straightaway upon all who would break the laws: the penalty of death. Then wrongdoing would not abound.”10 However, even Sophocles conceded, “[t]here is a point which even justice becomes unjust.”11

It is said that the Code of Draco was established during the 39th Olympiad (622 or 621 B.C.E.). His code, however, was anything but good sport and games. In barest summary, under Draco, most crimes—grand and petty alike—were treated similarly and most wrongdoers—from common thieves to murderers—were punished the same way: with the death penalty. Thus, from stealing an apple or a cabbage to killing a man, one’s conviction meant certain death.12

Under this one-dimensional rubric, there were, for Athenians, three prescribed methods of execution: In one form, the convicted prisoner was thrown into a deep chasm or pit; the second alternative was to tie the prisoner to a wooden board and let him die of hunger and thirst; finally, the third method was to force the condemned to die by drinking a deadly cup of a liquid poison concocted from the hemlock plant.13 The great Greek philosopher, Socrates, was dispatched in 399 B.C.E. (long after Draco and Solon perished) by this third method.14

Parenthetically, it should be noted that civil laws were similarly strict. For example, a debtor, so long as he was of a lower class than the creditor, would be forced into slavery.

To his credit, Draco believed in the concept of “notice” to the

end that, in order to properly enforce the laws, they should first be made known to the people. Accordingly, Draco’s laws were posted on wooden tablets and also were preserved for about 200 years by being chiseled onto stone steles, which were four-sided pyramids. The tablets, thus, could be pivoted and read from any side. As for the method of inscription, legend holds that the laws of Draco were written not in ink, but rather in human blood.

Draco also introduced a lot-chosen Council of Four Hundred, which later played a major role in Athenian democracy. Also, on the plus side of the ledger, it was said that Draco was the first to make laws giving the franchise (i.e., the right to vote) to the “hoplites” (lower-class soldiers).

Despite his death-adder reputation, Draco’s laws also paved the way to equal treatment before the law; his Code granted equality of the law to all citizens of Athens. That is to say, everyone had an equal path to a date with eternity. Wealth, class, and heritage were not supposed to affect verdicts, and the brutal penalties applied to all condemned men—rich and poor alike. Criminals of all sorts and all stripes, then, were targeted for death.

There is a dearth of information regarding the personal life and background of Draco, also known as Drakon. Most of what we know about Draco is based on accounts from the great philosopher, Aristotle, who credits Draco with being the author of early written Athenian laws. He may or may not have been the first, since Aristotle also reported that, after 683 B.C.E., the six junior archons (magistrates) of Athens were tasked with recording laws. Inasmuch as neither the wooden tablets nor the stone steles have survived the ravages of time, we must satisfy ourselves with Aristotle’s later post-mortem account of Draco.

It appears that some distinction may have been made for the difference between an intentional and involuntary homicide. It may be that the perpetrators of negligent homicides, for example, were spared death and, in lieu thereof, punished by exile (banishment from the community for a period of time) for a period of 10 years, or life. Nevertheless, Draco almost invariably is best remembered for his cavalier and wide-ranging imposition of the death penalty. Plutarch, the later Greek philosopher, historian, biographer, and priest at the Temple of Apollo in Delphi (c. 46 B.C.E. to c. 121 B.C.E.), has written:

“It is said that Drakon himself, when asked why he had fixed the punishment for death for most offences, answered that he considered these lesser crimes to deserve it, and he had no greater punishment for more important ones.”15

It is believed that Draco was born to the noble class in Attica, another city-state of Greece. He died on the nearby island of Aegina, where he spent the last part of his life, having been ultimately chased out of Athens and exiled to that island by the disgruntled Athenian citizenry. It seems that his fellow citizens eventually grew weary of all the ”lawful” executions and ran Draco out of town on a rail.

In Greek folklore, there is a fascinating story about Draco’s ironically karma-filled demise. It is said that in the theatre on that island of Aegina, Draco—the Lawgiver, the death adder—was the unlucky recipient of a traditional, but over-zealous, show of support by his adoring followers; “they threw so many hats and shirts and cloaks on his head that he suffocated and was buried in that same theatre.” Draco, smothered to death by his sycophants, had reaped what he had sown. Death by gifts of cloaks.16

Jumping across the centuries, in today’s Library of Congress, Thomas Jefferson Building, in Washington, D.C., along the stately balustrade, one may marvel at the magnificent marble portrait statue of Solon the Lawgiver. Another son of Athens, Solon’s political career started out in a similar vein to that of Draco, in that it was the people who called upon him to serve, prevailing upon Solon to become a public servant. His later life also was marked the same way as Draco’s, namely, in exile, although Solon’s departure and exodus ostensibly were voluntary, and he lived later to tell the tale. The moral of Solon’s life story can best, perhaps, be summed up by the time-worn, cynical proverb, “no good deed goes unpunished.”

Solon (630 B.C.E.- 560 B.C.E.) lived and made his mark on Athenian history long before Alexander III (the “Great”) made the known world his empire, and before Socrates (469-399 B.C.E.), Plato (427 B.C.E.), or Aristotle (c. fifth century B.C.E.) walked this earth. During the fifth century B.C.E., time would witness the Battle of Marathon (490 B.C.E.), the Persian invasion of Greece (480 B.C.E.), and the Peloponnesian War (431-404 B.C.E.). It was not until much later, in 197 B.C.E., that Rome conquered Corinth, and by 146 B.C.E., Rome had wholly conquered Greece and made it into Roman territory.

Solon must have been just a child when Draco was enacting his extensive laundry list of crimes punishable by death, and he became a celebrated Athenian statesman, regarded highly and most reverently by history as one of the Seven Wise Men of Greece.17 Perhaps he is even more fondly remembered as the archon (or magistrate) of Athens who later repealed most of Draco’s punitive legal code and promulgated, in its place and stead new, eminently more humane laws.

While Draco’s laws were designed, in theory, to grant equality before the law to all citizens of Athens, regardless of class, social status, rank, or wealth, or the lack thereof, it is beyond debate that the penalties ascribed to the various laws were rather excessive as even petty crimes were deemed to be proper subjects of the death penalty. In less than 50 years’ time, however, Solon came along and made certain that most of Draco’s laws (except for the homicide laws) were repealed and replaced with new laws that Solon devised deeming them more suitable and just.

Solon, who often is referred to as the “Father of Modern Western Law,” is believed to have been of noble birth, like Draco, yet a man—a merchant—of modest means. Initially, he became famous for a poem he recited that served as a rallying cry exhorting his people to fight (over the island of Salamis), a war that the Athenians later won.

At the time, Athens had its share of political and internal domestic troubles. The aristocracy ruled virtually unchallenged; many farmers were driven to poverty, many peasants lost their land, others were enslaved for civil debt, and virtually all but the elite, had little or no role to play in their own governance or positions in civil government. It was, then, a time and place ripe for rebels, as it was in other Greek city-states of the era.

As Solon previously had called upon his people, now his fellow Athenians turned to him, desperate to resolve their domestic dilemmas. Fortunately, Solon was a firm believer in the Greek ideal of “moderation”18 and envisioned a global resolution for them that was couched not in the chaos and crisis of revolution, but rather in the modes of quiet logic and restraint of both reflection and careful reform.

By 594 B.C.E., Solon had become the archon (the annual chief ruler). Within a period of 20 years or so, he was afforded plenary au-

Winter 2023 • THE FEDERAL LAWYER • 33

thority as a reformer and legislator. In a series of very popular moves, Solon freed all the enslaved citizens and redeemed all previously forfeited land in a legal maneuver he called, in one of his poems, “shaking off the burdens.” Additionally, there would also no longer be any loans secured by a borrower’s person (i.e., freedom vs. slavery).

Albeit the poor were desirous of the redistribution of land on a massive scale, Solon would not entertain going that far afield. Instead, he undertook measures to improve the economy, preserve products from export (other than olive oil), minted coins, and instituted a new system of weights and measures and, generally, to improve the overall poverty situation, which, it is said, he did.

In the political arena, all citizens were allowed to attend the General Assembly (the Ecclesia) which would pass laws, make decrees, elect officials, and hear appeals from the courts. Also, all but the poorest could serve, for one-year periods, on the new Council of the Four Hundred.

Solon’s greatest contributions, however, were to the Athenian legal system in the embodiment of his new Code of Laws. The Code of Draco (c. 621 B.C.E.) was still in force. Solon took it upon himself to revise every law (save for homicide) and, in so doing, rendered Athenian law much more civilized in most respects. These remained the basis of Athenian statutory law until the end of the fifth century B.C.E. and parts of it continued long thereafter.

One would have hoped and expected the people of Athens to have shown their great admiration and respect for Solon as a token of their appreciation for his legal efforts. Far from it. Once his legal drafting tasks were behind him, Solon quickly became the target of imagined grievances and acrimonious complaints ringing out from all quarters. Why all the enemies? Apparently, in his determination to attempt to please everyone, Solon had succeeded in satisfying none.

To illustrate, the nobles had thought Solon’s changes would be only minimal, at least as to them and their virtual monopoly on power. The poor, as mentioned above, wished that he would simply dole out the land anew so that they could more fully share a piece of the Grecian geo-political pie.

For his part, Solon’s focal points seem to have been freedom, justice, and humanity. He was not strictly egalitarian. At the same time, he was not one with an ambition for his own autocratic power. He could have been an Athenian tyrant; much to his credit, he was not.

And so, it passed that the Athenians were less than impressed by or enamored with the Herculean efforts undertaken on their behalf by the sagacious Solon. Yet, moderation once again prevailed. The populace had promised to accept Solon’s resolution and they were, fortunately for Solon and Athens, good to their word. The laws of Solon would be in force for 100 years. They were posted on revolving wooden tablets for all to see and take heed of. In other words, there was public notice of the laws, including the crimes and the respective punishments therefor.

As for Solon, the problem-solver, the Lawgiver, he must surely have been the very wise fellow who the historical record portrays. Evidently, he detected good cause, and employed good timing, setting out from Athens on a series of journeys and promising not to return for 10 years. During that decade of voluntary peregrinations, Solon visited, among other locales, ancient Egypt and Cyprus. He wrote poems about his travels, just as he had previously created poems to serve as the instruments of his politics and statecraft.

Many years later, upon his eventual return to his homeland, the citizens were factionalized into groups headed up by different nobles.

An old friend of his, one Peisistratus (who previously had served as a general in the Athenian war for Salamis) was planning to take over Athens as a “tyrant.” Solon urged his old friend and ally against adopting such a drastic course of action, but he was dismissed as a raving old man. In the end, Solon, true to his poetry on the subject, was once again proven right. The old general did, indeed, become a tyrant (in 560 B.C.E.), but he was a short-lived one and was soon thereafter exiled.

Solon’s respect for and adherence to the Greek cardinal virtue of moderation served him well. He had provided his fellow citizens with a balanced and humane legal code. And though he was exiled, in his case, it was self-imposed. Solon exited stage left at a time, and for places, of his own choosing. Thanks to his pilgrimages, though he became older, he also became wiser. And, in the end, at least he did not die crushed to death under an avalanche of Athenian apparel.

Ira Cohen, Esq., B.A., J.D., LL.M., is an Intellectual Property Attorney and is the founder and principal of Ira Cohen, P.A. of Weston,  FL.  He is a member of the Florida and New York Bars, has been practicing law for 42 years, and is rated AV Pre-Eminent® by Martindale Hubbell.® Attorney Cohen served as Judicial Law Clerk to the Honorable Harold J. Raby, United States Magistrate Judge for the Southern District of New York (1982-85). Ira also is the Immediate Past Chair of the FBA’s Intellectual Property Law Section, a proud Sustaining Member of the Federal Bar Association, a Lifetime Fellow of the Foundation of FBA, the Columns Editor for The Federal Lawyer, an FBA Moot Court Judge, a Member of FBA National Council, and an FBA Mentor.   Ira can be reached at icohen@ictrademarksandcopyrights.com

Endnotes

1Brainy Quote, Montesquieu Quotes, https://www.brainyquote. com/quotes/montesquieu_355540, (last visited December 15, 2022).

2From the ancient Greek, turannos, meaning absolute ruler. In our modern usage, it refers to an absolute ruler unrestrained by law who rules without constitutional or legitimate right, usually portrayed as cruel, and often resorting to repressive tactics. See The Free Dictionary, https://www.thefreedictionary.com/Tyrannos , (last visited December 14, 2022).

3Bradford Betz, North Korea Executes Teenagers for Distributing South Korean TV, Movies: Report, Fox News (Dec. 5, 2022), https://www. foxnews.com/world/north-korea-executes-teenagers-distributingsouth-korean-tv-movies-report

4See, e.g., the Democratic People’s Republic of Korea [North Korea], the Islamic Republic of Iran [Iran], Russia, and the People’s Republic of China [Communist China].

5In ancient Rome, in cases wherein the prosecutor failed to prove his case, he was branded on his forehead with a large letter “C” (shorthand for “Calumnia,” the willful bringing of a false accusation). The English word “calumny” is derived from this. Some scholars have written that during the Republic, the prosecutor could be sued under the Lex Remmia de calumnia if the accused was acquitted; it also has been written that the slandering prosecutor could be subjected to the same penalty that the accused person would have faced if he had been found guilty.

6Draco Malfoy is a fictional character in the Harry Potter series of books and universe of films.

7Steven Stavropoulos, the Wisdom of the Ancient Greeks 95 (2005).

8Id. at 30.

9Id. at 31 (quoting Plato, “The worst case of injustice is for someone to believe that he is just while he is not.”).

10Id. at 112 (quoting Sophocles).

11Id. at 32 (quoting Sophocles).

12Id. at 113 (quoting Sophocles, “All of a man’s affairs become diseased when he wishes to cure evils by evils.”).

13Narcotic-like effects from ingesting this toxic plant can be observed as soon as thirty minutes after ingestion, with victims falling asleep and unconsciousness gradually deepening until death a few hours later. The onset of symptoms is similar to that caused by curare, with an ascending muscular paralysis of the respiratory system, causing death from oxygen deprivation.

14In ancient Greece, hemlock (Conium maculatum) is the plant that

killed Theramenes, Socrates, Polemarchus, Matthias Corvinus, and Phocion. Interestingly enough, Socrates, the most famous victim of hemlock poisoning, was accused not of homicide, but the “crime” of impiety and corrupting the minds of the young men of Athens.

15Plutarch, Plutarch’s Lives, Vol. I, 17. www.gutenberg.net , (last visited December 14, 2022).

16Sharon Anderson, Draco’s End (Death by Gifts of Cloaks), https:// mindtheimage.com/dracos-end/, (last visited December 15, 2022).

17Chilon of Sparta, Thales of Miletus, Bias of Priene, Cleobulus of Lindos, Pittacus of Mytilene, and Periander of Corinth were the remaining six sages of ancient Greece according to legend.

18Stavropoulos, supra note vii, at 39 (quoting Euripides, “Moderation, the noblest gift of heaven.”).

NOVEMBER 7, 2022

THANK

Akin Gump Strauss Hauer & Feld LLP

Dentons US LLP

Hobbs Straus Dean & Walker LLP

Sonosky, Chambers, Sachse, Endreson & Perry, LLP

GHOST COACHING: A REPORT FROM A PRO SE ASSISTANCE PROGRAM VOLUNTEER

JONA GOLDSCHMIDT*

The history of pro bono legal services can be traced to John Adams’ defense in 1770 of the British soldiers charged in the Boston Massacre. It began in earnest during the Progressive Era.1 Pro bono legal services were meant to provide access to justice for those individuals of limited means who cannot afford standard legal fees. It is an adjunct to funded legal services. Today, the American Bar Association promotes and coordinates numerous state and local pro bono efforts nationwide.2 It also codified into its Model Rules of Professional Conduct lawyers’ obligations with respect to enhancing access to justice generally, and pro bono legal services in particular.

According to the preface of the Model Rules, a lawyer, as a public citizen, “should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession.”3 Today, according to § 6.1, lawyers “should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal

counsel.” The rule further states: “Every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least (50) hours of pro bono publico legal services per year.”

Under the rule, this obligation may be satisfied in various ways, such as (a) providing free legal services to persons “of limited means,” (b) or organizations having the purpose of providing such services, and by providing “any additional services” through delivery of legal services (c) “at no fee or substantially reduced fees” to individuals, groups, and organizations which promote “civil liberties or public rights,” where payment of standard legal fees “would significantly deplete the organization’s economic resources or would be otherwise inappropriate,” (d) “delivery of legal services at a substantially reduced fee to persons of limited means,” and (e) “by participation in activities for improving the law, the legal system or the legal profession.” Lastly, “a lawyer should voluntarily contribute financial support to organizations that provide legal services to persons of limited means.”

Some states have adopted a “mandatory volunteerism” requirement on lawyers or are contemplating doing so. This caused the ABA to issue a white paper arguing in part that lawyers should not be mandated to provide legal services because it “stirs the pot” regarding the long- standing debate on the issue; and that the overly broad definition of qualifying pro bono services dilutes the original meaning of the term, which focused on direct legal services to individuals in need, rather than organizations.4 Nevertheless, the ABA has issued

“There is no greater tyranny than that which is perpetrated under the shield of law and in the name of justice.” Charles de Montesquieu1

an urgent call for pro bono lawyer volunteers to provide legal services to those unable to afford them in a variety of legal fields.5

Concurrently, unbundled (or limited scope) legal services, proposed in the 1990s to help close the so-called “justice gap” between the indigent served by legal services and those of moderate means has become a popular additional method of contributing to the improvement of access to justice. Legal services short of full representation consist, for example, of merely advising clients regarding their legal rights, advising them regarding the required content of a complaint (or a theory of defense), possibly ghostwriting a legal document, or a combination of these services. Distinguished from pro bono services, these are paid legal services, in most cases at a reduced rate, but only for discrete tasks, much akin to the work of a transactional lawyer.6

This paper is a participant observation study describing my experiences while engaged in a program that fulfills my ethical obligation to promote access to justice, as well as my obligation to provide pro bono legal service to those unable to afford standard legal fees. My clients in the U.S. District Court (N.D. Ill.) Hibbler Memorial Pro Se Assistance Program (named after a former judge of the court) are pro se litigants, who I refer to here as self-represented litigants. The services are provided as part of a rare program developed by the District Court in conjunction with Legal Aid Chicago. Any current or future self-represented litigants wishing to may sign up online for a free 45-minute session with a volunteer lawyer every month. This program has been a long time coming given the large number of self-represented litigantss in our courts. Additionally, it fulfills the need to provide greater individualized advice services rather than the too general, but more common, assistance provided at self-help centers and legal educational clinics.

The purposes of this paper are twofold: (1) to enlighten the reader as to the unfortunate situation in which the self-represented find themselves in civil litigation (beyond the small claims category), and thereby incentivize more lawyer participation in such programs and (2) to improve the effectiveness of unbundled, pro bono legal services to such litigants.

Program Description

• The scope of limited representation afforded by the program is described as follows: The Program attorney will:

• Assist you by providing information about federal court procedure and the law as it applies to the facts as you describe them;

• Explain the status of your case;

• Assist you in understanding and in helping you to prepare certain of your own pleadings, motions, or other court documents;

• Assist you in accessing other sources of information about your legal issues;

• Refer you, in appropriate cases, to other providers of civil legal services or to social service agencies; and

• Keep any personal information you provide confidential, unless you agree in writing to its disclosure.

The Program attorney will not:

• Appear on your behalf in court;

• Research or write court documents for you;

• Conduct any investigation into the facts of your case;

• Communicate with your opponent or your opponent’s attorney;

• File, serve, or mail anything on your behalf;

• Assist you if you are currently incarcerated, or

• Assist you with a criminal case.

The Program attorney may decline to assist you after interviewing you if:

• The Program attorney already has given advice to your opponent;

• Your legal problem is beyond the scope of the Program; or

• In the Program attorney’s view, giving legal advice conflicts with any provision of the Illinois Rules of Professional Conduct.7

Before clients receive their appointment with a volunteer lawyer, they must first sign a statement of understanding which explains the limited scope of the representation they will receive. It states:

• The Help Desk is free.

• Neither the Help Desk nor any of the volunteer attorneys working at the Help Desk have agreed to represent me in my case. I remain at all times my own representative with regard to my legal matters.

• Volunteer attorneys at the Help Desk provide legal advice on federal procedure and the law, based on the facts of my case.

• The Help Desk volunteer attorneys agree to assist me in preparing certain of my own pleadings, motions, or other court documents.

• The Help Desk volunteer attorneys agree to provide me with referrals for other legal assistance.

• The Help Desk volunteer attorneys will not appear on my behalf in court, negotiate with my opponent (or opposing counsel) on my behalf, or send out correspondence for me.

• The Help Desk volunteer attorneys have not agreed to research or write court documents for me, conduct any investigation into the facts of my case, photocopy or print documents for me, or provide me with any supplies.

• All Help Desk volunteer attorneys will keep information about my case confidential, consistent with the Illinois Rules of Professional Conduct.

• Any Help Desk volunteer attorney may decline to assist me if they have given advice to my opponent, my legal problem is beyond the scope of the Help Desk, I am rude or otherwise disruptive, I have violated any other Help Desk rule listed in this document, or if the volunteer attorney believes that giving me advice conflicts with any provision of the Illinois Rules of Professional Conduct.

• If I miss two appointments without canceling ahead of time, I will no longer be able to receive assistance from the Help Desk.

• I cannot sign up for more than one appointment within a twoweek period [recently changed to once a month due to heavy demand].

• If I have a complaint about the services I receive at the Help Desk, I may send a letter through regular mail to the following person and will receive a response within a reasonable time.8

The volunteer lawyer manual I received described my duties as follows: “Advise pro se litigants on procedural matters, review and edit or explain documents, and provide assistance on all phases of litigation.” Before the start of the COVID-19 pandemic, volunteer lawyers met with clients in person. Since then, appointments shifted to videoconferencing through the Zoom application. The manual advises lawyers that the program coordinator:

will email you any relevant documents that she can find for the client prior to the start of your shift, including your schedule for the day. This includes the client’s contact information, the client’s docket report (if the client has/had a case with the federal court), and the notes from the client’s previous appointment (unless the client is new to the program). Sometimes the clients email us documents they would like to review with the volunteer during their appointment, including drafts. If the Coordinator receives them, she will forward them to you from our program’s email account since sometimes clients include a message about their case when they email their documents. Clients are advised to send us their documents at least a day before their scheduled appointment.

Volunteer Recruitment and Training

Having recently retired from teaching, I found myself with time on my hands and decided to apply to advise self-represented litigants on their civil cases through this volunteer program. This is one of 20 pro bono programs which this impressive legal services organization has underway. After submitting my application, which sought background information regarding my legal experience, I was approved and invited to participate in a Zoom training session. I shadowed a volunteer lawyer assigned to provide advice in that morning session.

Lawyers know that we each have a different perspective on the merits of a case or a theory to pursue in litigation. And I was informed that the requirements of the grant which funds the program and the malpractice carrier required that we limit our advice to procedural matters.

So, during the shadow session, I found it curious that the lawyer responded to the client’s technical question about the operation of the rule to vacate a judgment by stressing that he should be polite and respectful to the court. I was uncomfortable with the limited extent of that advice, so I chimed in by reciting the applicable language from the rule in question. This gave the client knowledge of the specific requirements of the rule of which he was unaware. The session ended with the client thanking us for the assistance received. Thus, I realized early on that the extent of advice to a client can vary greatly depending on the lawyer giving it.

Future Appointments with the Same Client

Informally, the program director advised me that they discourage clients from thinking that any of us are their attorney for the entire matter they are litigating. Thus, they assign clients to attorneys randomly over time. This makes it very interesting for the lawyers because they see a wide range of cases for which the self-represented need assistance at all stages of the litigation.

Nevertheless, I have had occasion to advise the same client on several occasions. This is very helpful, since some of the cases are factually complex and take time for clients to explain to the lawyers, despite the fact we are provided with their case docket sheets and their complaint or amended complaint. Sometimes the complaints are prolix and not easy to follow, so one has to ask questions of the client to get a sense of the substance of their complaint. If I see a client on a subsequent occasion, I will be up to speed and the client won’t need to spend time explaining the nature of their complaint again.

The program also discourages direct contact with clients outside the program sessions.

This, too, was explained as being part of the funder’s and malpractice insurance company’s requirements. Thus, when the client needs

a template for this or that motion or discovery tool, I refer them to the program coordinator who then emails the client the document requested.

Case Notes

At the conclusion of each three-client session, consisting of three roughly 45-minute interviews, I prepare case notes describing each case and advice provided. The case notes include the type of case, upcoming deadlines, the procedural disposition of the case, and a note describing the services provided. There is no required format for these notes, and I have seen a wide variation among the notes written by the previous lawyer who advised the client. Some are detailed and others are very general; some state what the client said he would or would not do given the advice received, and others do not; some discuss the client’s state of mind as he or she expressed it to the lawyer (e.g., “She stated she is ‘overwhelmed’ by the procedural requirements in the case”), and some do not.

Templates and Forms

As noted, the program coordinator has a slew of forms and templates available to the clients, which they may request or about which they are informed. These are very basic, such as a form for a pro se appearance, a motion, or for interrogatories.

The more complex motions, such as those for summary judgment, or, more importantly, forms for responses to such motions, are not provided. To remedy that situation, I found pleadings from the other cases where such documents were filed and provided them to the program coordinator for distribution to self-represented litigants upon request or at the suggestion of a volunteer attorney. I still have to explain the meaning of dispositive motions, discovery, etc., to the clients. Despite my relatively brief and hurried explanations, most of the clients still have difficulty with understanding their obligations under the relevant rules of procedure.

Settlement Assistance Program

My experience is that our self-represented plaintiff clients (just like represented parties) are generally willing to discuss settlement of their claims, but their opponents usually are not, at least not until they prevail at the summary judgment stage. The court, on the client’s motion, can refer self-represented litigants to a settlement assistance program run by another legal services organization in those rare cases where the opponent is willing to discuss settlement. They have pro bono lawyers willing to assist the self-represented in efforts to settle their cases, which is routinely recommended by the court. If there is a willingness by both parties to discuss settlement, the program coordinator will provide the client with a form for a motion requesting the court to appoint an attorney from that program for the limited purpose of settlement negotiations.9

In Forma Pauperis Issues

Indigent litigants in the court have a right to proceed in forma pauperis—that is, without the required prepayment of filing fees and court costs—if they demonstrate through a financial means affidavit that they are unable to pay the fee and costs, and that they are unable to afford to hire private counsel. Most of the self-represented litigants come within that category and are granted IFP status. Over the months I have learned some interesting things about the IFP process.

For example, some self-represented litigants, being unaware of

the IFP procedure, scrape together the $402 fee to file their civil complaint from their own or borrowed funds. Then, after advising the client of their right to apply for IFP status they would do so, only to have the court rule that the IFP issue is moot because client was able to pay the filing fee. In some cases, if their IFP application was initially denied, and if I learn their financial circumstances have substantially changed, I will advise the litigant to file a renewed application.

The matter of IFP status is important primarily because of the cost of depositions, which the government would pay on behalf of someone with that status. An equally important additional benefit of IFP status under the applicable statute, which furthers access to justice, is that the court has discretion to recruit—not appoint— counsel for litigant with IFP status. Most self-represented litigants are unaware of the benefits of IFP status.

Counsel Recruitment

The court’s forms made available to the self-represented online by the U.S. District Court (N.D. Ill.) include a form Motion for Attorney Representation. Most of our pro se litigants file this motion, expecting it to be granted due to their indigency. I have to explain to them that the court has no authority to compel counsel to represent a party;10 even though, as a condition of becoming a member of the court’s trial bar (as distinguished from the general bar), lawyers have an obligation to “be available for assignment” to represent and assist those who cannot afford counsel.11

Under 28 U.S.C. § 1915(e)(1), “the court may request an attorney to represent any person unable to afford counsel.” Under the applicable caselaw interpreting the IFP statute, courts require an eligible litigant as a threshold matter to make a reasonable effort to secure private counsel before considering a motion for “appointment” of counsel.12 There is no definition of “reasonable efforts,” but some courts apply the “three-attorneys rule.” That is, if the litigant can show the court letters from three attorneys refusing to accept their case, then he or she has established that they took reasonable efforts to secure private counsel. I have also seen a court order that a self-represented litigant not only provide evidence of three efforts to secure private counsel, but also required them to explain why each lawyer or firm refused to take the case.

Absent exceptional circumstances, the court in which our litigants appear will never attempt to recruit counsel for self-represented until after they prevail on the defendant’s motion for summary judgment. In routinely denying recruitment of counsel requests “without prejudice,” judges often note the ability of the litigant to adequately manage the litigation at an early stage of the case, based on their writing ability, their invocation of appropriate rules, or their application of pertinent case law. I have read language like the following from the court denying a motion for appointment of counsel this way: “If the case gets too complicated for plaintiff to manage, the court will reconsider attorney recruitment.”

Self-represented litigantss, with or without IFP status, have no inkling of the complexity of law. Yet most courts have held that such litigantss are held to the same rules as represented parties. So self-represented litigants have the obligation to find, understand, and follow the rules of civil procedure which is not easy for the lay person. They then have to navigate the dispositive motion to dismiss, when they cannot understand what is required of them when facing such a motion. After this they must engage in discovery, and then

they respond to a motion for summary judgment. It is only after these three stages of litigation, if the plaintiff's claim is found sufficient to avoid summary judgment, that the court will begin its efforts to recruit counsel (or appoint settlement counsel).

This imposes a tremendous burden on self-represented litigants. It is the rare one indeed who can survive the typical lengthy and complex civil litigation process, to be fortunate to prevail against a defendant’s motion for summary judgment, and then to have counsel recruited by the court. An empirical study of the effects of the courts’ policy of delayed counsel recruitment on case outcomes would be helpful.

On occasion, a self-represented litigant with IFP status files a claim that I think has merit but he or she is unable to persuade the court to recruit counsel. In that case, or even if the client does not qualify for IFP status, I will take the liberty of referring the client to attorneys I know who have the expertise relevant to their claims. The fact that I am referring them to counsel I know gives them a little edge in terms of the lawyer considering whether to take the case.

Rules of Procedure

Our clients are usually referred to the program by the court, so most have already filed their complaint, usually using the court’s online forms. At this point they know nothing about the rules of procedure. I have found that self-represented litigants are, in most cases, unaware of the rules and unable to find, much less understand them.

The court’s web site has a page for the self-represented that provides a link to the government’s PDF version of the Federal Rules of Civil Procedure. The document has historical notes and comments and other extraneous matter up front, which are no doubt incomprehensible to the typical litigant. The actual rules appear lower on the document, but frustrated self-represented litigants may give up after trying to understand the first irrelevant sections. I, therefore, refer them instead to the Cornell Legal Information Institute website, which is much more user friendly, containing links to the full text of each rule. I also guide them to the local rules, which are also not easy to find on the court’s website. I try to explain to my clients the difference between the federal rules and the local rules, and how the court expects both to be followed.

Complaints

As noted above, the court’s website has a page for self-represented litigants, which contains two fill-in-the-blanks and check-the-boxes complaint forms, one for employment discrimination cases and the other for civil rights cases (one set for prisoners and another set for non-prisoners). They are not interactive PDFs, and, while useful, they provide only a few lines to state the facts of the case. The litigant is instructed to add additional pages to state the facts supporting their claims. Sometimes, the litigant's complaints are described in a long narrative that spans years, often including a litany of incidents that are not easy to follow.

Self-represented litigants are not aware of the rule requiring a short and plain statement of facts, and because they throw the proverbial “kitchen sink” in their complaints, it makes their often-prolix pleadings subject to dismissal. I counsel them to amend their complaint by reducing the number of allegations to those that are essential and limiting the number of exhibits. Many of the litigants who I see early in the litigation are unaware of the right to file an amended complaint before, in the face of, or after a motion to dismiss is grant-

ed. I have been asked, “Is there a form for an amended complaint?”

Service problems are not uncommon after a self-represented litigant files his or her complaint. These are the same as those that lawyers face, such as not being able to find a named defendant or serving the person who is not a registered agent of a corporation and waiting on a response that will never come due to improper service. The self-represented are unaware of the requirement that corporations be served through their registered agent and try to serve the complaint on others in the defendant business or organization.13 Those who are suing the government, or an agency thereof, or certain public employees, are unaware of the special service rules that apply in those circumstances. The litigants with IFP status fare slightly better than those without it at the service stage. The clerk of court assists those with IFP status by providing them with the requisite court summons with instructions for filling it out and attaching a copy of the complaint, and by providing them with the USM 285 form to be filled out and sent to the U.S. Marshal Service for service on the defendants.

Filing, Docket Sheet, and Status Reports

Now that COVID-19 restrictions are lifting, some self-represented litigants will go in person to the office of the clerk of court to inquire about filing a complaint and getting the forms to do so if one is available. Others find the court’s website and locate these forms there. Still others with allegations not fitting into the court’s form will find a similar complaint through Google or other means and use it as a guide. The filing is accomplished by the litigant going to the clerk’s office or using an email address for the clerk’s office provided on the court’s website and sending the complaint and other papers thereby.

The clerk of court offers a required video training if a litigant seeks to use the court’s e-filing system. I have found only a few self-represented litigants who are willing to take the training and get their e-filing credentials. This may be because of their lack of literacy, their lack of confidence in their own computer skills, or even the lack of a computer, which is not uncommon.

While volunteer lawyers are provided the docket sheet in the self-represented litigant's case, unless they have earned credentials to go into the court’s e-filing system, they will not have access to it. Hard copies of orders entered in their cases are sent via United States Postal Service. Thus, litigants do not have a bird’s eye view of their case and all the dates of documents, events, and orders entered in it. When I share my Zoom screen and show them the docket sheet, they usually say they’ve never seen it before.

Status reports are required by many judges. These are usually termed Joint Status Reports in our court, which require the filing of an agreed report describing various features of the case. Self-represented litigants are unaware they will need to communicate directly with legal counsel for their adversary. Despite their reluctance to do so, I inform them that this will be a necessity throughout the litigation on a variety of matters. I show them where the form is located on the court’s, or the individual judge’s, website.

Since the start of my volunteering, I have noticed that many self-represented litigants do not have a computer. They enter a Zoom session and do all of their research and drafting on their smart phone. Many times, they enter a Zoom session via telephone, not being aware that they can access the session through video. I encourage them to enter a session through video, if possible, so I can share my screen and show them specific rules, resources on the court’s website, or to teach them legal research using Google Scholar.

Consent to Magistrate Assignment

It is common for federal courts to inform the parties at the outset of a case that the magistrate is available to be assigned the entire case— rather than merely hearing only preliminary matters and discovery—by consent of the parties. This notice is another of the myriad of confusing procedural things that are foreign to the self-represented. When asked what this notice means, I first explain the nature of the two levels of judgeships; the respective functions of each; and how (with the parties’ consent) the magistrate can go beyond handling preliminary matters and discovery to hear the entire case.

Of course, the client then asks why this is done. This requires an explanation of the factors that go into consenting to this option, such as knowing the magistrate’s general reputation as a “good” judge, knowing his or her leanings on the law, prior decisions, the fact the case may move more quickly, etc. In some cases, I am asked these questions after the litigant has already submitted the consent due to the time lag between their filing and the first appointment with a program lawyer.

Motions to Dismiss

The typical self-represented litigant is unfamiliar with this first line of defense to their complaint and what their obligations are when receiving it. I have to explain the nature of such a motion and ask them to summarize the points made in the motion if they have just received it. This is because the documents we get from the program coordinator are limited to the docket sheet and the latest complaint. We don’t see all the actual filings in the case.14

I explain the nature of the motion to the self-represented litigant and their obligation to respond to the points raised in the motion. After being informed of the nature of the points made in the defendant’s motion, I make suggestions for how the client can respond to each. Often, I can guess what the points are in the defendant’s motion just by looking at their initial complaint. We cannot ghostwrite the clients’ legal papers, so all I can do is tell them to take notes on my suggested responses and proposed language they could include in their response. Sometimes I have to go very slowly so they can write these things down. I often leave the session wondering how this brief session will translate into a coherent and readable response.

I also explain to them that they will need to conduct legal research to distinguish the caselaw cited by the defense in their motion to dismiss, find additional favorable caselaw to support their claims, and describe these to the court in their own legal memorandum. They are usually (and naturally) fearful of having to do all that, especially conducting legal research on their own. We show them Google Scholar,15 which provides them with basic research tools at no cost. I necessarily have to give them a quick law school lesson distinguishing authoritativeness versus persuasiveness in terms of what cases they plan to cite (preferably from our Seventh Circuit), how to cite a case, etc. Imagine having to learn these things in about the last 15 minutes of a 45-minute session.

It is also necessary to explain the amendment process. The self-represented do not know they can amend their complaint several times after successive motions to dismiss. I explain that each time there may be one or more deficiencies found by the court in their complaint, these must be cured in the next amendment if further pleading is permitted by the court. I also advise them that, if they believe the first motion to dismiss has merit, e.g., improper party, then they can just seek leave to amend the complaint without the necessity of responding to the motion.

I don’t get into the possibility that the court may consider a motion to dismiss as a motion for summary judgment where facts are in dispute. This would require me to explain the summary judgment process, which in and of itself is so complex it would probably not be understood or remembered anyway. Fortunately, this treatment of a motion to dismiss as one for summary judgment is fairly rare, so it’s one less thing with which to burden them. They will eventually be burdened with learning about summary judgment anyway later in the litigation.

Discovery

If their complaint survives the defendant’s motion to dismiss, the self-represented litigant go on to the discovery stage. After the denial of the motion to dismiss, the parties meet with the court in a status hearing and a discovery schedule is agreed upon or ordered, with deadlines for the close of fact and expert discovery. Most do not know what to do next. They are unfamiliar with any of the discovery rules, so—hopefully at an early stage of discovery—I will provide them with a brief overview of the process and explanation of the different discovery tools available under the rules; mandatory discovery; the nature of planning strategy; and logistics of depositions, motions to compel, and other relevant issues.

In my experience many don’t engage in much discovery unless they have come to our program for guidance in this complicated stage of the litigation. I explain to them the importance of engaging in discovery, primarily focusing on its later use to oppose the defendant’s motion for summary judgment which will surely follow. For some, this is the first time they learn about the rules of civil procedure and the related local rules of court. They need to be informed of the strategy to be used in discovery, in terms of the order of use of discovery tools. They also need an understanding of depositions, how to prepare for them, how to schedule them, how to retain a court reporter, how to prepare exhibits, etc.

I have, on occasion, encountered self-represented litigants with a penchant for filing motions to compel discovery where they believe the defendant is withholding disclosure and production of evidence. Courts generally deny these based on counsel’s certification that there is nothing more to disclose. But some are so suspicious of defendants and are not satisfied with their denials so they make repeated but unsuccessful efforts to sanction their opponent.

A few are quite adept at propounding interrogatories, requests for production, and requests for admission. I have encountered several, what I would call, “expert self-represented litigants,” so called because of their ability to read and understand most of the law, the rules, and formalities of the justice system.16 Every once in a while, I encounter a client who seems to enjoy the litigation process because it has been so educational for them.

Summary Judgment

The motion for summary judgment argues that the movant is entitled to a judgment as a matter of law without trial because there are no genuine issues of material fact in dispute. In our court, both the rules of civil procedure and the local rules of the court describe summary judgment practice. Both describe the movant’s requirements, i.e., motion, memorandum of law in support, and statement of undisputed facts, supported by admissible evidence (sworn-to testimony and documents), and the respondent’s obligations, i.e., response to motion, memorandum in support, responses to defendant’s state-

ment of undisputed facts, and a statement of supplemental facts in dispute in support of the response. Preparation of these documents, lawyers know, is very challenging. One can imagine the reaction of a self-represented litigant when informed of these requirements.

Fortunately, the court has a local rule that provides a lay person’s plain English explanation of the obligations of both summary judgment movants and respondents. But there are no forms available to them on the court’s website. Neither did our program have any forms or templates for summary judgment practice. I poked around through PACER on the court’s docket and found for the program a case that had examples of these documents that would be useful as forms to follow by our clients. In the course of providing the client with summary judgment instruction I find it also necessary to instruct them on the meaning of admissible evidence, cautioning them not to cite the allegations of their unsworn complaint or other statements in response to that motion. Legal research training is again required in order to strengthen the client’s response to the motion.

“I’m just overwhelmed” is a common refrain I have heard from our clients when they try to understand their obligations in litigation. I have heard several say they have a greater respect for attorneys now, even though they can’t persuade them to take their case, because they have come to understand the complexity of the justice system and the requirement of an in-depth education in order to navigate it.

Problem Clients

Our clients are overwhelmingly grounded individuals who believe in good faith that they have been wronged and now seek justice. I have on a very few occasions encountered four problem clients. There is the client who had a patently frivolous case but became upset when I informed him the court may very well dismiss it. Another was, in my opinion, delusional, and I asked not to be assigned to him again in the future. Still another was so angry over his treatment in a correctional institution that it distracted him from understanding my explanation of the litigation process. Lastly, there was the client who said, “I know all that . . .” and didn’t want to hear anything further. Fortunately, these clients were a rare occurrence during my time volunteering for the program and should not deter anyone from volunteering in a program such as this. The overwhelming number of clients are rational and suing in good faith with colorable claims.

Observations and Suggestions

My experience in the pro bono assistance program has been extremely gratifying. I feel I and the other lawyers in the program provide valuable assistance and increased access to justice for our clients. We can give them specific advice relating to their case, not just general advice that they may find from the internet or other sources. We do so anonymously, in so far as the court is concerned, thus the reference to “ghost coaching” in the title of this paper.

This court, like some others, is on the one hand adamantly against ghostwriting, that is, the practice of lawyers drafting complaints or other legal papers for a self-represented litigant (with or without disclosing their identity to the court or opposing counsel), on ethical and other grounds.17 In contradiction to its anti-ghostwriting position, the court favors the ghost coaching I and other pro se assistance program volunteer lawyers offer. In fact, the program model using volunteer lawyers who need not enter an appearance to provide “behind the scenes” individualized legal services originated at the court’s instance in 2001. The contradiction should be addressed so that our

clients can receive both ghost coaching and ghostwriting assistance. It makes no sense to deny one and favor the other.

I would also suggest the program be expanded to allow lawyers to provide substantive legal advice, not just procedural advice. We need to point out statutes of limitation, for example, or the statutory elements of a cause of action, or provide other information that falls within the mixed substantive/procedural category. Grant funding sources and malpractice insurance carriers (who can insist on appropriate liability waivers from clients) should support and cover such substantive advice services that are as critical to a client as procedural matters.

I would recommend changing the lawyer assignment process such that self-represented litigants could sign up for specific volunteer lawyers. This would establish a maximum (but not perfect) continuity of legal services and avoid the necessity of the client having to describe the facts or procedural posture of their case each time they seek advice. I enjoyed seeing some of the same clients from time to time and seeing how their cases have progressed. Attorneys who prefer random assignment should be given that option.

On a personal level, I found that I wanted to take almost every case which I thought had merit, but of course I didn’t have the time or resources to do so. So, I enjoyed being involved in a case and helping the clients and the court without having the stress of litigation. I find it unfortunate, however, that not enough attorneys are willing to undertake representation of the litigants who have meritorious cases either because of their perceived low dollar value, or the clients’ inability to pay a retainer. Many of our clients litigate employment discrimination and civil rights cases, where the need for representation is the highest, but where the ability to pay standard legal fees is the lowest.

A final suggestion is that all courts, state and federal, establish a version of the traditional pro se small claims courts—which have simplified procedures and don’t strictly apply the rules of procedure and evidence—but for higher dollar value civil cases. They would be governed by a “Rules of Simple Procedures” that are stripped of unnecessary verbiage and understandable by the lay person. Many courts are working on simplification of forms, but simplified procedures for use by self-represented litigants would be as, if not more, useful.

Supported by strong volunteerism in the tradition of the pro bono movement, programs like the Hibbler Center described above can and should be expanded. In addition, the modifications I’ve proposed will improve such programs, assist the court in streamlining pro se litigation, and enhance their access to justice as envisioned by the Model Rules of Professional Conduct. 

Dr. Jona Goldschmidt is a professor emeritus in the Department of Criminal Justice and Criminology of Loyola University Chicago. He is president of the Illinois Academy of Criminology, a member of the Illinois and California bars, and is admitted to the bars of the Supreme Court of the United States, the Seventh and Eighth U.S. Circuit Courts of Appeal, and the U.S. District Courts for the Southern and Northern Districts of Illinois. Before coming to Loyola, Dr. Goldschmidt was a litigator in private practice, a member of the faculty of Northern Arizona University's Department of Criminal Justice, and assistant executive director of the American Judicature Society.

Endnotes

1Library Blog, Roger Williams University School of Law, The History of Lawyer Pro Bono Services, https://law.rwu.edu/library/blog/ history-lawyer-pro-bono-services.

2ABA, Pro Bono , https://www.americanbar.org/topics/probono/.

3MRPC Preface: Lawyer’s Responsibilities [6]. The rule goes on to say that lawyers: should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance. Therefore, all lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest.

4 ABA Standing Committee on Pro Bono and Public Service, New York’s 50-hour Preadmission Pro Bono Rule: Weighing the Potential Pros and Cons 7 (2013). Regarding Rule 6.1(b)(3), allowing lawyers to meet their pro bono obligation by “participation in activities for improving the law, the legal system or the legal profession," Comment [8] to the rule states: Serving on bar association committees, serving on boards of pro bono or legal services programs, taking part in Law Day activities, acting as a continuing legal education instructor, a mediator or an arbitrator and engaging in legislative lobbying to improve the law, the legal system or the profession are a few examples of the many activities that fall within this paragraph.

5The call by the ABA Standing Committee on Pro Bono and Public Service states: "We continue to face an extraordinary need for legal assistance on multiple fronts -- from the eviction crisis arising from the COVID pandemic to assistance for refugees from Afghanistan and Haiti as well as other areas, to the legal issues arising from disasters including tornadoes in Arkansas and Kentucky, wildfires in Colorado. The time to volunteer is now. Over the next three months, we urge you to commit to 10 hours of pro bono – or just under a quarter of the Model Rules of Professional Conduct aspirational goal of 50 hours annually per lawyer. Legal assistance at the right time can keep families in their homes, prevent a small business from closing, and offer refuge to those in need. Whatever your practice area, interest, or availability, a pro bono opportunity awaits you. Take this moment to change a life for the better." https://www. americanbar.org/groups/probono_public_service/projects_awards/ probononow/.

6See Forrest S. Mosten, Unbundling of Legal Services and The Family Lawyer, 28 Fam. L.Q. 421(1994). Unbundling can be either vertical or horizontal. Vertical unbundling breaks up the lawyer’s role into a number of limited legal services, empowering the client to select only those needed. Horizontal unbundling limits the lawyer’s involvement to a single issue or court process.” Forrest S. Mosten, Unbundled Legal Services Today–and Predictions for the Future, 35 Family Advocate (ABA Section of Family Law) 14 (2012) (available at http://www.mostenmediation.com/books/articles/Unbundled_ Legal_Services_Today_and_Predictions.pdf). Ghostwriting is classified as an example of vertical unbundling.

7https://www.ilnd.uscourts.gov/Pages. aspx?/2+UWDbtVzCDq3Lu8BusuQ==.

8Id

9In this pro bono program, volunteer lawyers: "do not prepare the

case for trial or engage in discovery and motion practice. Rather, their duties are limited to analyzing the case, working with the plaintiff to develop a strategy to settle the case, making a specific settlement demand and representing the plaintiff at a settlement conference with the judge." Chicago Lawyers’ Committee for Civil Rights, Settlement Assistance Program: Mission and Staff, https:// www.clccrul.org/settlement-assistance-program.

10Mallard v. U.S. District Court for the So. Dist. of Iowa, 490 U.S. 296. 302 (1989) (lawyers may not be compelled to accept representation of indigent parties under 28 U.S.C. § 1915(e)).

11The FAQ sheet about the Trial Bar membership states: "Among the responsibilities of Trial Bar attorneys is the duty to be available for assignment by the Court to represent and assist in the representation of those who cannot afford counsel. Once a Trial Bar member has been assigned and fulfilled the duty to provide pro bono representation, they will not be called upon again until each member of the Trial Bar has similarly fulfilled their obligation." Frequently Asked Questions about Trial Bar Membership, https://www.ilnd. uscourts.gov/_assets/_documents/qaTrialBarRenewalFINAL.pdf.

12See e.g., Romanelli v. Suliene, 615 F.3d 847, 851 (7th Cir. 2010)

(court must first consider whether the indigent plaintiff “has made reasonable attempts to secure counsel on his own, or conversely, if he has been precluded from doing so.”).

13In one case, a self-represented litigant had sued the CT Corporation, it being merely a company that serves as a registered agent for other companies.

14The program manager explained that they are loathe to give out their office’s PACER password. Hopefully, this situation can be remedied in the future in this or similar programs. 15Found at www.scholar.google.com.

16See Jona Goldschmidt, Equal Injustice for All: High Quality SelfRepresentation Does Not Ensure a Matter is “Fairly Heard,” 44.2 Seattle L. Rev. SUPRA 75 (2021) (describing cases in which knowledgeable and articulate SRLs have been treated unfairly despite their compliance with procedural rules).

17For an overview of the divide between state and federal courts on the question, see Jona Goldschmidt, Ghosting. The Courts’ Views on Ghostwriting Ethics are Widely Divergent: It’s Time to Find Uniformity and Enhance Access to Justice, 102 Judicature (December 2018).

ART & FASHION LAW CONFERENCE

April 3-4, 2023

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Book Reviews

So Help Me God

By Mike Pence

Simon & Schuster, 2022

542 pages, $35.00

Reviewed by Louis Fisher

Former Vice President Pence has released a book that covers a political career that led to his role on January 6, 2021 at the U.S. Capitol, presiding over the count of electoral votes in the presidential race between Joe Biden and Donald Trump. His book describes many of his previous political experiences, including serving for 12 years in the House of Representatives and as governor of Indiana. The prelude of the book explains that he “had always been loyal” to President Trump, but his “first loyalty was to the Constitution of the United States.” The oath Pence would take ended with these words: “so help me God,” the book’s title. All but one of the 52 chapters begin with a quotation from the Bible.

At times in the book, political issues are placed not with elected officials and the general public but in another realm. As

Pence mentions on page 145, he and other colleagues decided to place “the outcome in God’s hands.” As explained on page 150 re-

garding a political issue, he and others were “determined to put it all in God’s hands.” As to the presidential contest between Hillary Clinton and Donald Trump in 2016, Pence offered this judgment on page 174: “There was nothing left to do but put it into the Lord’s hands.”

Chapter 23 explains the Republican difficulty to repeal the Affordable Care Act. Although that was a major goal, it proved to be impossible because of a “huge stumbling block” among House Republicans divided between “the Freedom Caucus and more mainstream Republicans.” As a result, Trump “vowed to veto every single bill Congress sent to him until Republicans found a solution to health care” (page 218). Although Democrats were opposed to replacing the ACA, “gaining consensus among the Republicans on how and what to replace it with was elusive” (page 241). As time went on, “the effort to repeal and replace Obamacare was dead” (page 243). The Republican party had majorities in each house of Congress and held the White House but could not deliver on its promise to repeal and replace the ACA. As Pence explains, Republican donors “were outraged and had stopped sending checks” (page 260).

Chapter 43 focuses on the phone call between President Trump and President Zelenskyy of Ukraine. Congress had appropriated $250 million to Ukraine to help it fight off Russian aggression on the eastern border. However, the money was withheld by the administration. As Pence notes on page 360, a whistleblower in the executive branch filed a complaint that Trump had pressured Zelenskyy to interfere on Trump’s behalf in the upcoming election. Pence does not explain that the pressure included asking Zelenskyy to find damaging information about Joe Biden, the most likely Democrat to run against Trump in 2020. Pence explains that details had emerged that Trump “had pressured Zelenskyy to investigate Joe Biden’s son, Hunter,” who had been given a position with the board of Burisma, a Ukrainian gas company. On page 362, Pence says that Trump publicly described his conversation with Zelenskyy as a “perfect call.” In Pence’s

judgment, it was “a less-than-perfect call, but it was not an impeachable offense.” To Pence, “there was nothing illegal about what the president had said during his call with Zelenskyy.” In fact, the administration had impounded appropriated funds in order to pressure Zelenskyy to find damaging information about Joe Biden. In the judgment of Pence, House Democrats “proceeded with impeachment—over a phone call.” To Pence, the impeachment effort “was absurd” (page 363). The issue was never about Trump phoning someone; it was about a president threatening to withhold appropriated funds to Ukraine unless it agreed to find damaging information about the most likely Democrat to run for president in 2020.

Chapter 50 focuses on Pence’s duty to carry out the Electoral Count Act. Article II, Section 1 of the Constitution provides that the vice president, as President of the Senate, “shall, in the Presence of the Senate and the House of Representatives, open all the Certificates, and the Votes shall then be counted.” As Pence notes, the vice president as President of the Senate “is afforded no authority to reject or return votes to the states, and no vice president in history has ever asserted that authority” (page 442). He said he always knew he “did not possess the authority to overturn the election” (page 442). However, he shared “the concern of millions of Americans about allegations of fraud and irregularities in the November election and thought that a full airing of all the evidence to the country was in order” (page 445).

Trump strongly opposed the position that Pence took regarding electoral votes. Pence told Trump many times that the vice president possessed no power “under the Constitution to decide which votes to accept or reject,” but Trump “just kept coming” (page 446). A few days later, Pence did agree that members of Congress had the right under the Electoral Count Act to raise objections and offer evidence. As a result, many newspapers offered this headline: “Pence Welcomes Congressional Republicans’ bid to Challenge Electoral Votes.” To Trump, that meant Pence had “the absolute right to reject electoral votes,” but that was

not the position of Pence (page 448). He told Trump repeatedly that the vice president, as President of the Senate, “is afforded no authority to reject or return votes to the states and no vice president in history has ever asserted that authority.” Nevertheless, Trump promptly tweeted to millions of his followers: “The Vice President has the power to reject fraudulently chosen electors” (page 453).

On the morning of January 6, 2021, Pence received a phone call from Trump. Pence reiterated his position that he lacked any authority to reject electoral votes. When Trump told Pence he was not supporting and defending the country, Pence responded: “We both took an oath to support and defend the Constitution” (page 460). Pence was aware that a large crowd had gathered at the Ellipse south of the White House. Although Pence would ordinarily rely on television “to monitor a Trump rally, that day I made a conscious decision not to watch.” Later he decided that maybe he should have watched (page 460). Trump would tell the crowd that Pence “is going to do the right thing. I hope so. I hope so. Because if Mike Pence does the right thing, we win the election.” All that Pence had to do, he told the crowd, was to send certain electoral votes back to the states “to recertify and we become president and you are the happiest people” (page 460).

After Pence and members of Congress learned that protestors had broken into the Capitol and were committing violence, his Secret Service detail told Pence that he and members of Congress needed to leave the Capitol. Pence refused, pointing his finger at a Secret Service agent while saying: “You’re not hearing me, I’m not leaving! I’m not giving those people the sight of a sixteen-car motorcade speeding away from the Capitol” (page 464). As a compromise, Pence with his family and others agreed to be moved temporarily to the Capitol’s loading dock and garage, a few floors below. In that location, Pence learned that Trump had sent out a tweet at 2:24 p.m. saying: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!” (pages 465-66).

By 7:00 p.m., Pence and Senators were allowed to assemble and begin the counting of electoral ballots. At around 3:40 a.m., Senator Amy Klobuchar of Minnesota read

the results of the 2020 election: Joe Biden and Kamala Harris received 306 Electoral College votes to Donald Trump and Mike Pence’s 232 (page 471). Trump was impeached a second time for his actions on January 6, 2021 but not convicted in the Senate. 

Louis Fisher is visiting scholar at the William and Mary Law School. From 1970 to 2010, he served at the Library of Congress as senior specialist in separation of powers at Congressional Research Service and specialist in constitutional law at the Law Library of Congress. He is author of 32 books and over 600 articles. For more information, see http://www. loufisher.org.

asks whether the industry needs its own set of regulations. Business academics in the Financial Times are opposed, lest any new laws endow the embattled “things” with unwarranted legitimacy. Instead, they declare, society would be better served doing “nothing and just let crypto burn.” The European Central Bank appears to agree, believing that Bitcoin is now on “the road to irrelevance.”

Tracers will prepare and inform anyone interested in these issues. Even more than that, it will entertain. Greenberg documents Bitcoin’s fascinating arc from its libertarian roots into the depths of its darkest, most criminally fraught abuses.

The book is structured around criminal investigations of “dark web” marketplaces. These online bazaars operated in the encrypted corners of the internet. Bitcoin was their exclusive payment method for the illicit goods and services on sale.

Each investigation unfurls like an international spy novel, set within a season of CSI, and infused with occasional buddy cop levity. The protagonists are criminal investigators and prosecutors at three-letter U.S. law enforcement agencies.

IRS-Criminal Investigation special agents play the leading role. These accountants— armed with guns, badges, and the ability to swear out warrants—are the backbone and compass of each investigation. Digitizing the mantra “follow the money,” they trace cryptocurrency transactions and online clues to identify the modern, and now infamous, Bitcoin-laundering kingpins: Silk Road, Dread Pirate Roberts, and AlphaBay.

Tracers in the Dark: The Global Hunt for the Crime Lords of Cryptocurrency

By Andy Greenberg Doubleday, 2022

326 pages, $32.50

Reviewed by Daniel Silva

Andy Greenberg’s book Tracers in the Dark arrives at a pivotal moment in the cryptocurrency lifecycle. Amid mounting bankruptcies and regulatory scrutiny, the turmoil has reanimated several questions at the heart of the cryptocurrency experiment. Chief among them: What exactly is cryptocurrency—money, securities, commodities, simple computer code? And are they doomed to function merely as speculative investments or payments for unlawful transactions?

To that end, a more recent policy debate

Greenberg shows how federal investigations start, expand, succeed, and sometimes fail. Law enforcement, despite the seriousness of the crimes, work with an endearing sense of mission. The book shines when humanizing the prosecution teams. Some anecdotes are destined for legendary status, none more likely than “octopus guy” (further description would spoil the story or fail to do it justice).

As the public servants unravel novel, sophisticated, diffuse, and digital crimes across the globe, we see that relationships and aligned strategies matter as much as every piece of evidence. Trust circumvents bureaucracy. Camaraderie minimizes setbacks.

But this is no typical cops-and-robbers tale. The investigations are as complex as they come. The subject matter demands some understanding of Bitcoin and its basic functions. Some techno-jargon is thus

unavoidable. Thankfully, none of it bogs the story down. Greenberg surpasses the high bar he sets for himself by avoiding the trapdoor of delivering a lecture on “how to balance a digital currency checkbook”.

The crypto terms and techniques instead develop naturally, presented within investigations. Greenberg balances out the technical definitions and transactional analysis with many tense moments when an agent is not in front of a computer.

Greenberg generates further suspense with extended descriptions of “takedowns”—the coordinated arrests and seizures of assets. Digital or analogue, these are crimes that require old fashioned detective work. Law enforcement patiently and thoroughly builds evidence, like when an agent finds an incriminating image that is reflected on the criminal’s eyeglasses in a selfie.

The agents gain investigative skills over time and across investigations. Crucially, they also learn to exploit the continuing advances in Bitcoin-tracing technology. It turns out that Bitcoin users are not invisible. They are merely anonymized behind semi-encoded transactions. Greenberg spares readers an extended explanation of how Bitcoin’s public ledger, known as the “blockchain”, works. The important takeaway is that this partial anonymity gave criminals a significant, but imperfect, advantage against law enforcement.

In short order, law enforcement deploys its own digital investigative tools to fight (cryptographic) fire with (technological) fire. With the pace of a whodunnit/treasure hunt, the agents find more inventive ways to read the blockchain and connect Bitcoin transactions with real people and assets.

These investigative tools did not evolve in isolation. As Bitcoin’s usage and popularity matured, so too did academic research, Bitcoin-tracing companies, and cultural movements. Tracers contextualizes these developments by showing how they aided law enforcement, intentionally or otherwise.

For instance, “cyberpunks” are the opposite of law enforcement. Promoting a radical libertarianism, cyberpunks saw cryptocurrency as a means to fulfil their “grand mission of using unbreakable encryption software to take power away from governments and corporations and give it to individuals.” Think Neo from The Matrix before he takes the red pill. These principled dark web philosophers are unrecognizable next to the more contemporary and brash “crypto bros,” renowned

for mocking crypto-skeptics with memes like “#HFSP” (“have fun staying poor”).

This cheekiness has consequences. Cyberpunk idealism gives way to marketplaces that sell all types of contraband, facilitate ransomware, and, most disturbingly, encourage the production of child sexual abuse material. This descent stems from the misconception that Bitcoin was the perfect, digital get-away car for money launderers. Or, as Greenberg puts it, Bitcoin was a “siren song: the false promise of untraceable money.”

An academic identified this flaw as far back as in 2013, predicting that those “with subpoena power would be well placed to identify who is paying money to whom.” Had the criminals done their homework, they would have learned that Bitcoin was a poor fit for “high-volume illicit use such as money laundering.”

As predicted, law enforcement wields its subpoena power to devastating effect. Less predictable, however, is the symbiotic growth of “crypto analysis” companies. The book’s ambiguous sub-title—Global Hunt for the Crime Lords of Cryptocurrency—quickly takes on new meaning. Greenberg details the rise of these companies, some led by cyberpunk sympathizers, in parallel with law enforcement’s pursuit of digital money launderers. The bargain was simple: For a fee, the companies licensed or used their technology to trace Bitcoin, allowing law enforcement to seize billions of it.

Inspired with a sense of justice, readers transform into fledgling forensic accountants. We share small thrills with the agents and crypto-hunting companies as they gather evidence. The more we learn, the more we want to catch the perpetrators. At some point, the “cryptoverse” sheds its complexity. Bitcoin begins to resemble the traditional financial system. Instead of “bank accounts,” cryptocurrency is deposited into “digital wallets.” Banks aren’t the main financial intermediaries, “exchanges” are.

Less concerned with debating cryptocurrency’s utility, Tracers explains and explores Bitcoin’s most notorious abuses. Still, readers are left wondering what the starring special agents and prosecutors think about crypto’s future, or whether their partnership with the crypto-hunting companies carried any hidden risks. This layer of insight becomes all the more intriguing upon learning that many of the government officials profiled in Tracers now work for private companies in the cryptocurrency industry.

Possibly to avoid these conflicts, Greenberg concludes with the thoughts of an outspoken civil liberties activist, who argues that the success of the crypto-hunting companies (and ironically maybe even Tracers itself) represents an “epitaph for the era.” Bitcoin will cease to function as a money laundering device, the activist predicts, and the crypto-hunting companies will soon find themselves on their own road to irrelevance.

This seems premature. It also ignores finance and money laundering trends. Transactions are increasingly digital, whether on a blockchain, in a metaverse, or across the global financial system and the proliferating financial technology subindustry (e.g., “fintechs”).

Meanwhile, technology ceaselessly advances. Cryptocurrencies and related “web3” products remain in their infancy. Nations continue to experiment with minting their own digital currency. Fully untraceable cryptocurrencies, without a public blockchain, already exist. For a moment, consider the future perils of all this technology when paired with artificial intelligence, quantum computing, or even basic money laundering techniques like shell companies in offshore tax havens.

All this suggests that IRS-CI, academics, underground digital communities, and private industry will be hard at work in the future. Greenberg chronicles what financial detective work will look like in the 21st century. By looking back, Tracers has anticipated a sustained, global demand for sophisticated asset-tracing skills.

As proof, look no further than comments from John Ray III, the recently-installed CEO of FTX. The cryptocurrency exchange imploded in November 2022, culminating in bankruptcy and criminal charges against several FTX officers, charges that former CEO Sam Bankman-Fried denies. Yet in describing the company’s chaotic operations, Ray testified before Congress that, “We’re dealing with literally a paperless bankruptcy in terms of how they created this company … it makes it very difficult to trace and track assets.” 

Daniel Silva is product counsel for Stripe—a fintech and software company—advising on risk, credit, regulatory, and litigation issues. Before joining Stripe, he was an assistant U.S. attorney in San Diego, where he directed investigations, prosecutions, and forfeiture litigation of complex financial frauds, money laundering, tax crimes, and Bank Secrecy Act violations. In addition to his Juris Doctor, Daniel holds a Master of Laws in taxation and an MBA.

Supreme Court Previews

The previews are contributed by the Legal Information Institute, a nonprofit activity of Cornell Law School. The previews include an in-depth look at two cases plus executive summaries of other cases before the Supreme Court. The executive summaries include a link to the full text of the preview.

Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (No. 20-1199)

Oral argument: Oct. 31, 2022

Court below: U.S. Court of Appeals for the First Circuit

Questions as Framed for the Court by the Parties

(1) Whether Grutter v. Bollinger should be overruled and institutions of higher education should be banned from using race as a factor in admissions; and (2) whether Harvard College violated Title VI of the Civil Rights Act by discriminating against Asian American applicants and abandoning race-neutral alternatives.

Facts

Students for Fair Admissions, Inc. (SFFA) constitutes a coalition of applicants and prospective applicants to institutions of higher education and their families and includes at least one Asian-American member who applied for and was denied admission to Harvard. President and Fellows of Harvard College (Harvard) is a governing board of Harvard College. Harvard receives financial support from the federal government and thus is subject to Title VI of the Civil Rights Act of 1964, which prohibits discrimination based on various characteristics including race. A typical Harvard application file includes various materials, such as the applicant’s basic data, family information, SAT scores, and essays. Harvard permits students to identify their race but does not require them to do so. The application is reviewed by a first reader, subcommittee, and full committee; then, a post-admission

review is conducted. Harvard maintains that classroom diversity is essential to achieving its educational mission and, to that end, considers race in the admission process. SFFA contends that Harvard discriminates against Asian American applicants by assigning lower personal and overall ratings to these students as compared to applicants of other races. The personal rating “summarizes the applicant’s personal qualities.”

On November 17, 2014, SFFA filed suit against Harvard, alleging that Harvard violated Title VI by discriminating against Asian Americans. SFFA alleged six causes of action, including intentional discrimination against Asian Americans and impermissible racial balancing. The U.S. District Court for the District of Massachusetts stayed the action until the Supreme Court’s ruling in Fisher v. University of Texas at Austin on June 23, 2016. Harvard filed a motion to dismiss for lack of standing, which the court denied. Harvard also moved for judgment on the pleadings as to two counts, and the court granted its motion.

SFFA appealed the decision to the U.S. Court of Appeals for the First Circuit. The First Circuit affirmed the district court’s judgment, holding that although SFFA had standing, Harvard’s admission program survives strict scrutiny. The First Circuit affirmed that Harvard does not intentionally discriminate against Asian Americans and thus does not violate Title VI.

On February 25, 2021, SFFA filed a petition for a writ of certiorari. The United States Supreme Court granted certiorari on January 24, 2022.

Legal Analysis

SFFA’S STANDING TO CHALLENGE

HARVARD’S ADMISSIONS POLICY

SFFA explains that because SFFA is a voluntary membership association, it must prove associational standing. SFFA contends that it satisfies Hunt v. Washington Apple Advertising Comm’n’s three-part standing test because (1) its members have “standing to sue in their own right”; (2) the litigation is relevant to the organization’s purpose; and (3) the litigation does not require individual members’ participation. SFFA argues that its associational status does not affect its standing since the Court routinely decides cases brought by other membership associations.

Harvard does not dispute that SFFA satisfies Hunt’s tests. However, Harvard counters that SFFA is controlled by “bystanders” who have no actual stake in the outcome. Harvard points out that applicants who are allegedly members of SFFA neither finance the organization nor select the board. Thus, Harvard argues that the associational standing doctrine, which allows “genuine membership organizations” that embody the members and their interests to represent the injured members in a lawsuit, does not encompass SFFA. Harvard also points out that Supreme Court precedent involving challenges to college admissions programs, University of California Regents v. Bakke, Grutter v. Bollinger, Gratz v. Bollinger, and Fisher v. University of Texas at Austin, had been brought by individuals, not organizations.

WHETHER TO OVERRULE GRUTTER V. BOLLINGER

According to SFFA, courts will typically consider three factors when deciding whether to overrule precedent: whether the prior decision 1) is “grievously or egregiously wrong,” 2) has caused significant negative consequences, and 3) created substantial reliance interests. SFFA asks the Court to overrule Grutter and claims that the Court need not consider whether it should overrule Bakke or Fisher. SFFA argues that Grutter contravenes the Fourteenth Amendment’s history of abolishing racial distinctions. SFFA contends that the interest in a diverse student body is not more compelling than other interests that the Court has rejected as insufficiently

Winter 2023 • THE FEDERAL LAWYER • 49

compelling to justify racial classifications, such as “remedying societal discrimination.” SFFA further asserts that the Fourteenth Amendment forbids the assumption that race represents a valid proxy for certain viewpoints or experiences. SFFA highlights that race-neutral alternatives that focus on actual disadvantage are more narrowly tailored than Harvard’s admission process that uses race as a proxy for disadvantage.

Harvard counters that Grutter, Bakke, and Fisher should stand. Harvard argues that the Fourteenth Amendment does not support the absolute rejection of racial distinction, but rather supports equal protection. Harvard specifies that the Fourteenth Amendment’s history allows race-conscious measures. Further, Harvard counters that the interest in a diverse student body in higher education remains compelling. Har-

vard cites Bakke and Grutter as opinions that highlighted the importance of education, the impact of racial diversity on an educational mission, and the benefits of a diverse classroom. Harvard also responds that considering race among many other factors is not racial stereotyping.

EVALUATING GRUTTER’S PROGENY

SFFA argues that Grutter and its progeny are unworkable because they lead Harvard to take contradictory positions, representing that race is not “outcome determinative” while simultaneously using race to maintain minority enrollment. SFFA posits that upholding Grutter requires the Court to develop exceptions against longstanding rules. For instance, SFFA maintains that Grutter departed from precedent by allowing courts to address motives in strict scrutiny analysis. SFFA also claims that Grutter gives too much deference to universities, and universities that take federal funds cannot claim “special” deference under the First Amendment while violating Title VI.

Harvard responds that the Court’s precedent recognizes the educational benefits that flow from diverse student bodies. In addition, Harvard points out that precedent strongly supports deference to universities regarding their educational missions. Harvard further argues that the Grutter court considered race as part of a holistic review rather than making it “outcome determinative.”

Harvard stresses that it does not discriminate against Asian American applicants and that race plays no role in considering applicants’ personal qualities. Harvard also

claims that SFFA did not provide evidence that Grutter pushes Asian American applicants to hide their racial background. Harvard emphasizes that overruling precedent will lead to fewer underrepresented minority students being admitted.

RELIANCE INTERESTS AND RACENEUTRAL ALTERNATIVES

SFFA argues that stare decisis only considers legitimate reliance interests. SFFA cites Dobbs v. Jackson Women’s Health Org’s contention that cases that infringe on “equality before the law” should be overturned and claims that there is no legitimacy in racial classifications. SFFA asserts that overruling Grutter will not require burdensome changes to the current admission policy because race is only one of multiple factors in Harvard’s holistic review. SFFA notes that Harvard’s admissions program does not rely on Grutter’s model. SFFA argues that Harvard does not follow Grutter’s 25-year deadline for considering race in the admission process and does not pursue a “critical mass” of underrepresented minority students. SFFA contends that Grutter’s race-based admissions have led to no progress, undermining its importance as precedent. SFFA argues that Harvard never considered adopting alternative, race-neutral admission processes until SFFA sued Harvard in 2014. SFFA states that Harvard’s professed concerns that a decrease in minority admissions will alienate and isolate minority students constitute proof that Harvard improperly uses quotas and posits that Harvard should consider available race-neutral alternatives.

Harvard counters that universities have substantial, legitimate reliance interests. Harvard argues that race-blind admissions would adversely affect universities that invested in individualistic and holistic admissions systems. Harvard explains that universities’ course design and faculty hiring are correlated to diverse student bodies, in a way that positively affects and is affected by student diversity. Thus, Harvard contends that overruling precedent is more than a mere change to an admission policy. Harvard also responds that racial classification is not the legitimate interest here; rather, the interest is in cultivating leaders who were exposed to diversity in education. In addition, Harvard argues that Grutter’s 25-year deadline is an aspiration rather than a firm deadline. Harvard argues that a university is not required

to define “critical mass” because it need not pinpoint the level of minority enrollment that establishes diversity. Harvard notes that courts allow schools to consider race when there is no race-neutral alternative available. Harvard argues that adopting SFFA’s race-neutral alternative affects Harvard’s other academic goals, such as academic excellence or preventing the isolation of underrepresented students. Harvard states that the public has substantial interests since the precedent signals that diversity is essential to the nation’s democratic system.

Discussion

VIABILITY OF RACE-CONSCIOUS AND RACE-NEUTRAL ADMISSIONS

The State of Texas, in support of SFFA, asserts that the Court’s framework for race-conscious admissions is unpredictable. Professor David E. Bernstein adds that racial categories are arbitrary and often inaccurate when self-reported, making race-conscious admissions flawed. Oklahoma and 18 states (collectively, Oklahoma) argue that vague race-conscious admission frameworks should be abandoned in favor of race-neutral ones. Oklahoma contends that states which have banned race-conscious admissions have still been able to recruit diverse student bodies.

The College Board and other admissions organizations, in support of Harvard, maintain that the current legal guidelines for race-conscious admissions are predictable and have been well-adopted by universities. The University of Michigan (Michigan) emphasizes that race is often necessary to understand an individual applicant’s experiences. Michigan cautions that its past attempts at race-neutral admissions have failed to satisfy the university’s need for diversity. The Presidents and Chancellors of the University of California similarly warn that their past attempts to boost diversity through race-neutral admissions programs have been unsuccessful relative to race-conscious admission processes.

INTERESTS OF RACIAL MINORITIES

Project 21, in support of SFFA, maintains that race-conscious admissions harm racial minority students by casting doubt on whether the students’ academic achievements were based on merit. The Asian American Coalition for Education and Asian American Legal Foundation raise concerns that race-conscious admissions perpetuate racial stereo-

types and cause young Asian Americans to downplay and be ashamed of their racial identities. Pacific Legal Foundation notes that issues caused by race-conscious admissions extend beyond colleges, as K-12 schools have adopted race-conscious admissions.

The Council of Great City Schools, in support of Harvard, maintains that race-conscious admissions are necessary because primary and secondary education still confront racial segregation. The HR Policy Association emphasizes that diverse college classes are essential in increasing the number of underrepresented racial minorities in the corporate workforce. Asian American Legal Defense and Education Fund argues that race-conscious admissions acknowledge that Asians are a collection of unique subgroups and create diverse campuses which help Asian students with self-growth and safety.

Full text available at https://www.law. cornell.edu/supct/cert/20-1199. 

Written by Andrew Kim and Jade Lee. Edited by Victoria Quilty.

Moore v. Harper (No. 21-1271)

Oral argument: Dec. 7, 2022

Court Below: Supreme Court of North Carolina

Question as Framed for the Court by the Parties

Whether a state’s judicial branch may nullify the regulations governing the “Manner of holding Elections for Senators and Representatives . . . prescribed . . . by the Legislature thereof,” and replace them with regulations of the state courts’ own devising, based on vague state constitutional provisions purportedly vesting the state judiciary with power to prescribe whatever rules it deems appropriate to ensure a “fair” or “free” election.

Facts

On November 4, 2021, the North Carolina Legislature passed new redistricting maps for its congressional elections. Twelve days later, the North Carolina League of Conservation Voters and several North Carolina Citizens (NCLCV) filed a complaint and motion for a preliminary injunction against several members of the North Carolina Legislature (Moore). On November 18, 2021, Rebecca Harper and other North Carolina citizens filed a separate complaint and motion for a preliminary injunction against the same defendants.

Both complaints alleged that the redistricting maps diluted the votes of racial minorities in violation of the North Carolina Constitution. On December 3, 2021, a threejudge panel of the Superior Court, Wake County consolidated the two complaints (collectively, Harper) and denied the motions for a preliminary injunction.

The Superior Court panel, upon examining the merits of the complaints, found that the redistricting maps were the product of “intentional, pro-Republican partisan redistricting.” While the court did not find direct evidence of intent, it nevertheless concluded that the probability of computer algorithms, which produced the maps, creating such partisan maps at random is infinitesimally small. The court did not find evidence of a racial motive in enacting the maps. The court ultimately concluded that the redistricting maps did not violate the North Carolina Constitution. It reasoned that the North Carolina Constitution does not provide the state’s courts with the authority to adjudicate gerrymandering claims because they are political questions properly addressed to the other branches of government. Therefore, it denied Harper’s claims and lifted the preliminary injunction.

On appeal, the North Carolina Supreme Court heard the case under its discretionary review, bypassing the state’s intermediate-level appellate court. The North Carolina Supreme Court reversed the Superior Court’s holding. First, it found that North Carolina courts do have the authority to hear gerrymandering questions. The court subsequently held that the redistricting maps violated the free elections clause, equal protection clause, free speech clause, and freedom of assembly clause of the North Carolina Constitution’s Declaration of Rights. The court then remanded the case to the Superior Court to either redraw the maps itself or oversee the legislature’s redrawing.

On February 25, 2022, Moore applied to the United States Supreme Court for a stay of the North Carolina Supreme Court’s order. Moore sought to keep the existing maps until the Court could itself decide the case on the merits. By this point, two more groups had joined the proceeding as NCLCV—Common Cause and several state legislators (collectively, state legislators). Harper and the state legislators, both respondents, filed separate briefs. While the Court denied the application, it granted Moore’s petition for a writ of certiorari on June 30, 2022.

Legal Analysis THE ELECTIONS CLAUSE

Moore, opposed to the adoption of the court-designed election map, posits that because the Elections Clause of the U.S. Constitution states that federal election rules in each state shall be determined by the “Legislature thereof,” state legislatures are the only governmental body permitted to set states’ election rules. Conversely, Moore argues, state courts lack the authority to set states’ election rules. Moore contends that the U.S. Constitution’s framers intended to assign this exclusive authority to state legislatures. Moore also points to the Constitution’s distinctions between delegating power to state governments or to their individual bodies, contending that its specificity in assigning election rulemaking to state legislatures indicates that power is not shared by another body of state government. Moore also contends that this division of authority is consistent with the founders’ view of election rulemaking as best suited to democratically accountable legislatures instead of unelected judges.

On the other hand, Harper argues that “Legislature” more broadly describes a body empowered by the people to create laws. Harper and the state legislators note that several founders expressed their belief that state legislatures cannot exceed the authority granted to them by their state constitutions. Therefore, Harper and the state legislators argue that judicial review serves to enforce these limits, including those on legislatures’ election rulemaking. The state legislators further argue that no historical evidence suggests the framers intended to exempt state legislatures from the separation of powers that is otherwise abundant in the Constitution. To the contrary, the state legislators note that, shortly before and after the U.S. Constitution’s enactment, several states enacted constitutional provisions regulating federal elections, suggesting that the founders intended to permit these limits in the Elections Clause. In fact, Harper contends, Congress has expressly required that state legislatures comply with their state constitutions in election rulemaking and authorized state courts to draw election maps under 2 U.S.C. §§ 2(a) and 2(c).

SOURCE OF AUTHORITY

Moore argues that, because senators and representatives hold federal office, state governments’ power to pass laws governing their elections is limited to that granted in the Elections Clause and cannot be expanded by Winter 2023 • THE FEDERAL LAWYER • 51

state constitutions. Moore distinguishes limits on state legislatures’ procedural and substantive rulemaking power, noting that while state constitutions may regulate the procedural aspects of state legislatures’ election rulemaking, they cannot limit the legislatures’ substantive power prescribed by the U.S. Constitution. Moore additionally maintains that state constitutions’ restrictions on legislatures’ election rulemaking only applied to state elections, not federal elections.

Harper and the state legislators counter that state legislatures can only execute the federal power granted to them in the Elections Clause by passing state laws and are therefore subject to the constraints of their state constitutions in doing so. Harper and the state legislators argue that the Elections Clause does not shield state legislatures from review under their state constitution. Harper and the state legislators further contend that the Supreme Court has never recognized a distinction between procedural and substantive limits on state legislatures’ election rulemaking, and that many state constitutions contain both. Harper also asserts that the Tenth Amendment, which grants the states all authority not expressly addressed in the U.S. Constitution, allows states to structure their own governments, including their legislatures’ election rulemaking.

LEGISLATIVE POWER

Moore argues that, because the Elections Clause specifically authorizes Congress to change states’ federal election rules, states may not create additional checks on legislatures’ election rulemaking. Pointing to states’ failures to enact founding-era proposals for limits on state legislatures’ election rulemaking and courts’ refusals to strike down any election map before 1932, Moore argues that permitting judicial review of their decisions would render the Elections Clause meaningless.

Moore also asserts that under North Carolina’s state constitution the state’s legislative, executive, and judicial functions are separate, and the state judiciary is neither part of the state legislature nor delegated any of its power over election rulemaking. Moore contends that the only North Carolina statutes delegating power to its courts related to election rulemaking concern procedures for challenging election rules and do not convey any substantive authority to the courts regarding the rules themselves. Moreover, Moore argues, state legislatures may only delegate

their power to the executive branch, not the judiciary. Regardless, Moore maintains that the intricate policymaking that North Carolina courts took up in crafting election maps is an undelegated legislative power.

Noting that state legislatures’ election rulemaking falls squarely within their traditional legislative role, Harper and the state legislators counter that the standard constraints on legislative action apply to election rulemaking, including judicial review of their compliance with state constitutions. The state legislators further maintain that it would be inconsistent with the enforcement practice associated with federal constitutional doctrines, such as the Equal Protection Clause, to suggest that state courts cannot interpret and apply the Elections Clause of the U.S. Constitution. Harper additionally contends that legislatures may delegate non-adjudicative functions to their states’ judicial branches. The state legislators point to states’ post-1820 laws and Congress’s constraints on state legislatures’ power under the Elections Clause to argue that the Elections Clause has long been widely understood to permit limitations on state legislatures’ election rulemaking power.

Additionally, Harper and the state legislators argue that North Carolina’s legislature delegated a judicial, not legislative, power to the state’s courts in empowering them to review election rules’ constitutionality. Harper and the state legislators note that the North Carolina courts correctly followed the procedures in those statutes in adjudicating all stages of this litigation. The state legislators further maintain that the history of North Carolina’s election statutes’ enactment and subsequent use, as well as their inclusion of the phrase “all elections,” indicate that they apply to both state and federal elections.

Discussion JUDICIAL ACTIVISM

Arkansas and twelve other states (States), in support of Moore, contend that allowing state courts to override the legislature’s election laws detracts from the will of the people. In other words, the States argue that the North Carolina Supreme Court improperly acted as a law-making body and usurped the people’s power in limiting the legislature from creating its own redistricting maps.

Pennsylvania State Senator Kim Ward and the Republican Caucus of the Pennsylvania Senate, also in support of Moore, posit that state court judges are not accountable to

the people in the same manner as the other branches of government.

Former California Governor Arnold Schwarzenegger, in support of Harper, counters that state constitutions themselves are enacted by the people and so state judges are ensuring that legislators follow the people’s wishes. Schwarzenegger further states that there is no proper distinction between judicial review of election-related constitutional provisions and other provisions of state constitutions. As such, Schwarzenegger asserts, if people accept that the courts should ensure state actors follow the state constitution in other contexts, this context is no different. Scholars of State Constitutional Law, also in support of Harper, emphasize that judicial review is a necessary check on legislative power and therefore protects the people’s constitutional rights.

CONFIDENCE IN ELECTIONS

America’s Future, Inc., in support of Moore, expresses its fear that allowing state courts to strike down state election laws so close to election day will undermine confidence in elections. America’s Future argues that elections will become a battle between lawyers litigating in the state courts rather than about the will of the voters. Lawyers

Democracy Fund and State Legislators (Legislators), also in support of Moore, posit that allowing the courts to create election law will create partisan battles in the court system. The Legislators maintain that regardless of the content of a state’s constitution, partisan activists twist its meaning to ensure election laws that favor their party.

The Anti-Defamation League and other religious organizations (ADL), in support of Harper, counter that rather than undermine confidence in elections, state courts ensure that there is no discrimination against minority groups. The ADL fears that the will of the majority could overcome state legislatures and erase the ability of minority groups to vote. Human Rights Watch, in support of Harper, contends courts should be able to ensure voter confidence in election integrity. Full text available at https://www.law. cornell.edu/supct/cert/21-1271.

Written by Dustin Hartuv and Matthew Hornung. Edited by Kate Sullivan.

Students for Fair Admissions,

Inc. v. University of North Carolina (No. 21-707)

Oral argument: Oct. 31, 2022

Court below: U.S. District Court for the Middle District of North Carolina

The University of North Carolina considers an applicant’s race in its undergraduate admissions decisions. The Supreme Court previously held in Grutter v. Bollinger that such consideration is constitutional so long as race is one of many factors in a holistic review process and is used to enhance racial diversity at the institution. Students for Fair Admissions, Inc. argues that the Supreme Court should overrule Grutter and hold that the Constitution does not permit racial discrimination of any kind. The University of North Carolina contends that the Supreme Court correctly decided Grutter, and that the Constitution permits universities to consider race when doing so provides increased racial diversity and therefore a better academic experience. The Court’s decision in this case has heavy implications for racial diversity in universities, race discrimination, university policies, and the academic experience.

Full text available at https://www.law. cornell.edu/supct/cert/21-707. 

Cruz v. Arizona (No. 21-846)

Oral argument: Nov. 1, 2022

Court below: Arizona Supreme Court

This case asks the Supreme Court to consider whether an Arizona Rule of Criminal Procedure, which only allows postconviction relief if there has been a significant change in law to make it an adequate and independent state-law ground for the judgment, prevents federal review. Petitioner John Montenegro Cruz claims that the rule cannot apply because it conflicts with the Supreme Court’s precedent requiring the application of settled rules of constitutional law on postconviction review. Cruz also asserts that the rule requires consideration of federal law, and thus that the Supreme Court may review determinations made under it for consistency with federal law. Respondent, the state of Arizona, argues that its rule prevents federal review because it is premised on a matter of state law, rather than federal law. Arizona asserts that its rule only regulates when a claim

may be brought, not the rule to be applied when evaluating the claim.

Full text available at https://www.law. cornell.edu/supct/cert/21-846. 

Jones v. Hendrix (No. 21-857)

Oral argument: Nov. 1, 2022

Court below: U.S. Court of Appeals for the Eighth Circuit

This case asks the Supreme Court to determine the extent to which habeas relief is available to a prisoner after a Supreme Court case heightens the standard of conviction for the crime they were convicted of. The relevant statutory provision, 28 U.S.C. § 2255(e)’s saving clause, allows a prisoner to move for habeas relief if alternative remedies available under other subsections of § 2255 are “inadequate or ineffective to test the legality of [their] detention.” Petitioner Marcus DeAngelo Jones argues that because the lower court applied the wrong substantive law, the alternative remedies were ineffective in testing the legality of his detention, and that he is therefore entitled to habeas relief under § 2255(e). Jones further argues that the Eighth Circuit’s interpretation of the statute renders § 2255(e) superfluous and violates many of Jones’s constitutional rights. Respondent Dewayne Hendrix counters that the § 2255(e) requires a showing of actual innocence, which he argues Jones cannot make, in order to trigger habeas relief, and that Jones’ constitutional concerns are misguided. The outcome of this case will determine the availability of post-conviction relief to prisoners following changes in relevant substantive law.

Full text available at https://www.law. cornell.edu/supct/cert/21-857.

Bittner v. United States (No. 21-1195)

Oral argument: Nov. 2, 2022

Court below: U.S. Court of Appeals for the Fifth Circuit This case asks the Supreme Court to decide an issue of statutory construction; specifically, on what basis should the Secretary of the Treasury evaluate taxpayer violations of the Bank Secrecy Act (BSA). The Bank Secrecy Act requires citizens with a financial interest in a foreign bank account to report that financial interest to the Commissioner of Internal Revenue for each year that the interest exists. Alexandru Bittner contends that evaluating violations under the Bank

Secrecy Act on a per-form basis is consistent with the statute’s text, history, and purpose. The United States counters that the text of the Bank Secrecy Act clearly outlines that a violation occurs on a per-account basis, not a per-form basis, and that the statute’s history and purpose confirm this viewpoint. The outcome of this case has heavy implications for tax law, banking regulations, civil penalties for tax violations, and financial interests in foreign bank accounts.

Full text available at https://www.law. cornell.edu/supct/cert/21-1195.

Securities and Exchange Commission v. Cochran (No. 21-1239)

Oral argument: Nov. 7, 2022

Court below: U.S. Court of Appeals for the Fifth Circuit This case asks the Supreme Court to decide whether a federal district court has jurisdiction over a suit in which the respondent in an ongoing Securities and Exchange Commission (SEC) administrative proceeding seeks to enjoin that proceeding, on account of an alleged constitutional defect in the statutes governing the removal of the overseeing administrative law judge. The SEC claims that the Court’s decision in Free Enter. Fund v. Pub. Co. Oversight Bd. specifically allows double-tenure protection for administrative law judges, that decisions in Thunder Basin Coal Co. v. Reich and Elgin v. Dep’t of the Treasury do not require Congress to provide a clear statement in order to strip district courts of jurisdiction, and that constitutional challenges to its administrative adjudications are properly addressed through the Securities Exchange Act of 1934 (Exchange Act) and the Administrative Procedure Act (APA). Michelle Cochran counters that administrative law judges should not be granted double tenure from removal because it infringes on executive branch authority, that Thunder Basin requires a clear Congressional statement stripping district courts of jurisdiction, and that the SEC’s statutory authority is insufficient to address her constitutional challenge. The Court’s holding could significantly impact the SEC’s adjudicative activities and the nature, volume, and frequency of judicial review cases more broadly.

Full text available at https://www.law. cornell.edu/supct/cert/21-1239.

Axon Enterprise, Inc. v. Federal Trade Commission (No. 21-86)

Oral argument: Nov. 7, 2022

Court below: U.S. Court of Appeals for the Ninth Circuit

This case asks the Supreme Court to decide whether claims brought by parties like Axon Enterprise, Inc. (Axon) that challenge the structure of the Federal Trade Commission (FTC) can be reviewed by district courts prior to the completion of agency proceedings. Axon contends that federal district courts should be able to hear constitutional challenges to agency structure concurrently with agency enforcement proceedings because enjoining such proceedings is necessary to avoid “here-and-now” constitutional injury. The FTC counters that the Federal Trade Commission Act implicitly strips district courts of subject-matter jurisdiction over these challenges, making judicial review available only in the courts of appeals and only after a final order by the FTC. The case carries significant implications for administrative law because allowing businesses subject to FTC regulation to preemptively challenge agency proceedings could significantly scale back the agency’s enforcement powers.

Full text available at https://www.law. cornell.edu/supct/cert/21-86. 

Health and Hospital Corporation of Marion County, Indiana v. Talevski (No. 21-806)

Oral argument: Nov. 8, 2022

Court below: U.S. Court of Appeals for the Seventh Circuit

This case asks the court to analyze both 42 U.S.C. § 1983 and the Federal Nursing Home Reform Act (FNHRA), 42 U.S.C. § 1396r et seq., to decide whether FNHRA, a Spending Clause statute, creates enforceable private rights of action under § 1983. Petitioners Health and Hospital Corporation of Marion County, Indiana (HHC) argue that contrary to the Supreme Court’s holding in Wilder v. Virginia Hospital Association, § 1983 does not imply a private right of action for Spending Clause legislation unless the legislation expressly includes a private right of action. HHC further contends that even if Spending Clause legislation can imply a private right of action, there is no private right of action under FNHRA because its language

does not grant statutory rights to patients and because it contains an individualized enforcement mechanism which precludes § 1983 enforcement. Respondent Ivanka Talevski counters that the plain text of § 1983 unambiguously creates a private right of action whenever Congress uses Spending Clause legislation to protect a federal right and argues that overturning Wilder would contradict decades of judicial and legislative precedent. Talevski further argues that FNHRA’s language clearly establishes statutory federal rights. This case touches on important questions regarding healthcare administration, the protection of nursing home residents, federalism, and the separation of powers.

Full text available at https://www.law. cornell.edu/supct/cert/21-806. 

Mallory v. Norfolk Southern Railway Co. (No. 21-1168)

Oral argument: Nov. 8, 2022

Court below: Supreme Court of Pennsylvania

This case asks the Supreme Court to consider whether the Due Process Clause permits consent-by-registration as a basis for personal jurisdiction. Pennsylvania’s consent-by-registration statute requires that foreign corporations registered in the state consent to general personal jurisdiction there. Robert Mallory contends that consent-by-registration statutes produce valid consent to personal jurisdiction because consent-by-registration has been traditionally accepted as a basis of personal jurisdiction, and recent cases have not overruled this notion. Norfolk Southern Railway Company counters that consent-by-registration statutes fail to provide valid consent because registration jurisdiction is neither widely accepted nor consistent with modern personal jurisdiction jurisprudence. The outcome of this case has heavy implications for businesses and state sovereignty.

Full text available at https://www.law. cornell.edu/supct/cert/21-1168.

Haaland v. Brackeen (No. 21-376)

Oral argument: Nov. 9, 2022

Court below: U.S. Court of Appeals for the Fifth Circuit

This case asks the Supreme Court to determine whether the Indian Child Welfare Act (ICWA) violates the U.S. Constitution’s Fourteenth Amendment equal protection guarantee and contravenes anticommandeering principles rooted in the Tenth Amendment. Deb Haaland, Secretary of the Department of the Interior, argues that ICWA’s classification of “Indian child” is constitutional because the classification is political and tied to Congress’s “unique obligation” to Indian tribes. Haaland further contends that Congress has the power to regulate Indian child placement preferences under the Indian Commerce Clause. Chad Everet Brackeen asserts that ICWA’s classification of “Indian child” is race-based and violates the Equal Protection Clause. Brackeen also asserts that ICWA’s placement preferences exceed Congress’s authority by forcing state agencies to carry out federal laws. The outcome of this case has important implications for Indian children’s interests, tribal interests, and state sovereignty regarding the adoption proceedings of Indian children.

Full text available at https://www.law. cornell.edu/supct/cert/21-376. 

Ciminelli v. United States (No. 21-1170)

Oral argument: Nov. 28, 2022

Court below: U.S. Court of Appeals for the Second Circuit

This case asks the Supreme Court to decide whether the “right to control” theory of fraud creates a cause of action under the federal wire fraud statute. Under the “right to control” theory, the federal wire fraud statute may be used to punish schemes which intend to deprive a victim of valuable information regarding an economic decision. Ciminelli claims that the “right to control” theory improperly expands rights considered in the fraud statutes and improperly eases the government’s burden of proof. United States maintains that the “right to control” is properly limited to specifically target information deprivation schemes with tangible economic harms and that Ciminelli’s conviction holds even without the “right to control” theory. This case has significant implications for the construction industry,

concerns of overcriminalization, and the limit of federal jurisdiction.

Full text available at https://www.law. cornell.edu/supct/cert/21-1170. 

Percoco v. United States (No. 21-1158)

Oral argument: Nov. 28, 2022

Court below: U.S. Court of Appeals for the Second Circuit

This case asks the Court to analyze 18 U.S.C. § 1346, the honest-services fraud statute, and determine if an individual with informal power but no official governmental position can violate the statute. Joseph Percoco and Steven Aiello argue that private individuals lacking formal governmental power cannot commit honest-services fraud because they do not owe the public a duty of honest services. Percoco and Aiello further argue that including private individuals within § 1346 would render the statue unconstitutionally vague, violate the First Amendment, and entrench upon state sovereignty. The United States contends that private individuals can commit honest-services fraud when they have been selected for public office and when they are de facto officeholders in all but name. The United States also argues that § 1346 clearly defines improper behavior and does not limit First Amendment activity. This case touches on important questions regarding lobbying, free speech, and the interaction of state and federal bribery laws.

Full text available at https://www.law. cornell.edu/supct/cert/21-1158. 

United States v. Texas (No. 22-58)

Oral argument: Nov. 29, 2022

Court below: U.S. District Court for the Southern District of Texas

This case asks the Supreme Court to consider whether Texas and Louisiana may sue the federal government in federal court despite not having suffered a direct injury from agency action, and whether the Department of Homeland Security’s (DHS) September 2021 Guidelines for the Enforcement of Civil Immigration Law (Guidelines) violate the Immigration and Nationality Act (INA) or the Administrative Procedure Act (APA). The Court must also decide whether the INA prevents a court from vacating an administrative action under the APA. The United States claims that Texas and Louisiana

cannot sue the federal government because the Constitution requires a direct harm, that the Guidelines do not violate the INA because the statutory language accommodates traditional prosecutorial discretion, and that the INA prevented the district court from vacating the Guidelines. Texas and Louisiana counter that they can sue because a direct injury is not required when a state sues the federal government, that the Guidelines violate the INA because the statutory language specifically override prosecutorial discretion, and that the district court properly vacated the Guidelines because it was authorized by the broad statutory language and court precedent and did not conflict with the INA. The Court’s holding will affect the removal for noncitizens, which significantly impacts the social treatment of and rhetoric surrounding noncitizens, government efficiency and accountability, and public health, safety, and stability.

Full text available at https://www.law. cornell.edu/supct/cert/22-58. 

Wilkins v. United States (No. 21-1164)

Oral argument: Nov. 30, 2022

Court below: U.S. Court of Appeals for the Ninth Circuit

This case asks the Supreme Court to determine if the Quiet Title Act’s statute of limitations is a jurisdictional requirement. Petitioners Larry Steven Wilkins and Jane B. Stanton argue that Congress must expressly state its intent when drafting a statute of limitations meant to be treated as a jurisdictional bar; therefore, the absence of such explicit language in the Quiet Title Act means that the statute of limitations is not jurisdictional. The United States contends that Supreme Court precedent supports treating the statute of limitations as a jurisdictional rule and emphasizes that there are no intervening Supreme Court decisions or statutory revisions of the Quiet Title Act that overrule such precedent. The outcome of this case will determine the accessibility of legal relief for individuals when resolving land disputes with the federal government and affect the balance between local governments and the federal government in litigation involving the Quiet Title Act.

Full text available at https://www.law. cornell.edu/supct/cert/21-1164. 

MOAC Mall Holdings LLC v. Transform Holdco LLC (No. 21-1270)

Oral argument: Dec. 5, 2022

Court below: U.S. Court of Appeals for the Second Circuit

This case asks the Supreme Court to determine whether a provision of federal bankruptcy law, 11 U.S.C. § 363(m), restricts the power of federal courts to review the order approving the sale of Sears’ assets. In the wake of Sears’ bankruptcy filing, Sears’ former CEO created a company, Transform HoldCo. Transform HoldCo then acquired Sears’ lease for space located in the Mall of America and subsequently assigned that lease to one of its subsidiaries with approval from the Bankruptcy Court. MOAC Mall Holdings, which owns Mall of America, challenged the assignment in federal court. Transform HoldCo contends that federal courts do not have the ability to review the decision of the Bankruptcy Court, and that regardless, the relief that MOAC seeks is unavailable because under no circumstances can MOAC retake control of the lease. MOAC contends both that the assignment decision is indeed reviewable by federal courts and also that it is entitled to relief under the relevant statutes. This case has important implications for judicial review and for the protections that mall owners and good-faith transferees have during bankruptcy proceedings.

Full text available at https://www.law. cornell.edu/supct/cert/21-1270.

303 Creative LLC v. Elenis (No. 21-476)

Oral argument: Dec. 5, 2022

Court below: U.S. Court of Appeals for the Tenth Circuit

This case asks the Supreme Court to balance public accommodation anti-discrimination laws and First Amendment rights. The Colorado Anti-Discrimination Act (CADA) limits a public accommodation’s ability to refuse services to a customer based on their identity, such as sexual orientation. 303 Creative LLC and its owner Lorie Smith argue that CADA violates their First Amendment rights to free artistic expression and religious belief. Respondent Aubrey Elenis, Director of the Colorado Civil Rights Division, counters that CADA regulates discriminatory commerce, not speech, and thus does not violate 303 Creative LLC’s First Amendment rights. The outcome of this case has heavy

implications for LGBTQ+ rights, freedom of speech and religion, and creative expression.

Full text available at https://www.law. cornell.edu/supct/cert/21-476. 

Bartenwerfer v. Buckley (No. 21-908)

Oral argument: Dec. 6, 2022

Court below: U.S. Court of Appeals for the Ninth Circuit

This case asks the Supreme Court to decide whether a member of a partnership is prohibited from discharging debt fraudulently incurred by their partner without their knowledge. Kate Bartenwerfer argues that the Court cannot prohibit her from discharging debts in bankruptcy merely because those debts were obtained by her partner’s imputed fraud that she was not responsible for. Kieran Buckley counters that the Bankruptcy Code asks only whether debts were obtained by fraud and does not draw distinctions based on whether any individual debtor is responsible for that fraud.

This case has implications for prioritizing relief to debtors or creditors in bankruptcy and for the liabilities of individuals in a marriage or domestic partnership.

Full text available at https://www.law. cornell.edu/supct/cert/21-908. 

United States, ex rel. Polansky v. Executive Health Resources, Inc. (No. 21-1052)

Oral argument: Dec. 6, 2022

Court below: U.S. Court of Appeals for the Third Circuit

This case asks the Supreme Court to decide whether the government may dismiss a qui tam action over the objections of the relator when the government chooses not to proceed with the action at the outset. Jesse Polansky argues that the text, structure, history, and purpose of the False Claims Act indicate that when the government chooses not to pursue an action at the outset of a

case, the relator has the exclusive right to decide whether to proceed with an action or request its dismissal. Polansky maintains that the government cannot retain its right to dismiss after it declines to proceed at the outset. Executive Health Resources, Inc. counters that the False Claims Act allows the government to dismiss a qui tam action at any time because the Constitution vests executive power in the President. Executive Health Resources contends that delegating executive power to relators, as Polansky suggests, would be unconstitutional. The case has significant policy implications because litigating qui tam actions is costly for all parties involved, and a ruling for unrestricted governmental dismissal authority could chill relators from bringing future qui tam actions, whereas a ruling for limited government dismissal authority could burden the government with meritless qui tam actions.

Full text available at https://www.law. cornell.edu/supct/cert/21-1052.

Chapter Exchange

FIFTH CIRCUIT

Lafayette-Acadiana Chapter

In March 2022, the Lafayette-Acadiana Chapter hosted an event to commemorate and celebrate the landmark decision of Gideon v. Wainwright and to highlight the important work of public defenders everywhere. The event was hosted by Cristie Gibbens, former chapter president and assistant federal public defender for the Middle and Western Districts of Louisiana. Speakers at the event were U.S. Magistrate Judge Carol B. Whitehurst (a former federal public defender for the Middle and Western Districts of Louisiana) and Louisiana Fifteenth Judicial District Judge Valerie G. Garrett (who has experience as a public defender in Louisiana at the state and federal levels). 

Mississippi Chapter

The Mississippi Chapter held a luncheon meeting in Oxford prior to the Bench and Bar Program sponsored by the Northern District of Mississippi. U.S. District Court Judge Sharion Aycock provided an update for the Northern District and spoke about the construction of the new federal courthouse in Greenville. U.S. District Court Judge Kristi Johnson provided a welcome from the Southern District at the luncheon and spoke at a panel during the afternoon program. 

SIXTH CIRCUIT

Northern District of Ohio Chapter

On Sept. 30, Oct. 3, and Oct. 4, 2022, the FBA Northern District of Ohio Chapter presented its three-day Trial Academy

Seminar, a program providing newer lawyers with hands-on training in valuable trial practice skills. It was the third such program offered by the FBA-NDOC. This year’s focus was Depositions and Discovery Disputes. The Trial Academy Seminar brought together nine Northern District of Ohio judges and 25 seasoned practitioners from the federal legal community to coach, encourage, and direct the 20 program attendees in learning and developing on-your-feet capability in the courtroom. The program was enhanced by the participation of 21 local area law school students who volunteered their time to be “deponents.” Presentation of the seminar was assisted by a grant from the FBA’s Federal Litigation Section, whose generous contributions allowed the program to award several scholarships to participants who practice in the public sector or who have

Lafayette-Acadiana Chapter: Left to right: Assistant Federal Public Defender and Former Chapter President Cristie Gibbens, Louisiana Fifteenth Judicial District Judge Valerie Garrett, U.S. Magistrate Judge Carol Whitehurst, and Assistant U.S. Attorney and former Chapter President Karen King.

small or solo practices. The program’s opening day was followed by a reception among the Trial Academy faculty and attendees as well as members of the FBA-NDOC.

This year, the Trial Academy was held in conjunction with the annual State of the Court Luncheon and Swearing in Ceremony, where all the participants, coaches, presenters, and law students were invited to attend. The program culminated in the participants arguing a discovery dispute in the federal courthouse before one of the six members of the Northern District of Ohio federal judiciary who served as presiding judges in their respective courtrooms, while experienced faculty members from the legal community provided valuable feedback on the presentations. 

EIGHTH CIRCUIT

St. Louis Chapter

On the evening of Oct. 11, 2022, the St. Louis Chapter of the FBA celebrated the distinguished careers of Senior U.S. District Judge

Jean Hamilton, Senior U.S. District Judge Richard Webber, U.S. Magistrate Judge David Noce, and U.S. Magistrate Judge Nannette Baker. All four judges have served on the bench in the Eastern District of Missouri, and all four are retiring from the bench in the coming year. The evening included hors d’oeuvres, cocktails, and a few speeches from

Top left: Mississippi Chapter: (from left to right)

Executive Director Dean Emeritus Jim Rosenblatt (Mississippi College School of Law), President Nick Morisani (Phelps Dunbar), Judge Johnson, Judge Aycock, VicePresident Blythe Lollar (Nelson Mullins Riley & Scarborough)

Middle left: Northern District of Ohio Chapter :U.S. District Judge J. Philip Calabrese presides over an oral argument in his courtroom as part of the Trial Academy Seminar.

colleagues, including current U.S. District Court Judge Stephen Clark and FBA member (and current assistant federal public defender) Kevin Curran. The event was well attended by FBA members and local judges. The event was held at the beautiful Barnett event space on Washington Avenue in St. Louis. 

St. Louis Chatper: Above left: The event was held at the beautiful Barnett event space on Washington Avenue in St. Louis. Above middle: Left to right: Current St. Louis FBA Chapter President Brocca Morrison, Magistrate Judge Noelle Collins, Senior U.S. District Court Judge Jean C. Hamilton, U.S. Magistrate Judge Nannette A. Baker, U.S. Magistrate Judge David D. Noce, Vice President of St. Louis Chapter Andrew Blackwell, Senior U.S. District Court Judge E. Richard Webber, and St. Louis Chapter Secretary J.C. Pleban. Above right: Left to right: U.S. Magistrate Judge Noelle C. Collins, Senior U.S. District Judge Jean C. Hamilton, U.S. Magistrate Judge Nannette A. Baker, U.S. Magistrate Judge David D. Noce, and Senior U.S. District Judge E. Richard Webber.

Sections & Divisions

TRANSPORTATION & TRANSPORTATION SECURITY LAW SECTION

The section selected Sarah Nural as chair, Leah Vasarhelyi as chair-elect and Catherine Bell as deputy chair for the FY23 term. On Dec. 13, 2022, the section virtually hosted its 31st Annual Lawyers of the Year Award Ceremony. The section awarded Peter J. Plocki of the U.S. Department of Transportation, Brian W. Itami with the Transportation Safety Administration, and Thomas R. Devine, formerly with Airports Council International - North America. For years, the section has annually sponsored a reception on Capitol Hill to honor the general counsels of the Depts. of Transportation and Homeland Security, as well as the chief counsels and general counsels of the various transportation-related agencies.

On Oct. 27, 2022, the FBA Indian Law and Transportation and Transportation Security Law sections jointly hosted a Tribal Transportation Equity Panel. It was designed to share information with transportation and tribal law practitioners regarding opportunities to use transportation programs to enhance tribal sovereignty

and address equity challenges in Indian Country. Panelists included Chuck Hoskin Jr., principal chief of the Cherokee Nation; Eldridge Onco, senior tribal affairs advisor, U.S. Department of Transportation; and Wizipan Garriott, principal deputy assistant secretary – Indian Affairs, U.S. Department of Interior. Daron Carreiro, senior policy advisor for Native Affairs, Domestic Policy Council, The White House served as the moderator.

The section held its annual Transportation Security Law Forum on Oct. 4, 2022, where they continued the theme from 2021 of “Responding to Evolving Threats to Transportation Security.” This year’s focus was on “Responding to the Rise in Unruly Passengers and Assaults on Aircraft.”

The section also held a virtual Transportation Legislative Update with 60 attendees on Aug. 23, 2022, where attendees heard from key Congressional committee staffers on upcoming legislative efforts relating to transportation, including Federal Aviation Administration reauthorization.

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Southern District of New York

Kim Berg

Taylor Dumpson

Dawn Florio

Darryl Graham

Brian Kerr

Heidi Meyers

Nancy Morisseau

Western District of New York

Maureen Briody

Ana Shields

THIRD CIRCUIT

Delaware

Shamoor Anis

Emily Bryant-¡lvarez

Dennis Butler

Michael Chajon

Cameron Clark

Kelly Del Dotto

Brian Egan

Alexandra Ewing

Derek Fahnestock

Nitika Fiorella

Taylor Hallowell

Stephen Kraftschik

Melanie Sharp

Rodger Smith

Alexis Stombaugh

Grayson Sundermeir

Eastern District of Pennsylvania

Michael Barber

Brock Bevan

New Jersey

Michael Celli

Andrew Donohue

Enes Hajdarpasic

Jonathan Houghton

Genesis Peduto*

Western District of Pennsylvania

Angela Abreu*

FOURTH CIRCUIT

Fourth Circuit At Large

Bruce Miller

Leslie Sarji

Eastern District of North Carolina

Maggie Tsavaris

Hampton Roads

John Baughman

Andrew Bosse

Marc Greco

Nicholas Jimenez

Maryia Jones

Maryland

Holly Drumheller Butler

Francisco Carriedo

Himedes Chicas

Ryan Dietrich

Dwight Draughon

Daniel Moore

Imran Shaukat

Jason Trumpbour

Middle District of North Carolina

Rishi Oza

Northern Virginia

Christopher Conrad

William Fitzpatrick

Andrew Hurst

Cailyn Knapp

Nicholas Loftus

Sterling Marchand

Colby Moore

Mikaela Phillips

Tiffany Joseph Goodson*

Richmond

Christopher Bascom

Candice Deisher

Thomas DiStanislao

Kevin Elliker

Nichole Vanderslice

Carlos Hopkins*

Martha Swicegood

Stwodah*

South Carolina

Thomas Bouchette

James Bradley

Julianne Farnsworth

Nina Fields Britt

James Hunter May

John Molony

AnneMarie Odom

Andreas Satterfield Jr

Elizabeth Warren

David Hoyle*

Jeffrey Wilson*

Western District of North Carolina

Taylor Gillhamer

James McLoughlin

Western District of Virginia

Richard DeLoria

Andrew Gann, Jr.

Chris Kowalczuk

Marc Peritz

Laura Taylor

Erin Trodden

Jasmine Yoon

FIFTH CIRCUIT

Austin

Jason Binford

Cody Coll

Danielle Hatchitt

James Hatchitt

Sherrard Hayes

Liane Noble

Timothy Ribelin

Adam Sencenbaugh

Paul Trahan

Matt Wood

Baton Rouge

Benjamin Anderson

Dominick Bianca

Lindsay Blouin

Jennifer Cameron

LaKeisha Ford

Mary Gimber

April Johnson

Nishi Kothari

Mahalie LeFranc

Fielding Matkins

Elizabeth Murrill

Hanna Thomas

Chase Zachary*

Central Louisiana

Sydney St. Pierre

Dallas

Benjamin Barmore

Jim Burnham

London England

Ramon Hernandez

Robert Schroeder

Neil Stockbridge

Mississippi

Robert Anderson

Michael Anderson

Brianna Bailey

Mallory Bland

Susan Bradley

Marcellus Chamberlain

Parker King

Kimberly Morrison

Lindsay Roberts

Stephen Masley*

Katelyn Pearson*

New Orleans

Avery Autin

Zachary Berryman

Brandan Bonds

Malerie Bulot

Anna Carey

Hannah Chafetz

Daniel Claitor

Andree Comeaux

Dante Cortello

Blaise D’Antoni

Brandon Davis

Eric Derbes

Kelsey Eagan

Jeffrey Gelpi

Catherine Giarrusso

Perry Graham

Olivia Greenberg

Michael Harrison

Shermin Khan

Devlan Melancon

Amiel Provosty

Kassie Richbourg

Imtiaz Siddiqui

Christopher Sisk

Serena Tenison

Shelia Tolar

Elizabeth Wheeler

Candice Sirmon*

San Antonio

Clare Acosta

Elizabeth Boateng

John Cave

Miguel De Hoyos

Claye Epperson

Jason Garcia

Zachary Gilbert

Adan Gonzalez

Nicholas Guinn

Mary Kruger

Ted Lee

Edward Marvin

Matthew Maupin

Phillip McKinney

Jasmin Olguin

Timothy Trickey

Dominique Valenzuela

Neyma Figueroa*

Southern District of Texas

Tarush Anand

Nicholas Beekhuizen

Alexander Clark

Deason

Amy Demmler

Robert Garza

Diana Gomez

Dan Hinde

Suzanne Johnson

Ashley Kaper

Jason LaFond

Abbey McNaughton

Jeffrey Oldham

Drew Padley

Kenesha Starling

Paxton Crew*

Joseph Korbel*

Charles Walker*

Greg White*

Waco

Abelino Reyna

SIXTH CIRCUIT

Sixth Circuit At Large

Michael Giaimo

Chattanooga

Tonya Cammon

John Chambers

Logan Davis

Bradley Davis

Katharine Gardner

Anthony Jackson

Christian Lanier

Hugh Moore

Ian Quillen

April Sawhill

Kara West

Cincinnati-Northern Kentucky, John W.

Peck

Dominick Gerace

Megan Mersch

Carson Miller

Richard Moore

Ariel Shuster

S. Joseph Stephens

Dayton

Amber Mullaly

Michael Rhinehart

Elizabeth Rogers

Eastern District of Michigan

Margaret Costello

Kara Krause

Amanda Page

Stephanie Zimmerman

Kentucky

Adrienne Berry

Memphis Mid-South

William Brantley

Evan Johnson

Eric McEnerney

Ruchee Patel

Matthew Wilson

Nashville

Ty Howard

Olivia Walker-Chaffin

Northeast Tennessee

David Burkhalter

Caroline Rogers

Northern District of Ohio

Mira Aftim

Emily Anglewicz

Ruchi Asher

Ruchi Asher

Michelle Baeppler

Kathryn Bartolomucci

J Timothy Edmunds

Vito Giannola

Cerena Ibara-Cech

Rema Ina

Samantha Meiers

Daniel Riedl

Elizabeth Safier

Don Screen

Eddie Sipplen

Sarah Spring

Cara Staley Rafferty

Philip Zuzolo

Breanne Hitchen*

John Lewis*

Peter Sullivan*

Western District of Michigan

Britt Cobb

SEVENTH CIRCUIT

Seventh Circuit At

Large

Christine O’Neill

Anthony Garcia*

Chicago

Janelle Anderson

Emily Brown

Nancy DePodesta

Kelli Fennell

Barry Fields

Daniel Fine

Karon Fowler

Lauren Goddard

Britany Kabakov

Katlyn Krysan

Allison Lantero

Nico Martinez

Kathryn Muse

Eileen Rosen

John Somerville

Joseph Tennial

Christopher Veatch

Lee Muench*

Peter Salib*

Indianapolis

Jason Covert

Preandra Landrum*

Lafayette/Acadiana

Elizabeth Schutz

Northern District of Indiana

Diane Rowe

Che’lee John*

J. Louis Polocchio*

Evan Rutter*

P. Michael Mahoney (Rockford, Illinois)

Andrew Hemmer

Southern District of Illinois

Peter Alexander

Cynthia Hagan

Sheila Hunsicker

Alvin Paulson

Andrew Schlichter

Nathan Stump

Wisconsin

Samantha Skenandore*

EIGHTH CIRCUIT

Iowa

Kate Melloy Goettel

Minnesota

Emily Atmore

Deborah Autrey

Shannon Awsumb

Caitlin Bailey

Ben Bauer

Lisa Beane

Maria Brekke

Trevor Brown

Courtney Burks

Kathryn Campbell

Gus Cochran

Susan Coler

Andrew Davis

Lindsey Davis

Kevin DeVore

Robert Dube

Jeff Eckland

Samantha Ellingson

Tess Erickson

Grant Fairbairn

Farah Famouri

Anita Fineday

Yvonne Flaherty

Joseph Friedberg

Aaron Gott

Jason Gustafson

Kristin Hendrick

Lousene Hoppe

Adam Hoskins

Jennifer Jacobs

Karl Johnson

Gregory Karpenko

Scott Knudson

Jeannine Lee

Richard Lockridge

Erica MacDonald

Charles Maier

Angela Munoz

Colin Pasterski

William Paterson

David Racine

John Radmer

Kristen Rau

Jennifer Robbins

Randall Ryder

Peter Shakow

Alice Silkey

Catherine Sung-Yun

Elizabeth Tabor

Aaron Thom

Panhia Vang

Ana Voss

Terrance Wagener

Patrick Williams

Nebraska

Amy Peck*

North Dakota

Alex Hunt

St. Louis

Tara Crane

Megan Phillips

Anthony Simon

Bevy Beimdiek*

NINETH CIRCUIT

Nineth Circuit At Large

Luisa Tamez

Hawaii

Rodney Bridgers

Mimi Desjardins

Yvonne Geesey

Matthew Hemme

Daniel Jacob

Jon Jacobs

Richelle Kawasaki

Mariana Lˆwy-Gerstmar

Jamie Madriaga

Glen Pascual

Eric Robinson

Caleb Rowe

Idaho

Frederick Hahn

Sheryl Musgrovw

Kirsten Wallace

Inland Empire

Jeremiah Johnson

Sean Peterson

Los Angeles

Jennifer Cooper

Robyn Crowther

Robert Dugdale

Jeanne Fugate

Joshua Hamilton

Eda Harotounian

Patricia Kinaga

Michele Layne

Benjamin Levine

Benjamin Levine

Patrick Nutter

Kuruvilla Olasa

Lorenzo Sanchez-Diamond

Troy Tessem

Ellisen Turner

George Cardona*

Montana

Jennifer Clark

John Newman

Michael Haynes*

Ben Snipes*

Nevada

Kimberly Sokolich

Jane Susskind

Northern District of California

Shiwon Choe

Julia Clayton

William Cooper

Felipe Corredor

Cheryl Cotterill

Oliver Hamilton

Marissa Harris

Mark Javitch

Kristin Johnson

Miriam Kim

Celia McGuinness

Jessica Ramsey

Christina Sarraf

Joanna Sheridan

Danielle Smith

Hartley West

Matthew Yelovich

Laurence King*

Beth Mora*

Orange County

David Boyadzhyan

Heber Martin

Carbajal Chavez

Deirdre Cozine

Caroline Djang

Justin Greer

Oregon

Bridget Donegan

Nicholas Lauren

William McLaren

Phoenix

Daniel Arellano

Megan Carrasco

Judith Davila

Sarah De Oliveira

Makenzi Galvan

Christine Ritland

Courtney Lacaillade*

Sacramento

Tara Amin

Brian Aton

Breann Moebius

Bryant Pulsipher

Megan Sammut

Dean Carter*

Shea Kenny*

San Diego

Michael Allnabulsi

Jason C Amavisca

Madeline Baker

Frederick Bingham

Sarah Garrick

David Gouzoules

Caitlin Howard

Mark Imada

Eric Isaacson

Annika Johnson

Stephen Keane

Alexander Kristofcak

Rafael Laue

Kristin Mihelic

Erika Oliver

Briana Pendergrass

Jeffrey Pierce

Robert Prine

Kayla Robinson

Heather Rosing

Jasmine Samuels

Robert Schapiro

Alessandra Serano

Irean Swan

San Joaquin Valley

Jesse Maddox

T. Mark Smith

Washington State

John Barry

John Chun

Sasha Glenn

Elizabeth Kanyer

Hana Lee

Caleb Mathena

Jack Miller

Michelle Peterson

William D. Browning

Tucson

Victoria Buchinger

Bryson Buckley

Dylan Burstein

Angela Martinez

Pete Sabori

Susan Wilson

TENTH CIRCUIT

Colorado

Barry Bartel

Codi Cox

Melissa Kessler

Sofia Manzo

Amy Danielle Touart

Stephanie Zehren

Kansas and Western District of Missouri

Bradley Akins

Kristy Borders

Terrence Campbell

Laine Cardarella

Tara Eberline

Tanner Edwards

Jane Francis

Jordan Kane

Matthew Rogers

Alan Simpson

Kate Simpson

Sharon Stallbaumer

Megan Storie

Brenda Watkins

Douglas Weems

New Mexico

Jane Bernstein

Northern/Eastern

Oklahoma

John Campbell

Richard Cella

Kara Davis

Sean Dooley

Kristen Evans

Mark Patzkowski

Alex Sokolosky

Charles Vaught

Oklahoma City

McKenzie Anderson

Carolina Attaway

Julia Barry

Jaycee Booth

Camille Burge

Katie Campbell

Kelsey Chilcoat

Brian Danker

Tanner Hilton

Elizabeth Joynes

Brandon Kemp

Emma Kincade

Laurie Koller

Elizabeth LaBauve

Gideon Lincecum

Lexie Norwood

Austin Ray

Johanna Roberts

Jake Seidel

Amy White

Geremy Rowland*

Evan Vincent*

Bill Zuhdi*

Utah

Brent Baker

Alexander Baker

Dick Baldwin

Skyler Bell

Bradley Blackham

Mark Brian

Adam Bridge

Tanner Camp

Rebecca Evans

Charles Frazier

Duane Gillman

Audrey James

Tiffany Johnson

Michael Kennedy

R. Klein

Joanna Landau

Carl LeSueur

Katherine McClennan

Caitlin McKelvie

Charles Morris

Michelle Oldroyd

A. Pate

John Richardson

Trystan Smith

Ariel Taylor

Richard Vanwagoner

Daniel Wadley

ELEVENTH CIRCUIT

Jacksonville

Ebony Love

South Florida

Jeffery Allen

John Byrne

Andy Camacho

Carmen Cartaya

Miesha Darrough

Marcel De La Cruz

Raul G Delgado II

Daniel DiClemente

Ismail Ercan

Lourdes Fernandez

Alexa Garcia

Natalie Granda

Jaime Guttman

Laselve Harrison

Alexa Klein

Zakarij Laux

Diego Mendez

Christian Merida

Lauren Palen

Marc Rapaport

Eduardo Sanchez

Jessica Santos

Zach Vosseler

Jessica McDonald*

Atlanta

Kathleen Adams

Christopher Campbell

Kurt Erskine

Andrew Flake

James Gerstenlauer

Kristen Oliver

Robert Poole*

James Radford

Robert Stills

Ethan Vernon

Birmingham

Jaimee Hunter

Broward County

Alexis Beckford

Jaclyn Broudy

Latoya Brown

Ben Fechter

Alexander Fischer

Kaitlyn Kelley

Samantha Medina

Corey Gray*

The Federal Lawyer

Jacksonville

Mary Margaret Giannini

Derek Mountford*

Mobile

Katie Spear

Montgomery

John Barnett

Robert Huffaker

North Central Florida

Conor Flynn

Savannah Young

Orlando

Stephanie Adler-Paindiris

Benjamin Elliott

William Handle

Jennifer Harrington

Quinn Ritter

Erin Sales

Temika Hampton*

Palm Beach

James Baldinger

Alex Braunstein

Matt Christ

Fred Cunningham

Roy Fitzgerald

Lilian Timmermann

Sorraya M. Solages-Jones*

Southern District of Georgia

Martin Rosenbluth

Tampa Bay

Kevin Ambler

Jillian Askren

Justin Cochran

Jesse Estes

Robert Fulton

Harold Holder

Cindy Innocent

Elizabeth Jozsi

Anne Leonard

Somadina Nwokolo

Alison Preston

Cara Rice

Molly Schindler

Bo Sellitti

Sean Siekkinen

Joseph Swanson

Dennis Waggoner

G. Wilkinson

E. Paige Williams

D.C. CIRCUIT

Capitol Hill

William LaForge

District of Columbia

Acacia Bellamy

Jane Bergner

Samuel Berman

Johnny Derogene

Daniel Goelzer

Michael Hayes

Amber Holland

Derril Jordan

Christina King

Elizabeth Kirby

Erica Miles

Jorge Oben

Kevin Petrasic

Mahogane Reed

Morgan Saunders

Thomas Stanton

Victoria Sutton

Reid Tomasello

Elizabeth Walker

Seevun Kozar*

Hasnain Valika*

District of Columbia Circuit At Large

Lawrence Bullard*

Pentagon

Alan Goldsmith*

Federal Bar Association Calendar of Events

 Visit Fedbar.org for more information.

JANUARY

JANUARY 6

2022 Redux – Top 10 Civil and Criminal Antitrust Developments of the Past Year

JANUARY 11

Stern to Bow: A Look Back to Significant Maritime Issues of 2022 and a Look Ahead to Emerging Issues in 2023 and Beyond

JANUARY 18

Oklahoma City Chapter: Judicial Forum on Bankruptcy Practice

JANUARY 25

**SOLD OUT** Northern District of California Chapter: Common Mistakes by Counsel at Trial

FEBRUARY

FEBRUARY 2�3

Civil Rights Law Section: 2023 Civil Rights Étouffée

FEBRUARY 3

Professional Development – Exploring Employment Opportunities in Health Law

FEBRUARY 10�11

Immigration Law Section: 2023 New York Asylum & Immigration Law Conference

FEBRUARY 16�17

2023 Qui Tam Conference (Hybrid)

FEBRUARY 23�24

2023 Labor and Employment Law Conference

MARCH

MARCH 3�7

2023 Tax Law Conference

MARCH 22�23

2023 Thurgood Marshall Moot Court Competition

MARCH 24�25

2023 Leadership Summit

APRIL

APRIL 17�18

2023 Indian Law Conference

APRIL 27

Qui Tam Section: [VIRTUAL] False Claims Act Today –

Eastern District of North Carolina

MAY

MAY 5�6

2023 Annual Immigration Law Conference

MAY 18

2023 Supreme Court Admissions Ceremony

JUNE

JUNE 1�2

2023 Insurance Tax Seminar

SEPTEMBER

SEPTEMBER 21�23

FBA Annual Meeting & Convention – Memphis, TN