Post-Run Thoughts No. 1.

I need a place to toss all the things I think about while running. Oh, a blog. Well then.

I don’t have any novel or sophisticated thoughts regarding the Supreme Court nomination. Suffice to say I agree that Merrick Garland’s seat was stolen, Justice Kennedy hung LGBTQ and women’s reproductive rights out to dry, and we will see the most conservative court in recent history after Trump’s nomination is inevitably approved by the Senate.

My first thought is in response to a lot of podcasts I’ve listened to opining whether the court is truly non-partisan. I can say that when I was in law school this was the aspirational goal portrayed to me, but there was a realistic acknowledgment that checking political branches necessarily requires amassing some political capital to preserve the appearance of non-partisanship. I suppose the distinction here is the notion that the SC will take politics into account without taking a preferential side.

Of course this doesn’t answer the question about the individual political inclinations of each justice. What most people mean when they talk about the Court being political is this: is a given Justice working backwards from a preferred political outcome? Are they using the law to bridge the gap between their desired policy and legality?

I do believe there are Justices that do this. The fairest interpretation I have, however, and the one I believe to be mostly true amongst judges, generally, is that judicial philosophy inevitably intertwined with political philosophies in large part due to substantive due process.

The “penumbra of rights” associated with the right to privacy – including reproductive and sexual autonomy – are not explicitly called out in the Constitution. Rather, they are inferred from the 14th Amendment, and this is called substantive due process. It’s hardly coincidental, I think, that the more narrow interpretations of the Constitution would find most encumbrances on these rights a-okay (and vice versa — broader interpretations supporting substantive due process would find the same burdens unconstitutional.)

The question is, therefore, whether you believe a the judicial philosophy is the chicken or the egg. My cynical view these days is that many judges have set on a policy and adopt the judicial philosophy that is most likely to justify an opinion supporting that policy. But, I could see a more optimistic world where judges truly do call balls and strikes by thinking a given interpretation is best, and letting policy flow (via the legislature) from there.

Obviously these mullings are separate and apart from what is otherwise clearly political: the Heritage Foundation and Federalist Society have groomed and vetted these candidates in such a way that whether by the cynical or optimistic interpretation, they will rule with the conservative side of the court that is fundamentally opposed to substantive due process and all its umbrella rights and precedent. This includes Roe v. Wade / Planned Parenthood v. Casey. Even if they don’t outright overrule, they will assuredly find burden after burden placed on women to be constitutional, until there are separate reproductive right regimes for upper and middle class women versus their lower income and working class counterparts.

Again, nothing new, just waiting between meetings.

An Open Letter from a Young Attorney to Other Attorneys Regarding our Role in Preserving Free Society.

To: Intimidated Young or New Attorneys/Reticent Seasoned Attorneys
From: A Young Attorney
Re: Literally Everything Since January 20, 2017
Monday, February 20, 2017

An Open Letter from a Young Attorney to Other Attorneys Regarding our Role in Preserving Free Society

Dear Colleagues and Friends,

My intention with this letter is to reaffirm a commitment to the rule of law. Current events in the United States – particularly the recent Executive Order prohibiting entry of individuals from seven Muslim-majority countries – have forced me to recommit to the reason why I became an attorney.

Also, I recently paid annual bar dues.

In applications and job interviews, one is almost always asked why he or she wants to be an attorney. The goal is to avoid cliché answers such as “I want to help people.” Frankly, I cannot avoid that reality. I became a attorney to help people. At first this was in an idealistic sense where I would rush into some kind of appellate practice and preserve the beautiful and poetic liberties students read about in textbooks.

When I began practicing, I gained a better appreciation for the seemingly small ways in which an attorney can ameliorate someone’s problems or fears. Fair or unfair, there are some things only an attorney can do – at least legally – and providing closure and resolution had an impact I had not considered when I first imagined myself as an epic legal superhero with a mean right hook.

Like many, I found this past election disheartening. Over the past month, I have become more than alarmed at the assault on the rule of law and fundamentals of constitutional due process. I think this much is a non-partisan concern. Americans have a moral duty to uphold these predicates of our representative democracy. Whatever reasonable disagreements we might have about good public policy, all of us must stand firm for robust procedural protections. There can be no freedom where there is no law.

As a lawyer, there is an even higher imperative. I repeat: all Americans have a moral duty to stand up for foundational principles such as liberty and justice for all. However, only attorneys can practice law. Therefore, some of these duties can only be performed by attorneys.

I am not a top law school graduate. I did not have an illustrious career at a Big Law firm. I bounced around practicing here and there, largely doing pro bono work and relying upon cases given to me by mentors (for whom I am extremely grateful. I learned a lot during this time of my life as stressful as it was.)

I understand completely the feeling that one does not know enough to help people and might even imperil them or worsen their situation. I empathize with the condition where a person can barely meet his or her own needs, let alone donate time to others. I know what it is like to feel as though any work one does attempt will blow up in some professional ethics minefield. Law school does not prepare us for these things. More often than not, it makes us cautious or wary of reaching out.

The purpose of stating these facts is to make it clear that there is nothing particularly good or smart about me that is not true about any other attorney (or American or person for that matter.) Your country needs you. The rest of the world needs you. Thousands of attorneys rushed to the defense of helpless strangers stranded in airports with the threat of deportation. That is your calling as much as it is mine.

Please shed any hesitation you have about your abilities or limitations. For those of you who plainly cannot afford to don this hat, that is not a mark against you. We all need to tend to ourselves in order to be a place of strength for others. For those of you who are like me and regularly suffer from Imposter Syndrome, this letter is for you.

I recently took up an asylum case. This is a new area of law for me. I am relying heavily on the support of the legal aid society through which I found my client. I am scared and worried that I will forever ruin this person’s life and that they will have to return to a country that has no regard for their safety and well-being – a country that only pays lip-service to the law and all its protections and remedies; preys on vulnerable populations, and; serves the nefarious machinations of an insulated wealthy caste.

Nevertheless, it is the right thing to do. More importantly, it is only something I, as a lawyer, can do. Sure, this person can represent themselves, but for all my shortcomings, I know I can do this better. I am trained at a bare minimum to advocate for others. My main takeaway from previous practice is that there is not a problem I cannot solve even if I do not know the best answer right away.

You have this skill too. To be a lawyer is not to have an encyclopedic knowledge of codes and treatises. It is not to be a superhero or a saint. It is to be a regular person and assume a mantle of responsibility for other regular people as clients. It is to look injustice in the eye – to stand between tyranny and its would-be victims – roll up your sleeves, and dare those forces to try.

I wrote the above first and foremost for simple consideration – that the next time any one of us feels discouraged or helpless and wants to reach out, you remember reading this and reflect on the possible role you can play as both a patriot and a trained advocate.



Can the refugee ban help us mitigate the access to justice problem?


Obviously the above picture is not mine. Kamala Khan is Ms. Marvel and belongs to, you guessed it, Marvel. I thought it looked cool and was appropriately in tone and representation.

Spend enough time in law school or at the bar (the boring bar) and you’ll hear about the “access to justice” problem. The access to justice problem, at its most simplest, is that te legal profession cannot sufficiently meet the needs of those who require legal services, and that this disproportionately impacts the poor and indigent. More and more, it is also affecting the working class or lower middle class, who both cannot afford even more middling legal services but also make too much money to qualify for legal aid services.

The salient point is that supply cannot meet demand. There are a lot of reasons for this and we can dive down that rabbit hole another day but, suffice to say, it’s a problem.

Solving problems, in my experience, and I would say in most folks’ experiences, happens incrementally. You make something 3/5/10% better and the eventual outcome is a larger accrued benefit over time.

Likewise, working for a metrics-centric company that values scalable, “machine learning” solutions has changed the way I approach a problem. I’m a lot less interested in the romantic sweeping proposal and a lot more interested in finding gaps that are overlooked when we focus on the main problem. Often, smaller increases in the process can better the quality of life for those part of it and bolster our ability to isolate what the “real” problem is. Instead of getting lost in a sea of possible problems and, consequently, possible solution, we focus on the immediate hurdles we can overcome and then dramatically increase our ability to solve the problem at large by process of isolation and/or elimination.

This isn’t how I’ve seen the legal community solve its problems. For one, it’s averse to change overall. It’s traditional and, by its nature, quite married to precedent, and not just in case law. Moreover, which I’ll touch on later, every solution to a problem must must be at peace with the overarching ethical rules to which lawyers are beholden. Another hurdle to this is that such guidelines are set by state bars, meaning what is ethical in one state might not be in another. Creative solutions to non-substantive problems are thus not only tacitly discouraged by culture but also, as a trade-off to for ethical lawyering, genuine rules.

The Refugee Ban as a Pilot for Better Legal Services

This past weekend, President Trump signed an executive order (“EO”) that “suspended entry of all refugees to the United States for 120 days, barred Syrian refugees indefinitely, and blocked entry into the United States for 90 days for citizens of seven predominantly Muslim countries: Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.”

Lawyers quickly camped out at airports. I was not among them. Regretfully, I am licensed in NY and currently unsure of my ability to practice law – even at a federal level – under these circumstances. I’m attempting to clarify it, but nevertheless my participation was limited to Facebook posts and a local rally.

I do have friends who participated. Many have signed up for an Airport Triage. This and similar initiatives seek to compile a list of attorneys who are willing to represent anyone detained or otherwise affected by the EO. It also lists the times they are able to do so, how they can be contacted, and additional information such as whether you can file a habeas corpus petition and what areas of law you typically practice.

Essentially, it’s an intake form. A small, rather thankless but necessary description of who your potential client is, what they need, and how you two can communicate and get together.

It got me wondering about what sort of phone applications one could create. As I mentioned above, this is a very small thing — the sort of thing we really don’t think about when it comes to access to justice. But one hurdle of access to justice is that the people who need lawyers often won’t ask or don’t know where to go. Another is that there are a lot of attorneys who simply cannot afford to do pro bono.

But what about those people who want to do pro bono work and mean to do pro bono work but it gets lost in the sea of other obligations? What if we could lower the barrier to entry for requesting legal aid while providing the sort of information that comes as a push notification and a very short list of facts that, like the refugee ban, galvanizes an attorney

This issue is sexy to us this weekend, but even after the stay and as this is litigated, people will be affected by policies the Trump administration settles on. They are unlikely to change in intent even if they change in process. Programs that keep this and other issues in the minds of attorneys, as well as continue aligning those needs with attorney skills, are worth exploring.

Obviously “I need help with my Earned Income Tax Credit and my husband/wife is a crazy bitch” is not as enticing as protecting the due process rights of a suffering class of people. But the basic thrust is that (1) there are people out there who need lawyers and have engaging/sympathetic/whatever cases, and; (2) there are also a lot of lawyers who do, in fact, want to donate their skills but, like all of us, put it on the backburner until something provides an obvious motivator.

Basically, legal aid societies typically function as the broker for volunteer services. My proposal here, not having considered ethics yet, is to remove the middle man by creating a functional intake app that allows lawyers to screen possible volunteer cases. It’s also a format that is easily accessible to potential clients and is, perhaps, not as daunting as walking into a law firm.

I’m still hashing this out in my head, and I don’t want this post to be too long, so here is a quick list of other off-shoots to this:

  • I’m focusing on a sort of brokerage because apps that focus on being a substantive resource tread too closely to providing legal advice. Providing legal advice can create client relationships one doesn’t want, and depending on who makes the app and populates its information, could run afoul of lawful-practice-of-law, well, laws.
  • Another potential is to use it as a means for attorneys to seek clients who want to operate outside the bounds of a traditional firm. These are probably clients who occupy that working poor/lower middle class range. I’m not sure what the ethical implications are since there are rules about billable hours, but it could function as a means to broker a billable hour they can afford. I’m sure that such a thing would have to be blessed by a state’s ethics bar before this could be done. We don’t want non-lawyers to overshoot how much they should pay only to have a more savvy lawyer take advantage, for example.
  • The unspoken hurdle, particularly in my last point, is cost. Not just cost in development, but cost of offering services. A major pain point in the legal community is that (1) it’s expensive to become an attorney, such that; (2) it’s often cost-prohibitive to work for less than the kind of billable hour that precludes representing kinda-poor people.
  • In general, I’m interested in seeing what other organic solutions to client/attorney hurdles come out of this event. If there’s a silver lining, it might be that necessity begets inventions or otherwise jerry rigged systems that reveal small solutions to larger problems.
  • Of course, my bias is that of a lawyer. We can also consider that refugees and immigrants, as two distinct classes, have some overlapping needs that must be met. Such an app could be used to find people – attorneys or otherwise – who speak their language or are some other kind of advocate.

As someone who is not a developer, that is a major gap in my thinking, but I’m certainly very interested in what other lessons we can learn here – hopefully something more positive, long-term and scalable – to improve access to justice and client experiences. I say this as someone who is, as another disclaimer, no longer has to work with clients so that is yet another blind spot of mine.