Can the American Bar Association’s New Anti-Discrimination Rules Stop Donald Trump?

Written by Aditi Juneja, Columnist

The American Bar Association’s (ABA) amended model ethics rule may create problems for lawyers advising Donald Trump on policies such as a temporary ban on those from Muslim majority nations (now shifted to a ban on nations with a record of terrorism). The new amendment to the ABA’s Model Rule 8.4 would make it professional misconduct to behave in ways an attorney knows or should reasonably know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status in conduct related to the practice of law.

Reading about this amendment, I began to wonder if it would be possible for a lawyer to ethically advise a presidential candidate to pursue discriminatory policies. The amendment does not require that a lawyer have discriminatory intent, per my reading, merely that it has that effect. Thus, the only way I can imagine a lawyer could ethically propose policies, such as a ban on those from majority Muslim nations, in a way that falls under the exception of “legitimate advice or advocacy consistent with these rules” is if advising a candidate to pursue discriminatory policies is not “related to the practice of law.”

Coded racial appeals, or “dog whistles,” are nothing new in presidential politics. Kevin Phillips, a lawyer and political strategist for Richard Nixon was open about the “Southern Strategy” to win an emerging Republican majority through “hostility to blacks and browns among slipping Democrats.” In fact, Paul Manafort, Trump’s former campaign chairman and a lawyer, ran Reagan’s Southern operation in the 1980s with racially tinged appeals. It is not surprising, given the background of his former advisor, that Donald Trump made similar efforts to appeal to racist ideologies in ways reminiscent of post-slavery Reconstruction-Era politics that played off of the discontent of voters opposed to those changes.

However, opposition to this new rule was not based in the ethics of lawyers who represent politicians. Rather, it focused on an attorney’s free speech rights and duties to advocate zealously for their clients. In response, Professor Noah Feldman wrote it is possible to advocate zealously without crossing the line into harassment or discrimination. I believe that if lawyers are going to craft the rules of society, it is about time that we are obligated to do so in a way that is inclusive of all of its members.

As a law student, I have been taught to comfort myself about the moral implications of advocacy by deferring to the adversarial process, which is supposed to yield fair and just results. Lawyers are taught to think through arguments and counterarguments, but rarely taught to consider the morality of advocacy. If we hope to learn from our history, and avoid repeating it, it would seem that making it unethical for lawyers to engage in discrimination and harassment in their legal practice is a good first step.

Dear 2Ls: Advice for Interview Season

Written by David Wang, Columnist

Dear 2Ls,

Congratulations- you survived 1L of a year! As the summer draws to a close, three little letters may be on your mind: EIW/OCI (or as I like to call it the quickest 3-day stay at the Doubletree Times Square). Although screening interviews and callbacks can seem daunting and stressful at times, here are a few nuggets I’ve found to be helpful for the fall interview season.

1)     The Early 2L Catches the Interview. Even if you missed certain interviews, you still have a shot at any available slots during open sign-ups every morning. Last year, sign-ups were offered on a first-come, first-served basis, so if you arrive early enough, you’ll not only be able to sign up earlier but also you’ll be able to review which firms/offices with whom you’d like to interview.

2)     Get There Early. Period. As much as all New Yorkers love Midtown, we know just how…popular…it can be, especially throughout the day. Although 8 AM isn’t exactly prime time in Manhattan, you always want to budget enough time to arrive feeling calm and ready.

3)     Pace Thyself. As Scar said to the hyenas, be prepared.  The days will be long and exhausting, but you have to keep pacing yourself to the finish line-especially during post-lunch interviews in the afternoon. Livening up the energy does make a difference and accentuates your interest in the firm, so make sure you bring some passion to each interview.

4)     Stairs Not Elevators. All the interview rooms are generally clustered around a few floors, so I highly recommend the stairs instead of the elevators. The lifts tend to be slow, and there are other people who will be using them. Climbing stairs is rough, but it is efficient and interviewers typically know that it will take a few minutes to get from one room to the next if you have back-to-back interviews.

5)     Duly Noted. I found it extremely helpful to bring a small wired index card book with information and current events about the firm and interviewers, along with some potential questions I might ask after each interview. Especially if you have an interest in a particular practice area of the firm, name-dropping high-profile attorneys, deals, or cases of the firm shows your enthusiasm for the firm!

6)     Speed Interviewing. 20 minutes. That’s all you get for most screening interviews, and your sole focus in the interview room should be the interview. Your grades and resume are already fixed, but how you perform in the interview is fluid and malleable. You cannot change what is already printed on a transcript or resume, so focus on showing your best self.

7)     Hydrate and Power Up. Bringing water and some snacks are critical. Please drink water. Please!

Well, that’s about it! EIW and fall callbacks were a whirlwind, but through this process, I learned so much about myself and the profession that I am joining. It’s tough, but just remember, you’re talking about the one subject that you alone are the expert of: yourself. So drink lots of water and best of luck!

PS: Drink water.

Dear 1L: How to Navigate Your 1L Summer (While Maintaining Your Sanity)

Written by David Wang, Columnist

Dear 1L,

Well, it’s that great time of the year again: end-of-the-year shenanigans, finals, the last Bar Review. With so much coming together towards the end, it’s also important to look ahead. Sadly, even after the fun finals festival, 1Ls typically enter into the world of the write-on competition, EIW, and summer internships. With that in mind, here are some helpful tips and advice to navigate through this exciting adventure at the end of the year (a.k.a. what I would have done if I could build a time machine and go back to 1L)!

1)    Pace yourself. Focus on TLC and treating yourself at the end of finals. Take the moment to celebrate you. Go watch a movie, hang out with friends, enjoy the local sights at Times Square—but whatever you do, don’t jump into the write-on competition immediately! You have two weeks—use the first few days to slow down and decompress. Your writing will be more effective if you attack the competition after a fresh rest!

2)    Draw inspiration from the city. We are so lucky to be in the heart of New York City. Take advantage of the environment around us; the write-on doesn’t have to be done in your apartment or in the law library. Go to the Met for a few hours and write amongst great art masterpieces; or, pop a squat in Central Park and enjoy the (hopefully) nice summer weather.

3)    Proofreed, Prufread, and PROOFREAD. Spend time editing your work, take the word count seriously, and follow directions carefully. This is the easiest and saddest area to lose points because you have total control here!

4)    Take the writing packet in strides. The competition is designed to be a marathon, not a sprint. Take apart each section carefully and allocate time appropriately, but don’t attempt to do everything at once. Do some Bluebooking, read some articles, work on the personal statement, come back to the Bluebook, work on your comment, but do work in chunks and manageable pieces—not all at once!

Take chances, make mistakes, get messy! – Ms. Frizzle, The Magic School Bus

And now on to the fun stuff…do you have any advice for a summer internship????? Why yes, we do!

1)    Ask questions—but with gravitas. Be sure to ask lots of questions if anything is unclear. Most employers expect that 1L students are interning to learn and gain experience in the legal field, so as part of the educational experience, questions are expected. Or as my childhood hero/spirit animal Ms. Frizzle would say, “Take chances, make mistakes, get messy!” That being said, before you ask questions, you may want to think about suggesting some possible answers on your own—this will show your enthusiasm and positive attitude.

2)    Tea with strangers. Spend time getting to know the lawyers and other professionals working at your job site—offer to take them out for coffee/tea/water/whatever for 15 minutes and understand their background and careers. Not only will this expand your own knowledge of different career possibilities, but also it can help grow your network.

3)    Positivity, no matter what. A positive attitude will take you far. Even if you’re given a mundane task, treat it with the utmost care, respect, and enthusiasm. Often, these “simple” tasks are actually tests to see if you are ready to handle bigger assignments. Doing these tasks well and with great energy will make you stand out and help your supervisor recognize your talents!

I hope this helps with relieving some of the stress of the upcoming weeks. Remember, we’re approaching the goal line, and you will have successfully completed your first year of law school. You deserve praise for making it this far—now finish strong and let the good times roll!

 

NYU Law Foodie’s Guide: What to Eat When You’re Gonna “Netflix and Chill”

Written by Katherine Tandler, Columnist

My last column was about how to put someone in the friend zone—so, of course, I got some calls for a column on where to go when you actually like someone. Irl the typical response would be where to take someone on a date. But, as someone who tends to assiduously avoid the forced intimacies and inevitable fiascoes associated with the dating scene, I have decided to focus on the popular Millennial alternative to a date: Netflix and Chill.

Here’s the situation: you were iso something to do so you invited someone over to “watch Netflix and chill.” It’s late in the evening for sure, but it’s also highly unlikely that person will arrive having downed a huge meal. So, don’t be a newb—you’ll probably want to have a good option on lock for after the “movie.” You know, midnight-snack style. Especially if there is going to be drinking involved.

Of course, the typical movie food is popcorn. But, as Netflix and Chill doesn’t necessarily involve an actual movie, imho actual popcorn is not required. If we were to change the hypo and you were going to eat before the “movie,” popcorn might be a good call. Reliable sources have shown that the smell of popcorn is an aphrodisiac, as is the scent of cheese pizza. See, e.g., How Stuff Works: Aphrodisiacs. But beware—consumption of both of these foods can result in very greasy hands and you don’t want your fellow movie lover to be all “nimby,” amirite?

Right off the bat I am going to have to veto Thai food. One word: peanuts. It’s just too risky with all the allergies floating around these days. Disobey and you’ll be the one spending the night in front of an ER waiting room TV watching C-SPAN instead of on your own couch watching Zombeavers with your date. If you do end up in the ER, look for me: I’ll be the one shaking my head in the corner like stby.

Sushi—also too risky, given the likelihood your partner doesn’t like it and the acute risk of food poisoning. Chinese? No way. When your date accidentally bites into a hot chili, spits it into their palm, then rubs their eye (or touches you somewhere sensitive) your Netflix and Chill sesh will be over faster than a kitten video going viral. And let’s not even talk about Mediterranean/falafel. Soggy pita late at night? That’s so ratchet.

Once you’ve ruled out pizza, Thai, sushi, Chinese, and falafel…I mean, what else is there to order around NYU? Tbh, I don’t really think you’re gonna want to wait around for Seamless to bring you something. If the movie is good, you’re gonna be hungry af afterwards and want something right away.

So, when in doubt, I refer you to my two heroes: Ben and Jerry. Everyone knows these two guys fill every pint with tlc. There are approximately 4,839,562 different flavors of ice cream in any given bodega (fwiw, B&J even make vegan ice cream now!). I would recommend getting multiple kinds in case your partner has a particular proclivity.

Mhoty! Go forth and chill!

Ttyl.

#3MonthsLeft: Even Lawyers Can Be Artists

Written by Rucha Desai, Columnist

I am not an artist. In my high school ceramics class, I made a vase without a bottom, and my mother, after seeing nothing could be put inside of it, confirmed that art (all art—the breadth of her conclusion was wide) was not my calling.

In New York City, however, anyone can be an artist, and all proclaim themselves to be.

This week, toting a subpar vegetarian sandwich from Potbelly, some leftover white wine from Valentine’s Day, and two Groupons, my little sister and I went to a class at the Painting Lounge.

Once again, we were assured that we had not foregone our true callings for other livelihoods.

It was my first night of Spring Break. With that euphoric, fleeting liberation that comes only with the beginning of a school vacation, I skipped over to Chelsea, the bottle of Sauvignon Blanc clinking in my bright yellow, dirtied, and otherwise empty backpack.

As my sister and I waited for class to begin, we watched the rest of the group stream in: a big, rowdy group celebrating a 40th birthday; a quieter family of women (mothers, sisters, daughters); two young girls—foils to my sister and me—who sat in front of us and ultimately scored highest (in a grading system born from the dark, competitive crevices of my mind); and one lone woman, enjoying her art and her Chardonnay and her solitude.

As if a caricature of a starving artist, the instructor was a professional dancer and singer and actress, and, evidently, was also very talented in acrylic painting. Step-by-step, with patience and kindness, she taught us how to imitate a work by Graham Gercken, one of the few artists celebrated by the Painting Lounge who is still alive (he sells his work on Etsy). Unlike the binary of gifted/ungifted on which I was raised, the instructor told us she was merely giving us guidance, that everyone had their own interpretations and their own visions, and that it was up to each of us to create something from the blank canvas. All of our pieces, she said, were beautiful.

I didn’t buy it. I’m too old to be soft. I’m almost done with law school, so I knew that while the piece was subject to a multiplicity of interpretations, only one would prevail. Only 10% of us could get that evasive, determinative A. There is no empathy in law school.

After the first five minutes of explanation of dashes and splotches and double dipping paints, I became immersed. I stopped sipping on wine, threw the sandwich back in my sister’s face, and began concentrating on perfection. I would be the next Graham Gercken.

Of course, my piece was not at all similar to Graham Gercken’s. I painted my yellow backpack red out of frustration. I guess there can be only one Graham Gercken.

We walked home, our paintings and backpacks and all, to drop off our stuff before venturing out for our second dinner. We discovered El Camion, likely one of the few Mexican restaurants in New York City with better food than drinks. We winced slightly at the margaritas, but rapidly and silently shoveled the fresh, wholesome tostadas and fajitas into our mouths.

After watching an episode of The Wire and listening to my roommates loudly bash Donald Trump in the hallway, we passed out. We slept sweetly and soundly, with paint on our hands and nothing heavy in our hearts. Our polymath instructor was right—we had but a blank canvas, upon which we created a lovely, memorable Wednesday night in New York City.

Op-Ed: A Law Student’s Plea to Fund Indigent Defense Services

by Aditi Juneja, Columnist

As a law student pursuing a career in prosecution, I often find myself in the strange position of advocating for more robust legal services for indigent defendants. I have chosen to pursue a career in prosecution because I believe in accountability for choices and want the privilege of spending my career focused on the pursuit of justice, rather than zealously representing a client.

However, inherent in my desire to pursue the amorphous concept of justice is the understanding that the defendants I prosecute will be represented by competent counsel with sufficient resources. I worry that, over fifty years after Gideon v. Wainwright was decided, which ensured defendants the right to counsel, we still fall woefully short. Given that some of the bipartisan support for criminal justice reform comes from concerns about the limited benefits, given the enormous costs, of the current system, I wondered why no one was talking about the long-term costs of not funding indigent defense.

There is not a lot of data available on the savings indigent defense attorneys provide because indigent defense service providers are made up of a patchwork of institutional providers (organizations like Orleans Public Defenders or Legal Aid Society) and panel attorneys (individual lawyers who apply to be put on a list and have cases assigned to them by the court), with every state employing a different system. Furthermore, unified, state-wide case management systems are rare, meaning that the data that is collected is limited by how an organization or individual attorney keeps records. This limits the government’s ability to know what indigent defense service provider system works best and how to efficiently direct taxpayer dollars to those systems.

There appear to be significant opportunities for cost-savings by providing defendants with lawyers at bail hearings. Pre-trial detention makes up for 99% of the incarceration growth in the last fifteen years. A randomized control study in Baltimore, Maryland found that by giving 4,000 defendants a lawyer at bail hearings, there was a net savings of approximately 6,000 bed days. This doesn’t just yield a financial savings, but also a public safety savings. There are strong correlations between the length of time low-risk and moderate-risk offenders are detained before trial and the likelihood that they will fail to appear and reoffend both in the short and long-term. Simply, pre-trial detention increases the likelihood that a low-risk or moderate-risk offender will reoffend or fail to appear.

Since we are only charging defendants who we believe are guilty of a crime, it can be hard to remain open to new information, a phenomenon known as confirmation bias. But this is exactly why we need defense attorneys present to advocate for their clients, and for judges to make decisions anchored in the recommendations of an impartial third-party. Too often, this isn’t what happens.

Even in New York City, where we do have defense attorneys at bail hearings, it was found that judges’ decisions were most correlated with prosecutors’ recommendations even though the Criminal Justice Agency’s recommendations were better at ensuring a defendant would return to court. As a future prosecutor, concerned with public safety, I want safeguards to make sure that while I’m acting in good faith on an individual case, so that my actions don’t have negative, long-term consequences.

The Exonerations in 2015 Report suggests this concern is not unfounded given the record number of exonerations last year. The 149 exonerated defendants and their families can’t get their collective 2,161 years back and the citizens of those jurisdictions can’t get the cost of incarcerating those defendants back. That is a waste of over $67.5 million dollars, based on an average annual cost of incarcerating an inmate of $31, 286.

The potentials for savings in correcting sentences downwards, not exonerations, are also huge. The Michigan’s State Appellate Defender Office, which is publicly funded, showed that they were able to save over six million dollars for the state in 2013 alone. It is important to note, however, that none of these numbers include the costs of correcting these errors through often lengthy litigation processes. Nor do they account for how else these people might have contributed to society, if they were free. It would, obviously, be better for everyone if mistakes were not made in the first place.

My biggest fear as a future prosecutor is that I will someday be responsible for a mistake that puts someone unjustly in prison. Legislatures should share this fear—if not for their constituents, then for their budgets.

 

#3MonthsLeft: Third Year Soliloquy

Written by Rucha Desai, Columnist

There are 90 days left until graduation. For some, that means only 90 more days of searching for old outlines, of posting political tirades on Coases, and of running late to class because the Monday schedule is arbitrarily moved up ten minutes. For others, it means only 90 days of ignoring the loud Mamoun’s consumption in the library and racing to The Cave for a spot on the couch.

For me, this means there are only 90 days left to be a student. That is, 90 days of discoveries and rediscoveries, of expected unemployment and unexpected audacity, of embracing and cherishing and being energized by this beautiful city. There are 90 days of unbilled, unmeasured time in a race against the clock.

So, instead of #3LOL, I am #3MonthsLeft. I will chronicle one experience—old or new—every week, for three months, to uncover the little treasures this city has to offer (outside of Vanderbilt Hall).

Last Saturday, I discovered wintertime Hamptons. To celebrate my friend’s 30th birthday, we took a party bus tour of the Hamptons through First Glass Wine Tours. The bus was stocked with water bottles, ice buckets, and red solo cups filled with nostalgia. We unapologetically blasted Justin Bieber’s new album on a loop as we rode from Midtown East to our first stop, Raphael. The winery had a wooden, warm tasting room with high ceilings, live music, and a view of untouched, snow-covered vineyards that reached the horizon. For $11, I tasted four Long Island wines, ate a thick grilled cheese sandwich with hot tomato soup, and took selfies against the immaculate terrain (after aggressively judging girls who take selfies).

Everything was clean, white, and simple.

Excitement levels heightened, our next stop was Baiting Hollow, where older blond women were dancing in celebration of each other and the winery’s live band played 90s pop covers. In the midst of a fierce debate about boy bands (Backstreet Boys versus *NSYNC), we had one bottle of Riesling and one bottle of cabernet franc, with a creamy spinach artichoke dip that was grossly lacking in salt. We finished our bus tour at LIV – not the club in Miami, but the distillery on Long Island. For $10, we tasted potato vodkas infused with sweet fruits, with espresso, and with nothing. We swished, we clinked, and we sipped.

And the clock struck midnight (6 p.m.), so we had to run back to our coach (mini party bus) before it turned back into a pumpkin (charged us a penalty).

Our souvenir tasting glasses in our pockets, we climbed back onto the bus. Disco lights blaring, we rode back into Manhattan, playing aggressive rounds of Heads Up and eating the complimentary cheese from Raphael that we stuffed into take-out containers. We reached Manhattan, and the crew dispersed – to the DL, to Caliente Cab, and to respective studios, where the jubilance and freshness of the day’s events allowed a deep, untroubled sleep. A familiar dread about Sunday’s activities began to creep over me—the antitrust reading, the dishwashing, the weight training—but I was able to fend it off for just a few more hours, nibbling on my last bits of cheese and swiping through my selfies against that untouched, white, immaculate terrain.