Expert Analysis

• Opinion

  Prospectively Appointing Jackson To High Court Is Unlawful

  

  President Joe Biden should rescind his prospective appointment of Judge Ketanji Brown Jackson to the U.S. Supreme Court as the decision contradicts the court's reasoning in Marbury v. Madison, raises gravely troubling issues regarding presidential discretion and brings a serious question about her legitimacy as a justice, says attorney John Reeves.

• Bankruptcy Rulings Highlight Split On Excusable Neglect

  

  The Fifth Circuit's recent decision in CJ Holding, and a New York federal bankruptcy court's recent decision in Westinghouse, contribute to a growing split on the weight assigned to various factors when courts decide what may constitute excusable neglect in bankruptcy filing, say attorneys at Cullen Dykman.

• Perspectives

  Time To Fix Legal Industry's Environmental Pro Bono Problem

  

  As we observe Earth Month, it's sobering to note that pro bono environmental law work lags behind other practice areas — but the good news is that there are numerous organizations that can help lawyers get connected with environment-related pro bono projects, says Matthew Karmel at Riker Danzig.

• Ruling Highlights Nexus Of Water Rights, Bankruptcy Law

  

  A Utah bankruptcy court's recent Sugarloaf Holdings decision analyzes water rights in the context of bankruptcy — a little-explored intersection of law that will grow more important as dwindling water resources lead to an increase in disputes — and provides a road map for future litigants tackling similar issues, says Lisa Tancredi at Womble Bond.

• Remembering An Underappreciated Legal Skill — Listening

  

  Education around listening skills is often neglected amid the dominance of visual media and written communication, and failed lawyering often comes down to an inability to listen accurately, so educators and law firms must prioritize the skill in their training programs, says James Flynn at Epstein Becker.

• Attorneys Can Promote Trade, Security Amid Global Conflict

  

  As nations take sovereign action to fight Russia’s aggression against Ukraine and the international rule of law, attorneys can combine their legal and business tools to help the global systems of trade and security in these troubled times, say Thomas Grant at Cambridge University and Scott Kieff at George Washington University.

• Series

  The Future Of Legal Ops: Reining In Outside Counsel Costs

  

  In-house legal departments are under increasing pressure to control spending on outside counsel, but traditional cost-cutting methods — law firm panels, alternative fee arrangements and alternative legal service providers — are limited, making it necessary to establish a more competitive law firm engagement process, say John Burke and Vincenzo Purificato at UBS.

• When Congress Seeks Cos.' Nonpublic Info From Regulators

  

  Increasingly, congressional investigators seek out private parties' confidential documents from the federal agencies that regulate them — and because Congress is uniquely empowered to override nondisclosure protections surrounding nonpublic information, companies must understand the rules and risks involved, say attorneys at Covington.

• In Early Mediation, Negotiate With Empathy, Not Threats

  

  With courts encouraging early settlement conferences to tackle the COVID-19 backlog, parties should consider that authenticity, honesty and the ability to see beyond one's own talking points are far more persuasive tools than threats of a distant possible determination by a court or arbitrator, says Sidney Kanazawa at ARC.

• Addressing Problematic Drinking In The Legal Profession

  

  To curb problematic drinking, on the rise during the pandemic, legal employers should implement comprehensive responsible drinking policies that are taken seriously by firm leadership, and provide alternatives for creating a healthy workplace culture, says Anne Brafford at the Institute for Well-Being in Law.

• Transforming Law Firms' Diversity Intent Into Real Progress

  

  In order for law firms to convert their diversity and inclusion activity into lasting advancements, they must prioritize accountability and transparency when crafting policies, and take steps to engage with attorneys and staff at all levels, say Jacqueline Simonovich at Weintraub Tobin and Lindsey Mignano at Smith Shapourian.

• 2 Years Of Small Biz Bankruptcy Law: Winners And Losers

  

  In light of the second anniversary of the Small Business Reorganization Act's passage, Brian Shaw at Cozen O'Connor categorizes the beneficial and detrimental effects of the law meant to provide a less burdensome path to small business restructuring, and describes the data needed before the law can be deemed a success.

• Opinion

  Justices Must Apply Law Evenly In Shadow Docket Rulings

  

  In recent shadow docket decisions, the U.S. Supreme Court has inconsistently applied the requirement that parties demonstrate irreparable harm to obtain injunctive relief, which is problematic for two separate but related reasons, says David Hopkins at Benesch.

• Tips For Negotiating Litigation Funding Agreements

  

  Allen Fagin and Ralph Sutton at Validity Finance break down the key components of litigation funding term sheets — from return calculations to funder involvement — and explain what law firm leaders should keep in mind when negotiating these provisions.

• 5 Mediation Mistakes That Create Obstacles To Settlement

  

  Overly litigious behavior ranks high among common mistakes attorneys make during mediation, as do premature ultimatums, failure to account for compounding risks, and more, say Lynn O'Malley Taylor and Rachel Gupta at JAMS.