Is Affirmative Action Done?

Monday’s Supreme Court oral arguments in two affirmative action cases in higher education, one involving Harvard and one involving UNC. In both cases, after oral arguments that ran well over their set time, the Supreme Court seems ready to overturn race as a permissible factor in the higher education admissions process.

The effect of these decisions won’t be limited to higher education. Attorney Dayle Lopez observed in an interview with me on Monday:

“We shouldn’t delude ourselves into believing that the impact of these two affirmative action cases ends with higher education. If the Supreme Court overturns Grutter, the impact may be felt beyond higher education. There could be bleed-through to other areas of our lives, including job opportunities, hiring and retention, housing, and more.”

I was on ESPN on Tuesday, discussing this in the context of what it will mean for the recruitment and admission of student-athletes. 

Four Sleeps Until Midterms.

It’s hard to believe that the next time Tuesday rolls around it’s the much-anticipated midterm elections. 

As someone who doesn’t bet but often makes predictions, I’m comfortable predicting that the midterm elections are going to be marked by lawsuits. 

One of the more important ones happened this week, with Pennsylvania’s Supreme Court ruling on Tuesday that ballots would be separately held and not counted if they arrive with “undated or incorrectly dated outer envelopes.”

This was a GOP challenge and victory that ran against previous decisions allowing such ballots to be counted. It is expected that thousands of ballots will be affected next week. 

Tim George, an Erie lawyer, commented:

“Next week’s midterms will have many razor-thin margins across the nation and potentially here in Pennsylvania. Every vote counts.”

Brazil Brings Back Former Leader.

The real story here, for those who aren’t fans of the United States Electoral College, is the reminder that there are large nations that elect their president based solely on the number of votes. 

In one of the closest elections in Brazil’s history, on Sunday night, after counting 99% of the votes (on the same day as the election), Luiz Inácio Lula da Silva beat President Jair Bolsonaro. The far-right Bolsonario had served only one term. 

Lula, described by some as a leftist radical president, served as Brazil’s leader from 2003-2010 and is now back in power. 

Attorney Michele Finizio commented:

“The Electoral College is an American creation that, polls indicate, more Americans are at least questioning. That doesn’t mean that our system will change and become similar to that of Brazil and many other countries, but some people are paying attention.”

The Brazil race was very close, with less than 0.1% diving the two finalists in the presidential run-off during most of Sunday’s vote count. While Bolsonaro still had not conceded the election as of Monday morning, countries such as China were already offering their recognition to Lula.

A Glimpse Into the New Twitter.

In response to a Hillary Clinton tweet, new Twitter owner,  Elon Musk jumped in with a bizarre and disturbing tweet of his own, which he quickly deleted. 

Clinton had tweeted about how GOP conspiracy theories can breed hate and result in behaviors such as lady week’s brutal physical attack of Nancy Pelosi’s husband, Paul, in their San Francisco home. 

Musk jumped in on Clinton’s tweet, suggesting that there might be a much darker reason why Pelosi was attacked. I have no desire to restate that reason here (feel free to click the link in the beginning of this section) but suffice it to say that it was a disturbing tweet that the old Twitter should have removed under their terms of service. To see this come from the new owner of the service puts some weight behind the claims of many users that Twitter is bound to become a “hellscape.”

Kila Baldwin, a Philadelphia lawyer, observed that:

“Everyone on a social media platform is bound by its terms of service. If the owner of the platform is tweeting content that violates its terms, it’s unrealistic to expect the violations of regular users to be enforced.”

A superb Nilay Patel piece in The Verge summarized what many people are thinking about Twitter this week:

“Twitter is a disaster clown car company that is successful despite itself, and there is no possible way to grow users and revenue without making a series of enormous compromises that will ultimately destroy your reputation and possibly cause grievous damage to your other companies.”

Yet just as Musk had intended, Twitter is a drama that will have legs for many weeks to come. If you missed my editorial on the dawn of the Musk era at Twitter, here you go. 

They Did the Nash. They Did the Monster Nash. 

Just as Halloween was winding down, the Brooklyn Nets decided to fire head coach, Steve Nash, seven games into the season. 

Because the entirety of the Nets’ tire fire is his fault?

Please. 

From the how quickly can we find a scapegoat file, the Nets fired their coach, a former all-star who will be in the hall of fame as a player, instead of dealing with the real issues that contribute to this being a fetid NBA franchise. 

New Jersey lawyer and lifelong Knicks fan, Michael Epstein, shared this immediate observation:

“There’s no way that Nash would have been terminated for cause, which means that the Nets will owe him any outstanding money over the length of his agreement. Teams do this all the time and it always seems to be a bad thing to spend money on.”

Firing Nash is definitely a thing but it’s not the thing that’s going to fix the Nets’ main problems. ESPN basketball reporter, Nick Friedell, said on Wednesday morning on the Keyshawn, JWill, and Max morning show:

 “I’ve been covering the NBA for two decades and have never seen a more dysfunctional organization.”

Then on Thursday night, the Nets saga went next level with the indefinite (minimum five game) suspension of Kyrie Irving for his refusal to apologize for anti-Semitic rhetoric. 

More on this next week as all of this shakes up on the court and perhaps in a court.

Massive Opioid Settlement on the Horizon.

On Wednesday, CVS, Walmart, and Walgreens made significant progress in ending thousands of opioid lawsuits in which plaintiffs were looking to hold the retail pharma-giants liable, in part, for the nation’s ever-worsening opioid epidemic. 

The settlements, if approved, will be worth $10 billion, as reported by the Wall Street Journal, while Bloomberg reported the settlement at $12 billion.

These companies had been targeted for their sale of prescription narcotics. As part of the settlement, they agree to make payments to states, cities, and tribes that sued over opioid abuse. Per the terms released on Wednesday, CVS agrees to pay $4.9 billion, Walgreens agrees to pay at least $4 billion and Walmart agrees to pay $3 billion to settle thousands of these governmental lawsuits.

Lauren Scardella, a New Jersey lawyer, commented on the settlement:

“The size and scope of this settlement show how massive the opioid problem is in the United States. While the plaintiffs still need to agree upon its terms, this settlement is another key landmark in the nationwide fight against the opioid epidemic.”

Until next week, be well!

About Aron Solomon

A Pulitzer Prize-nominated writer, Aron Solomon, JD, is the Chief Legal Analyst for Esquire Digital and 24-7 Abogados. He has taught entrepreneurship at McGill University and the University of Pennsylvania, and was elected to Fastcase 50, recognizing the top 50 legal innovators in the world. Aron has been featured in Forbes, CBS News, CNBC, USA Today, ESPN,  TechCrunch, The Hill, BuzzFeed, Fortune, Venture Beat, The Independent, Fortune China, Yahoo!, ABA Journal, Law.com, The Boston Globe, NewsBreak, and many other leading publications.