From U.S. Attorney to Blogger

Question: How did you come to found a blog about the legal profession?

David Lat: Truth of why I moved from law to media, it was a little bit accidental, actually. I had always been interested in journalism. I had been involved in journalism in high school and college, where I worked on the school newspaper at Harvard, at The Harvard Crimson. And I then, after a number of legal jobs – I clerked for a judge; I worked at a law firm and then I went to the U.S. Attorney's Office. I found myself wanting to get back into non-legal writing. And so kind of on a lark, I started a blog anonymously because I didn't really know how it would affect my day job. I started a blog called Underneath Their Robes, which was kind of like a People or Us Weekly, but focused on federal judges, oddly enough.

So that, essentially, is how I first made the transition. I mean, I was doing that while balancing my day job as a prosecutor. And then eventually that blog developed a following and that was essentially my entry point into media.

I’m glad I made the move from law to media. I still practice a little bit because the blogging company that my site, Above the Law, is a part of, Breaking Media, has me as its in-house council. So I do a little bit of legal practice, but it's really five or ten percent of my time as opposed to 100 percent of it. And for me – everyone is different – for me, I just enjoy the day-to-day work of being a blogger more than the day-to-day work of being a practicing lawyer. But everyone's different. Some people tell me, "Oh, I would never want your job."

Question: What was your fascination with gossip about judges?

David Lat: In terms of Underneath Their Robes, I think that that blend of law and gossip reflected two aspects of my personality. On the one hand, I can happily sit down with an issue of The Harvard Law Review. On the other hand, I can happily sit down with Us Weekly. So I think it reflected my own bifurcated personality in a way, these twin interests that I had.

The other thought that I had about it was people love to talk about judges within legal circles. When they're appearing before a judge, they want to know what the judge is like. People also look at judges a little bit like celebrities of their legal world. These are the people who are making the big decisions, who are affecting the lives of millions. And at the time that Underneath the Robes was started, certainly there wasn't a lot of attention paid to judges as people. People would examine their rulings, for instance, or their jurist prudence, but they wouldn't really examine them much as people.

One thing I think that has changed since I started Underneath Their Robes in 2004 and today is we have been through three Supreme Court confirmation hearings—Chief Justice Roberts, Justice Alito and Justice Sotomayor. And I think now people are much more attuned to the personal narratives of judges for better or worse. But at the time that I started Underneath Their Robes, this was a little bit of a backwater. [0:03:26.03]

Question: Is now a good time to start a blog?

David Lat: It's a tough time, I think, to start blogs. When I first started Underneath Their Robes in 2004 and then when I launched Above the Law in 2006, there were many fewer blogs than there are now. Now, everyone and their mother has a blog. Every news organization has dozens of blogs. And one of the challenges is to be heard above the noise. And there is definitely a first-mover advantage, too. So there are a lot of blogs that people go to. Not necessarily because they are in some abstract sense better than the rest, but because they've bookmarked them or they've put them in their RSS reader. And just by force of habit, they go to blogs.

So, in terms of when I started Above the Law – that was in 2006 – I had been working at Wonkette, the political blog. That was my first fulltime blogging job after I left the U.S. Attorney's Office. And I came up with the idea for Above the Law because I thought it was nothing like a Wonkette or a Gawker-type site for the law. At the time, there were a couple of blogs that focused on substantive legal developments like The Wall Street Journal's Law Blog, which focused on law and business cases, or How Appealing, which is a blog by Howard Bashman, which focused a lot on appellate developments, or SCOTUSBlog, which focused on the Supreme Court. But that wasn't a blog out there that offered a bit of fun and humor about the profession, as well as industry news and gossip. And so I thought that there was an opening there, that there was a need in the market that wasn't being filled, and so that's when I came up with the idea for Above the Law.

Recorded on November 6, 2009

David Lat would gladly split his time between the Harvard Law Review and US Weekly. Here’s how he made those dueling interests into a career.

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Politics & Current Affairs

Political division is nothing new. Throughout American history there have been numerous flare ups in which the political arena was more than just tense but incideniary. In a letter addressed to William Hamilton in 1800, Thomas Jefferson once lamented about how an emotional fervor had swept over the populace in regards to a certain political issue at the time. It disturbed him greatly to see how these political issues seemed to seep into every area of life and even affect people's interpersonal relationships. At one point in the letter he states:

"I never considered a difference of opinion in politics, in religion, in philosophy, as cause for withdrawing from a friend."

Today, we Americans find ourselves in a similar situation, with our political environment even more splintered due to a number of factors. The advent of mass digital media, siloed identity-driven political groups, and a societal lack of understanding of basic discursive fundamentals all contribute to the problem.

Civil discourse has fallen to an all time low.

The question that the American populace needs to ask itself now is: how do we fix it?


Discursive fundamentals need to be taught to preserve free expression

In a 2017 Free Speech and Tolerance Survey by Cato, it was found that 71% of Americans believe that political correctness had silenced important discussions necessary to our society. Many have pointed to draconian university policies regarding political correctness as a contributing factor to this phenomenon.

It's a great irony that, colleges, once true bastions of free-speech, counterculture and progressiveness, have now devolved into reactionary tribal politics.

Many years ago, one could count on the fact that universities would be the first places where you could espouse and debate any controversial idea without consequence. The decline of staple subjects that deal with the wisdom of the ancients, historical reference points, and civic discourse could be to blame for this exaggerated partisanship boiling on campuses.

Young people seeking an education are given a disservice when fed biased ideology, even if such ideology is presented with the best of intentions. Politics are but one small sliver for society and the human condition at large. Universities would do well to instead teach the principles of healthy discourse and engagement across the ideological spectrum.

The fundamentals of logic, debate and the rich artistic heritage of western civilization need to be the central focus of an education. They help to create a well-rounded citizen that can deal with controversial political issues.

It has been found that in the abstract, college students generally support and endorse the first amendment, but there's a catch when it comes to actually practicing it. This was explored in a Gallup survey titled: Free Expression on Campus: What college students think about First amendment issues.

In their findings the authors state:

"The vast majority say free speech is important to democracy and favor an open learning environment that promotes the airing of a wide variety of ideas. However, the actions of some students in recent years — from milder actions such as claiming to be threatened by messages written in chalk promoting Trump's candidacy to the most extreme acts of engaging in violence to stop attempted speeches — raise issues of just how committed college students are to
upholding First Amendment ideals.

Most college students do not condone more aggressive actions to squelch speech, like violence and shouting down speakers, although there are some who do. However, students do support many policies or actions that place limits on speech, including free speech zones, speech codes and campus prohibitions on hate speech, suggesting that their commitment to free speech has limits. As one example, barely a majority think handing out literature on controversial issues is "always acceptable."

With this in mind, the problems seen on college campuses are also being seen on a whole through other pockets of society and regular everyday civic discourse. Look no further than the dreaded and cliche prospect of political discussion at Thanksgiving dinner.

Talking politics at Thanksgiving dinner

As a result of this increased tribalization of views, it's becoming increasingly more difficult to engage in polite conversation with people possessing opposing viewpoints. The authors of a recent Hidden Tribes study broke down the political "tribes" in which many find themselves in:

  • Progressive Activists: younger, highly engaged, secular, cosmopolitan, angry.
  • Traditional Liberals: older, retired, open to compromise, rational, cautious.
  • Passive Liberals: unhappy, insecure, distrustful, disillusioned.
  • Politically Disengaged: young, low income, distrustful, detached, patriotic, conspiratorial
  • Moderates: engaged, civic-minded, middle-of-the-road, pessimistic, Protestant.
  • Traditional Conservatives: religious, middle class, patriotic, moralistic.
  • Devoted Conservatives: white, retired, highly engaged, uncompromising,
    Patriotic.

Understanding these different viewpoints and the hidden tribes we may belong to will be essential in having conversations with those we disagree with. This might just come to a head when it's Thanksgiving and you have a mix of many different personalities, ages, and viewpoints.

It's interesting to note the authors found that:

"Tribe membership shows strong reliability in predicting views across different political topics."

You'll find that depending on what group you identify with, that nearly 100 percent of the time you'll believe in the same way the rest of your group constituents do.

Here are some statistics on differing viewpoints according to political party:

  • 51% of staunch liberals say it's "morally acceptable" to punch Nazis.
  • 53% of Republicans favor stripping U.S. citizenship from people who burn the American flag.
  • 51% of Democrats support a law that requires Americans use transgender people's preferred gender pronouns.
  • 65% of Republicans say NFL players should be fired if they refuse to stand for the anthem.
  • 58% of Democrats say employers should punish employees for offensive Facebook posts.
  • 47% of Republicans favor bans on building new mosques.

Understanding the fact that tribal membership indicates what you believe, can help you return to the fundamentals for proper political engagement

Here are some guidelines for civic discourse that might come in handy:

  • Avoid logical fallacies. Essentially at the core, a logical fallacy is anything that detracts from the debate and seeks to attack the person rather than the idea and stray from the topic at hand.
  • Practice inclusion and listen to who you're speaking to.
  • Have the idea that there is nothing out of bounds for inquiry or conversation once you get down to an even stronger or new perspective of whatever you were discussing.
  • Keep in mind the maxim of : Do not listen with the intent to reply. But with the intent to understand.
  • We're not trying to proselytize nor shout others down with our rhetoric, but come to understand one another again.
  • If we're tied too closely to some in-group we no longer become an individual but a clone of someone else's ideology.

Civic discourse in the divisive age

Debate and civic discourse is inherently messy. Add into the mix an ignorance of history, rabid politicization and debased political discourse, you can see that it will be very difficult in mending this discursive staple of a functional civilization.

There is still hope that this great divide can be mended, because it has to be. The Hidden Tribes authors at one point state:

"In the era of social media and partisan news outlets, America's differences have become
dangerously tribal, fueled by a culture of outrage and taking offense. For the combatants,
the other side can no longer be tolerated, and no price is too high to defeat them.
These tensions are poisoning personal relationships, consuming our politics and
putting our democracy in peril.


Once a country has become tribalized, debates about contested issues from
immigration and trade to economic management, climate change and national security,
become shaped by larger tribal identities. Policy debate gives way to tribal conflicts.
Polarization and tribalism are self-reinforcing and will likely continue to accelerate.
The work of rebuilding our fragmented society needs to start now. It extends from
re-connecting people across the lines of division in local communities all the way to
building a renewed sense of national identity: a bigger story of us."

We need to start teaching people how to approach subjects from less of an emotional or baseless educational bias or identity, especially in the event that the subject matter could be construed to be controversial or uncomfortable.

This will be the beginning of a new era of understanding, inclusion and the defeat of regressive philosophies that threaten the core of our nation and civilization.