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As reported here yesterday, the legal editing software WordRake released a new version 4.0 that expands its functionality, adds new pricing options for less-frequent users, and introduces a new Simplicity editing mode for simplifying complex language.

With this release, WordRake now has two editing modes: Brevity and Simplicity. You might consider the Brevity mode to be classic WordRake, in that it does what WordRake has always done suggest edits that can make a document more concise.

The new Simplicity mode focuses on making suggestions designed to simplify complex language. It converts jargon, bureaucratic language and difficult words into words that are more familiar, WordRake says.

Read about WordRake in the LawNext Legal Technology Directory.

In previous blog posts, I have tested WordRake by using it to evaluate suggested edits to Supreme Court opinions. To read those previous reviews, see:

WordRake gave me a preview copy of this new version 4.0, so, in keeping with those prior posts, I decided to do the same.

Having recently used a different legal editing software,BriefCatch, on the leaked draft of Justice Samuel Alitos opinion overturning Roe v. Wade(I Ran Justice Alitos Draft Abortion Opinion through the BriefCatch Legal Editing Software. Heres What Happened), I chose another controversial opinion from the courts most-recent term, the Second Amendment case of New York State Rifle & Pistol Association v. Bruen, written by Justice Clarence Thomas.

I downloaded the PDF and converted it to Word, selected WordRakes new Simplicity mode, and hit the Rake button. It took roughly 10 minutes for WordRake to analyze the lengthy opinion (132 pages in Word, including dissents). When it was done, it told me that it had analyzed 2,585 sentences and made 232 suggestions.

In fairness, a Supreme Court opinion may not be the best document for testing the Simplicity mode, as it has most certainly been through multiple rounds of editing and editors before it is released to the public. On the other hand, if an editing program can find ways to clean up a document such as a Supreme Court opinion, imagine what it can do for your brief.

What Simplicity mode found were a number of repetitive and relativity minor editing suggestions. They included, for example:

As you can see, none of the suggestions are particularly substantive, but that may be the point, and it certainly may be due to the nature of the document I analyzed.

As I have previously noted in writing about this and other legal editing programs, users should never blindly accept an editing programs suggestions, as they are sometimes wrong. In the snippet above, for example, the suggested change of possessing a to with a, results in a sentence that makes no sense.

Similarly in this example, the change of methodology to methods changes the meaning to something the author did not intend.

Here is one more example, where WordRake suggests changing the phrase justices of the peace to just the single word justices. The problem, of course, is that these are terms of art that have different meanings.

I also ran the document through the original Brevity mode. This time, it took 11 minutes, and from the 2,585 sentences it analyzed, it made 499 suggestions.

Many of the suggestions in Brevity mode were the same as those in Simplicity mode, such as changing nevertheless to still and the like. A number of other suggestions were to eliminate transitional words and phrases such as moreover or in other words. In other places, it suggested a different transition, such as changing that said to however.

Here again, WordRake made some erroneous suggestions. For one, it recommended changing the phrase, the courts generally proceed to step two, to, the courts generally step two.

If I accepted all of the suggestions in Brevity mode (without regard to whether I should accept them), it reduced the word count from42,448 words to 41,564, or 884 words.

The use of any editing software should be guided by your own editorial judgment. Just because a program says you should do something, that doesnt always mean you should.

That said, my experiences using WordRake suggest that it can be a useful product for honing and editing ones writing. Not only does it provide an extra level of review for your writing, but it can also show you how you can make your writing more concise and direct. Given its affordable cost, and especially with its new monthly pricing, it is worth adding to your toolkit.

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I Put WordRake's New Version 4.0 to the Test Against the Supreme Court's Second Amendment Opinion in New York State Rifle & Pistol Association -...

Ill say this much for US appeals court Judge James Ho: Hes defying the stereotype that Asian Americans are quiet worker bees who fade into the background.

Ho, who sits on the Fifth Circuit, has been throwing himself under klieg lights. I will no longer hire law clerks from Yale Law School, he declared at a Federalist Society conference in Kentucky last week. Ho miffed that the school not only tolerates the cancellation of viewsit actively practices it.

What better way for an up-and-coming judge to get attention than to plunge into Americas culture wars?

Judge Ho certainly comes across as very partisan, said Kermit Roosevelt, a professor at University of Pennsylvania Carey Law School. And the growing numbers of judges like him do suggest that something about the judiciary has changed. My sense is that its a sign of polarization within the elite legal community.

Taking a page from the right-wing handbook, Ho is going to town. I would contend that cancel culture is one of the leading reasons why citizens no longer trust a wide variety of once-leading institutions, he said. It turns out that, when elite institutions make clear that people who think like you and me shouldnt even exist, we return the favor, urging his fellow jurists to join the Yale boycott.

So take that, numero uno law school! Unless you renounce cancel culture, your graduates will go begging for federal clerkships.

Gimme a break.

Perhaps Im underestimating Hos clout, but I cant imagine students turning down coveted seats at the nations most prestigious law school because he put it on his personal blacklist. And what are the odds that other federal judges, even unabashed conservative ones, will trash the resumes of awesome Yalies because of the schools woke reputation?

As for the idea that Yale Law School operates a torture chamber for conservative students, well, the likes of Josh Hawley, J.D. Vance, and Brett Kavanaugh seem to be doing just fine. And lets not forget Stewart Rhodes, the leader of the Oath Keepers, whos also a proud graduatealbeit on trial charged with seditious conspiracy for his role in the Jan. 6 riots.

Judges tend to speak through their opinions, Roosevelt said. Its rare to have judges speak outside the job. ... Its unusual for Ho to suggest a general liberal-conservative conflict and take a side in it.

Whats fueling this polarization is simple, said Saul Cornell, a professor at Fordham University who specializes in legal history: This is part and parcel of the age of Trump.

Indeed, Ho, who was appointed by Trump, has been polishing his act as the cultural warrior judge extraordinaire. In February, at another Federalist Society event, Ho went out of his way to defend libertarian Ilya Shapiro, who got into trouble for using the term lesser black woman to describe President Joe Bidens plan to appoint a Black woman to the Supreme Court.

Though the topic at the event was supposed to be originalism, Ho used the occasion to rail against cancel culture, declaring, I stand with Ilya.

Even as far back as 2018, NPR asked whether Ho in his opinions and dissents was writing legal opinions or political commentary, citing his aggressive rhetoric on abortion, which hes called a moral tragedy, and the Second Amendment, which he claims has been relegated to a second class right.

Ho is a performance artist. It seems hes been trying to break out of the overcrowded pack of ambitious young conservative judges to burnish his brand as the leading firebrand. I couldnt help but wonder if Hos latest outburst was a check on the commotion surrounding Aileen Cannon, the judge in the Mar-a-Lago documents case, whos now creaming him as the most Trumpian of Trump judges.

Hes looking for headlines, Cornell said. Once upon a time, the judiciary was the most trusted branch of the federal government, and now we have these cowards. It used to beduring the William F. Buckley eraconservatives could dish it out as well as take it. Now theyre wimps, yet they call liberals the culture of victimhood.

Ho is exploiting the moment for his own career, but isnt he also wreaking havoc on our trust in the judicial system?

I think that public faith in the judiciary is affected much more by the Supreme Court than by lower judges, Roosevelt said. But Judge Ho doesnt help.

Read more here:
Yale Law Students Must Be Quaking in Their Boots - Bloomberg Law

SCOTUS FOCUS ByJames Romoser on Oct 2, 2022 at 7:00 pm

Justice Clarence Thomas announces an opinion from the bench in 2019. (Art Lien)

When the Supreme Court returns to the bench on Monday for its first oral arguments of the new term, Justice Clarence Thomas almost certainly will ask the first question.

Thomas, who was appointed in 1991, is the courts longest-serving justice and was for many years its most taciturn member. He famously went a decade without asking a single question. But when the court tweaked its argument format during the pandemic, Thomas began speaking up. He now interrogates the lawyers during nearly every case, often marking the terrain on which the case will be fought.

The other justiceshave even agreed to defer to Thomas at the start of each argument before jumping in themselves. The rationale is that Thomas, a stickler for politeness, dislikes interrupting the advocates or his colleagues. But its hard not to view the arrangement as symbolic of Thomass remarkable ascendance. Long considered an outlier on the courts right flank, Thomas is now the intellectual leader of a conservative transformation that the six Republican-appointed justices are ushering into American law.

Few would have predicted it. Perhaps not even Thomas himself. In his second term, he boasted that he was proudly and unapologetically irrelevant and anachronistic. Back then, his commitment to originalism the idea that the Constitutions language should be interpreted solely according to how the words were understood when they were written made him an ideological oddity, even among many conservatives. And his no-compromises approach alienated moderates like former Justice Sandra Day OConnor.

Now, as he enters his 32nd term, his critics surely still see him as anachronistic, but he couldnt be more relevant. Lower courts, elite appellate law firms, and Republican congressional offices are stocked with former Thomas clerks. Under President Donald Trump, no other justice had as many clerks appointed to the federal judiciary or to senior administration positions.

And of course theres his wife, Ginni, who has tried to establish her own sphere of influence. She lobbiedtop Trump officialsandstate lawmakers to overturn the 2020 election an effort that landed her before the Jan. 6 committeeon Thursday. Thomas has stayed mum on his wifes activities, and even the staunchest critics of the Thomases dont expect the revelations about Ginni to erode Clarences influence.

Thats in part because many judges (including several other justices) now consider originalism to bethe default mode of constitutional interpretation, and even non-originalists frequently employ its history-focused methods. Its become commonplace at the Supreme Court to lean on obscure 19th-century documents (evenahistorical ones) and appeal to the nations deep-seated traditions.

To paraphrase Justice Elena Kagan,were all Thomists now.

If the 74-year-old justice is reaping a bounty, its because hes been planting seeds for decades. In particular, three issues have long motivated Thomas above all others. The first is guns. The second is rights. The third is race.

On guns, Thomas pioneered a robust interpretation of the Second Amendment before it became conservative dogma. As a justice, he first floated the idea that the amendment guarantees a personalright (his emphasis) to own firearms ina solo concurrence in 1997. It took 11 years for five justices to adopt that position inDistrict of Columbia v. Heller at least as applied to guns kept in the home. Thomas wasnt satisfied, though. In the years after Heller, he urged the court to take up more gun cases and further expand the amendments scope. When the court turned down those cases, Thomas wrote dissent after dissent, castigating his colleagues for treating the Second Amendment as a constitutional orphan and a disfavored right.

Earlier this year, he finally prevailed. In his majority opinion in New York State Rifle & Pistol Association v. Bruen probably the most important opinion Thomas has ever written he extended the right first recognized in Hellerbeyond the walls of the home, so the Second Amendment now protects individuals who wish to carry concealed handguns in public. Most significantly, he enshrined originalism as the legal test for analyzing gun-control measures. Rather than looking at contemporary evidence about gun violence, courts must now strike down any gun restriction unless an analogous regulation existed centuries ago.

If Thomas rescued gun rights from the constitutional orphanage, there is another, broader class of rights that he believes should be sent there instead: the bundle of substantive-due-process rights that are not explicitly listed in the Constitution but that nonetheless have been deemed fundamental to a free society. Conservatives and liberals largely agree with the premise of substantive due process, though they fiercely disagree on the specific rights that make it up. (Conservatives invoke certain economic rights; liberals invoke the rights to privacy and bodily autonomy.) Thomas, however, rejects the premise altogether. For three decades, he has argued that the whole doctrine is an oxymoron.

InDobbs v. Jackson Womens Health Organization, the court eliminated the most contentious right under substantive due process: the right to obtain an abortion. Justice Samuel Alitos opinion didnt abandon the doctrine altogether. But his history-focused assessment of the right an approach that is textbook Thomas will sharply curtail the doctrine in other areas. And Thomas, in a concurrence, laid the groundwork for overturning the rights to contraception and same-sex marriage.

That leaves the matter of race. Here, too, Thomass views are unorthodox, even when compared with his fellow conservatives. Todays court watchers may be surprised to learn that, as a young man, Thomas was immersed in Black nationalism. The political scientist Corey Robin haspersuasively shownthat Thomass worldview isrooted in that experience. Hegrew up in rural Georgia during Jim Crow, became a self-described radical devotee of Malcolm X, and came to view liberal social policies as white paternalism.

Nowhere is this more apparent than on the issue that likely will define the upcoming Supreme Court term: affirmative action in higher education. Other conservative critics of affirmative action argue that society must transcend race by adopting colorblind policies. And they say the practice is unfair to white students (or Asian American students, as the challengers contend in thetwocases now before the court). Not Thomas. He views affirmative action as a benighted form of racial experimentation perpetrated by the white ruling class against Black people, including himself.

In his 2003 dissent inGrutter v. Bollinger, Thomas accused the courts majority of ignoring growing evidence that racial (and other sorts) of heterogeneity actually impairs learning among black students. The court upheld affirmative action in that case, in a landmark opinion by OConnor. Now, opponents of affirmative action are asking the newly conservative Court to overturn Grutterand effectively outlaw race-conscious admissions nationwide.

The cases will be argued on Halloween, but the courts opinion probably wont drop until the end of the term in June, possibly on its last day. Its most likely author: Clarence Thomas, the justice who now asks all the first questions and, more often than not, gets the last word.

This column was originally published on Sept. 29 in National Journal and is owned by and licensed from National Journal Group LLC.

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John Roberts is the chief. But its Clarence Thomass court. - SCOTUSblog

EXETER, N.H.--(BUSINESS WIRE)--Vapotherm, Inc. (NYSE: VAPO), (Vapotherm or the Company), a global medical technology company focused on the development and commercialization of its proprietary Vapotherm high velocity therapy products, which are used to treat patients of all ages suffering from respiratory distress, today announced that, on September 30, 2022, the Company entered into an Amendment No. 2 to Loan and Security Agreement (the Second Amendment, together with the Loan and Security Agreement, the Amended Loan and Security Agreement) with SLR Investment Corp., as Collateral Agent, and the lenders party thereto.

In addition, the Company announced that it was notified (the Notice) on September 27, 2022 by the New York Stock Exchange, Inc. (the NYSE) that the Company is not in compliance with the NYSEs continued listing standards as a result of the Companys average market capitalization being less than $50 million over a consecutive 30 trading-day period and the most recently reported stockholders equity of the Company also being less than $50 million.

Second Amendment to the Loan and Security Agreement

In February 2022, the Company entered into its Loan and Security Agreement (the Loan and Security Agreement), which provided the Company with a term A loan facility (the Term A Loan Facility) of $100 million, funded at closing, and a term B loan facility of $25 million (the Term B Loan Facility), available in 2023 upon the achievement of a revenue milestone. The Loan and Security Agreement matures on February 1, 2027 (the Maturity Date). On September 30, 2022 (the Effective Date), the Company entered into the Second Amendment, which includes:

NYSE Continued Listing Standard Notice

As set forth in the Notice, as of September 27, 2022, the 30-trading day average market capitalization of the Company was approximately $48.8 million and the Companys last reported stockholders equity as of June 30, 2022 was approximately $13.7 million.

In accordance with the NYSE rules, the Company intends to notify the NYSE within 10 business days of receipt of the Notice that the Company intends to cure the deficiency. Under the NYSE rules, the Company has 45 days from the receipt of the Notice to submit a plan (the Plan) advising the NYSE of definitive action the Company has taken, or is taking, which would bring the Company into conformity with continued listed standards within 18 months of receipt of the Notice. Within 45 days of receipt of the Plan, the NYSE will make a determination as to whether the Company has made a reasonable demonstration of an ability to come into conformity with the relevant standards in the 18 month period. If the NYSE accepts the Plan, the Companys common stock will continue to be listed and traded on the NYSE during the 18 month cure period, subject to the Companys compliance with other continued listing standards, and the Company will be subject to quarterly monitoring by the NYSE for compliance with the Plan. The Companys common stock will continue to trade under the symbol VAPO, but will have an added designation of .BC to indicate the status of the common stock as being below compliance.

The NYSE notification does not affect the Companys business operations or its Securities and Exchange Commission reporting requirements, nor does it conflict with or cause an event of default under any of the Companys debt agreements.

About Vapotherm

Vapotherm, Inc. (NYSE: VAPO) is a publicly traded developer and manufacturer of advanced respiratory technology based in Exeter, New Hampshire, USA. The Company develops innovative, comfortable, non-invasive technologies for respiratory support of patients with chronic or acute breathing disorders. Over 3.5 million patients have been treated with the use of Vapotherm high velocity therapy systems. For more information, visit http://www.vapotherm.com.

Vapotherm high velocity therapy is mask-free noninvasive ventilatory support and is a front-line tool for relieving respiratory distressincluding hypercapnia, hypoxemia, and dyspnea. It allows for the fast, safe treatment of undifferentiated respiratory distress with one tool. The Precision Flow systems mask-free interface delivers optimally conditioned breathing gases, making it comfortable for patients and reducing the risks and care complexities associated with mask therapies. While being treated, patients can talk, eat, drink and take oral medication.

Website Information

Vapotherm routinely posts important information for investors on the Investor Relations section of its website, http://investors.vapotherm.com/. Vapotherm intends to use this website as a means of disclosing material, non-public information and for complying with Vapotherms disclosure obligations under Regulation FD. Accordingly, investors should monitor the Investor Relations section of Vapotherms website, in addition to following Vapotherms press releases, Securities and Exchange Commission filings, public conference calls, presentations and webcasts. The information contained on, or that may be accessed through, Vapotherms website is not incorporated by reference into, and is not a part of, this document.

Legal Notice Regarding Forward-Looking Statements

This press release contains forward-looking statements under the Private Securities Litigation Reform Act of 1995 that involve risk and uncertainties, including its intent to regain compliance with the NYSE continued listing standards. In some cases, you can identify forward-looking statements by terms such as expect, plan, anticipate, could, would, intend, believe, estimate, predict, or continue or the negative of these terms or other similar expressions, although not all forward-looking statements contain these words, and the use of future dates. Each forward-looking statement is subject to risks and uncertainties that could cause actual results to differ materially from those expressed or implied in such statement. Applicable risks and uncertainties include, but are not limited to the following: Vapotherms future financial performance and operating results; its need for additional financing; its ability to regain compliance with the NYSE continued listing standards; risks associated with the move of its manufacturing operations to Mexico; its dependence on sales generated from its Precision Flow systems; competition from multi-national corporations who have significantly greater resources than Vapotherm and are more established in the respiratory market; the ability for Precision Flow systems to gain increased market acceptance; Vapotherms inexperience directly marketing and selling its products; the potential loss of one or more suppliers and dependence on its new third party manufacturer; Vapotherms susceptibility to seasonal fluctuations; Vapotherms failure to comply with applicable United States and foreign regulatory requirements; the failure to obtain U.S. Food and Drug Administration or other regulatory authorization to market and sell future products or its inability to secure, maintain or enforce patent or other intellectual property protection for its products; the impact of the COVID-19 pandemic on its business, including its supply chain, and the other risks and uncertainties included under the heading Risk Factors in Vapotherms Annual Report on Form 10-K for the fiscal year ended December 31, 2021, as filed with the Securities and Exchange Commission on February 24, 2022, and Vapotherms most recent Quarterly Report on Form 10-Q for the quarter ended June 30, 2022 as filed with the Securities and Exchange Commission on August 3, 2022, and in any subsequent filings with the Securities and Exchange Commission. The forward-looking statements contained in this press release reflect Vapotherms views as of the date hereof, and Vapotherm does not assume and specifically disclaims any obligation to update any forward-looking statements whether as a result of new information, future events or otherwise, except as required by law.

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Vapotherm Announces Debt Amendment and NYSE Continued Listing Standard Notice - Business Wire

A recent study by the Crime Prevention Research Center underscored how easily public opinion polling can be used to distort, rather than illuminate, peoples true feelings on gun control. Policy-makers should take note.

Sound policy requires a thoughtful and sophisticated understanding of facts and evidence, not just the shifting whims of public perception. Emotionalism, on the other hand, is the way anti-gun extremists would like to run our government. Gun ban advocates constantly point to survey results they help manufacture usually in the wake of some highly-charged incident, before all the facts are known as justification for imposing draconian restrictions on our Second Amendment rights.

There are numerous reasons why over-reliance on opinion polling is a deeply flawed approach to good governance.

First, and foremost, the United States was not founded as a direct democracy, where the electorate votes on virtually every public policy issue. We are, thankfully, a Constitutional Republic. At the federal level, we elect people to represent us, and they deliberate policy issues and vote to implement them or reject them. Should they consider public opinion polls when determining how they vote? Of course they should consider them; but that should never be the beginning and the end of the analysis.

The problem with relying on public opinion polls is that, with complex or controversial issues, how the poll is conducted has a tremendous bearing on both how accurate it is in determining how people feel, and what the results of the poll actually mean.

Recent research out of the Crime Prevention Research Center (CPRC), founded by Dr. John R. Lott, Jr., highlights the problem of relying on simplistic public opinion polls when considering complex policy proposals.

Lott, well known for his detailed, groundbreaking research on firearms and gun control laws, took a look at public opinion on one of the anti-gun movements favorite legislative proposals of the moment: red flag laws. His results illustrate how dramatically opinions can shift when the same issue is presented in different ways.

Using the polling company McLaughlin & Associates, the CPRC surveyed 1,000 general election voters, asking whether they supported red flag laws if, the question explained, their primary purpose is to allow judges to take away a persons gun based on a single complaint when there is concern about that individual committing suicide. The responses indicated 58% support, and 30% opposition.

That explanation of how red flag laws work is, of course, a vast oversimplification, as the laws are far more complex. Anti-gun organizations and the lawmakers who support their goals count on opinion polls avoiding details when it comes to questions about gun control, and would have preferred the survey stopped with just that oversimplification.

But Lott understands all this, and his survey followed up the initial question with the kind of detail the gun-ban movement hates.

The survey went on to ask, Would you be more likely or less likely to support Red Flag Laws if you knew there are no hearings before an individuals guns are taken away and there are no mental health care experts involved in the process? After learning how most red flag laws work, support fell to 30%, and opposition rose to 47%.

In the more detailed breakdown of the results, Lott found that the greatest movement in the views of respondents came in the Strongly Support and Strongly Oppose categories. Strongly Support fell by more than half when more specifics about red flag laws were included; plummeting from 34% with the first question, to 14% with the more detailed second question. Strongly Oppose, meanwhile, climbed from 18% to 29%.

Of course, these kinds of results are not too surprising, and simply add credence to the old saying, The devil is in the details.

This survey also bolsters what Lott found to be true in an earlier poll: When the public doesnt have all the facts, it can lead to support for bad public policy. Even worse than just not having all the facts, many, including the current president, affirmatively promote misinformation that can lead to people believing things that are demonstrably untrue.

In his constant war on the Second Amendment, Joe Biden has been trying to paint a picture about violent crime in America that blames everything on guns and their availability to law-abiding citizens. And, to some extent, that has worked to confuse many Americans.

With Biden constantly disparaging the right to arms as part of his messaging on combating crime, and with most in the legacy media supporting and amplifying his messaging, what Americans think about violent crime is not actually true.

Lott found that the average American likely voter thinks that over 46% of violent crime involve guns. Actual crime statistics show it is less than 8%.

Even with this wildly inaccurate view of the frequency with which firearms are involved in violent crime, Lotts research indicates Americans are not exactly clamoring for more gun laws, in spite of what anti-gun extremists would have you believe. His survey shows that only 21% of the respondents feel that more gun laws will do more to help fight crime and keep people safe. The majority, at 52%, felt that the best solution would be to focus on arrests, while another 22% felt the best approach was to enforce current laws.

In other words, even without an accurate understanding of violent crime in America, the vast majority of Americans DO NOT support gun control as a response. That is encouraging.

Another factor to consider, which is not addressed in the CPRC research mentioned here, is that, when asked if more gun laws would help, most Americans dont even know what gun laws already exist. Again, most Americans do not believe we need more gun laws, but of those that do, how much do they really know about current laws? How can you justify asking for more when you dont even know what is already there?

Polling, like other analytical and messaging tools, is neither good nor bad in itself. When done with care and without bias, and with the necessary detail for more complex issues, polls can accurately gauge how Americans feel about any number of things. Those results, in turn, can be used by policy makers to help guide their decisions; but the critical qualifiers in that statement are with care and without bias and help. Opinion polls can never capture all the complexity of human understanding and sentiment and should never be used as the only input for determining what laws will govern us.

That said, the most critical poll for the future of the Second Amendment is fast approaching: The 2022 Midterm Elections. Some states have already begun Early Voting, and November 8, Election Day, will be here before you know it. NRA has a number of online resources available to better ensure the pro-Second Amendment community is ready to work to elect a pro-gun majority in Congress that will derail the Biden Administrations anti-gun agenda, and strip power from anti-gun extremists like Senator Chuck Schumer (D-N.Y.) and Speaker Nancy Pelosi (D-Calif.).

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Manipulated Public Opinion Polling Should Not Drive Public Policy on Guns - NRA ILA